Kerala High Court
Revision vs State Of Maharashtra A Conspiracy Is ... on 23 March, 2012
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY, THE 23RD DAY OF MARCH 2012/3RD CHAITHRA 1934
Crl.Rev.Pet.No. 2599 of 2011 ( D)
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CC.7/2007 of SPL.C SPE/CBI-II&4 ADDL.D.C.,ERNAKULAM
REVISION PETITIONER/PETITIONER/1ST ACCUSED
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M.RAAYEES,
S/O.MACKEY, NAZZ, 29/1650,
KOTTULLY P.O., KOZHIKODE.
BY ADVS.SRI.RAJU JOSEPH (SR.)
SRI.GEORGE KUTTY MATHEW
SRI.C.N.MIDHUN
RESPONDENT/RESPONDENT/COMPLAINANT
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CENTRAL BUREAUE OF INVESTIGATION,
ANTI CORRUPTION BUREAUE,
KERALA, CBI/ACB/KERALA,
REPRESENTED BY ADDITIONAL SUPERINTENDENT OF POLICE,
CENTRAL BUREAUE OF INVESTIGATION, COCHIN-682017.
BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
16-02-2012, ALONG WITH CRRP. 2690/2011 AND CONNNECTED CASES, THE COURT ON
23-03-2012 PASSED THE FOLLOWING:
MG
P. BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - -
Crl.R.P. Nos. 2599, 2674, 2688, 2689,
2690, 2691 & 2961 of 2011 &
317 of 2012.
- - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 23rd day of March, 2012.
ORDER
These petitions call in question the order dated 10.6.2011 in the petitions filed by accused Nos. 3, 6, 10, 11, 13, 15, 17, 25 and 30 in C.C. No.7 of 2007 whereby the lower court refused to discharge the accused for the offence punishable under Section 120B and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Though the court below has referred the relevant provision as Section 227, infact the matter ought to have been dealt with under Section 239 of the Code of Criminal Procedure. One must at once remember that the criterion for considering an application for discharge under Section 227 and Section 239 are different. However, merely because a wrong provision has been quoted by the court below may not by itself be a ground for interference. 36 persons were Crl.R.P.2599/11 & con.cases.
2sought to be prosecuted for the above mentioned offences as per a charge sheet filed by CBI/ACB/Kerala dated 17.7.2007, in which the petitioners figure as accused Nos. 3, 6, 10, 11, 13, 15, 25 and 30.
2. The whole affair started when Abdul Majeed, a non-resident Indian stationed abroad, faxed a message to S.P., C.B.I, Cochin complaining about the rampant and massive corruption among the officers in Karipur Airport at Calicut. He was due to arrive the Airport on 2.11.2005. He sent a message to the C.B.I officer that he would be handing over two 50 UAE Dhiram notes to those customs officials who demanded bribe for doing favour to him. As per the information passed on by him, he arrived at the Airport on 2.11.2005 and according to him he handed over the notes to the 1st and 2nd accused on demand of pecuniary benefits by them. He also recorded the conversation between him and accused Nos.1 and 2 as instructed by the C.B.I. Crl.R.P.2599/11 & con.cases.
3Thereafter in the night of 2.11.2005, C.B.I. conducted a raid in the Airport. They were able to recover large amount of cash, both foreign and Indian currency from the rest room of the Airport and from various other parts of the Airport, the details of which are not very relevant for the present purpose, except the seizure included two 50 UAE Dhiram notes given by Abdul Majeed (C.W.35) to accused Nos.1 and 2. The raiding team was able to recover two bundles of currency notes amounting to Rs.17,900/- and Rs.17,400/-, each labelled as 'Prema' and 'Benny'. From the arrival table, they recovered three bundles of Rs.32,300/-, Rs.41,400/- and Rs.41,400/- Indian rupees from the hand bag of accused No.29. These amounts were not accounted for in any of the registers maintained in the Airport and accused No.29 was unable to offer any satisfactory explanation for possession of those bundles of notes. According to the C.B.I., these huge amounts are Crl.R.P.2599/11 & con.cases.
4unaccounted money and are nothing but the illegal amount collected from passengers who arrive and leave the Airport. The investigation by the C.B.I. revealed a systematic, methodical and well planned procedure being followed for collection of illegal gratification and the sharing of booty by all officials at the Airport proportionate to their contribution for the collection. According to the C.B.I., accused Nos.1 to 28 were parties to the clandestine transaction and were active conspirators and connived in squeezing the passengers to make illegal gains and received their share of booty. Accused Nos.29 to 36 are also officials who are involved in the said dubious and obnoxious activity.
3. According to the prosecution, the amounts collected daily were handed over to C.Ws.1, 2 and 3. C.W.1 had the duty of exchanging foreign currency notes obtained by the officials of the Airport and passed on to him and he also kept the daily collections which were to be Crl.R.P.2599/11 & con.cases.
5distributed among the employees in the Airport. The list of the officials to whom the money was to be distributed was to be drawn up later by him along with the Customs Officers and he has the privilege of having meetings with accused Nos. 1, 3 and others. The C.B.I. were able to lay their hands on such a list of employees who received their respective shares for the fortnight period spreading from 16.9.200 to 30.9.2005. The list was obtained from the house of C.W.1 as a result of the raid conducted by the C.B.I. C.Ws.2 and 3 are infact conferred with the duty of distributing the amounts to the various officials as per the list furnished to C.W.1. According to the prosecution agency, there are enough materials to show the involvement of 36 accused in what they say is a 'deep rooted institutionalised corruption' without exception among the employees of the Airport from top to bottom.
Crl.R.P.2599/11 & con.cases.
