Bombay High Court
Prakashkumar S/O Murlidhar Bhisikar vs State Of Maharashtra Thr. Police ... on 15 June, 2017
CRA 66.13.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL REVISION APPLICATION NO.66 OF 2013
Prakash s/o Murlidhar Bhishikar,
Aged about 70 years,
Occupation-Retired,
Resident of Plot No.260,
"Parmanand", West High Court Road,
Nagpur. .. Applicant
.. Versus ..
State of Maharashtra, through
Police Station, Buldhana. .. Non-Applicant
..........
Shri S.S. Voditel, Advocate for Applicant,
Shri A.M. Balpande, APP for Non-Applicant.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : JUNE 15, 2017.
ORAL JUDGMENT
This revision takes an exception to the order dated 25.9.2012 passed in Criminal Case No.5/2003 by the learned Special Judge, Buldhana rejecting the application for discharge preferred by applicant/accused. 2] The facts giving rise to criminal revision application may be stated, in brief, as under : ::: Uploaded on - 27/06/2017 ::: Downloaded on - 28/08/2017 06:12:19 ::: CRA 66.13.odt 2
(i) Applicant was working as Collector, Buldhana between the years 1993 and 1996. He was assigned with the work of Adult Literacy Drive. According to prosecution, upon enquires, it was revealed that applicant along with District Literacy Officer indulged in corrupt practice and purchased material for literacy drive to benefit the other accused persons, who were the suppliers of material.
(ii) The basic allegation against applicant is that while conducting Adult Literacy Drive in District Buldhana, number of illiterate adults in the age group of 15 to 35 years was taken as 2,00,000 by applicant and others against the actual figure of 1,68,000 adult illiterates and the purchases were made on higher side by applicant.
(iii) A survey was conducted and as per survey, number of illiterate adults was found to be 1,52,062 and including 10% increase figure of illiterate adults in Buldhana District should have been taken as 1,68,000. The grievance is that wrong estimate of 2,00,000 illiterate adults that is 32,000 more was made with a view to purchase literacy material for non-existent 32,000 illiterate adults.
The allegation is that applicant with others indulged in ::: Uploaded on - 27/06/2017 ::: Downloaded on - 28/08/2017 06:12:19 ::: CRA 66.13.odt 3 corrupt practice and, therefore, he was liable for prosecution.
(iv) On a complaint, offence was registered against applicant and other accused persons. After completion of investigation, chargesheet was submitted before the Special Court for the offence punishable under Section 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988 and Sections 465, 471, 477 (A) r/w 109 and 120 (B) of the Indian Penal Code. Applicant appeared in Special Case. He moved an application for discharge (Exh.113) under Section 227 of the Code of Criminal Procedure. The said application was rejected vide order dated 25.9.2012. This order is the subject matter of present criminal revision application.
3] Heard Shri Voditel, learned counsel for applicant at length and Shri Balpande, learned APP for non-applicant. 4] Learned counsel for applicant challenges the impugned order on the following grounds :
(i) Applicant was working as Collector. He was charged for serious mis-demeanour. Considering the nature of allegations made in FIR and in view of verdict of the Hon'ble Supreme Court, preliminary enquiry by a ::: Uploaded on - 27/06/2017 ::: Downloaded on - 28/08/2017 06:12:19 ::: CRA 66.13.odt 4 superior officer was necessary before lodging FIR. A grievance is that no such preliminary enquiry was conducted against the applicant.
(ii) To attract the offence under Section 13 (1)(d) of the Prevention of Corruption Act, 1988, basic element is the dishonest intention to obtain an undue pecuniary advantage for himself and others and against public interest. It is submitted that in entire FIR there is no whisper regarding dishonest intention of applicant to act against public interest.
(iii) In departmental proceedings initiated against applicant, it was categorically proved that charges including the present one were not established against applicant. Based on above submissions, learned counsel for applicant vehemently contended that there is no prima facie material to put applicant to trial and he ought to have been discharged by the trial court.
(iv) In support, reliance is placed on -
(i) P. Sirajuddin etc. .vs. The State
of Madras, [AIR 1971 SC 520]
(ii) State of Haryana and others .vs.
Bhajanlal and others.
[1992 Supp. (1) SCC 335].
