Rajasthan High Court - Jodhpur
Rajesh Kumar Meel vs State Of Rajasthan (2024:Rj-Jd:37153) on 9 September, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
[2024:RJ-JD:37153]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 307/2023
Rajesh Kumar Meel S/o Shri Raju Ram, Aged About 46 Years,
R/o Meelon Ka Bas Post Badwasi Tehsil Nawalgarh Dist.
Jhunjhunu Presently Posted As Assistant Commercial Texation
Officer Ward No. 04 Dist. Churu Raj.
----Petitioner
Versus
1. State Of Rajasthan, Through PP
2. Shri Subhash Kumar S/o Shri Man Singh, R/o Jalingpura
Tehsil Malsisar Dist. Jhunjhunu Raj.
----Respondents
For Petitioner(s) : Mr. Naman Mohnot
For Respondent(s) : Mr. Surendra Bishnoi, PP
Mr. S.K. Poonia
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
Reserved on :- 02/09/2024
Pronounced on :- 09/09/2024
1. Petitioner Rajesh Kumar Meel is aggrieved by refusal of
prayer for discharge under Section 227 CrPC by order dated
01.06.2022 passed in Sessions Case No.16/2017. By the
impugned order, the learned trial judge, after rejecting the prayer
of the petitioner, has ordered for framing of charges under Section
7, 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act and under Section 120 B of the IPC.
2. The prosecution case is that on 10.09.2013, respondent No.2
Shubhash Kumar made a complaint to the Anti-Corruption Bureau,
Bikaner that on 30.08.2013, the complainant was carrying diesel
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on a truck. In the midway, the petitioner, an Assistant Commercial
Tax Officer along with his driver and two others, stopped the
vehicle and asked about what is there in the container. The
complainant responded that he was carrying diesel. The petitioner
asked for bill of purchase of the diesel which was not with the
complainant. Then, the petitioner threatened him that since the
complainant was engaged in illegal business he will seize his
vehicle. On request of the complainant the petitioner let the
vehicle go as the complainant had agreed to pay Rs.80,000/- as
bribe within a day or two. On 02.09.2013, as directed by the
petitioner, the complainant paid Rs.50,000/- to Yogendra Rathi at
Rajgarh. The petitioner had asked the complaint that if he wants
to continue in the illegal trade of diesel, he would be required to
pay Rs.30,000/- per month. Then the complainant on 10.09.2013
made a complaint to ACB, Bikaner and the Authorities of ACB
organized a trap and trapped Yogendra Rathi along with Rs.30,000
which was put in an envelope thereat by the complainant.
Yogendra Rathi stated that the complainant had given him money
for giving it to the petitioner and on previous occasions also
complainant/Shubhash had handed over Rs.50,000/-. The
complainant had informed to Mr. Rathi that the money was for the
vehicle. After investigation of FIR No.412/2013, registered with
ACB, Jaipur, the police submitted charge-sheet against both the
accused persons including the petitioner. Accordingly, the
aforesaid session trial was registered before the Special Judge.
3. The petitioner challenged the first order of charge dated
18.01.2018 in S.B. Criminal Revision No.244/2018, which was
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heard by a Bench of this Court on 10.08.2021 and the matter was
remitted back to the trial judge for passing fresh order with regard
to the charge in relation to the present petitioner after an
opportunity of hearing.
In Criminal Revision No.244/2018, the Bench has observed
as follows:-
"However, even at the stage of framing of
charge, the sufficiency of materials for the purpose of
conviction is not the requirement and a prayer for
discharge can be allowed only if the Court finds that
the materials are wholly insufficient for the purpose of
trial. It is also a settled proposition of law that even
when there are materials raising strong suspicion
against an accused, the Court will be justified in
rejecting the prayer for discharge and in granting
opportunity to the prosecution to bring on record the
entire evidence in accordance with law so that case of
both the sides may be considered appropriately on
conclusion of trial."
4. Thereafter, after hearing the parties, the impugned order was
passed. While issuing notice to the respondent, a Bench of this
Court stayed the trial proceeding against the petitioner by order
dated 12.04.2023.