6
4. The petitioners filed Crl.M.P. Nos. 622 of 2008 (A.13), 428 of 2009 (A.11), 1193 of 2009 (A.10), 262 of 2010 (A.6), 1475 of 2010 (A.30), 1482 of 2010 (A.17), 1483 of 2010 (A.3), 1484 of 2010 (A.25) and 1489 of 2010 (A.15) seeking discharge on the ground that even assuming all what the prosecution say are true, no offence is made out and the materials now available are insufficient to support a charge and it will be a waste of time and idle exercise to ask the petitioners to face trial as no purpose will be served by doing so. According to them, none of the ingredients necessary to attract Sections 120B IPC and Section 13(2) read with Section 13(1) of the P.C Act are made out. There are no materials to substantiate the charges levelled against them and merely by saying that there is a conspiracy, without any materials, will not relieve the prosecution of producing sufficient materials to justify a trial. According to them, there are no materials worth considering except Crl.R.P.2599/11 & con.cases.
7some statements by a few persons which have no probate value and some dubious lists and pieces of paper which cannot form legal evidence at all. According to them, it is a futile exercise by the prosecution agency to rope them in and it will serve no purpose to put them on trial.
5. The prosecution agency opposed the petitions relying on several documents and statements of witnesses including accomplices' statements and also circumstances which according to them would sufficiently show the involvement of the petitioners and the notorious activities that are going on in the Karipur Airport at Calicut.
6. The court below found the statements of C.Ws. 1 to 3, 13, Exts.D25, D13 and some other statements and documents produced by the prosecution agency prima facie are sufficient to indicate the involvement and participation of all the petitioners in the organized clandestine activity and reached the following conclusion:
Crl.R.P.2599/11 & con.cases.8
"Thus on a consideration of the record of the case including the statement of approvers and the documents submitted, I am of the considered view that there is ground for presuming that the petitioners have committed the offences alleged against them, there is no scope for their discharge. Accordingly all the Criminal M.Ps are dismissed."
It is the above order that is challenged in these revision petitions.
7. The order is assailed on the following grounds:
i) The conclusion drawn by the court below makes the trial futile exercise in the sense that the court below has already reached the conclusion that the offences have been committed.
ii) The court below has applied Section 227 for considering the plea of discharge which is legally incorrect as the relevant provision is Section 239.
Crl.R.P.2599/11 & con.cases.
9
iii) Except for narrating the case put forward by both the parties, there is no consideration of the relevant contentions placed before the court below and no materials as such have been referred to in detail to consider the submissions made by the petitioners.
iv) Even if all the documents and the statements relied on by the prosecution are accepted on the face value, still no offence under Section 120B IPC and Section 13(2) read with Section 13(1)(d)(i) of the PC Act are made out.
8. Elaborating on the above points, learned counsel for the revision petitioners pointed out that the procedure to be followed in the instant case is that of warrant trial. The court below has applied the standards of a sessions trial. The court therefore viewed the whole issue from the angle of Section 227 and the ingredients necessary to satisfy, considering the case under Section 227, are entirely different from those which need to be Crl.R.P.2599/11 & con.cases.
10considered under Section 239 and therefore the order cannot be sustained. It is a serious error which according to the petitioners goes to the root of the matter.
9. It is then contended that the court below has already reached a conclusion that the petitioners have committed the offences alleged against them which was not warranted at this stage of the proceedings. Going by the conclusions drawn by the court below, it will be a futile exercise for the petitioners to face trial and wrong standards have been applied by the court below. At this point of time, the only issue was whether the charge filed by the C.B.I. under Section 173(2) Cr.P.C. is groundless or not and not whether the accused have committed the offence as alleged by the prosecution.
10. It was contended that even assuming all that the prosecution say are true, the materials are insufficient to support a charge under Section 13(1)(d) of the P.C. Act Crl.R.P.2599/11 & con.cases.
11and Section 120B IPC. The main item of evidence relied on by the prosecution is the statements of C.Ws. 1, 2 and 3, who turned approvers. Even accepting all that they say are true, there is nothing to show that the ingredients necessary to attract the offences are made out though at best a very vague suspicion may be created, which is far from sufficient for meeting the standards of a criminal trial. The prosecution placed considerable reliance on Ext.D25 document, a list of names said to have been recovered from the house of C.W.1 in the raid conducted therein by the C.B.I. There is nothing to show that the money said to have been received by C.W.1, who is stationed outside the Airport and who, even according to the statements, was engaged in only exchanging foreign currency, was obtained from the passengers as illegal gratification. C.Ws.2 and 3 only say that they distributed the money as ordered by the superior officers of the Airport to C.W.1. Petitioners herein Crl.R.P.2599/11 & con.cases.
12are arrayed as accused on the solitary ground that C.Ws.1, 2 and 3 say that they distributed money to some of the accused and the names of the accused are found in Ext.D25 list said to have been recovered from the house of C.W.1. Even assuming that their statements are accepted and Ext.D25 is also looked into, they can be of no help to the prosecution. The prosecution infact wants to rely on assumptions and presumptions without any legal evidence to support them. The prosecution infact relies on the statements of C.Ws.1 to 3, C.W.13 C.W.22 and C.W.23 and Ext.D25 to fasten culpability on the petitioners.
11. It was contended that in order to attract the offence under Section 120B IPC, there must be materials to show the meeting of minds to do an illegal act or an act which is not illegal by illegal means. Here what the prosecution wants is, from Ext.D25 and C.Ws.1 to 3, the court to presume a conspiracy which is not legally possible. Crl.R.P.2599/11 & con.cases.
13At worst, what could be said is that the persons whose names are found in Ext.D25 have received money. But that is not enough to show that those amounts were received as illegal gratification and there is no evidence of the source of those amounts which were said to have been distributed to the petitioners so as to attract the ingredients sufficient to meet the requirements of Section 13(1)(d)(i) of the PC Act or Section 120B IPC.
