Madras High Court
Moulana vs State Represented By on 12 August, 2014
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.08.2014 C O R A M THE HONOURABLE Mr. JUSTICE M.VENUGOPAL Crl.O.P.No.818 of 2013 and M.P.Nos.1 & 2 of 2013 Moulana ... Petitioner/A2 Vs State represented by The Deputy Superintendent of Police, Vigilance & Anti Corruption Special Cell, Salem 4. Cr.No.2/AC/2005 ... Respondent/Complainant Prayer: Criminal Original Petition filed under Section 482 Cr.P.C. praying to call for the entire records in Spl.C.C.No.5 of 2006 on the file of the Chief Judicial Magistrate, Namakkal, Namakkal District and to quash the same. For Petitioner : Mr.C.Prakasam For Respondent : Mr.A.N.Thambidurai Additional Public Prosecutor ORDER
The Petitioner/A2 has preferred the instant Criminal Original Petition praying for passing of an order by this Court to call for the entire records in Spl.C.C.No.5 of 2006 on the file of the Learned Judicial Magistrate, Namakkal and to quash the same.
2.According to the Learned Counsel for the Petitioner, the Petitioner/A2 was charged in respect of an alleged offence under Sections 8 r/w.13(2) r/w.13(1)(d) of the Prevention of Corruption Act, 1988. The Respondent/Complainant filed charge sheet in Salem Vigilance and Anti Corruption, Crime No.2/AC/2005 under Section 8 r/w.13(2) r/w.13(1)(d) of the Prevention of Corruption Act in respect of A.1 to A.7 on 19.04.2006.
3.The Learned Counsel for the Petitioner contends that when the Petitioner was doing his B.Sc. Course (Hotel Management), the Respondent/Police inspected the Regional Transport Office, Namakkal by means of surprise check on 07.01.2005 and 08.01.2005 respectively and seized Rs.1,44,106/- including the unclaimed amount of Rs.37,346/- together with certain documents from inside the Regional Transport Office. After seizure of the said money and documents, the Respondent/Police arrested the Petitioner and six others on suspicion that they are Touts/Agents/Brokers with intend to get personal benefits by bribing the officials of the Regional Transport Office.
4.The Learned Counsel for the Petitioner brings it to the notice of this Court that although the aforesaid amounts and as well as documents were seized from the officials of the Regional Transport Office, but the Respondent/Police had not arrested any one of the officials from the said office and they had not implicated them as one of the Accused in the charge sheet.
5.The Learned Counsel for the Petitioner projects an argument that the allegation made against the Petitioner/A2 was that the Respondent/Police found an amount of Rs.1,050/- and six documents in his Handbag. But no seizure was effected from him. However, the Respondent/Police obtained the statement from P.W.7 as if he handed over the money Rs.300/- to the Petitioner for his service for handing over the said documents and bribing the RTO officials. If it was so, then, P.W.7 alone committed the aforesaid offence and not the Petitioner.
6.The Learned Counsel for the Petitioner takes a plea that P.W.12, P.W.21, P.W.23, P.W.27 and P.W.30 stated that they had given money to the Petitioner for bribing the amount to the RTO officials. However, they had not implicated as one of the accused in the aforesaid charge sheet, but they were included in the list of prosecution witnesses.
7.The Learned Counsel for the Petitioner proceeds to contend that no witnesses were speak about the seizure of the documents and money from the Petitioner. As such, it was proved that the Respondent/ Police had not at all seized any documents and money from him. Consequently, the alleged offence under Sections 8 r/w.13(2) r/w.13(1)(d) of the Prevention of Corruption Act are not at all attracted in respect of the Petitioner.
8.The Learned Counsel for the Petitioner contends that Section 8 of the Prevention of Corruption Act is not applicable to Petitioner/A2 since admittedly, he is not a public servant.
9.Further, the Learned Counsel for the Petitioner submits that the Petitioner/A2 can pray for quashing of the proceedings in Spl.C.C.No.5 of 2006 on the file of trial Court at any stage of the main case.
10.Also that, since the alleged offences under Sections 8 r/w.13(2) r/w.13(1)(d) of the Prevention of Corruption Act, are not attracted against the Petitioner/A2, the Criminal Original Petition filed by him may be allowed by this Court, to promote substantial cause of Justice.
11.To lend support to the contention that the ingredients of Section 8 of the Prevention of Corruption Act, 1988 are not applicable to the Petitioner/A2, the Learned Counsel for the Petitioner cites the order of Patna High Court, dated 06.12.2005, (between Kumar Suman Singh V. State of Bihar : 2006 CriLJ 1599), whereby and whereunder, in paragraph Nos.6 and 7, it is observed and held as follows:
6.As regards applicability of Section 8 of the P.C. Act in the facts of the present case, I am to say that this section is applicable even to others who are not public servants if they induce any public servant to do any illegal act which is obvious from a bare reading of the said section. In the present case, the petitioner is alleged to be in conspiracy to induce the public servant to commit the Medical Examination Scam as it appears from the materials as disclosed in the charge-sheet at Page 34 of the brief in Cr. Misc. No.34488 of 2005, accordingly, I am of the view that the offence alleged against him is prima facie made out.