5. Learned counsel for the petitioner submits that ingredients of
none of the offences where under charges have been framed, are
made out on bare perusal of the prosecution case and material
collected during investigation.
Learned counsel contends that it is not disputed that the
petitioner was posted as Commercial Tax Officer and it was not
official business of the petitioner to check the vehicles which were
found violating the requirements of the Essential Commodities Act.
Only the authorities of supply department and the local police are
[2024:RJ-JD:37153] (4 of 14) [CRLR-307/2023]
competent to make search and seizure for such violation. As such
no work of the complainant was pending before the petitioner in
his official capacity on the date of complaint or on the date of trap.
Learned counsel next contends that to attract the offence
under Section 7 of PC Act, demand etc. must be relatable to
dishonest or improper performance or forbearance of public duty
by the petitioner himself or with the assistance of any other public
servant. It is not the prosecution case that work of the
complainant was pending before the petitioner in any capacity for
which money was demanded.
Learned counsel for the petitioner contends that if a public
servant is alleged to have committed any other offence, charge
cannot be framed under the provisions of PC Act.
6. Learned counsel for the respondent - State fairly concedes
that on the date of complaint or trap, no work of the complainant
was pending before the petitioner in his official capacity.
7. Section 7 of the Prevention of Corruption Act as prevailing on
the date of incident and prior to amendment w.e.f. 26.07.2018
reads as follows:-
"7. Offence relating to public servant being
bribed.-- Any public servant who,-
(a) obtains or accepts or attempts to obtain from any
person, an undue advantage, with the intention to
perform or cause performance of public duty improperly
or dishonestly or to forbear or cause forbearance to
perform such duty either by himself or by another public
servant; or
(b) obtains or accepts or attempts to obtain, an ude
advantage from any person as a reward for the improper
or dishonest performance of a public duty or for
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forbearing to perform such duty either by himself or
another public servant; or
(c) performs or induces another public servant to perform
improperly or dishonestly a public duty or to forbear
performance of such duty in anticipation of or in
consequence of accepting an undue advantage from any
person,
shall be punishable, with imprisonment for a term which
shall not be less than three years but which may extend
to seven years and shall also be liable to fine.
Explanation 1. - For the purpose of this section, the
obtaining, accepting, or the attempting to obtain an
undue advantage shall itself constitute an offence even if
the performance of a public duty by public servant, is not
or has not been improper.
Illustration.- A public servant, 'S' asks a person, 'P' to
give him an amount of five thousand rupees to process
his routine ration car application on time. 'S' is guilty of
an offence under this section.
Explanation 2.- For the purpose of this section,-
(i) the expressions "obtains" or "accepts" or "attempts to
obtain" shall cover cases where a person being a public
servant, obtains or "accepts" or attempts to obtain, any
undue advantage for himself or for another person, by
abusing his position as a public servant or by using his
personal influence over another public servant; or by any
other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a
public servant obtains or accepts, or attempts to obtain
the undue advantage directly or through a third party.]
8. Section 13 of the Prevention of Corruption Act as prevailing
on the date of offence reads as follows:-
13. Criminal misconduct by a public servant.--
(1) A public servant is said to commit the offence of
criminal misconduct,--
(a) if he habitually accepts or obtains or agrees to
accept or attempts to obtain from any person for
himself or for any other person any gratification other
than legal remuneration as a motive or reward such
as is mentioned in section 7; or
[2024:RJ-JD:37153] (6 of 14) [CRLR-307/2023]
(b) if he habitually accepts or obtains or agrees to
accept or attempts to obtain for himself or for any
other person, any valuable thing without
consideration or for a consideration which he knows
to be inadequate from any person whom he knows to
have been, or to be, or to be likely to be concerned in
any proceeding or business transacted or about to be
transacted by him, or having any connection with the
official functions of himself or of any public servant to
whom he is subordinate, or from any person whom
he knows to be interested in or related to the person
so concerned; or
(c) if he dishonestly or fraudulently misappropriates
or otherwise converts for his own use any property
entrusted to him or under his control as a public
servant or allows any other person so to do; or
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or
for any other person any valuable thing or pecuniary
advantage; or
(ii) by abusing his position as a public servant,
obtains for himself or for any other person any
valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains
for any person any valuable thing or pecuniary
advantage without any public interest; or
(e) if he or any person on his behalf, is in possession
or has, at any time during the period of his office,
been in possession for which the public servant
cannot satisfactorily account, of pecuniary resources
or property disproportionate to his known sources of
income.
(2) Any public servant who commits criminal
misconduct shall be punishable with imprisonment for
a term which shall be not less than 3[four years] but
which may extend to 4[ten years] and shall also be
liable to fine."
9. In Soundarajan Vs. State represented by the Inspector of
Police, Vigilance, Anti-Corruption, Dindigul reported in AIR 2023
SC 2136 the Hon'ble Supreme Court was considering an appeal
[2024:RJ-JD:37153] (7 of 14) [CRLR-307/2023]
against conviction. In para-11, it was stated that to attract Section
7 of the Prevention of Corruption Act, there has to be a demand
for gratification. It is not a simple demand for money, but it has to
be a demand for gratification.
10. In A. Subair Vs. State of Kerala reported in (2009) 6
SCC 507, the Hon'ble Supreme Court held that in order to secure
order of conviction of offence punishable under Section 7, 13(1)
(d)/13(2) of the Prevention of Corruption, the prosecution has to
establish following ingredients:-
"1. Demand and acceptance of bribe money.
2. Handling of tainted money by the accused on the
day of trap (colour test).
3. Work of complainant must be pending as on the date
of trap with the accused."
11. In Chandresha Vs. State of Karnataka Lokayukt Police
Kalburgi vide Criminal Appeal No.200105/2015 decided on
16.02.2022, the Hon'ble Karnataka Court held that when work of
the complainant was not pending before accused as on the date of
trap, the important ingredient to attract and complete the offence
punishable under Section 7, 13(1)(d) read with Section 13(2) of
the Prevention of Corruption Act cannot be sustained. Thus, it is
evident that to attract the mischief under Section 7 and 13(1)(d)/
13(2) of PC Act, the Act of demand etc. must be relatable to the
discharge of public duty by the public servant. If the public
servant was not assigned with the public duty, the offences under
the Act would not be attracted.
12. In Bharatlal Saini VS. State of Rajasthan & Ors. in
Criminal Misc. No.8406/2022 decided on 04.08.2023, this
[2024:RJ-JD:37153] (8 of 14) [CRLR-307/2023]
Court considered similar situation, wherein public servant
(accused) was not assigned with the task for which he allegedly
demanded money. This court held that offence under the aforesaid
sections of the PC Act would not attract.
13. From the record, it is evident that no work of the
complainant was pending with the petitioner on the date of
making complaint or effecting trap against another accused,
hence, prima facie offence under Section 7, 13(1)(d)/13(2) of the
Prevention of Corruption Act are not attracted.
14. There is no evidence that the money paid by the complainant
to co-accused was money of gratification. Co-accused has stated
that the same was paid by the complainant saying that it is the
money of the truck deal. There is no evidence that any amount
said to be paid by the complainant was accepted or obtained by
the complainant.
15. In Neeraj Dutta Vs. State (Govt. of NCT, Delhi), the
constitution Bench while answering the reference said that the
demand and acceptance can be proved by direct evidence as well
as by circumstantial evidence. In the case on hand, acceptance is
not alleged by any direct evidence. There is no link of
circumstantial evidence. Though, statement of co-accused before
the police while in police custody has no evidentiary value,
assuming the correctness of the statement of co-accused
Yogendra Rathi what emerges is that Yogendra Rathi had paid
Rs.50,000/- to 'someone' for giving it to the petitioner. That
'someone' is not known after completion of investigation. Hence,
[2024:RJ-JD:37153] (9 of 14) [CRLR-307/2023]
the link that the money was received by the petitioner is miserably
missing.
16. The prosecution is bound to disclose a case of demand and
acceptance. In absence of evidence of acceptance, the charge
under Section 13(1)(d)/13(2) cannot be framed.
17. There is complete lack of allegation or material on record to
substantiate that the petitioner and co-accused Rathi had agreed
beforehand what is alleged. Neither the complainant has stated so
nor the statement of Mr. Rathi or any other evidence goes to
suggest that there was prior meeting of mind by the two accused
persons to attract the offence of criminal conspiracy. Therefore, no
charge under Section 120 B is apparently made out.
18. The provisions of Section 120 A and 120 B of the Indian
Penal Code are being reproduced below:-
"120 A. Definition of criminal conspiracy.--
When two or more persons agree to do, or cause to be
done,--
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to
commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is
done by one or more parties to such agreement in
pursuance thereof.
Explanation. - It is immaterial whether the illegal act is
the ultimate object of such agreement, or is merely
incidental to that object.
120 B. Punishment of criminal conspiracy.--
(1) whoever is a party to a criminal conspiracy to
commit an offence punishable with death, 1
[imprisonment for life] or rigorous imprisonment for a
term of two years or upwards, shall, where no express
provision is made in this Code for the punishment of
[2024:RJ-JD:37153] (10 of 14) [CRLR-307/2023]
such a conspiracy, be punished in the same manner as
if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other
than a criminal conspiracy to commit an offence
punishable as aforesaid shall be punished with
imprisonment of either description for a term not
exceeds six months, or with fine or with both."
19. In State of Kerala Vs. P. Sugathan & Ors. reported in
(2000) 8 SCC 203, in para - 12 of the judgment, the Hon'ble
Supreme Court stated the law as follows to allege and establish a
case of criminal conspiracy:-
"12. We are aware of the fact that direct independent
evidence of criminal conspiracy is generally not
available and its existence is a matter of inference.
The inferences are normally deduced from acts of
parties in pursuance of purpose in common between
the conspirators. This Court in V.C. Shukla v. State
held that to prove criminal conspiracy there must be
evidence direct or circumstantial to show that there
was an agreement between two or more persons to
commit an offence. There must be a meeting of minds
resulting in ultimate decision taken by the conspirators
regarding the commission of an offence and where the
factum of conspiracy is sought to be inferred from
circumstances, the prosecution has to show that the
circumstances giving rise to a conclusive or irresistible
inference of an agreement between the two or more
persons to commit an offence. As in all other criminal
offences, the prosecution has to discharge its onus of
proving the case against the accused beyond
reasonable doubt. The circumstances in a case, when
taken together on their face value, should indicate the
meeting of the minds between the conspirators for the
intended object of committing an illegal act or an act
which is not illegal, by illegal means. A few bits here
and a few bits there on which the prosecution relies
cannot be held to be adequate for connecting the
accused with the commission of the crime of criminal
conspiracy. It has to be shown that all means adopted
and illegal acts done were in furtherance of the object
of conspiracy hatched. The circumstances relied for the
purposes of drawing an inference should be prior in
[2024:RJ-JD:37153] (11 of 14) [CRLR-307/2023]
time than the actual commission of the offence in
furtherance of the alleged conspiracy. 13. In Kehar
Singh v. State, it was noticed that Section 120 A and
Section 120 B IPC have brought the Law of Conspiracy
in India in line with English Law bymaking an overt act
inessential when the conspiracy is to commit any
punishable offence. The most important ingredient of
the offence being the agreement between two or more
persons to do an illegal act. In case where criminal
conspiracy is alleged, the court must enquire whether
the two persons are independently pursuing the same
end or they have come together to pursue the unlawful
object. The former does not render them conspirators
but the latter does. For the offence of conspiracy some
kind of physical manifestation of agreement is required
to be established. The express agreement need not to
be proved. The evidence as to the transmission of
thoughts sharing the unlawful act is not sufficient. A
conspiracy is a continuing offence which continues to
subsist till it is executed or rescinded or frustrated by
choice of necessity. During its subsistence whether any
one of the conspirators does an act or series of acts,
he would be held guilty under Section 120B of the
Indian Penal Code."