12. Learned counsel appearing for the revision petitioners relied on the decision reported in Yogesh v. State of Maharashtra ((2008) 10 SCC 394) wherein it was held as follows:
"By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction Crl.R.P.2599/11 & con.cases.14
or not. The broad test to be applied is whether the materials on record, if unrebutted, make a conviction reasonably possible."
Reliance was also placed on the above decision for the purpose of showing the necessary ingredients to attract Section 120B, wherein it was held as follows:
"The basic ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either
(a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. Yet, as observed by this Court in Shivnarayan Laxminarayan Joshi vs. State of Maharashtra a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Therefore, the meeting of minds of the conspirators can be inferred from the Crl.R.P.2599/11 & con.cases.15
circumstances proved by the prosecution, if such inference is possible.
In Mohammad Usman Mohammad Hussain Maniyar and Ors. vs. State of Maharashtra, it was observed that for an offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agree to do and/or cause to be done the illegal act, the agreement may be proved by necessary implication.
In Kehar Singh and Ors. vs. State (Delhi Administration)5, the gist of the offence of the conspiracy has been brought out succinctly in the following words :
"...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."
Again in State of Maharashtra and Ors. vs. Som Nath Thapa and Ors., a three-Judge Bench of Crl.R.P.2599/11 & con.cases.
16
this Court held that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use.
More recently, in State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru, making exhaustive reference to several decisions on the point, including in State through Superintendent of Police, CBI/SIT vs. Nalini and Ors., Venkatarama Reddi, J. observed thus :
"Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused (per Wadhwa, J. in Nalini's case at page 516). The well known rule governing Crl.R.P.2599/11 & con.cases.17
circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible."
(Tanviben Pankajkumar case9, SCC page 185, para 45). G.N. Ray, J. in Tanibeert Pankajkumar observed that this Court should not allow the suspicion to take the place of legal proof."
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 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 Crl.R.P.2599/11 & con.cases.
18
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."
13. Learned counsel for the revision petitioners also relied on the decision reported in Jamuna v. State of Bihar (AIR 1974 SC 1822) and highlighted the duty of an investigating officer. In the said decision, it was held as follows:
"The duty of the Investigating Officers is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth."
14. Ext.D25, according to the learned counsel for the petitioners, could not constitute books of accounts and for the said purpose reliance was placed on the decision reported in Central Bureau of Investigation v. Crl.R.P.2599/11 & con.cases.
19V.C.Shukla (1998 Crl.L.J. 1905), wherein it was held as follows:
" 9. From the above resume of facts it is manifest that the entire edifice of the prosecution case is built on the diaries and files - and for that matter the entries made therein-recovered from J. K. Jain. While the appellant claimed that the entries in the documents would be admissible under Sections 34,10 and 17 of the Evidence Act, ('Act' for short) the respondents contended that the nature and character of the documents inhibited their admissibility under all the above Sections. Needless to say, to delve into and decide this debatable point it will be necessary at this stage to look into the documents; the two spiral note books (marked MR 68/91 and MR 71/91), two small spiral pads (MR 69/91 and MR 70/91) and two files, each containing some loose sheets of papers (MR 72/91 and MR 73/91). Since according to the prosecution MR 71/91 is the main (mother) book we first take the same for scrutiny. Page 1 of the book begins with the Crl.R.P.2599/11 & con.cases.20
heading "A/C given up to 31st January on 31-1- 1988", and then follows serially numbered entries of various figures multiplied by some other figures on the left hand column and the product thereof on the next column for each month commencing from January, 1990 to April, 1991. The overleaf ('o' for short) of the page contains similar entries for the period from April, 1988 to December, 1989 and it ends with the words "2.77' we have to receive". In the subsequent pages the book records monthly receipts of monies/funds from inconspicuous persons/entities during the period commencing from the month of February, 1988 to April, 1991 maintained on '2 cloumns' basis. The left hand column represents the receipts and the right hand column disbursements. In the column of receipts the source is indicated in abbreviated form on the left of the figure representing the sum received. On the right side of the said figures a number is mentioned which co-relates with the serial number of the account of receivers recorded on pages 1 and 1(o) of the diary for the period Crl.R.P.2599/11 & con.cases.21
subsequent to 31-1-1988. So far as the names of the payees are concerned the same have also been recorded in abbreviated form, alphabets or words. The entries, however, do not give any indication of any sale, purchase or trading and show only receipts of money from a set of persons and entities on one side and payments to another set of persons and entities on the other, both reckoned and kept monthly. As regards the actual amounts received and disbursed we notice that the figures which have been mentioned briefly against the respective names are not suffixed with any symbol, volume or unit so as to specifically indicate whether they are in lakhs, thousands or any other denomination. It is noticed that in most of the entries the figures against transactions extend to 2 places after decimal which seem to suggest that the figures in money column may be in thousands, but then in some of the months, namley, 11/88, 6/89, 10/90, 2/91, 3/91, 4/91, figures extend to 5 places after decimal point in money column. This gives an impression that the figures are in lakhs; and this impression gains Crl.R.P.2599/11 & con.cases.22
ground from other transactions. For example, at page 9 of the book in the transactions relating to the month of September 80, a figure of 32,000 prefixed by # (sterling pound symbol) indicates that it is 32,000 sterling pounds and the same has been multiplied by Rs. 40/- per pound (which was possibly the conversion rate of pound according to Indian currency at that time) and the total has been indicated at 12.80 as against the product of Rs. 12,80,000/-. That necessarily means that the 2 places after decimal denotes that the figures are in lakhs. The book further indicates that it was from time to time shown to some persons and they put their signatures in token thereof.
