Gujarat High Court
Bharatbhai Somabhai Patni vs State Of Gujarat on 9 March, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/4484/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 4484 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order
NO
made thereunder ?
CIRCULATE THIS JUDGMENT IN THE SUBORDINATE
JUDICIARY.
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BHARATBHAI SOMABHAI PATNI....Petitioner
Versus
STATE OF GUJARAT.... Respondent
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Appearance:
MR. ARSH R SHAIKH(6726) for the PETITIONER(s) No. 1
MR. RZ SHAIKH(6888) for the PETITIONER(s) No. 1
MS MOXA THAKKAR, APP(2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09/03/2018
ORAL JUDGMENT
1 This is an application under Section 438 of the Code of Criminal Procedure, 1973, at the instance of an accused, for anticipatory bail in connection with the offence registered by the A.C.B. Police Station, Page 1 of 21 R/CR.MA/4484/2018 JUDGMENT Himmatnagar being IC.R. No.10 of 2016 for the offence punishable under Section 13(1)(a) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, "the Act, 1988").
2 Having regard to the fact that the F.I.R. is of the year 2016, I inquired with the learned counsel appearing for the applicant as to why this application has been filed after a period of two years. The learned counsel replied that, in fact, in the past, the applicant had preferred the Criminal Miscellaneous Application No.35151 of 2016 for anticipatory bail, but the said application, ultimately, came to be dismissed for non prosecution, as the office objections, which were raised by the Registry, could not be removed. In such circumstances, according to the learned counsel appearing for the applicant, the present application has been filed.
3 I also inquired with the learned A.P.P. as to why the applicant has not been arrested till this date. The learned A.P.P. replied that, after the registration of the F.I.R., the investigation was undertaken and the applicant was summoned for the purpose of providing his voice sample for the Voice Spectrography Test. The applicant did provide his voice sample and the report of the Forensic Science Laboratory as regards the Voice Spectrography Test has been received just few days back. The learned A.P.P. further submitted that the report of the Forensic Science Laboratory as regards the Voice Spectrography Test is concerned, is 'positive'. According to the report of the Forensic Science Laboratory, the voice sample of the applicant matches with the tape recorded telephonic conversation between the applicant and the original complainant.
4 The First Information Report came to be lodged by one Mahendrasinh Rajendrasinh Dabhi. The First Information Report is extracted hereunder:
Page 2 of 21 R/CR.MA/4484/2018 JUDGMENT
"Dated: 30092016
My name is Mahendrasinh Dabhi, age - 35, occupation - agriculture, residing - at Mohanpur, Taluka - Talod, District - Sabarkantha, mobile number - 8141008137, 9429111357.
I lodge my complaint in person that I am residing at the aforesaid address with my parents, wife and daughter. I am maintaining my family by doing agricultural work. In addition to the address at which we are residing presently, I am also having one plot at the Mahiyal area of Talod. The said plot was rented to a scrap dealer.
The day before yesterday i.e. on Wednesday dated 2809 2016, while setting the plastic waste on fire at the aforesaid plot and as the plastic waste was in excess quantity, fire broke out. So, I called 108. The firefighter from the Talod Nagarpalika arrived at and extinguished the fire and I paid them Rs. 1200/ as fees. At the same time, on receipt of message to the police control room, a PCR van of police also arrived at and returned after observing the place of occurrence. Thereafter, Bharatbhai, PSO of the Talod Police Station called me by the police station number 02770220667 on my mobile number 8141008137 to reach at the police station. I went there and met Bharatbhai. He asked me the cause of fire. I told him that due to setting fire in the excess quantity of plastic waste, the fire was caused. Thereafter, he asked me as to whose plastic waste it was. I told him that it belonged to a person namely Lalabhai Marwadi. Bharatbhai called Lalabhai Marwadi and recorded his statement. He dictated therein that "I have not suffered any loss in the said fire; neither I owe anything nor want to take any step". Thereafter, Bharatbhai also called the scrap dealer named Mithalalbhai and recorded his statement. He also dictated that "I have not suffered any loss in the said fire; neither I owe anything nor I want to take any step." Thereafter, Bharatbhai also Page 3 of 21 R/CR.MA/4484/2018 JUDGMENT recorded my statement and I also dictated that I have not suffered any loss in the said fire; neither I owe anything nor I want to take any step. Thereafter, he told me that I had to pay him something to close the matter. Therefore, I asked as to what was to be given. He told that I would have to pay Rs.10,000/. Therefore, I told that at present I did not had the said amount and if the scrap dealers would be giving the amount, then the same may be taken from them. The scrap dealers told, "Our items were burnt. Why would we pay?". When Bharatbhai insisted persistently, I gave him Rs. 500/ and told him to lessen the balance amount. Upon that, he told me OK to pay five. Therefore, I said OK and left from there. As I do not want to pay him a bribe amount of Rs. 5000/, I decided to lodge a complaint with the A.C.B. and contacted the A.C.B. Head Office. I was told to contact you from there.
Then, today, I received a call from Bharatbhai from the mobile number 9898746127 of Sureshbhai Damor, who is a friend of Bharatbhai and doing many transactions with him, on my mobile number 8141008137 at about 11:15 hrs and talked about money and he stated that he was speaking Mahendrasinh Bharatbhai from the Talod police station. Then, when I told him to speak further, he said that, "Vikramsinh is on leave, are you coming here?". Therefore, I told him to pay the same by tomorrow and requested to less the amount. Bharatbhai told that, "listen! do you know, as to how the risk I have taken for the sake of friendship." Therefore, I told him to less the amount from five. Bharatbhai told that whatever may be and something may be arranged tomorrow. Then I told him what would be given. Then Bharatbhai told me that "he will not available tomorrow." Then he told him, day after tomorrow. Then, I told Bharatbhai that on day after tomorrow, speak how much. Hence, Bharatbhai replied that what would I speak? You are our friend and done the work. Give about four." Hence, I told Bharatbhai OK! no problem. Then, Bharatbhai told me that, he want to give me an advice. If I come, then my work will be done directly, do not take risk of any land, Page 4 of 21 R/CR.MA/4484/2018 JUDGMENT building and plots. Therefore, I said it is correct, Sir, it would be arranged on day after tomorrow. