Rajasthan High Court - Jodhpur
Om Prakash vs State on 9 September, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
[2024:RJ-JD:36948]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 509/2018
Anil Kumar S/o Shri Bhoop Ram, aged about 25 years, R/o Ward
No. 12, Gharshana, District Sri Ganganagar.
----Petitioner
Versus
1. State Of Rajasthan Through The Additional
Superintendent Of Police (ACB) Sri Ganganagar (Raj.).
2. Kashi Ram S/o Shri Hari Ram, R/o Village Makkasar, Tehsil
And District Hanumangarh.
----Respondents
Connected With
S.B. Criminal Revision Petition No. 250/2018
Om Prakash S/o Roshan Lal, R/o Shanti Nagar, Gali No. 4, Purani
Aabadi, Sriganganagar. The Then L.D.C., C/o Chief Manager,
Rajasthan State Road Transport Corporation, Sriganganagar.
----Petitioner
Versus
State Of Rajasthan
----Respondent
For Petitioner(s) : Mr. H.S. Sidhu.
For Respondent(s) : Mr. Dhanraj Vaishnav, PP.
Mr. Rakesh Matoria.
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
Judgement Reserved on : 22.08.2024
Judgement Pronounced on : 09.09.2024
1. Both the petitioners above named are accused in Sessions
Case No. 1/2017 arising out of FIR No. 321/2014 registered with
Anti Corruption Bureau, Sriganganagar. The petitioners are
aggrieved by refusal of their prayer, by the learned trial Judge, to
[2024:RJ-JD:36948] (2 of 11)
discharge them by order 9.02.2018 and framing of charges for
offences under Sections 7, 13(1)(d) read with 13(2) of the
Prevention of Corruption Act as well as under Section 120-B of the
Indian Penal Code.
2. Respondent no. 2 Kashi Ram filed a complaint before ACB,
Sriganganagar stating therein that respondent no. 2/complainant
was a driver in Rajasthan State Road Transport Corporation. He
was found guilty in a disciplinary proceeding and punishment was
to be awarded against him by the Chief Manager of the
Department where proceeding was pending. The complainant
appeared before the Chief Manager Sukhram Kadwasara (co-
accused). Petitioner Om Prakash was a Lower Division Clerk
working in the office of General Manager. The complainant met
Om Prakash, who after going through the records of the
departmental proceedings talked to the Chief Manager and
informed to the complainant that if the complainant pays
Rs.22,000/-, lessor punishment would be awarded in the
departmental proceeding otherwise there is chances of dismissal.
3. Since the complainant was not agreeable to bribe the public
servants, he made a complaint on 11.9.2014 to the DSP of ACB
Bikaner. A primary inquiry of such demand was made and on
12.9.2014 trap was arranged. The officials reached the office of
petitioner Om Prakash. The planted money of Rs.22,000/- in
different denomination was presented to Om Prakash in his office
and Om Prakash directed the complainant to pay it to petitioner
Anil Kumar, who was also a lower division clerk newly recruited
and was sitting by the side of the table of Om Prakash. Money was
[2024:RJ-JD:36948] (3 of 11)
received by petitioner Anil and Anil put it in his pocket. The
authorities arrested Anil and Om Prakash at the spot. Petitioner
Anil stated that he had received the money on the instruction of
Om Prakash available there and he is not aware for what purpose
money was given. He further stated that no work of the
complainant was pending with him. During investigation, evidence
of trap witnesses was recorded and on completion of other
formalities, charge sheet was submitted after sanction of the
competent authority.
4. Learned counsel for the petitioners Mr. HS Sidhu submits that
the order of charge has been passed in a mechanical manner
without application of judicial mind on the material available on
record. It is complainant's case, which would be evident from the
charge sheet that first he met Mr. Sukhram, the General Manager
before whom the matter was pending. Mr. Sukhram threatened to
dismiss him. Thereafter, Mr. Sukhram called Om Prakash and
asked the complainant to go out. After some time, Om Prakash
came out and put the demand before the complainant. Therefore,
no work of the complainant was pending before petitioner Om
Prakash or petitioner Anil. Learned counsel for the petitioners has
placed reliance of judgment on the Hon'ble Supreme Court in
Neeraj Dutt Vs. State (Government of NCT, Delhi), decided
on 17.3.2023, after answer of the reference by the Constitution
Bench in the same matter.
