Andhra Pradesh High Court - Amravati
Sampath Rao Kondaiah Raju vs The State Of Andhra Pradesh on 18 October, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Criminal Revision Case No.982 of 2019
ORDER:
1. Aggrieved by the order in Crl.M.P N0.316 of 2018 in C.C No.24 of 2015 passed by III Additional District Judge-cum-Special Judge for SPE & ACB Cases, Visakhapatnam dated 14.06.2019, preferred the revision under Sections 397 and 401 of Criminal Procedure Code (for short Cr.P.C).
2. The petitioner is accused No.2. The petitioner filed petition under Section 239 of Cr.P.C to discharge him for the offence punishable under Section 12 of Prevention of Corruption Act (hereinafter will be referred as P.C Act).
3. The case of the petitioner before the trial court is that one T. Sunil Kumar, lodged report with the police alleging that accused No.1 by name Smt. K. Uma Devi who was then working as C.D.P.O, I.C.D.S, Kotabommali, demanded Rs.24,000/- as bribe i.e. Rs.3,000/- per month for passing bill for eight months and that the pending bill amount was Rs.68,000/-; that the said complainant again approached accused No.1 on 19.11.2013, pleaded his inability to pay the bribe amount as demanded and requested to reduce the same to Rs.15,000/-, as requested by the complainant T. Sunil Kumar, she agreed for reducing the bribe amount from Rs.24,000/- to Rs.15,000/- and asked the defacto complainant, T. Sunil Kumar to bring the same to her house at Srikakulam. It is further contended that a trap was laid by the ACB officials, as she demanded and accepted an amount of Rs.15,000/- as bribe from the complainant by accused No.1 and handed over the same to the petitioner who received and kept in his shirt pocket. On the basis 2 MSM, J Crl.R.C No.982 of 2019 of statements of witnesses recorded during investigation, under Section 161 (3) of Cr.P.C, and other evidence collected, they concluded that this petitioner along with accused No.1, who is no other than his wife committed the offences punishable under Sections 7, 12 and 13 (2) read with 13(1)(d) of P.C Act and filed charge sheet before the Special Judge for SPE & ACB Cases. The petitioner contended that even as per the allegations made in the complaint, so also the statements of witnesses recorded, during investigation, does not disclose commission of any offence, much less an offence punishable under Section 12 of P.C Act and none of the witnesses spoke about receiving the amount and keeping the same in his shirt pocket to constitute the offence punishable under Section 12 of P.C Act, requested to discharge the petitioner.
4. The respondent filed counter, denying the material allegations inter alia contending that the accused No.1/Smt. K. Umadevi demanded Rs.3,000/- per month for eight months i.e. Rs.24,000/- for passing the bill, while threatening that she will keep the bill pending, if the amount is not paid and accordingly the defacto complainant, T. Sunil Kumar, agreed to pay Rs.15,000/- as reduced at the request of complainant and reported the same to the respondent, who in turn laid trap and found the petitioner herein/accused No.2, abetting accused No.1 in commission of offence i.e. receiving bribe amount and thereby committed the offence. It is also contended that the petitioner/accused No.2 is no other than the husband of accused No.1, who accepted the bribe and in turn gave it to her husband/petitioner herein to keep the same in his shirt pocket. Later necessary tests were conducted, took up investigation and found that the petitioner/Accused No.2 abetted accused No.1 who is no other than his wife, to receive bribe and thereby the material collected, during 3 MSM, J Crl.R.C No.982 of 2019 investigation is suffice to conclude that this petitioner committed the offence punishable under Section 12 of P.C Act and requested to dismiss the petition.
5. Upon hearing the argument of both the counsel, the learned Special Judge for SPE & ACB Cases, concluded that the material on record is sufficient to proceed against this petitioner, placing reliance on the judgment in P. Nallamal v. State1, dismissed the petition.
6. During hearing, the learned Counsel for the petitioner Sri Raja Reddy Koneti, reiterated the contentions urged before the trial court and requested to allow the revision, setting aside the order passed by the Special Judge for SPE & ACB Cases in Crl.M.P No.316 of 2018 in C.C No.24 of 2015 dated 14.06.2019 and discharge this petitioner. The learned Public Prosecutor for ACB, opposed the petition and supported the order in all respects.
7. The present revision is filed under Section 397 and 401 of Cr.P.C. The jurisdiction of this Court under Section 397 and 401 of Cr.P.C. is limited and the High Court may exercise such power only when the Court found that there is a manifest perversity in the order or the finding recorded by the Court is without any evidence or material, though Section 401 of Cr.P.C confers a kind of paternal and supervisory jurisdiction on the High Court over all other criminal Courts established in the State in order to correct miscarriage of justice arising from a misconception of law, irregularity of procedure, neglect or lack of proper precautions or apparent harshness of treatment which has on the one hand resulted in some injury to the due maintenance of law and order 1 1999 Crl.L.J 3967 4 MSM, J Crl.R.C No.982 of 2019 or, on the other hand, in some underserved hardship to individuals. The revisional power conferred on the High Court by Section 401 of Cr.P.C. is discretionary power, has to be exercised in the aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon facts and circumstances of each case? The discretion conferred on the High Court by Section 401 of Cr.P.C has to be exercised judicially, on judicial principles and not arbitrarily. Therefore, keeping in mind the scope of revision, I would like to decide the present issue before this Court.
