Allahabad High Court
Ganesh Sharma vs State Of U.P. And Another on 6 March, 2019
Equivalent citations: AIRONLINE 2019 ALL 1372
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 01.03.2019 Delivered on 06.3.2019 Case :- APPLICATION U/S 482 No. - 6126 of 2019 Applicant :- Ganesh Sharma Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Akhilesh Srivastava,Saksham Srivastava,Sri V.P. Srivastava, Senior Advocate Counsel for Opposite Party :- G.A. Hon'ble Siddharth,J.
1. Heard Shri V. P. Srivastava, learned Senior Advocate assisted by Shri Akhilesh Srivastava and Shri Saksham Srivastava, learned counsels for the applicant and learned A.G.A. for the State.
2. The present 482 Cr.P.C. application has been filed to quash the order dated 24.01.2019 passed by Additional Sessions Judge, Prevention of Corruption Act, Court No.2, Meerut, in Case No. 236 of 2016 (State of U.P. Vs. Ganesh Sharma and others), arising out of Case Crime No. 471 of 2015, under Sections-323/34, 324/34, 332/34, 353/34, 427/34, 504, 506 I.P.C. and Section 12 of Prevention of Corruption Act, Police Station- Civil Lines, District- Aligarh.
3. The brief facts of the case are that a written report was given to Police Station - Civil Lines, District Aligarh, on 03.8.2015 by the opposite party No.2, Achchhey Lal Gupta, Additional Chief Judicial, Magistrate, Court No.7, Aligarh, alleging that on 03.8.2015 at 21:20 hours when during the mid-day recess on 03.7.2015, he was perusing the case files, the applicant, Ganesh Sharma, Advocate, came to his chamber and placed one envelope beneath of mattress on his bed and requested for granting bail to accused, Rahul. He told the applicant to take envelope and the order shall be passed in accordance with law. The applicant picked up the envelope and left the chamber of opposite party No.2. After 15-20 minutes, the applicant accompanied by Jagdish Saraswat, Advocate/ President of Aligarh, Bar Association and Pradeep Kumar Singh, Senior Advocate and former Chairman, came to his chamber and started pressuring him for grant of bail to aforesaid accused. Pradeep Kumar Singh said that it is request as well as the order that the bail should be granted to Rahul. The opposite party No.2 did not replied to him and while he was going to the court room at about 14:00 hours, all the three persons came and repeated that it was their order that Rahul should be enlarged on bail. When the opposite party told them, the order would be passed as per law, Pradeep Kumar Singh caught hold of the collar of opposite party No.2 and used filthy and abusive language against him and made a blow on his face. His spectacle was broken and the three accused persons caught him by his neck and hand, dragged him to his chambers and caused injuries to him on finger and palm. They tore his Collar Band.
4. On the basis of the aforesaid report, the first information report was lodged and case was registered as Case Crime No. 471 of 2015 for offences under Sections 332, 353, 307, 323, 324, 427, 506, 506 IPC and Section 12 Prevention of Corruption Act, Police Station Civil Lines and District Aligarh.
5. After investigation, the Investigating Officer submitted charge-sheet for offence under Sections 332, 353, 323, 324, 427, 504, 506 IPC and Section 12 Prevention of Corruption Act. The trial court has taken cognizance upon the charge-sheet on 10.11.2015. The applicant filed discharge application before the court below, which has been rejected by the order dated 24.01.2019 and the charges have been framed by the Special Judge on the same date and hence the applicant has approached this Court challenging the aforesaid order.
6. Learned counsel for the applicant has submitted that no offence under Section 12 of Prevention of Corruption Act is made out against the applicant. His submission is that in the present case, the allegation against the applicant is that he went into the chamber of the opposite party No.2 and kept on envelope beneath the mattress of his bed and requested that bail should be granted to Rahul. The opposite party No.2 stated that don't give me any bribe and take away the envelope and on his statement that the order shall be passed in accordance with law, the applicant took the envelope and left his chamber. It has been argued that there is no allegation that the envelope contained any money or any demand of money was made by the opposite party No.2. The allegation is only that the offer was made voluntarily by the applicant to the opposite party No.2 and the prosecution is drawing the inference that the envelope must have contained some amount for illegal gratification, which may amount to bribe.