5. Learned counsel for the respondent contends that a raving
inquiry is not permissible at this stage nor evidentiary value can
be weighed. Since demand was made by petitioner Om Prakash
[2024:RJ-JD:36948] (4 of 11)
and he accepted the bribe money through petitioner Anil with
intent to assist another public servant before whom work of the
complainant was pending, the order of charge need not be
interfered with.
6. It is settled 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 fact, only prosecution
material collected during investigation is to be looked into and not
the material placed by the defence. If the prosecution material
raises strong suspicion, the Court may not interfere with the
charge. However, if the materials are insufficient to proceed with
the trial, an order of discharge can be recorded without entering
into on inquiry on the pros and cons of the prosecution evidence.
7. The prosecution evidence on the record goes to show that
petitioner Anil Kumar had no knowledge as to for what purpose
the money was paid to him at the request of petitioner Om
Prakash; where Om Prakash was also present. There is no
evidence that petitioner Anil has ever demanded or accepted the
recovered money as gratification nor there is any evidence that
Anil was anyhow related to the pending file of the complainant
with the Chief Manager. In Neeraj Dutt's case (supra), the Hon'ble
Supreme Court stated as follows:-
"26. It is equally well settled that mere recovery by itself
cannot prove the charge of the prosecution against the
Accused. Reference can be made to the judgments of
this Court in C.M. Girish Babu Vs. CBI [C.M. Girish Babu
v. CBI MANU/SC/0274/2009 : (2009) 3 SCC 779: (2009)
2 SCC (Cri.) 1] and in B. Jayaraj v. State of A.P. [B.
Jayaraj v. State of A.P., MANU/SC/0245/2014 : (2014) 13
[2024:RJ-JD:36948] (5 of 11)
SCC 55: (2014) 5 SCC (Cri.) 543] In the aforesaid
judgments of this Court while considering the case under
Sections 7, 13(1)(d)(i) and (ii) of the Prevention of
Corruption Act, 1988 it is reiterated that to prove the
charge, it has to be proved beyond reasonable doubt that
the Accused voluntarily accepted money knowing it to be
bribe. Absence of proof of demand for illegal gratification
and mere possession or recovery of currency notes is not
sufficient to consitute such offence. In the said
judgments it is also held that even the presumption
under Section 20 of the Act can be drawn only after
demand for and acceptance of illegal gratification is
proved."
8. Evidently, the only material against Anil is that the trap
money was recovered from his possession and that is not enough
to prove the charges levelled against Anil in absence of demand
for illegal gratification and acceptance of illegal gratification. The
word 'gratification' implies nexus between demand and acceptance
with some public duty to be performed by the public servant
himself or through any other public servant. In absence of
demand mere recovery would not suffice to attract the charge
under Section 13(1)(d) read with Section 13 (2) of the Prevention
of Corruption Act. So far charge of criminal conspiracy is
concerned, the provisions of Section 120-A IPC, which defines
criminal conspiracy and provisions of Section 120-B IPC which
prescribes for punishment for criminal conspiracy requires to be
relooked, which are being reproduced below:-
"120A. Definition of criminal conspiracy :-
When two or more persons agree to do, or cause to be
done,--
(1) an illegal act, or
[2024:RJ-JD:36948] (6 of 11)
(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.
120B. 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 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 afreosaid shall be punished with
imprisonment of either description for a term not
exceeding six months, or with fine or with both."
9. The available material on the record and the impugned order
does not reflect that how a charge of criminal conspiracy is made
out against petitioner Anil in absence of agreement between two
or more persons to do the referred act. In State of Kerala vs. P.