7.Having perused the averments made in the two petitions as also materials collected in the charge-sheet, I am of the view that the offence alleged against the petitioner is made out for the purpose of framing charge and in that view of the matter, I am not inclined to interfere with the orders impugned dated 16.9.2005 and 21.10.2005.
12.Conversely, it is the submission of the Learned Additional Public Prosecutor for the Respondent/Complainant that the case of the prosecution is that on the basis of the complaint of N.Somasundaram, Deputy Inspection Cell Officer, Salem, Dharmapuri, Krishnagiri and Namakkal District, while conducting surprise check along with L.Panneerselvam, the then Deputy Superintendent of Police and his team at Regional Transport Office, Namakkal from 07.01.2005 at 16.40 hours to 08.01.2005 at 03.00 hours, found that A.1 to A.7 were having unauthorised possession of documents and also having unaccounted money, which run as follows:
Sl. No. Accused Name No. of documents seized Seized amount Rs.1
Vijay @ Angamuthu [A-1] 4 2,250/-2
Moulana [A-2, petitioner herein] 6 1,050/-3
Natarajan [A-3] 7 4,200/-4
Shankar [A-4] 6 2,400/-5
Murugesan [A-5] 6 2,230/-6
K.Baskaran [A-6] 4 180/-7
A.Ravikumar [A-7] 4 2,400/-
13.It is the stand of the Learned Additional Public Prosecutor that A.1 to A.7 had handed over to the then Deputy Superintendent of Police along with the seized documents and cash Rs.1,44,106/- by Somasundaram (Complainant) and he lodged a complaint before the Respondent/Police, based on that, a case was registered against A.1 to A.7 in Salem Vigilance and Anti Corruption, Crime No.2/AC/2005 in respect of the offences under Section 8 of the Prevention of Corruption Act, 1988 by the then Deputy Superintendent of Police on 08.01.2005 at 5.30 hours and the same was handed over to K.Periasamy, the then Deputy Superintendent of Police for further investigation.
14.The Learned Additional Public Prosecutor for the Respondent informs this Court that A.1 to A.7 were arrested and produced before the Learned Chief Judicial Magistrate cum Special Court, Namakkal together with the seized documents and cash and they were remanded to judicial custody.
15.The Learned Additional Public Prosecutor for the Respondent submits that the then Deputy Superintendent of Police took up the further investigation and examined 42 witnesses and recorded their statements. The investigation reveals that all the Accused had worked as Tout/Broker for rendering service to the public by receiving their vehicle documents along with illegal gratification excluding the prescribed fees as motive/reward/for inducing/influencing the public servants working in the office of the Regional Transport Office, Namakkal.
16.Apart from the above, the Petitioner/A2 was one of the Accused and during surprise check, the then Deputy Inspector Cell Officer found that he was in possession of unauthorised documents pertaining to six vehicles and also possessing cash of Rs.1,050/- and during the examination, he admitted that he had committed the offence. Moreover, the vehicle owners viz., R.Karalan, R.P.Rajendran and four others were examined and their statements were recorded. In fact, they had stated that they had given Rs.300/- each separately to Regional Transport Office Broker, T.Moulana (Petitioner herein/A2) so as to enable him to give it to the officials working in the office of Regional Transport, Namakkal.
17.After completion of detailed investigation, the Respondent/ then Deputy Superintendent of Police laid the charge sheet against A.1 to A.7 in Salem Vigilance Anti Corruption Crime No.2/AC/2005 under Section 8 of the Prevention of Corruption Act and altered into Section 8 r/w.13(2) r/w.13(1)(d) of the Prevention of Corruption Act, 1988 on 19.04.2006 and the same submitted before the Learned Chief Judicial Magistrate cum Special Court, Namakkal which was taken on file in Spl.C.C.No.5 of 2006 on 21.04.2006. As a matter of fact, charges were framed against A.1 to A.7 under Sections 8 and 13(2) r/w.13(1)(d) of the Prevention of Corruption Act. Further, the case is now pending on the file of trial Court and for hearing on 09.01.2014, the Accused No.3 had not appeared and as such, the trial Court issued Non Bailable Warrant against him and the Respondent/Police are taking effective steps to execute the Non Bailable Warrant.
18.The Learned Additional Public Prosecutor submits that a sum of Rs.5,320/- as unclaimed amount was kept concealed on the rear portion of the Information Board kept in the office of the Regional Transport Office, Namakkal was seized and no one claimed the amount. Also that, the departmental action was recommended against Regional Transport Officer, Motor Vehicle Inspector and other staff of the office by the Investigating Officer in his final report.