11. While arguing their case for framing of charges against the respondents it was contended on behalf of the appellant before the trial Court that having regard to the fact that the documents unmistakably showed that accounts of business regarding receipt and payment of money during the period 1988 to 1991 were regularly maintained those documents would be admissible under Section 34 of the Act. Relying upon the Crl.R.P.2599/11 & con.cases.23
statements of some of the witnesses recorded during investigation and report of the hand writing expert that the entries in the documents were in the handwriting of J. K. Jain, and that the three Jain brothers had signed those documents in token of their authenticity, it was contended that entries therein would be admissible also under Section 10 of the Act to prove that pursuant to a conspiracy hatched up by the Jains to obtain favours from politicians and other public servants payments were made to them from moneys received through hawala transactions. Sections 17 and 21 were also pressed into service to contend that the entries would be 'admission' of the Jains of such payments.
39. A conspectus of the above decisions makes it evident that even correct and authentic entries in books of account cannot without independent evidence of their trustworthiness, fix a liability upon a person. Keeping in view the above principles, even if we proceed on the assumption that the entries made in MR 71/91 are correct and the entries in the other books and Crl.R.P.2599/11 & con.cases.24
loose sheets (which we have already found to be not admissible in evidence under Section 34) are admissible under Section 9 of the Act to support an inference about the formers' correctness still those entries would not be sufficient to charge Shri Advani and Shri Shukla with the accusations levelled against them for there is not an iota of independent evidence in support thereof. In that view of the matter we need not discuss, delve into or decide upon the contention raised by Mr. Altaf Ahmed in this regard. Suffice it to say that the statements of the four witnesses, who have admitted receipts of the payments as shown against them in MR 71/91, can at best be proof of reliability of the entries so far they are concerned and not others. In other words, the statements of the above witnesses cannot be independent evidence under Section 34 as against the above two respondents. So far as Shri Advani is concerned Section 34 would not come in aid of the prosecution for another reason also. According to the prosecution case itself his name finds place only in one of the loose sheets (Sheet Crl.R.P.2599/11 & con.cases.25
No. 8) and not in MR 71/91. Resultantly, in view of our earlier discussion, Section 34 cannot at all be pressed into service against him."
15. In order to highlight the ingredients necessary to attract Section 13(1)(d)(i), learned counsel appearing for the revision petitioners placed reliance on the decision reported in Subash Parbat Sonvane v. State of Gujarat ((2002) 5 SCC 86) wherein it was held as follows:
"In our view, mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under Section 13(1)(d)(i). Section 13(1)(d) is as under:-
"13. Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct.
(d) if he, -
(i) by corrupt or illegal means, obtains for himself or for any any other person any valuable thing or pecuniary advantage; or Crl.R.P.2599/11 & con.cases.26
(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".
In Sections 7 and 13(1)(a) and (b) of the Act, the Legislature has specifically used the word 'accepts' or 'obtains'. As against this, there is departure in the language used in clause (1)(d) of Section 13 and it has omitted the word 'accepts' and has emphasized the word 'obtains'. Further, the ingredient of sub-clause (i) is that by corrupt or illegal means, a public servant obtains any valuable thing or pecuniary advantage; under clause (ii), he obtains such thing by abusing his position as public servant; and sub-clause (iii) contemplates that while holding office as the public servant, he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person under Section 13(1)(d), there must be evidence on record that accused 'obtained' for Crl.R.P.2599/11 & con.cases.
27
himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest."
16. Reliance was also placed on the decision reported in A. Subair v. State of Kerala ((2009) 6 SCC
587), wherein it was held as follows:
"In C.K. Damodaran Nair v. Govt. of India this court had an occasion to consider the word "obtained" used in Section 5(1)(d) of the Prevention of Corruption Act, 1947 [now Section 13(1)(d) of the Act, 1988], and it was held"
"The position will, however, be different so far as an offence under Section 5 (1) (d) read with Section 5 (2) of the Act is concerned. For such an offence prosecution has to prove that the accused 'obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory Crl.R.P.2599/11 & con.cases.28
presumption under Section 4 (1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) - and not under Section 5(1)(c), (d) or (e) of the Act. 'Obtain' means to secure or gain (some-thing) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5 (1)(d) of the Act unlike an offence under Section 161 I. P. C., which, as noticed above, can be, established by proof of either 'acceptance' or 'obtainment.'"
The legal position is no more res integra that primary requisite of an offence under Section 13 (1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing of pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established."
Crl.R.P.2599/11 & con.cases.
29
17. Learned counsel appearing for the revision petitioners summed up by saying that going by the standards laid down by the above decisions, it could not be said that the ingredients necessary to attract Section 120B IPC or Section 13(1)(d)(i) of the PC Act are prima facie made out to sustain the charge against the petitioners apart from the fact that the so-called Ext.D25 and other documents can serve little purpose to the prosecution.
18. Countering the above arguments, learned counsel appearing for the prosecution agency cautioned this court that interference at the stage of Section 239 Cr.P.C. is considerably limited. The charge on the very face of it must be found to be groundless. That is, it is without any basis whatsoever. The evidentiary or probative value of the documents and statements are not matters for scrutiny at this stage of the proceedings. Those are matters to be determined much later at the stage of evidence. As of now, Crl.R.P.2599/11 & con.cases.
