Calcutta High Court (Appellete Side)
Vipul Raj vs The Central Bureau Of Investigation on 18 December, 2017
Author: Siddhartha Chattopadhyay
Bench: Siddhartha Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
(CRIMINAL REVISIONAL JURISDICTION)
C.R.R. No. 1038 of 2015
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C.R.A.N. No. 3306 of 2017
Vipul Raj
Vs.
The Central Bureau of Investigation
Present : The Hon'ble Justice Siddhartha Chattopadhyay
For the Petitioner : Mr. Sekhar Kumar Basu, Sr. Adv.,
Mr. Avik Ghatak,
Mr. Moyukh Mukherjee.
For the C.B.I. : Mr. Ashraf Ali.
C.A.V. On : 08.11.2017.
Judgment Delivered On : 18.12.2017.
Siddhartha Chattopadhyay, J.:
The accused petitioner prayed for quashing of proceedings in Special Case No. 25 of 2003 arising out of C.B.I. case vide R.C. 35 (A) 2002/ACB/Kol under Section 7 of the Prevention of Corruption Act 1988, on the ground that the order dated 31.03.2014 is erroneous.
2. According to the petitioner, the impugned order passed by the learned Special Judge is erroneous because he had not applied his mind and without appreciating the materials on record he has rejected his application under Section 239 of Cr.P.C. and framed the charges against the accused petitioner.
3. This case has a chequered history. Before lodging the F.I.R. the de- facto complainant informed the C.B.I. authority that the accused petitioner had demanded Rs.8,000/- for the passing of his bill to the tune of Rs.44,000/-. According to him, pursuant to the demand made by the appellant, the de-facto complainant had supplied the articles to the said authority. But the said authority did not pay the dues in terms of the agreement. Times without number the de-facto complainant requested the accused for clearing his bills but the accused petitioner demanded Rs.8,000/- as bribe. Being aggrieved at it, he informed the C.B.I. authority. The said authority initially prepared a memorandum of pre-trap. After getting the complaint from the de-facto complainant the O.C., C.B.I. had called witnesses over telephone which includes bank officials and other Central Government Employees and also local witnesses. Phenolphthalein powder associated with sodium carbonate was put in the currency notes and the members of the raiding party present there were asked to touch the said currency notes. Thereafter, their hands were washed out and at that time the colour of the water turned pink. The Investigating Officer has seized the bottle wherein Phenolphthalein powder was kept. Thereafter he put the solution to a bottle and place cork on it. They have held a meeting between them as to how the operation would be conducted. Thereafter, the de-facto complainant, went to the chamber of the petitioner to bribe him. After seeing him, the petitioner asked him whether he has brought the money or not. When the reply was affirmative he took the currency notes from him and in the meantime the C.B.I. personnel encircled him. The hands of the accused were washed in the same manner and colour of his hands became pink. After that post-trap memorandum was prepared, and accordingly the O.C. concerned has lodged the F.I.R. and set the law into motion.
4. At the time of argument, learned Counsel appearing on behalf of the petitioner, contended that there is no independent witness and the story of pre-trap memorandum and post-trap memorandum is absolutely false. He categorically contended that nothing has been recovered from him and there was no such occasion to claim bribe from the de-facto complainant.
5. Before the charge is framed, the petitioner filed an application under Section 482 of Cr.P.C. and prayed for quashing of proceedings mainly on the ground that no sanction order was issued by the appropriate authority. It is true that initially the appropriate authority did not accord sanction but other authority has sanctioned the same. On that ground initially his petition was turned down by the trial court. Against that order, he has preferred SLP before the Apex Court and the Hon'ble Apex Court, without going into the merit of the application, dismissed the same with a rider that the petitioner accused may have taken recourse to his defence and argument before the appropriate forum. However, in the meantime fresh sanction order was received by the Investigating Officer and that was placed before the learned trial court. This time the learned trial court has accepted the sanction order and fixed date for hearing. On the date so fixed, the petitioner has filed an application under Section 239 of Cr.P.C. which was dismissed. The order of the trial court was challenged before a writ court and the said writ court observed that sanction so passed by the said authority is justified. Challenging the finding of the writ court, a mandamus appeal has been preferred but till today that has not been disposed of.
6. At the time of hearing, learned Counsel appearing on behalf of the petitioner, mainly contended that the learned trial court has passed the order without application of mind and so he wants to get the same quashed.
7. On perusal of the pre-trap memorandum and post-trap memorandum, I find that prima facie all the requirements have been observed by the C.B.I. authority and after recording the statement of the witnesses, Investigating Officer has submitted charge-sheet. Whether such statements are believable or not that can be ascertained only after taking evidence and not at this early stage. It is perhaps needless to say that at time of framing of charge a Court of law should not go into the every nitty- gritty of the law. If any kind of suspicion is there in that case Court shall frame the charge. At the same time, it has to be kept in mind that for the purpose of discharging the accused there must be a sufficient reason before the trial court to be shown by the petitioner that it would be an abuse of process.
8. Learned Counsel appearing on behalf of the petitioner, as relied on the decision reported in (2013) 3 SCC 330 Paragraph 29 in connection with Rajib Thapar & Ors. -Vs.- Madan Lal Kapoor, the ratio has been laid down in the said judgment by the Apex Court that at the time of exercising power under Section 482 of Cr.P.C., the Court is not supposed to ascertain the truthfulness of allegations level by the complainant nor can adjudicate the defence evidence, if it appears to the court prima facie that the allegation is more or less acceptable and it constitutes an offence, then question of exercising jurisdiction under Section 482 of Cr.P.C. would not lie. If the High Court becomes fully satisfied that the material produced or relied by the accused leads to a question that there is defence based on sound reasons only then High Court shall interfere. In the instant case, it seems to me that it is too early to say that the version of the prosecution is not believable. The learned Counsel appearing on behalf of the petitioner also relied on a decision reported in (2010) 9 SCC 368 in connection with Sajjan Kumar - Vs.- C.B.I. wherein the Hon'ble Apex Court held that continuation of prosecution and framing of charges on the basis of statements made by the prosecution witnesses, after a gap of about 23 years may be considered but that delay by itself can never be a ground for quashing of proceedings. Only the trial Judge can fold all materials including evidentiary value of testimonies of prosecution witnesses. The learned Counsel also relied on a decision reported in (2010) 2 SCC 398 in connection with P. Vijayan -Vs.- State of Kerala wherein the Hon'ble Apex Court held regarding discharge of accused that if there two views are possible, then the view which helps the accused has to be taken into consideration. At the stage of disposal of an application under Section 227 of Cr.P.C. (which is para materia to the Section 239 of Cr.P.C.) is such that the Judge has to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within it is followed the nature of the evidence collected by the prosecution but agency or the documents produced by the accused which ex facie disclosed that there are suspicious circumstances. If the Court finds that there is a ground and that is sufficient to proceed, the charge has to be framed.
9. On perusal of the entire case records it seems to me that without taking evidence it cannot be said the charge is groundless.
10. Accordingly, this revisional application does not have any merit and it is dismissed. The C.R.A.N. being No. 3306 of 2017 is also dismissed. Learned trial Court is hereby directed to proceed with the case as early as possible.
11. Let a copy of this order be sent to the learned Court at once for information and taking necessary action.
12. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SIDDHARTHA CHATTOPADHYAY, J.) A.F.R/N.A.F.R.