(iii) State of Madhya Pradesh .vs.
Sheetla Sahai and others,
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CRA 66.13.odt 5
[(2009) 8 SCC 617]
(iv) C.K. Jaffer Sharief .vs. State
(Through CBI),
(2013) 1 SCC 205.
5] - (i) Per contra, learned APP submits that
defence of accused cannot be considered at this stage.
According to him, FIR makes out occurrence of offences and trial court, considering the allegations against applicant, rightly rejected the application for discharge.
(ii) It is submitted that as charge has been framed against accused, he can defend prosecution case on merits. According to learned A.P.P. the order of rejection being legal and proper, criminal revision application deserves to be dismissed.
6] Before adverting to the facts of the case, it would be essential to reproduce here the provisions of Section 227 of the Code of Criminal Procedure, 1973 which reads thus -
227. Discharge - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
::: Uploaded on - 27/06/2017 ::: Downloaded on - 28/08/2017 06:12:19 ::: CRA 66.13.odt 6 Section 227 requires that if the material collected by investigating agency indicates prima facie complicity of the accused, then court has to frame charge. The question as to whether accused should be discharged or charge should be framed against him or not can be decided on the basis of material collected during investigation. 7] Keeping these legal parameters in mind, it is to be seen in the present controversy, whether accused was entitled for discharge. The main charge against applicant/accused is under Section 13 (1)(d) of the Prevention of Corruption Act, 1988 and so far as offences under the Indian Penal Code are concerned, they flow from the main charge. Section 13 (1)(d) of the Prevention of Corruption Act reads thus :
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 ?; or
(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 ::: Uploaded on - 27/06/2017 ::: Downloaded on - 28/08/2017 06:12:19 ::: CRA 66.13.odt 7 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.
It is clear that in Section 13 (1)(d) of the Act in view of introduction of the words "by corrupt or illegal means or by otherwise abusing his position as public servant" a ::: Uploaded on - 27/06/2017 ::: Downloaded on - 28/08/2017 06:12:19 ::: CRA 66.13.odt 8 dishonest intention on the part of public servant has to be established. The words "otherwise abusing his position as public servant" do not confine only to misuse his position as public servant but such misuse must be with dishonest mind. Unless it is established that public servant obtained pecuniary advantage for himself or for any person by dishonestly misusing his position as public servant, offence under Section 13 (1)(d) of the Act cannot be said to be made out.
8] As held by the Hon'ble Supreme Court in the case of P. Sirajuddin etc. .vs. The State of Madras, AIR 1971 SC 520 referred in State of Haryana and others .vs. Bhajanlal and others, 1992 Supp (1) SCC 335, preliminary enquiry by a superior officer was necessary before lodging FIR against a public servant who was charged with serious mis-demeanour. In paragraph 17 of P. Sirajuddin etc. .vs. The State of Madras (supra), the Hon'ble Supreme Court observed thus :
17. In our view the procedure adopted against the appellant before the laying of the first information report though not in terms forbidden by law, was so unprecedented and outrageous as to shock one's sense of justice and fairplay. No doubt when allegations about dishonesty of a person of the appellant's rank were brought to the notice of the Chief ::: Uploaded on - 27/06/2017 ::: Downloaded on - 28/08/2017 06:12:19 ::: CRA 66.13.odt 9 Minister it was his duty to direct an enquiry into the matter. The Chief Minister in our view pursued the right course. The High Court was not impressed by the allegation of the appellant that the Chief Minister was moved to take an initiative at the instance of a person who was going to benefit by the retirement of the appellant and who was said to be a relation of the Chief Minister. The High Court rightly held that the relationship between the said person and the Chief Minister, if any, was so distant that it could not possibly have influenced him and we are of the same view.
Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the, Government had set up a Vigilance and Anti- Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. In ordinary depart- mental proceedings against a Government servant ::: Uploaded on - 27/06/2017 ::: Downloaded on - 28/08/2017 06:12:19 ::: CRA 66.13.odt 10 charged with delinquency, the normal practice before the issue of a charge sheet is for someone in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charge-sheet is submitted and a full-scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report.
The law laid down in the case of P. Sirajuddin (supra) has been reiterated by the Hon'ble Supreme Court in the case of State of Haryana and others .vs. Bhajanlal and others.
