Rajasthan High Court
Central Bureau Of Investigatio vs Dinesh Kumar Bangad And Ans on 19 February, 2024
Author: Praveer Bhatnagar
Bench: Praveer Bhatnagar
[2024:RJ-JP:7756]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Revision Petition No. 817/2003
Central Bureau of Investigation, through the Superintendent of
Police, SPE/CBI, Jaipur (Rajasthan).
----Petitioner
Versus
1. Dinesh Kumar Bangad S/o Shri Purushottam Dass Bangad,
R/o 112, Moji Colony, Malaviya Nagar, Jaipur (Rajasthan)
2. Smt. Santosh Bangad W/o Shri Dinesh Kumar Bangad, R/o
112, Moji Colony, Malaviya Nagar, Jaipur (Rajasthan).
----Respondents
For Petitioner(s) : Mr. Shyam Singh Yadav, Spl. PP
For Respondent(s) : Ms. Disha Bangard
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
19/02/2024
1. The Central Bureau of Investigation has assailed the order
dated 24.03.2003 passed by Special Judge, CBI Cases, Jaipur in
Criminal Case No.28/2002 whereby respondents Dinesh Kumar
Bangard and Smt. Santosh Bangard were discharged from the
offences punishable under Sections 13(2) read with Section 13(1)
(e) of the Prevention of Corruption Act and Sections 168, 201 and
109/120B IPC.
2. Learned Special Public Prosecutor argued that on the basis of
FIR the case was instituted against the respondents for amassing
disproportionate assets worth Rs.18,88,039/-. He further argued
that after thorough investigation agency concluded that during the
check period from 29.05.1990 till 22.01.1999 respondent No.1
Dinesh Kumar Bangard worked as Assistant Commissioner, Foreign
Post Office, G.P.O., Jaipur, Audit Air Cargo Customs, Sanganer,
(Downloaded on 19/02/2024 at 09:10:17 PM)
[2024:RJ-JP:7756] (2 of 8) [CRLR-817/2003]
Jaipur, Inland Container Depot Customs, Sanganer, Jaipur and
Customs Commissioner, Bombay and misused his post and
amassed disproportionate assets worth Rs.18,88,039/-. The
learned trial court vide impugned order dated 24.03.2003
admitted the statement given by accused-respondent No.1 on the
basis of chart. He further argued that the chart considered by the
court does not find any mentioning neither in the court's order-
sheets nor in the charge-sheet submitted in the court, therefore,
the learned trial court has committed grave error in discharging
the respondent No.1 from the offences punishable under Sections
13(2) read with Section 13(1)(e) of the Prevention of Corruption
Act and Sections 168, 201 and 109/120B IPC. Similarly accused-
respondent No.2 Smt. Santosh Bangard who is wife of accused-
respondent No.1 Dinesh Kumar Bangard has also been discharged
under Section 109 /120B IPC. He further argued that accused-
respondent No.2 Smt. Santosh Bangard was prosecuted as an
abattor and therefore, no sanction for prosecution was required.
Learned Special Public Prosecutor put his reliance upon the
judgment passed in P. Nallammal Vs. State Rep. by Inspector
of Police: 1999 CrLJ 3967, decided on 09.08.1999.
3. On the other hand, learned counsel appearing on behalf of
the accused-respondents justified the discharge order passed by
the learned trial court.
4. Heard and perused the impugned order as well as the entire
material available on record.
5. In the matter of State of Gujarat Vs. Dilipsinh Kishorsinh
Rao in Criminal Appeal No2504/2023, Hon'ble the Apex Court
after referring various judgments held that at the stage of framing
(Downloaded on 19/02/2024 at 09:10:17 PM)
[2024:RJ-JP:7756] (3 of 8) [CRLR-817/2003]
of charge mini trial cannot be held. In that matter at the stage of
framing of charge accused submitted the explanation and learned
trial court refused to take the explanation of the accused and
directed to frame the charges against the accused. The matter
was traveled upto High Court and respondent challenged the order
of framing of charges. The High Court allowed the Revision
Application by perusing the material on record placed by the
respondent-accused and arrived at a conclusion that trial court
had committed an error in dismissing the application and
accepting the plea of the respondent which was virtually by way of
defence and discharged the respondent.