Sugathan & Ors. reported in 2000 (8) 203, the Hon'ble
Supreme Court stated in para 12 as follows:-
"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
[2024:RJ-JD:36948] (7 of 11)
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 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 by making 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
[2024:RJ-JD:36948] (8 of 11)
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."
10. Prior to that in Kehar Singh & Ors. Vs. State (Delhi
Administration) reported in AIR 1988 SC 1883, the
requirement to invoke charge under Section 120-B IPC was stated
as follows:-
"....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."
11. Again in Yogesh Vs. State of Maharashtra reported in
AIR 2008 SC 2991, the Hon'ble 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 but it may not be possible to prove the
agreement between them by direct proof.
Nevertheless, existence of the conspiracy and its
[2024:RJ-JD:36948] (9 of 11)
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."
12. Evidently, there is lack of evidence against petitioner Anil
that he was in conspiracy with any of the co-accused or had
consciously acted in accepting the money from the complainant at
the time of trap knowing it to be money of bribe. Therefore,
ingredients of none of the offences charged against Anil Kumar is
made out, rather, the charges appears to be groundless. Hence,
the impugned order to the extent of any of charges against Anil
Kumar stands hereby set aside and petitioner Anil Kumar is
discharged outright.
13. Accordingly, criminal revision no. 509/2018 stands allowed.
14. So far petitioner Om Prakash is concerned, there is prima
facie material to support that he had demanded Rs.22,000/- to
ensure favour from another public servant in the matter of grant
of punishment in the departmental proceeding. Therefore, prima
facie offence under Section 7 of the Prevention of Corruption Act is
made out as he had put demand and accepted bribe money
through Anil as gratification for another public servant before
whom the departmental proceeding was pending to show undue
favour. Since co-accused Sukhram, the General Manager, before
whom the departmental proceeding was pending had asked for
[2024:RJ-JD:36948] (10 of 11)
calling Om Prakash and he talked with Om Prakash and thereafter,
Om Praksh came out of his chamber and put the demand before
the complainant, goes to show that there was some meeting of
mind between the two to do unlawful act. Therefore, charge under
Section 120-B is also prima facie made out.
15. Learned counsel for the petitioner has relied on the judgment
of Jitendra Singh Vs. State of Rajasthan vide S.B. Criminal
Revision Petition No. 265/2023 decided on 16.5.2023. The said
judgment is not applicable in the facts and circumstances of this
case. In Jitendra Singh's case, the complainant went to the house
of co-accused Rakesh Sharma to deliver illegal gratification.
Rakesh asked his servant to accompany the complainant to
Rajshree Grocery Shop and to deliver the same to one Mahendra
Singh, where money was delivered. It surfaced in the evidence
that from the said grocery shop Rakesh Sharma was purchasing
items and on periodical basis payments of the due amount was
being made. Petitioner Jitendra Singh who was son of Mahendra
Singh was not named in the FIR. Therefore, facts of that case
were quite different wherein prayer for discharge was allowed.
16. The petitioner further put reliance on S.B. Criminal Revision
Petition No. 281/2023, Mahendra Kumar Soni Vs. State of
Rajasthan, decided by this Court on 28.8.2024. In that case, the
sanction of pending bill and disbursement of bill amount was
already made to the complainant prior to making of the complaint
or putting of any trap, therefore, this Court held that since no
work was pending with accused/petitioner Mahendra Kumar Soni
on the date of trap relying on the judgment of the Supreme Court
[2024:RJ-JD:36948] (11 of 11)
in A. Suber Vs. State of Kerala reported in 2009(6) SCC 507,
this Court set aside the order of the charge. In the case on hand,
there is direct material against petitioner Om Prakash that he was
indulged in demanding and accepting bribe from the complainant
for ensuring help in award of lessor punishment in departmental
proceedings, the offences alleged are prima facie made out
against Om Prakash. Hence, the impugned order against Om
Prakash stands hereby affirmed and criminal revision petition no.
250/2018 stands hereby dismissed.
(BIRENDRA KUMAR),J
149-150-supll.-sumer/-
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