9] In the case on hand, since there was no preliminary enquiry before lodging FIR and no opportunity was given to applicant to explain the circumstances under which he had shown 2,00,000 adult illiterates and purchased literacy material for 2,00,000 adult illiterates, lodging of FIR itself was against the law laid down by the Hon'ble Supreme Court.
::: Uploaded on - 27/06/2017 ::: Downloaded on - 28/08/2017 06:12:19 ::: CRA 66.13.odt 11 10] It is significant to note that in the departmental proceedings, Enquiry Officer had categorically held that charges were not established against applicant. One of the charges was at Article III pertaining to the grievances made by the complainant in the FIR. According to Enquiry Officer, the said charge has not been proved. It is the contention of applicant that he conducted himself in a most transparent manner and having discretionary powers at his command, anticipating the future requirement and relying upon the proposals submitted to him by his subordinates, considered the number of adult illiterates as 2,00,000 and accordingly purchases were made. Further submission is that the figure shown in FIR regarding number of adult illiterates was not placed on record, whereas in the year 1991 figures submitted to him by the District Literacy Officer comprised of 1,77,812 persons, adding 10% increase permissible as per the government directives, he rounded of the same to 2,00,000 adult illiterates. The submission is that there was no question of dishonest intention on his part in making the purchases as alleged in FIR.
::: Uploaded on - 27/06/2017 ::: Downloaded on - 28/08/2017 06:12:19 ::: CRA 66.13.odt 12 11] If FIR is taken in its entirety on its face value, it can be seen that no element of dishonest intention is alleged against applicant by complainant. It is significant to note that complainant is the Superintendent of Police, Anti- Corruption Bureau. During the course of arguments, learned counsel for applicant submitted that on the same day, four complaints were lodged by the same officer against the applicant, two out of them have been quashed by this court and two including the present one are now pending.
12] When FIR, on its face value, does not show the ingredients of offence under Sections 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988, this court is of the view that it would not only be unnecessary but also against the interest of justice to put the applicant to trial. The reasons recorded by the trial court in rejecting the application for discharge that only on appreciation of evidence and considering the merits and demerits, it can be determined whether accused has committed those offences or not are unsustainable in law. So far as offences under the Indian Penal Code are concerned, they flow from the offence alleged under the Prevention of Corruption Act. As the main ::: Uploaded on - 27/06/2017 ::: Downloaded on - 28/08/2017 06:12:19 ::: CRA 66.13.odt 13 charge fails, offences under the Indian Penal Code also would not stand.
13] Learned APP submitted that charge has been framed against applicant and other accused and the Special Case is now for evidence of witnesses. The order of discharge came to be passed on 25.9.2012. Present Criminal Revision Application was filed on 25.3.2013. Vide order dated 31.12.2012, charge came to be framed by the trial court.
14] This court finds that as applicant has challenged the order of discharge, subsequent framing of charge would not take away his right to impugn the same in accordance with the law.
15] In Criminal Revision Application No.65/2013 with Criminal Revision Application No.153/2013, this court, vide order dated 16.3.2016, has rejected the objection raised by the learned APP to the maintainability of revision application. In view of the same, it cannot be said that this court cannot exercise the jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure to examine the correctness and legality of the impugned order. ::: Uploaded on - 27/06/2017 ::: Downloaded on - 28/08/2017 06:12:19 ::: CRA 66.13.odt 14 16] In the above premise, this court is of the view that reasons recorded by the trial court rejecting the application (Exh.113) do not sustain in law. Revision Application deserves to be allowed. Hence, the following order :
ORDER
(i) Criminal Revision Application No.66 of 2013 is allowed.
(ii) Impugned order passed below Exh.113 in Special Anti Corruption Case No.5 of 2003 by the learned Special Judge, Buldhana on 25.9.2012 is set aside.
(iii) Application (Exh.113) filed by applicant in Special Anti-Corruption Case No.5/2003 is allowed.
(iv) Applicant - Prakash Murlidhar Bhishikar is discharged from Special Anti-Corruption Case No.5/2003 pending before Special Court, Buldhana.
(v) No order to costs.
(Kum. Indira Jain, J.)
Gulande, PA
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