30the documents and the statements will have to be viewed as such. Whether the witnesses will remain loyal or whether the documents produced by the prosecution which prima facie show the involvement of the accused persons are legally admissible in evidence and if admissible, how far they can serve the purpose of the prosecution and how far it can go against the accused are matters alien for consideration now. C.Ws.1 to 3 are in the position of accomplices and their statements have been taken before the learned Magistrate under Section 164 Cr.P.C. The prosecution can place other materials also during trial which would go in their favour apart from the materials now available and also can seek the court to draw necessary presumptions and assumptions based on available evidence to prove the case against the accused. Seldom can one get direct evidence of conspiracy. The evidence of conspiracy is a matter of inference from proved facts and circumstances. Crl.R.P.2599/11 & con.cases.
31Necessary conclusions will have to be drawn from proved facts in order to ascertain whether there is a criminal conspiracy as alleged by the prosecution. The present attempt should be to see whether the charge is frivolous or unsupported by any evidence. The sufficiency of the materials to prove the case for prosecution is not a matter for examination now. Learned counsel referred to in detail the various materials available against the accused, i.e., each one of the petitioners who have preferred these revision petitions. It is pointed out that as far as the 3rd, 6th and 15th accused are concerned, there is enough materials to show that they had actively participated in some of the meetings where the shares due to each of the officers were determined. As far as the other accused are concerned, there are sufficient materials to show that they received monetary benefits for which explanation has to be offered by them. There are enough materials to show that the Crl.R.P.2599/11 & con.cases.
32petitioners and other accused are recipients of periodical payments which are unaccounted in any of the registers of the Customs Office for which they alone can offer explanation.
19. In support of the contention that accomplices' evidence can form the basis for a conviction, learned counsel for the prosecution agency relied on the decision reported in Narayanaswami v. Kerala State (AIR 1957 Kerala 134), wherein it was held as follows:
"It cannot be laid down as a rule of law that without independent corroboration the evidence of partisan witnesses can under no circumstances be relied on as sufficient to sustain a conviction of the accused. After all, the rule regarding independent corroboration is only a rule of prudence. If in any particular case the evidence of partisan witnesses is seen to be thoroughly reliable and trustworthy, there will be nothing wrong in the court in acting upon such evidence and entering a conviction against the accused. Crl.R.P.2599/11 & con.cases.33
Even in the cases of witnesses standing in the position of accomplice their evidence is not totally discarded. All that is insisted on as a matter of prudence is that before acting upon such evidence the court must be satisfied that such evidence has been corroborated in material particulars by other items of independent evidence."
20. Reliance was also placed on the decision reported in K. Hasim v. State of Tamil Nadu (2005 Crl.L.J. 143) wherein it was held as follows:
"Section 133 expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on an uncorroborated testimony of an accomplice. In other words, this section renders admissible such uncorroborated testimony. But this section has to be read along with S. 114, Illustration (b). The latter section empowers the Court to presume the existence of certain facts and the illustration elucidates what the Court may presume and makes clear by means of Crl.R.P.2599/11 & con.cases.34
examples as to what facts the Court shall have regard in considering whether or not maxims illustrated apply to a given case. Illustration (b) in express terms says that accomplice is unworthy of credit unless he is corroborated in material particulars. The Statute permits the conviction of an accused on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in Illustration (b) to S. 114 strikes a note of warning cautioning the Court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. In other words, the rule is that the necessity of corroboration is a matter of prudence except when it is safe to dispense with such corroboration must be clearly present in the mind of the Judge.
Although S. 114, Illustration (b) provides that the Court 'may' presume that the evidence of an accomplice is unworthy of credit unless corroborated, 'may' is 'not' must and no decision of Court can make it must. The Court is not obliged to hold that he is unworthy of credit. It Crl.R.P.2599/11 & con.cases.35
ultimately depends upon the Court's view as to the credibility of evidence tendered by an accomplice."
21. In support of his contention that direct proof of conspiracy may not be available and it is a matter for inference, learned counsel for the investigating agency relied on the decision reported in Firouddin Basheeruddin v. State of Kerala ((2001) 7 SCC 596) wherein it was held as follows:
"Like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes that act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. In the face of modern organized crime, complex business arrangements in restraint of trade, and subversive political activity, conspiracy law has witnessed expansion in many forms. Conspiracy criminalizes in agreement to commit a crime. All conspirators are liable for crimes committed in furtherance of Crl.R.P.2599/11 & con.cases.36
the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity. To put it differently, the law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. Contrary to the usual rule that an attempt to commit a crime merges with the complete offence, conspirators may be tried and punished for both the conspiracy and the completed crime. The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being informed of the identity of his co-conspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of co-operation between the accused. What people do is, of course, evidence of what lies in their minds. To convict a Crl.R.P.2599/11 & con.cases.37
person of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy.
Another major problem which arises in connection with the requirement of an agreement is that of determining the scope of a conspiracy - who are the parties and what are their objectives. The determination is critical, since it defines the potential liability of each accused. The law has developed several different models with which to approach the question of scope. One such model is that of a chain, where each party performs a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. No matter how diverse the goals of a large criminal organization, there is but one objective; to promote the furtherance of the enterprise. So far as the mental state is concerned, two elements required by conspiracy are the intent to agree and the intent to promote the unlawful objective of the conspiracy. It is the intention to promote a crime that lends conspiracy its criminal cast. Crl.R.P.2599/11 & con.cases.38
Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would render that person liable. Thus, one who enters into conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationable is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendant's liability than the fact that the crime was performed as a part of a larger division of labour to which the accused had also contributed his efforts.
Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Crl.R.P.2599/11 & con.cases.39
Contrary to the usual rule, in conspiracy prosecutions any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co- conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Explaining this rule, Judge Hand said :
"Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made 'a partnership in crime'. What one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all. (Van Riper v. United States)."
22. Reliance was also placed on the decision reported in K. Hasim v. State of Tamil Nadu (2005 Crl.L.J. 143) wherein it was held as follows:
"The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is Crl.R.P.2599/11 & con.cases.40
complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence.