7. Before proceeding further a look at Section 12 of Prevention of Corruption Act is imperative:-
"12. Punishment for abetment of offences defined in section 7 or 11.--Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."
8. Learned counsel for the applicant has relied upon the judgment of Hon'ble Apex Court in the case of C. Sukumaran Vs. State of Kerala, 2015(1)ACR1094(SC) wherein the Apex Court has held in paragraph No. 14, read as follows:-
"14. In the present case, as has been rightly held by the High Court, there is no demand for the illegal gratification on the part of the Appellant Under Section 7 of the Act. Therefore, in our view, the question of acceptance of illegal gratification from the complainant under the provision of Section 13(1)(d) of the Act also does not arise. The learned Special Judge has come to the erroneous conclusion that the Appellant had received the money and therefore he had recorded the finding that there was demand and acceptance of the bribe money on the part of the Appellant and convicted and sentenced the Appellant. However, the High Court on re-appreciation of evidence on record has held that the demand alleged to have been made by the Appellant from the complainant PW2, was not proved and that part of the conviction and sentence was rightly set aside in the impugned judgment. However, the High Court has erroneously affirmed the conviction for the alleged offence Under Section 13(1)(d) read with Section 13(2) of the Act, although as per law, demand by the Appellant Under Section 7 of the Act, should have been proved to sustain the charge Under Section 13(1)(d) of the Act."
9. Reliance on the judgement of Hon'ble Apex Court in the case of B. Jayaraj Vs. State of A.P., 2014(2)ACR1215(SC), has been made wherein the Apex Court has held in paragraph Nos. 7 and 8, as follows:-
"7.In so far as the offence Under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence Under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. MANU/SC/0981/2010 : (2010) 15 SCC 1 and C.M. Girish Babu v. C.B.I. MANU/SC/0274/2009 : (2009) 3 SCC 779.
8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt. P-11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence Under Section 7. The above also will be conclusive in so far as the offence Under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established."
10. Reliance on the judgement of Hon'ble Apex Court in the case of State of Punjab and Madan Mohan Lal Verma, MANU/SC/0776/2013, has also been made wherein the Apex Court has held in paragraph No.7, as follows:-
7. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person.
(Vide: Ram Prakash Arora v. The State of Punjab MANU/SC/0213/1972 : AIR 1973 SC 498; T. Subramanian v. The State of T.N. MANU/SC/8010/2006 : AIR 2006 SC 836; State of Kerala and Anr. v. C.P. Rao MANU/SC/0678/2011 : (2011) 6 SCC 450; and Mukut Bihari and Anr. v. State of Rajasthan MANU/SC/0480/2012 : (2012) 11 SCC 642).
11. Finally reliance on the judgement of Hon'ble Apex Court in the case of N.A. Abdul Rahiman Vs. State of Kerala, MANU/SC/0776/2013, has been made wherein Kerala High Court has held in paragraph Nos.7 to 12, as follows:-
7. Section 12 of the Prevention of Corruption Act provides that 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 three years, but which may extend to seven years and shall also be liable to fine. The Prevention of Corruption Act does not specifically define abetment meant under Section 12. So we will have to apply the definition of abetment under the Indian Penal Code. To constitute abatement of an offence there must be some instigation to do an act of offence, or the alleged abettor must have intentionally aided or facilitated the commission of a crime, or the alleged abettor must have engaged in some conspiracy with one or more other person or persons for the commission of an offence. Thus the definition of abetment under Section 107 IPC shows that the to constitute the abetment as defined under the law, there must be some nexus between the acts of the alleged abettor and the act of offence abetted.
