Himmat Bunkar vs State Of Rajasthan
2022 Latest Caselaw 2991 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Misc(Pet.) No. 431/2022

Himmat Bunkar S/o Sh. Kacharu Lal Bunkar, Aged About 39

Years, Jethana, Teh. Sagwara, Dist. Dungarpur (Raj.).

----Petitioner Versus

1. State of Rajasthan, Through PP

2. Smt. Hani Parihar W/o Surendra Rathore, before Shiv

Mandir, Luniapura, Abu Road, Dist. Sirohi (Raj.).

----Respondents

For Petitioner(s) : Mr. Vikram Singh Rajpurohit (through VC)

For Respondent(s) : Mr. Mahipal Bishnoi, PP

Mr. Jitendra Singh Rathore for complainant-respondent No.2 (through VC)

HON'BLE MR. JUSTICE VIJAY BISHNOI

Judgment / Order

24/02/2022

This criminal misc. petition under Section 482 CrPC has

been preferred on behalf of the petitioner seeking quashing of

FIR No.496/2021 lodged at District ACB, Banswara, Police

(2 of 9) [CRLMP-431/2022]

Station, CPS, ACB Jaipur for the offence under Section 7 of

the Prevention of Corruption (Amended) Act 2018 (for short

'the PC Act').

Brief facts of the case are that the petitioner was posted

as SHO of Police Station Arthuna, Distt. Banswara. The

respondent No.2 has filed a complaint on 9.12.2021 before

the Addl. S.P., Anti Corruption Bureau, Unit Banswara stating

therein that she is the resident of Luniapura, Abu Road, Distt.

Sirohi. The complainant, in her complaint, has stated that she

got married to Surendra Rathore on 16.11.2021 and on the

day of reception i.e next day of the wedding, at 7.00 am on

17.11.2021, Arthuna Police allegedly arrested her husband

and her father-in-law in a false case No.22/2020 registered at

Police Station, Arthuna and took them there. It is further

alleged by the complainant that her brother-in-law (sister's

husband) and uncle came to Arthuna, where the ASI Balwant

Singh took bribe of rupees one lakh from them and SHO

Himmat Bunkar (present petitioner) demanded gratification of

rupees ten lakh for releasing her husband and father-in-law.

It is further alleged that along with complainant's husband

and father-in-law, her brother-in-law (husband's elder

brother) namely Siddharth was also named as an accused.

It is further alleged by the complainant that her uncle

and brother-in-law (sister's husband) gave rupees two lakh

seventy thousand in cash to Himmat Bunkar (present

petitioner). It is also alleged that by the complainant that her

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husband and father-in-law were unlawfully detained without

any arrest for three days and after taking two lakh seventy

thousand rupees, her father-in-law was released and her

husband's arrest was shown.

It is further alleged that on the next day, complainant's

brother-in-law (sister's husband) namely Anil gave rupees

two lakh thirty thousand in cash to Himmat Bunkar (present

petitioner) and thereafter her husband was produced in the

court concerned from where he was taken on remand for two

days. It is further stated that on 23.11.2021, complainant

reached Aruthuna police station and saw that her husband

was being tortured by the police in the lock-up. Then,

Himmat Bunkar, SHO (present petitioner) asked the

complainant to come to his office and demanded an amount

of rupees ten lakh in consideration for her husband's release.

When the complainant told that she did not have that much

of amount, then Himmat Bunker (present petitioner)

demanded her marriage jewelery and on denial of the same

by the complainant, he demanded any other property she

had, in order to release her husband.

The complainant has further alleged that the present

petitioner tortured her husband; took him on remand for

eleven days and pressurized them for giving bribe. It is

further stated that on 29.11.2021, the complainant went to

Arthuna police station, where again, Himmat Bunkar (present

petitioner) demanded bribe of rupees 10 lakh, on which, the

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complainant told that she would give it after making

arrangements. It is further alleged by the complainant that

the present petitioner demanded bribe amount by making

calls through his official mobile number as well i.e

9549845392 on complainant's mobile numbers i.e

7383881491 and 93133380915. It is also stated by the

complainant that she recorded the calls made by petitioner

Himmat Bunkar, in her mobile phone, in which, he had

demanded the bribe and she has also made a CD of the

conversations between her and the present petitioner and

thereafter forwarded the complaint via mail along with audio

of the conversation demanding bribe by the petitioner from

the complainant to the D.G, ACB, Jaipur.

Thereafter, the complainant-respondent No.2 appeared

before the concerned police officer and stated that Himmat

Bunkar (present petitioner) had falsely implicated her

husband in a concocted case and threatened her that if she

does not pay the bribe money, then he will not let her

husband out on bail and also implicate him in other cases as

well. The complainant has also stated that she does not want

to give bribe to the petitioner and wants the authorities to

catch him red-handed while taking bribe. The complainant

has further stated that she does not have any enmity or

arrears with the present petitioner. It is further stated by the

complainant that her husband had become a surety for the

amount to be paid by her husband's friend Sunai Shah to one

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Jayant Panchal. When Sunai Shah denied to pay the money

then Jayant Panchal made a false case against complainant's

husband, father-in-law and brother-in-law after giving bribe

to Himmat Bunkar, the present petitioner.