19.The Learned Additional Public Prosecutor for the Respondent submits that after investigation, a charge sheet was laid against A.1 to A.7 before the trial Court and therefore, there is no necessity to quash all further proceedings in Spl.C.C.No.5 of 2006.
20.Also, the Learned Additional Public Prosecutor appearing for the Respondent contends that A.1 to A.7 had given inculpatory statements before the Officer concerned.
21.It is to be pointed out that the scope of interference with an order framing charge in terms of Section 482 Cr.P.C. is extremely limited and the exercise of power under Section 482 Cr.P.C. to quash the charge is only an exception and not the rule as per decision of the Hon'ble Supreme Court in State of Punjab V. Kasturi Lal, AIR 2004 Supreme Court 4087.
22.Moreover, after the charge has been framed, the Court would not quash the charge/criminal proceedings against the Accused for non-compliance of Section 207 Cr.P.C. as per decision of the Hon'ble Supreme Court in Bhart Parikh V. C.B.I., (2008) 10 SCC 109 (114).
23.Although, it is open to a High Court entertaining a Petition under Section 482 Cr.P.C. to quash charges framed by the trial Court, the same cannot be done by weighing the correctness or sufficiency of evidence.
24.In a matter praying for quashing of the charge, the principle is to be adopted by the High Court is that if the entire evidence produced by the prosecution is to be believed would it constitute an offence or not. In short, the sufficiency, trustworthiness and acceptability of the material produced at the time of framing charge can only be looked into at the stage of trial of the main case, in the considered of this Court. Also, the Hon'ble High Court would not usurp the functions of trial Court and it is for the trial Judge to dispose of the case according to law in the light and teeth of evidence. To put it succinctly, the High Court, while exercising jurisdiction under Section 482 Cr.P.C., would not appreciate the evidence inasmuch as it is within the function of the trial Court. Indeed, the evidence cannot be re-appreciated, while exercising jurisdiction, under Section 482 Cr.P.C.
25.It is to be remembered that recipient of 'Bribe' need not be a public servant.
26.It is to be pointed out that individuals who are accused of offences would legitimately expect that the cases against them should be investigated as quickly as possible so that they may know what they are being charged with. Nay, such quick investigation and charge sheeting are necessary even in the interest of prosecution. Otherwise when the case comes up for trial, the very delay in investigation may make it difficult for the prosecution witnesses to remember the details, with the result that even truthful witnesses would bungle in cross examination.
27.It is to be remembered that power under Section 309 Cr.P.C. is discretionary, to be exercised by a Court of Law in a judicious manner and not in a way to frustrate the object of criminal proceedings, as opined by this Court.
28.It is in everyone's interest as a reasonable procedure an Accused in a criminal case is to be tried speedily. If the trial against an Accused is not concluded within a reasonable time, then, it amounts to violation of 'Speedy Trial' guaranteed under Article 21 of the Constitution of India. The right to 'Speedy Trial' emanates from Article 21 of the Constitution of India, which includes (i)the stage of Investigation; (ii)the Inquiry; (iii)Trial; (iv)Appeal; (v)Revision; and (vi)Retrial.
29.It cannot be gainsaid that an adjournment should not be allowed on the mere asking for it, or to suit the convenience of a litigant etc. In this connection, this Court aptly points out that a Court of Law is not bound to adjourn a case merely because a party asks for it, as per decision Ganpat Singh V. State of Rajesthan, 1998 Crl. L.J. 2614 (Raj.)
30.It is to be borne in mind that once the examination of witnesses has commenced, a Court of Law is to continue the trial from day-to-day until all witnesses in attendance have been examined. Further, when the Court grants an adjournment, it should record the special reasons.
31.Continuing further, this Court more appropriately points out that from the Objects and Reasons of the Prevention of Corruption Act, 1988, it is clear that a provision prohibiting the grants of stay is included in the statute for speeding up the proceedings. In fact, it is in Clause 19(3)(c), the prohibition is employed in unexceptional terms and it cannot be bypassed. Also, in the decision of the Hon'ble Supreme Court Satya Narayan Sharma V. State of Rajesthan, AIR 2001 SC 2856, it is observed that 'even if a petition under Section 482 Cr.P.C. is entertained, there can be no stay of trial under the Prevention of Corruption of Act'.