8. In this case the abetment of offence alleged by the prosecution is that the two accused offered bribe to the District Superintendent of Police. A mere offer of bribe will not constitute the offence of abetment meant under Section 12 of the Prevention of Corruption Act. Of course it is well settled that payment of bribe will definitely come under Section 12 of the Prevention of Corruption Act, if such payment of illegal gratification was made as a motive or reward for some favours as meant under Section 7 of the Prevention of Corruption Act. This is not a case of attempt. Section 15 of the Prevention of Corruption Act cannot have application to persons other than public servants. Attempt made punishable under Section 15 of the Prevention of Corruption Act can be punished only when such attempt is committed by a public servant. What is made punishable under Section 15 is attempt to commit an offence referred to in Clause (c) or Clause (d) of Sub section 1 of Section 13. Persons other than public servants cannot commit such an offence. So Section 15 dealing with attempt to commit offence cannot have application to persons other than public servants.
9. The prosecution here is not under Section 15 of the Prevention of Corruption Act, but under Section 12, on a definite allegation, that the accused abetted the commission of an offence punishable under Section 7 of the Prevention of Corruption Act. The allegation in the Ext. P1 complaint, and also the evidence given by PW1 in court is that the accused offered to give illegal gratification to PW1 for some illegal favours. The very important question is whether such an offer alone, or a mere offer to give illegal gratification will constitute the offence of abetment punishable under Section 12 of the Prevention of Corruption Act. In so many decisions this Court and the Hon'ble Supreme Court have held that demand of illegal gratification by the accused is the sine-quo-non for constituting an offence punishable under Section 7 of the Prevention of Corruption Act. In some decisions the Hon'ble Supreme Court even held that mere recovery of tainted money will not by itself prove acceptance of illegal gratification. The learned counsel for the appellants cited the decisions of the Hon'ble Supreme Court in State of Punjab v. Madan Mohanlal Verma (MANU/SC/0776/2013 : 2013 (SC) 3368), B. Jayaraj v. State of Andhra Pradesh (MANU/SC/0245/2014 : 2014 Cri.LJ 2433) and C. Sukumaran v. State of Kerala (MANU/SC/0076/2015 : 2015 Cri.LJ 1715) and submitted that when there is absolutely no material to show that PW1 had at any time made any demand for illegal gratification, even actual payment of illegal gratification by the accused will not be punishable under Section 12 of the Prevention of Corruption Act. This is not in fact a case of actual payment of illegal gratification. The prosecution allegation is that the two accused just made an offer to give illegal gratification. What is alleged in the Ext. P1 complaint is not abetment as such but only an attempt to commit abetment, which is not punishable under the law. Even if, there was an offer from the side of the accused, the question is whether such an offer will by itself constitute abetment.
10. Of course, payment of illegal gratification on demand is punishable as abetment under Section 12 of the Prevention of Corruption Act. But this is not a case involving payment of bribe. The prosecution allegation is that even without any demand, the two accused voluntarily made an offer to give illegal gratification. When there is no such demand there is no question of a prosecution. When there is no acceptance of illegal gratification with the knowledge that it is illegal gratification there is no question of a prosecution under Section 7 of the Prevention of Corruption Act. Mere offer to give illegal gratification without any demand from the public servant cannot be punished as abetment under Section 12 of the Prevention of Corruption Act. If a person gives illegal gratification to a public servant, he will have two options. He can either accept it with the knowledge that it is illegal gratification, or he can reject it and make a complaint against the person who paid it. If it is accepted, the public servant, and also the person who made payment will be liable for punishment. The public servant will be liable under Section 7 of the Prevention of Corruption Act, and the person who made payment of bribe will be liable under Section 12 of the Act. But in a case where the illegal gratification is rejected by a public servant, the public servant will have to make a complaint against the person who made payment, and in such a situation, the person who made payment will be liable under Section 12 of the Prevention of Corruption Act. Here there is no such factual situation. In this case the two accused voluntarily made an offer by conduct, and nothing was actually paid by them, or received by the police officer. Thus there is only a mere offer voluntarily made by the two accused, without any demand from the police officer. Without and before receiving the cover, and without opening it to know what it actually contained, the police officer called his subordinate and lodged a complaint.