In the matter of State of Tamil Nadu Vs. N. Suresh Rajan
and Others (2014) 11 SCC 709, Hon'ble the Apex Court held as
under: -
"29. We have bestowed our consideration to the rival
submissions and the submissions made by Mr. Ranjit Kumar
commend us. True it is that at the time of consideration of
the applications for discharge, the court cannot act as a
mouthpiece of the prosecution or act as a post office and
may sift evidence in order to find out whether or not the
allegations made are groundless so as to pass an order of
discharge. It is trite that at the stage of consideration of an
application for discharge, the court has to proceed with an
assumption that the materials brought on record by the
prosecution are true and evaluate the said materials and
documents with a view to find out whether the facts
emerging therefrom taken at their face value disclose the
existence of all the ingredients constituting the alleged
offence. At this stage, probative value of the materials has
to be gone into and the court is not expected to go deep
into the matter and hold that the materials would not
warrant a conviction. In our opinion, what needs to be
considered is whether there is a ground for presuming that
the offence has been committed and not whether a ground
for convicting the accused has been made out. To put it
differently, if the court thinks that the accused might have
committed the offence on the basis of the materials on
record on its probative value, it can frame the charge;
(Downloaded on 19/02/2024 at 09:10:17 PM)
[2024:RJ-JP:7756] (4 of 8) [CRLR-817/2003]
though for conviction, the court has to come to the
conclusion that the accused has committed the offence. The
law does not permit a mini trial at this stage."
Hon'ble the Apex Court in the matter of State of Gujarat
(supra) at Para 11 categorically held that the defence of the
accused is not to be looked into at the stage when the accused
seeks to be discharged. Hon'ble the Apex Court also opined that
Section 227 Cr.P.C does not give any right to the accused to
produce any document at the stage of framing of charge. The
submission of the accused is to be confined to the material
produced by the investigating agency.
6. In the backdrop of the above, court is to see, whether vide
impugned order dated 24.03.2003, the learned trial court has
traveled beyond the material available on record and considered
the defence of the respondent No.1 while passing the discharge
order under Sections 13(2) read with Section 13(1)(e) of the
Prevention of Corruption Act. The learned trial court in the
impugned order has relied upon the statement 'D' and after taking
into consideration, has discharged the accused-respondent No.1.
In the order itself it is stated that the statement produced by the
accused is related to the charge-sheet submitted by the
prosecution and prosecution also relied upon statement 'D'. At
page 5 of the judgment, the court has concluded as under: -
^^vkjksi i= ds lkFk ds mDr fooj.kksa esa lEifr] vk;] [kpZ dk fooj.k fn;k x;k gS
ftlds vuqlkj eqyfteku dh psd ihfj;M ds nkSjku 1888039-50 dh vk; ls vf/kd
lEifr ftldk larks"ktud ys[kk tks[kk ugha gksuk crk;k x;k gS%&
psd ihfj;M ds 'kq: dh lEifr fooj.k ^,^ - 582769
psd ihfj;M ds njfe;ku dk vk; fooj.k ^lh^ 2357589
-----------------------------------
;ksx 2940358
psd ihfj;M d njfe;ku dk [kpZ dk fooj.k ^Mh^ 647755
------------------------------------
'ks"k 2292603
tcfd psd ihfj;M ds vkf[kj esa lEifr dk fooj.k ^ch^ 4180642-5
[2024:RJ-JP:7756] (5 of 8) [CRLR-817/2003]
tcfd eqyfteku dh vksj ls vfHk;kstu i{k dh vksj ls vkjksi i= ds lkFk is'k nLrkost
ds vk/kkj ij mijksDr fooj.k rS;kj dj is'k fd;k x;k ftlds vuqlkj psd ihfj;M ds
'kq: dh lEifr 1152101-32 crkbZ xbZ gS ,oa psd ihfj;M ds njfe;ku dh vk;
4189907-70 crkbZ xbZ gS tks feykdj 5342008-02 curh gS blesa [kpkZ 647755 de vkus
;k 'ks"k 4694254-02 jguk crk;k x;k tks psd ihfj;M ds vkf[kj esa vfHk;kstu i{k dh
vksj crkbZ xbZ lEifr 4180642-50 ls vf/kd ds jgus dk dFku djrs gqos- dksbZ ekeyk
vk; ls vf/kd dh lEifr dk ugha cuus dk dFku fd;k tk jgk gSA^^
7. In the charge-sheet submitted before the concerned court
following submissions were annexed: -
"Statement A = 5,82,769.00
Statement B = 41,80,642.50
Statement C = 23,57,589.00
Statement D = 6,47,755.00
Calculation of Disproportionate Assets of Sh. D.K. Bangard.
Disproportionate Assets = (B-A)+D-C=D.A
= Rs.(41,80,642.50-5,82,769.00)+6,47,755- 23,57,589.00
= Rs.18,88,039.50.
Percentage DA = 80.08% rounded off to 80%"
After computing the relevant statement it was categorically
submitted in the charge-sheet that accused-respondent No.1
amassed disproportionate income in the tune of Rs.18,88,039/-.