Encouragement and support which co- conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. Offence of criminal conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agreed to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra capale of being enforced, if lawful, punishable if for a criminal object or for use of criminal means."
Crl.R.P.2599/11 & con.cases.
41
23. Regarding the question as to whether there are sufficient materials as of now, learned counsel relied on the decision reported in Supt. and L.A. v. Anil Kumar Bhunja ((1979) 4 SCC 274), wherein it was held as follows:
"Where a case is at the stage of framing charges and the prosecution evidence has not yet commenced, the Magistrate has to consider the question of sufficiency of ground for proceeding against the accused on the general consideration of materials placed before him by the investigating police officer. The truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence Crl.R.P.2599/11 & con.cases.42
alleged, may justify the framing of charge against the accused in respect of the commission of that offence."
24. Learned counsel appearing for the prosecution agency also pointed out that Section 173(2) report showing charges against the accused is only an opinion of the investigating officer and the court which takes cognizance and the court which tries the case are not tied down to the offences as mentioned by the investigating officer. It was for the courts, on application of its mind, to find whether some other offences are made out. The law does not preclude the court from discarding the offences mentioned by the investigating officer and framing charges for the offences which the court feels are made out on the materials available before it. In support of the said contention, learned counsel relied on the decision reported in Pramatha Nath v. State of West Bengal (AIR 1960 SC 810) wherein it was held as follows:
Crl.R.P.2599/11 & con.cases.43
"When a magistrate takes cognizance of offences under S.190(1)(b) he takes cognizance of all offences constituted by the facts reported by the police officer and not only of some of such offences. Hence a magistrate after making an order of discharge under S.251A(2) in respect of a charge for an offence triable as a warrant case can still proceed to try the accused for another offence disclosed by the police report and triable as a summons case; and a fresh complaint in respect of such offence is not necessary."
25. Well, the principles relied on by the counsel on either side based on various decisions are well settled. The first question that arises for consideration is what is the scope of enquiry under Section 239 when the accused pleads for a discharge. Section 239 reads as follows:
"239. When accused shall be discharged.- If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary Crl.R.P.2599/11 & con.cases.44
and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
26. In order to consider the question of discharge sought for under Section 239, the Magistrate is required to
(i) consider all the documents referred to in Section 173 Cr.P.C., (ii) examine the accused, if it is considered necessary, (iii) give the prosecution and the accused an opportunity of being heard. If, on consideration of the above materials, the Magistrate feels that the charge is groundless, then a discharge will be justified. All that the Magistrate at this stage is required to do is to see whether there is reasonable basis or foundation for framing a charge. The criterion or principle that is to be applied is only to see whether the statements and the circumstances if accepted make out a prima facie case and for which charge Crl.R.P.2599/11 & con.cases.
45can be framed. If the answer is in the affirmative, discharge will be unjustified.
27. It is true that the court below has referred to Section 227 of the Cr.P.C. while considering the plea of discharge. Section 227 reads as follows:
"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."
28. As initially noticed, the proper provision that is applicable to the case on hand is Section 239 and not Section 227. The tests to be applied in case of Section 227 and Section 239 are entirely different and both the Sections have nothing in common. While in Section 227 what is stated is that if the court on hearing the prosecution and Crl.R.P.2599/11 & con.cases.
46the accused finds that there is no sufficient ground to proceed against the accused, the accused shall be discharged. While in Section 239 what is stated is that if on consideration of the documents filed under Section 173 and if the court feels necessary, on examining the accused and after hearing the accused and the prosecution forms an opinion that charge framed by the prosecution agency is groundless, a discharge will be justified. But merely because a wrong test might have been applied by the lower court by itself is not a ground to interfere with the order if otherwise it is found to be tenable in law.
29. As of now, the materials available against the accused are as follows:
Accused No.3 : Statements of C.Ws.3 and 1 and the allegation that he had participated in a meeting where shares of officers for payment was determined. Documents relied on as against him are Exts.D25, D27, D38, call details Crl.R.P.2599/11 & con.cases.47
for the period from 1.6.2005 to 2.1.2006. Accused No.6 : Statements of C.Ws. 1 and 2 and Ext.D25, which shows that he had received a sum of Rs.25,380/-. Accused No.10 : Statements of C.Ws.1 and 2 and Ext.D25, wherein it is shown that he received Rs.5,200/-. Accused No. 11: Statement of C.W.1 and receipt of Rs.1,300/- as per Ext.D25.
Accused No.13: Statements of C.Ws.3 and 1 and Ext.D25 showing receipt of Rs.9,700/-.
Accused No.15: Statements of C.W.3 and 1. He is alleged to have taken part in a meeting of settlement and as per Ext.D25 he is seen to have received Rs.26,700/-. Accused No.25: C.Ws. 3 and 1 and Ext.D25 which shows payment to him and Ext.D31 call details which shows that he was in constant touch with C.W.1.
Accused No.30: C.Ws. 3 and 1 and receipt of Rs.21,700/- as per Ext.D25.
Crl.R.P.2599/11 & con.cases.48
30. The other documents relied on by the prosecution are Ext.D45, D46 and D47 which are statements given by C.Ws. 1, 2 and 3 to the Magistrate concerned under Section 164 Cr.P.C.
31. The contention raised by the petitioners is that even assuming that Ext.D25 is taken on its face value, it does not prove anything at all. It only shows some scribbling in some paper and some amounts said to have been paid to certain persons whose names are shown in abbreviations. There is nothing to connect the accused to those payments and it will be a futile exercise to rely on such a document. They also say that even assuming that the statements of C.Ws.1 to 3 are accepted, that does not show the involvement of these persons in the so-called clandestine transaction and how far their evidence can be relied on is also a matter open to serious doubt. At any rate, they say that offence punishable under Section 13(1) Crl.R.P.2599/11 & con.cases.