8. According to section 239 of Cr.P.C. if the Court is of the opinion upon considering the police report and documents sent with it under Section 173 and making such examination, if any, of the accused, as the Magistrate or Sessions Judge thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate or Sessions Judge considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing.
9. The documents referred to in Section 207 of Cr.P.C also must relate to such documents which can be subsequently transferred into evidence at the time of the trial. Hearing of the prosecution and the accused under this section does not mean the hearing of arguments only, it includes the hearing on the evidence if needed. The word "groundless" would mean the absence of reasonable ground to expect conviction. "Groundless" is equivalent to saying that there is no ground for framing the charges, which depends on the facts and circumstances of each case. Therefore, only when the Magistrate or Sessions Judge comes to conclusion that there are no grounds to frame a charge for 5 MSM, J Crl.R.C No.982 of 2019 specific offence, the Court can discharge the accused for such offence. Even the scope of Section 239 Cr.P.C. is limited, such power has to be exercised only when the Magistrate or Sessions Judge came to conclusion that it is groundless, based on charge sheet and documents filed under Section 173 of Cr.P.C.
10. Consideration of records and documents at the stage of framing charge is for the limited purpose of ascertaining whether or not there is sufficient ground to proceed against the accused. Whether the material at the hands of the prosecution is sufficient and whether the trial will end in conviction or acquittal are not relevant considerations at the stage of framing of charge as held by the Apex Court in P.Vijayan v. State of Kerala2.
11. It is also contended that when the material available on record is groundless, the Court cannot proceed, since, it would amount to harassment. No doubt, summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only few witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate or Sessions Judge summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate or Sessions Judge is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. 2 AIR 2010 SC 663 6 MSM, J Crl.R.C No.982 of 2019 Magistrate or Sessions Judge has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
12. Turning to the facts of the present case, the petitioner received the amount collected by accused No.1 at their residence and kept the same in his shirt pocket, the same is denied by this petitioner. During investigation, as many as fourteen witnesses were examined to establish prima facie case to proceed against this petitioner. But for one reason or the other, no document is produced before the Court, including copy of F.I.R, statements recorded by the police, during investigation etc., to decide, whether the petitioner played any role in commission of such an offence.
13. Section 12 of P.C Act, deals with punishment for abetment of an offence defined under Section 7 or 11. According to it, 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.
14. The specific allegation as per the proforma of charge sheet, which is placed on record, he received the amount from accused No.1 and kept the same in his shirt pocket, at his residence and thus accused No.1 allegedly committed an offence punishable under Section 7, 13(2) read with 13(1)(d) of P.C Act. When the petitioner allegedly abetted accused 7 MSM, J Crl.R.C No.982 of 2019 No.1, punishable under Section 7 of P.C Act, the petitioner who is husband of accused No.1 is also liable for punishment under Section 12 of the Act. Therefore, the petitioner being the husband who received the amount from her, on acceptance of bribe from T. Sunil Kumar, keeping the same in his shirt pocket, whether amounts to abetment is a question to be decided by this Court?
15. Section 107 of Indian Penal Code (for short I.P.C) define the word abetment of a thing, a person abets the doing of a thing, who first instigates any person to do that thing; or secondly engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly intentionally aids, by any act or illegal omission, the doing of that thing, constitutes the abetment of a thing. Explanation 2 is important to decide prima facie, whether the act done by the petitioner would amount to an abetment or not. According to Explanation 2 of Section 107 of I.P.C, whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that. The act done by this petitioner, prima facie would fall within Explanation 2 of Section 107 of I.P.C, as he facilitated his wife/accused No.1, to commit the offence, i.e. demand and acceptance of bribe. Thus, such act prima facie would fall within the meaning of intentionally aiding by an act or illegal omission of doing of that act, covered by the third clause of Section 107 of I.P.C. Therefore, the petitioner is an alleged abettor as defined under Section 108 of I.P.C and the act done by him would fall within Explanation 2 of Section 107 of I.P.C.
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16. When the petitioner did not file any material, more particularly statements of witnesses, recorded by the police, during investigation and other material collected, during investigation, since the charge sheet includes the entire material filed along with the charge sheet not a proforma of charge sheet alone. Therefore, it is difficult for this Court to decide whether the material filed along with the charge sheet i.e. statement of witnesses recorded by the police and the other evidence collected is sufficient to proceed against this petitioner for the offence punishable under Section 12 of P.C Act or it is groundless.