The statement referred in the impugned judgment is not part of
charge-sheet. The order-sheets written by the court also do not
find the reference of the statement alleged to be produced by the
prosecution rather from the perusal of the statement it seems that
accused-respondent after filing of the charge-sheet has filed the
statement indicating raising objection against the charge-sheet
filed by the CBI. In the heading of the statement referred by the
trial court it has been specifically mentioned "detailed operative
part showing the objections against charge-sheet filed by the CBI
in the case of Mr. Dinesh Kumar Bangard, Custom Appraiser,
Jaipur".
[2024:RJ-JP:7756] (6 of 8) [CRLR-817/2003]
Learned Special Public Prosecutor seriously questioned the
document referred by the trial court while computing the income
of the respondent No.1.
After perusing the impugned order dated 24.03.2023, it is
evident that the learned trial court has taken the defence version
put forth by the accused while discharging the accused-
respondent No.1 under Sections 13(2) read with Section 13(1)(e)
of the Prevention of Corruption Act. In view of the settled law, the
defence version cannot be looked into, at the stage of framing of
charge, therefore, the order of discharging accused-respondent
No.1 is perse illegal.
8. As far as discharge order of respondent No.2 is concerned, it
is admitted that prosecution sanction under Section 13(2) read
with Section 13(1)(e) of the Prevention of Corruption Act was
applied for prosecuting accused-respondent No.2 and the
prosecution sanction was denied. The learned trial court while
discharging the respondent No.2 relied the judgment of Hon'ble
Apex Court rendered in the matter of N. Brahmeswarao Vs the
Sub-Inspector of Police, Vinukonda and Others: 1978 CrLJ
1005. Admittedly the Central Bureau of Investigation has applied
for prosecution sanction against respondent No.2 for prosecuting
her under Section 13(2) read with Section 13(1)(e) of the
Prevention of Corruption Act but the same was refused. In the
matter of N. Brahmeswarao (supra) it was held as under: -
"The law is well settled that when the facts alleged in a
complaint petition disclose primarily an offence to prosecute
to which a sanction is necessary, it would not be open to the
prosecutor to evade the requirement of sanction by any
camouflage or device so as to prosecute the offender under
some other section of law not requiring a sanction. It is also
well settled that when a person commits several offences in
the course of the same transaction and if the more serious
[2024:RJ-JP:7756] (7 of 8) [CRLR-817/2003]
offence requires a previous sanction or a special complaint it
would not be open to the prosecution to ignore the serious
charge and prosecute the offender for the less serious charge
which do not require a special complaint or previous
sanction."
In the present matter after refusal of the prosecution
sanction under Sections 13(2) read with Section 13(1)(e) of the
Prevention of Corruption Act, the prosecution has submitted the
charge-sheet under Section 120B/109 IPC against respondent
No.2. It is also relevant to state that respondent No.2 at the
relevant time was also a public servant, therefore, after refusal of
the prosecution sanction she cannot be prosecuted under Section
120B/109 IPC separately without obtaining the prosecution
sanction under Section 197 Cr.P.C. The prosecution did not
endeavour to obtain any prosecution sanction under Section 197
Cr.P.C for the offences under Section 120B/109 IPC alleged to be
committed by respondent No.2.
9. In the matter of P. Nallammal (supra) the factual matrix
was entirely different. In that case kith and kin of public servant
were prosecuted under Section 109 IPC alongwith the then Chief
Minister of Tamil Nadu Smt. Jayalalitha under Section 13(1)(e) of
the Prevention of Corruption Act. In that case Hon'ble the Apex
Court held that there is no need for obtaining the prosecution
sanction under Section 109 IPC to prosecute the private person,
therefore, the judgment cited by the learned Special Public
Prosecutor is entirely different from the present matter. The
learned trial court in view of specific refusal to prosecute
respondent No.2 discharged the respondent No.2 under Section
120B/109 IPC.
[2024:RJ-JP:7756] (8 of 8) [CRLR-817/2003]
10. I do not find any illegality in the aforesaid order by which
accused-respondent No.2 Smt. Santosh Bangard was discharged.
11. Upshot to the above, the instant Revision Petition is partly
allowed and discharge order passed against respondent No.1
Dinesh Kumar Bangard vide impugned order dated 24.03.2003 is
set aside and matter is remanded to the concerned trial court with
a direction to rehear the parties accordingly on charge.
12. The Revision Petition against respondent No.2 Smt. Santosh
Bangard is dismissed.
13. The original file/record of the case be remitted back to the
concerned court forthwith.
(PRAVEER BHATNAGAR),J
DHARMENDRA RAKHECHA
Powered by TCPDF (www.tcpdf.org)