11. Section 20 of the Prevention of Corruption Act contains some presumptions. Sub section 2 deals with presumption in the case of a prosecution under Section 12 of the Prevention of Corruption Act that where it is proved in any trial of an offence punishable under Section 12 that any illegal gratification was given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give such illegal gratification as a motive or reward as mentioned under Section 7. Thus what is presumed under Sub section 1 to Section 20 of the Prevention of Corruption Act is not guilt of the accused facing prosecution under Section 12. What is presumed is only that illegal gratification was given by the accused or offered by the accused as a motive or reward as meant under Section 10. Presumption is only a rule of evidence, and the presumption under Section 20(2) of the Prevention of Corruption Act can be applied only where it is proved that any illegal gratification was given or offered to be given. On the basis of the presumption under Section 20(2) of the Prevention of Corruption Act it cannot be found that offer to give illegal gratification is punishable under Section 12 of the Prevention of Corruption Act. Such offer will only raise a presumption regarding motive or reward. Section 24 r/w Section 20(2) of the Prevention of Corruption Act will show that a mere offer to give illegal gratification is not punishable as abetment, under Section 12 of the Act. Here is a case of mere offer voluntarily made by the accused without any demand. Such an offer cannot be said to be abetment of an offence punishable under Section 7 of the Prevention of Corruption Act.
12. As discussed in the foregoing paragraphs I find that even if the prosecution allegation can be accepted on facts that the two appellants had offered bribe to the police officer, or had just attempted to offer bribe to him, as alleged in the complaint, the allegations will not come under Section 12 of the Prevention of Corruption Act, punishable as abetment. I find that a mere bribe offer which does not amount to payment of bribe, is not punishable as abetment under Section 12 of the Prevention of Corruption Act. Accordingly, I find that the two appellants cannot be found guilty under Section 12 of the Prevention of Corruption Act.
12. After consideration of the aforesaid authorities of the Apex Court and the judgment of Kerala High Court, it is clear that for implication of the applicant under Section 12 of Prevention of Corruption Act, the prosecution was required to prove first and foremost that there was some demand of illegal gratification and for fulfilling the same, the applicant went to the chamber of the opposite party No.2 and therefore, the applicant deserves to be tried for offence under Section 12 of Prevention of Corruption Act. Mere offer, if the envelope is taken to be an offer for bribe, will not constitute the offence of abetment within the meaning of Section 12 of Prevention of Corruption Act. Only payment of illegal gratification on demand is punishable as abetment under Section 12 of Prevention of Corruption Act, but in the present case, there is no such allegation. The offer, if it is accepted to be so, on behalf of the applicant being voluntarily made, without demand, would not call for prosecution under Section 7 of Prevention of Corruption Act. In the case of N.A. Abdul Rahiman (supra) also, an offer was made voluntarily by two accuseds by means of envelope and even without opening it, the complaint was lodged before the police. It was not clear what it actually contained. In the present case also, the opposite party No.2 did not even touched the envelope and he presumed that the applicant is offering bribe and has lodged the FIR presuming that the envelope contained money for illegal gratification.
13. From the above consideration, it is clear that the implication under Section 12 of Prevention of Corruption Act and charges against the applicant in his regard are unwarranted and set aside. However, the charges framed against the applicant under other sections of IPC are not being interfered with. The applicant shall defend himself against all the charges, except the charge under Section 12 of Prevention of Corruption Act, which is set aside.
14. With the aforesaid observations, this application is partly allowed.
Order Date :- 06.03.2019 Ruchi Agrahari