49
(d)(i) of the PC Act cannot be attracted. The necessary ingredients to attract the said provision as laid down in the decisions already referred to, according to the petitioners, are not available in the case on hand. They also say that it is not proper at this point of time to consider whether any other offence could be made out apart from what is mentioned in the charge since the scrutiny at the current stage is only to see whether the charge as laid is groundless. They also pointed out that there is absolutely no evidence of any conspiracy and according to them, their involvement in the alleged dubious transactions and the so-called conspiracy are matters for presumption and assumption and they are not legally permissible.
32. How far the above contention can stand is a matter for consideration. As rightly pointed out by the learned counsel for the CBI, the prosecution agency, receipt of amounts if accepted by way of on the evidence given by Crl.R.P.2599/11 & con.cases.
50C.Ws.1, 2 and 3 or on the basis of Ext.D25, it will go a long way to support the prosecution case. Even though Ext.D25 may not fall within the meaning of books of accounts under Section 35 of the Indian Evidence Act, it is an item of evidence on which the prosecution places considerable reliance. Whether that by itself is sufficient to prove the prosecution case is a different question. The further question as to whether the evidence of C.W.1 regarding the payment shown in Ext.D25 can be accepted is also a matter not for determination now. One cannot forget here that C.Ws.1, 2 and 3 have given statements before the Magistrate concerned which are recorded under Section 164 of the Cr.P.C.
33. It is true that in the statement of C.W.1, it is seen mentioned that only packets of amounts were being handed over to him outside the Airport and it is not seen mentioned by him that he has direct knowledge of the Crl.R.P.2599/11 & con.cases.
51customs officers having received bribe directly from any passenger or from any other source. To that extent, the petitioners may be right. As far as C.Ws.2 and 3 are concerned going by the available statements, they only seem to have been involved in the distribution of amounts to the various officers as per the direction issued to them, either by C.W.1 or by somebody else. Except for the evidence of C.W.35, who handed over two 50 Dirham notes to accused Nos.2 and 3, which have been seized from the rest room of the Airport, there is no direct evidence as of now for the payment or receipt of any illegal gratification by any other officer.
34. But as rightly pointed out by the learned counsel for the C.B.I., the activity seems to be well planned and well organized. Under such circumstances, it will be quite imprudent to insist for meticulous and direct evidence. This is not to say that the evidence now available Crl.R.P.2599/11 & con.cases.
52is sufficient for conviction. That is not a matter for determination now. As already noticed, the only issue now before this court is to see whether the charge filed by the prosecution agency as per Section 173(2) is groundless, i.e., without any foundation or basis.
35. Much was said about the statements given by C.Ws.1, 2 and 3 and also their statements given before the learned Magistrate under Section 164 Cr.P.C. During the course of the argument, it was submitted that departmental proceedings were initiated against the petitioners and at that point of time these witnesses have rescinded from the statements and that would show that the prosecution agency cannot get any support from them. The above fact is not a matter which should influence the decision of the court now when the plea of discharge is being considered. If as a matter of fact, the prosecution is able to show by adducing evidence at the time of trial that the petitioners Crl.R.P.2599/11 & con.cases.
53are recipients of amounts as claimed by the prosecution, then it must be said that the petitioners may be in peril, for, the burden will shift to them to account for the receipt of such amounts.
36. Attention of this court was drawn to the fact that the raid was conducted on 2.11.2005 and Ext.D25, a chit of payments said to have been recovered from the house of C.W.1 during C.B.I. raid, for the fortnight period ranging from 16.9.2005 to 30.9.2005. Attention of this court was drawn to the fact that the prosecution case itself is that fortnight periodical payments were being made and settlements were effected. It is strange, according to the petitioners that no documents showing any settlement either before or after the period mentioned in Ext.D25 is seized by the prosecuting agency. It is therefore contended that Ext.D25 is a cooked up document.
Crl.R.P.2599/11 & con.cases.
54
37. Again, the above aspect does not arise for consideration at this point of time. Whether Ext.D25 can be relied on or accepted in evidence or if Ext.D25 is sufficient to show that the payments were effected to the petitioners and whether the abbreviations shown in Ext.D25 are sufficient to connect the petitioners to the payments are all matters for determination at the time of trial. As of now, it will be too early to say that they cannot relate to the petitioners or whether that by itself is insufficient to mulct petitioners with liability.
38. May be that some of the documents produced by the prosecution are open to doubt. But to reject them as totally unworthy of credit as of now may not be justified or warranted. The question as to whether Ext.D25 can fall within the ambit of books of accounts or if not what purpose that can serve need not and shall not be determined at this point of time. One has now only to see whether the Crl.R.P.2599/11 & con.cases.
55consequences that follow if Ext.D25 is accepted and proved in accordance with law. If that taken along with the evidence of C.Ws.1 to 3, in addition to the statements before the Magistrate, then as already stated if found acceptable, it could not be said that the charge now laid is groundless.
39. At least as regards three of the petitioners, namely, accused Nos.3, 6 and 15, further materials are relied on by the prosecution agency to show that they have actively participated in the fortnightly meetings where settlements were arrived at regarding the payments to be made to the various officers. Of course, there is no documentary evidence regarding this aspect. But if C.Ws.1, 2 and 3 stand by their statements and their evidence is accepted, then the position of the petitioners became precarious. It is not for this court at this point of time to say either that their statements are insufficient or that they may not remain loyal to the prosecution.
Crl.R.P.2599/11 & con.cases.