On receiving the complaint, the ACB laid trap for

catching the petitioner red-handed but failed because the

petitioner allegedly got information of the trap. The allegation

of demanding illegal gratification is supported by the call

recordings of the conversation between complainant and the

present petitioner.

Pursuant to the above, a Zero FIR was lodged against

the petitioner for acceptance of illegal gratification under

Section 7 of the PC Act and the same has been forwarded to

the DG, ACB, Jaipur. Thereafter, the FIR No.496/2021 was

registered against the petitioner for the alleged offence and

the investigation commenced.

Assailing the impugned FIR, learned counsel for the

petitioner has argued that the action of the ACB in registering

the impugned FIR against the petitioner is absolutely illegal

as before registering the same, the ACB has not obtained

prior approval as provided under Section 17A of the PC Act.

It is also submitted that even from a bare reading of the

impugned FIR, no case for commission of offence under

Section 7 of the PC Act is made out against the petitioner.

No other argument is advanced by learned counsel for

the petitioner.

(6 of 9) [CRLMP-431/2022]

On the strength of above arguments, learned counsel for

the petitioner has submitted that the impugned FIR may be

quashed.

Heard learned counsel for the parties and perused the

material available on record.

So far as the argument of learned counsel for the

petitioner to the effect that before registering the impugned

FIR, the ACB has not obtained prior approval as per Section

17A of the PC Act is concerned, I am of the opinion that the

said argument is bereft of any merit.

Recently, this Court in the case of Rajesh Kumar Vs.

State of Rajasthan & Anr. - S.B. Criminal Misc (Pet.)

No.427/2022, vide judgment dated 18.2.2022, after taking

into consideration judgments of the Kerala High Court as well

as of this Court has held as under :

"To deal with the argument of learned counsel for the petitioner in respect of Section 17A of the PC Act, it would be appropriate to quote the same, which reads as under :

Section 17A of the PC Act reads as under :

"17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.- No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval-

(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;

(7 of 9) [CRLMP-431/2022]

(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month."

(Emphasis Supplied)

To my understanding, as per Section 17A of the PC Act, previous approval is required in relation to enquiry or inquiry or investigation into an offence alleged to have been committed by a public servant under this Act "Where the alleged offence is relatable to any recommendation made or decision taken by public servant in discharge of his official functions and duties" but no previous approval is required in relation to an offence alleged to have been committed by a public servant not relatable to any recommendation made or decision taken by public servant in discharge of his official functions and duties."

In the complaint, the complainant has alleged that her

husband and father-in-law were detained by the petitioner in

a criminal case without showing their arrest and when she

contacted the petitioner, he demanded bribe from her in lieu

of releasing her husband. It is further alleged by the

complainant that when she has shown her inability to pay the

bribe of rupees ten lakh, then, the petitioner suggested her to

(8 of 9) [CRLMP-431/2022]

give her ornaments in bribe, which she denied, then, he again

suggested that any of her property be handed over to him.

Along with the complaint, the complainant has also furnished

recordings of conversation between her and the petitioner on

mobile-phone in support of her allegations that the petitioner

had demanded bribe from her.

Taking into consideration the above facts and

circumstances of the case, I am of the opinion that

demanding bribe from the complainant in lieu of releasing her

husband, who was detained in connection with a criminal

case cannot be termed as offence relatable to any

recommendation made or decision taken by public servant in

discharge of his official functions and duties.

In view of the above, I do not find any merit in the

argument of learned counsel for the petitioner that the

impugned FIR is liable to be quashed only for the reason that

the ACB has not obtained prior approval as per Section 17A of

the PC Act before registering the impugned FIR, the same is

therefore rejected.

The other argument of learned counsel for the petitioner

to the effect that from a bare reading of the impugned FIR,

no case for commission offence under Section 7 of the PC Act

is made out against the petitioner is concerned, I am of the

opinion that the same is also without any basis. I have

carefully gone through the contents of the impugned FIR,

wherein the complainant has specifically alleged that the

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petitioner had demanded bribe for releasing her husband,

who was detained in connection with a criminal case. The

complainant has also produced recordings of mobile-phone

conversations took place between her and the petitioner. The

ACB has scrutinized the said conversations and formed prima

facie opinion that there is demand of bribe on the part of the

petitioner. So far as authenticity of the said conversations is

concerned, it is a matter of investigation and at this stage, no

findings can be given in this respect.

In view of the above discussion, I do not find any merit

in this criminal misc. petition and the same is hereby

dismissed.

Stay petition is also dismissed.

(VIJAY BISHNOI),J

ms rathore

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