20. Prior to that in Kehar Singh & Ors. Vs. State (Delhi
Administration) reported in AIR 1988 SC 1883, it was said:-
"The gist of the offence of conspiracy then lies, not in
doing the act, or effecting the purpose for which the
conspiracy is formed, nor in attempting to do them, nor
in inciting others to do them, but in the forming of the
scheme or agreement between the parties. Agreement
is essential. Mere knowledge, or even discussion, of the
plan is not, per se, enough."
21. Again in Yogesh Vs. State of Maharashtra reported in
AIR 2008 SC 2991, wherein Hon'ble the Supreme Court
summarized the core principles of law of conspiracy in the
following words:-
"23. Thus, it is manifest that the meeting of minds of
two or more persons for doing an illegal act or an act by
illegal means is sine qua non of the criminal conspiracy
[2024:RJ-JD:37153] (12 of 14) [CRLR-307/2023]
but it may not be possible to prove the agreement
between them by direct proof. Nevertheless, existence
of the conspiracy and its objective can be inferred from
the surrounding circumstances and the conduct of the
accused. But the incriminating circumstances must form
a chain of events from which a conclusion about the
guilt of the accused could be drawn. It is well settled
that an offence of conspiracy is a substantive offence
and renders the mere agreement to commit an offence
punishable even if an offence does not take place
pursuant to the illegal agreement."
22. It is trite law that at the stage of charge, the Court has to
see whether prima facie offences are made out whereunder
charges are to be framed. To examine this, only prosecution
material collected during investigation is to be looked into and not
any material placed by the defense. If the prosecution material
raises strong suspicion, the Court may go with the charge. The
Court must examine that the materials placed before the Court
were wholly sufficient to go with the trial. A roving enquiry is not
required at this stage. The court is only to see what is placed
before it, as it is.
23. As has been noticed above, no official duty was pending with
the petitioner of the complainant at any point of time, especially
on the date of making complaint or putting trap against the co-
accused. Likewise, there is complete lack of evidence that the
petitioner had accepted/obtained any amount said to be the
money of gratification. There is no prosecution case that the
petitioner and co-accused were hand in glove, since prior to the
alleged incident. No other evidence has come that the co-accused
had knowledge of what the complainant was giving to him was
bribe money.
[2024:RJ-JD:37153] (13 of 14) [CRLR-307/2023]
24. In view of lack of complete evidence to attract the
ingredients of offence whereunder charges have been framed
against the petitioner, the impugned order of charge is fit to be set
aside.
25. Learned counsel for the petitioner has raised issue of
territorial jurisdiction and biasness on the part of the complainant.
Learned counsel submits that the complainant is a distant relation
(brother-in-law) of the petitioner. There was some personal grudge
for non refund of borrowed money and that is why the case was
planted. The incident took place in the district of Churu, where
office of ACB was there, but the complainant without any
reasonable excuse chose to file the complaint with ACB, Bikaner.
There is reference of this fact in the charge-sheet without any
explanation. Learned counsel for the petitioner submits that soon
after his arrest, the petitioner stated to the police that the
complainant is known to him and he was a witness in some
document of the complainant.
26. Learned counsel for the complainant submits that now the
differences between the complainant and the petitioner have been
settled, hence, the complainant does not want to prosecute the
petitioner.
27. Though the aforesaid cannot be a ground to interfere with
the order of charge, however, the court can take notice, in view of
the assertion of the complainant, that the sole evidence of
demand is the complainant, who is not going to prove the case of
demand. Hence, fate of the trial is known.
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28. Since ingredients of the offences for which charges have
been framed are not prima facie attracted on the basis of available
prosecution material in the nature of charge-sheet and since the
trial judge is required by Section 227 and 228 to apply its mind on
the material on the record which it has failed to do, the impugned
order suffers from impropriety, as such the same is set aside qua
the petitioner and the petitioner is discharged of the allegation
and the case.
29. Accordingly, this criminal revision stands allowed.
(BIRENDRA KUMAR),J
151-nitin/-
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