32.At this stage, this Court worth recollects and recalls the decision of the Hon'ble Supreme Court in P.Nallammal and another V. State rep. By Inspector of Police, 2000 (1) MWN (Cr.)S.C. 83 at special page 85 & 86, wherein, in paragraph Nos.11 & 12, it is observed as follows:
11.Shri K.K. Venugopal, learned Senior Counsel contended that the PC Act, being a special enactment has taken into its fold specific cases of abetment of offences, vide Sections 10 and 12 of the PC Act. Those sections are extracted below:
10.Punishment for abetment by public servant of offences defined in Section 8 or 9 Whoever, being a public servant, in respect of whom either of the offences defined in Section 8 or Section 9 is committed, abets the offence, whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
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12.Punishment for abetment of offences defined in Section 7 or 11. - Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine. According to the learned counsel since no other type of abetment is made specifically punishable under the PC Act there cannot be any question of a non-public servant abetting the offence under Section 13(1)(e) of the PC Act.
12.It is true that Section 11 deals with a case of abetment of offences defined under Section 8 and Section 9, and it is also true that Section 12 specifically deals with the case of abetment of offences under Sections 7 and 11. But that is no ground to hold that the PC Act does not contemplate abetment of any of the offences specified in section 13 of the PC Act. Learned counsel focussed on Section 13(1)(e) to elaborate that by the very nature of that offence it pertains entirely to the public servant concerned as there is no role for the co-accused for discharging the burden of proof.
33.This Court aptly points out the decision of the Hon'ble Supreme Court in Prakash Singh Badal and another V. State of Punjab and others, AIR 2007 Supreme Court 1274, at special page 1276, wherein it is held as follows:
The opening word of Ss.8 and 9 is who-ever. The expression is very wide and would also cover public servants accepting gratification as a motive or reward for inducing any other public servant by corrupt or illegal means. Restricting the operation of the expression by curtailing the ambit of Ss.9 and 9 and confining to private persons would not reflect the actual legislative intention.
It would not be permissible to contend that a public servant would be covered by S.13(1)(d) (similar to Section 5(1)(d) of old Act) and, therefore, the public servant would not be covered by Ss.8 and 9 of the Act. The offences under S.13(1)(d) and the offence under Ss. 8 and 9 of Act are different and separate. Assuming S. 13(1)(d)(i) covers public servants who obtains for 'himself or for any other person' any valuable thing for pecuniary advantage by corrupt or illegal means, that would not mean that he would not fall within the scope of Ss. 8 and 9. The ingredients are different. If a public servant accepts gratification for inducing any public servant to do or to forbear to do any official act, etc., then he would fall in the net of Ss.8 and 9. In S. 13(1)(d) it is not necessary to prove that any valuable thing or pecuniary advantage has been obtained for inducing any public servant. Another difference is that Section 13(1)(d) envisages obtaining of any valuable thing or pecuniary advantage. On the other hand Sections 8 and 9 are much wider and envisages taking of any gratification whatever. Explanation (b) of Section 7 is also relevant. The word 'gratification' is not restricted to pecuniary gratifications or to gratifications estimable in money. Thus, Sections 8 and 9 are wider than S. 13(1)(d) and clearly constitute different offences.
34.On a careful consideration of respective contentions and in view of the fact that the word under Section 8 of the Prevention of Corruption Act viz., whoever is very wide. It applies to a private person, if he induces a public servant to do an act by corrupt or illegal means. Ordinarily, the Aiders/Abettors could also be dealt with along with the public servants in the trial of the main case. As a matter of fact, Section 8 is complimentary to Section 7 of the Prevention of Corruption Act, 1988, as opined by this Court. In the instant case on hand, the departmental action was recommended against the Regional Transport Officer, Motor Vehicle Inspector and other staff of the office by the Investigating Officer in his final report. But, in respect of the Petitioner/A2 and others, the charge sheet was filed on 19.04.2006 and also that, charges were framed in respect of A.1 to A.7 on 02.08.2006 under Section 8 r/w. 13(2) r/w.13(1)(d) of the Prevention of Corruption Act, 1988. As against Accused No.3, Non Bailable Warrant is reportedly pending and the main case stands posted to 28.08.2014 before the trial Court.
35.Be that as it may, this Court is of the considered view that the only mode of prosecuting the Petitioner/A.2 and other accused is by means of conducting the trial of the main case in Spl.C.C.No.5 of 2006, as visualised under the Prevention of Corruption Act, 1988. Accordingly, the Criminal Original Petition is disposed of. It is open to the Petitioner/A.2 to approach the trial Court and seek for expediting the hearing of the main case. Liberty is also granted to the Petitioner to raise all factual and legal pleas before the trial Court in Spl.C.C.No.5 of 2006 at the time of trial of the main case. Consequently, connected Miscellaneous Petitions are closed.
12.08.2014
Index : Yes
Internet : Yes
Sgl
To
1.The Chief Judicial Magistrate,
Namakkal, Namakkal District.
2.The Deputy Superintendent of Police,
Vigilance & Anti Corruption
Special Cell, Salem 4.
M.VENUGOPAL,J.
Sgl
ORDER IN
Crl.O.P.No.818 of 2013
12.08.2014