17. In Noor Mohammad Mohd. Yusuf Momin v. The State of Maharashtra3, wherein, an identical issue came up for consideration and the Supreme Court clearly drawn distinction between Section 34, Section 109 and Section 120-B of I.P.C. The Apex Court held that Section 34 of I.P.C embodies the principle of joint liability in the doing of a criminal act, the essence of that liability 'being the existence of a common intention. Participation in the commission of the offence in furtherance of the common intention invites its application. Section 109 of I.P.C, on the other hand may be attracted even if the abettor is not present when the offence abetted is committed provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by an act or illegal omission. Even by applying the principle laid down in the above judgment, the act done by this petitioner facilitating accused No.1 to demand and accept the bribe amount for clearance of bill and receiving the amount from accused No.1, 3 AIR 1971 SC 885 9 MSM, J Crl.R.C No.982 of 2019 keeping the same in his shirt pocket, would fall within Explanation 2 of Section 107 of I.P.C and thereby he is an abettor, prima facie.
18. In the same judgment, the Supreme Court also observed that though there is close association of conspiracy with incitement and abetment, the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated under Section 107 of I.P.C. In another judgment State v. R. Vasanthi Stanley4, the Apex Court held that load on the criminal justice dispensation system is concerned it has an insegragable nexus with speedy trial. A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent on the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system. That can never be an acceptable principle or parameter, for that would amount to destroying the stem cells of law and order in many a realm and further strengthen the marrows of the unscrupulous litigations. Such a situation should never be conceived of.
19. The question before the Court in the above judgment in State v. R. Vasanthi Stanley (4th cited supra) is that the proceedings cannot be quashed when serious economic offence is committed by any accused which affects the State or institutional economic condition. Of course, the judgment in State v. R. Vasanthi Stanley (4th cited supra) is entirely on different footing. In the present case, the accused cannot be discharged, since his wife is the prime accused who demanded and 4 2016 (6) SCJ 56 10 MSM, J Crl.R.C No.982 of 2019 received bribe and this petitioner facilitated her to collect such amount is also responsible for this entire episode.
20. In Lennart Schussler And Anr vs Director Of Enforcement & Anr5, the Supreme Court held that an agreement to do an illegal act which amounts to a conspiracy will continue as long as the members of the conspiracy remain in agreement and as long as they are acting in accord and in furtherance of the object for which they entered into the agreement.
21. Viewed from any angle, at the stage of framing charges, the Courts are bound to verify the entire material produced by the prosecution and find out whether the material produced before the Court by the prosecution would prima facie constitute an offence to proceed against this petitioner. But, the material produced by the accused needs no consideration and when the material on record disclosed any offence, the Court can proceed against the accused and minute examination and credibility of the witnesses is not necessary at this stage. As discussed above, in the earlier paragraphs, framing of charges and proceedings against the petitioner will have its own serious impact on the family. Therefore, whatever acts or omissions, done by the petitioner is sufficient to proceed further. Moreover, mens rea is only a question of fact to be decided and at appropriate stage, it is difficult to conclude prima facie that the petitioner has no mens rea to commit any offence. At best, such mental element or mens rea can be established only after completion of trial. Therefore, the contention that the petitioner that he has no mens rea to commit crime is no ground to discharge the petitioner by exercising power under Section 239 Cr.P.C. Hence, the contention of the 5 1970 AIR 549 11 MSM, J Crl.R.C No.982 of 2019 learned counsel for the petitioner Sri Raja Reddy Koneti would not stand to any legal scrutiny to discharge the petitioner for the offences referred supra.
22. The trial court, dismissed the petition on the ground that there is material to proceed against this petitioner, but the material available with the trial court is not placed on record before this Court by the learned Counsel for the petitioner, to find out whether the material produced before the trial court along with the charge sheet is sufficient to proceed against this petitioner for the offence punishable under Section 12 of P.C Act. In the absence of record, it is highly difficult for this Court to conclude whether the material produced along with the charge sheet is sufficient to proceed against this petitioner for the offences referred above.
23. In any view of the matter, if the allegations made in the proforma charge sheet, if taken on its face value, receiving amount from his wife who is accused No.1, keeping the same in his shirt pocket at the residence would amount to aiding his wife to commit an offence which would fall within Explanation 2 and Clause 3 of Section 107 of I.P.C. Therefore, I find that the material is sufficient to proceed against this petitioner. The allegations made in the charge sheet are sufficient to proceed against this petitioner for the offence punishable under Section 12 of P.C Act along with his wife Smt. K. Uma Devi, C.D.P.O, I.C.D.S Project. On close analysis of the law laid down by the Apex Court in various judgments referred to supra and verifying the allegations made in the proforma of the charge sheet (since the other material is not placed on record by the Counsel), the order passed by the trial court, I find no material, warranting interference of this Court with the order passed by 12 MSM, J Crl.R.C No.982 of 2019 trial court, since the order of learned III Additional District Judge-cum- Special Judge for SPE & ACB Cases is free from legal infirmities warranting interference, while exercising power of revision under Section 397 read with 401 of Cr.P.C. Consequently the revision case is liable to be dismissed.
24. In the result, the revision case is dismissed, confirming the order passed by the III Additional District Judge-cum-Special Judge for trial of SPE & ACB Cases, Visakhapatnam in Crl.M.P No.316 of 2018 in O.S No.24 of 2015 dated 14.06.2019.
25. Consequently, miscellaneous petitions, pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated 18.10.2019 Rvk