56
40. As rightly noticed by the learned counsel for the C.B.I. in fact C.Ws.1, 2 and 3 are in the position of accomplices. Whether their evidence by themselves is sufficient to sustain the charge against the petitioners is a different question altogether. One has now proceed on the basis that C.Ws.1, 2 and 3 and other witnesses will speak in terms of the prosecution case. Viewed from that angle,it could not be said that the charge now laid is groundless or frivolous.
41. Learned counsel appearing for the C.B.I. pointed out that the prosecution has a case that the petitioners and similarly situated persons have been habitually receiving illegal gratification and prosecution evidence is also to that effect. It is true that they could lay their hands only on Ext.D25. In support of the above contention, according to him, if the evidence of C.Ws.1, 2 and 3 are accepted, it may go a long way in showing that Crl.R.P.2599/11 & con.cases.
57there were periodical payments to these officers attracting Section 13(1)(a) also.
42. It is not for this court to enter into those areas at this point of time. Whether any other offence is made out or not apart from what is mentioned in the charge is not a matter germane for consideration now. Currently this court is concerned only with the question as to whether the materials available are sufficient to sustain a charge or in other words are the materials so brittle and frivolous that the charge has to be termed as groundless. Of course one can have no quarrel with the power of the court to frame charges for appropriate offences even discarding the charges mentioned by the prosecution agency while filing the final report under Section 173(2) Cr.P.C.
43. One cannot take exception to the fact that seldom the prosecution agency will be able to get direct evidence of conspiracy. Quite often it is a matter for Crl.R.P.2599/11 & con.cases.
58presumption from proved circumstances. It is well settled that conspiracy are hatched in secrecy. It is a clandestine activity. It by itself constitutes an offence. The details of conspiracy is hard to prove. The law has developed several methods of resolve the issue. Conspiracy is a partnership in crime. If as a matter of fact the prosecution is able to establish elements of conspiracy, then of course Section 10 of the Indian Evidence Act comes to the aid of the prosecution.
44. The report of the police officer and the result of the investigation conducted by the police do not have the status of evidence. At this stage, the prosecution merely represents to the court that the persons whose statements have been recorded may depose as expected to the facts recorded in the statements during the trial of the case. It is also too early to assess whether the documents produced by the prosecution have any evidentiary value. Crl.R.P.2599/11 & con.cases.
59
45. At the time of framing charge, the court has to certainly apply its mind. It cannot automatically frame charges by relying on the documents produced by the prosecution. The responsibility of framing charges is that of the court which has to judicially consider the materials before it. If on such an assessment, the court comes to the conclusion that there are absolutely no grounds for presuming that the accused are guilty, there may be hardly any justification for framing charges. It is here that the word groundless assumes importance. That means, there are no grounds for presuming that the accused have committed the offences sought to be charged against them. It does not mean that absence of reasonable grounds can result in a conviction. The question as to whether benefit of doubt can be given to the accused cannot be considered at this stage since that cannot be taken as a ground to hold Crl.R.P.2599/11 & con.cases.
60that the charge is groundless. The principle to be applied is that if there are some materials to put the accused on trial, a discharge under Section 239 will be unjust, unwarranted and uncalled for.
46. This court was taken through the statements furnished by C.Ws.1, 2, 3 and 35 and also through record Nos.45 to 47, 25, 13, 38 and 37. It is true that in order to sustain a charge for bribe, the following ingredients will have to be satisfied, (i) recipient must be a public servant,
(ii) he must solicit or receive an illegal gratification and
(iii) it must have been received as a motive or reward for doing some official act which he is empowered to do. The requirement seems to be obtaining of illegal gratification using his official position. If what the prosecution says is true, it is corruption patronized, institutionalized and practiced with impunity. One would not wrong in saying that it is the democratic, and socialistic corruption. It is Crl.R.P.2599/11 & con.cases.
61shocking to note that the entire officialdom of the Airport is drenched in corruption, so says the prosecution agency.
47. At any rate, the materials now produced before court do suggest that there was sharing of amounts among the officers of Karipur Airport at Calicut and as to whether the materials now available are sufficient to establish charge under the provisions of the PC Act and IPC need not be considered now. At any rate, it could not be said that the prosecution case is totally groundless.
48. One shall not forget that the prosecution has definite case of criminal conspiracy and in the case of the present nature, if true, it is extremely difficult to get direct evidence and the evidence available will be meager or even look tainted. Whether the prosecution can prove the case beyond reasonable doubt is not a matter for consideration at this point of time.
Crl.R.P.2599/11 & con.cases.
62
49. If on the materials now available, it is possible to come to a conclusion that periodical payments have been received by the delinquent officers, then the position may be quite different. As noticed, if a conspiracy for sharing the illegal gratification is established, then Section 10 comes into play. Again the evidence of C.Ws.1, 2 and 3 who are virtually in the position of accomplices are accepted, as they now stand, that may form some basis for putting the accused on trial. Once it is shown that amounts have been received by the petitioner, then their conduct becomes relevant.
50. It is true that except for C.W.35, there is no other evidence of any other passenger having complained of or spoken to about the mischief. But as already noticed, if the prosecution is able to establish that periodical payments have been received and shared by the officers concerned, then the burden may shift to the accused to offer reasonable Crl.R.P.2599/11 & con.cases.
63explanation for the unaccounted money or receipt of payments.
51. The prosecution has produced documents to show that large amounts of currency notes were recovered from the Airport, from the bags of some of the officers and from the tables of the Airport which they say are unaccounted for in the records of the Airport. Considering the various aspects, it is felt that it cannot be said that the charge now laid by the prosecution agency is groundless, warranting a discharge under Section 239 Cr.P.C..
These petitions are without merits and they are accordingly dismissed.
P. BHAVADASAN, JUDGE sb.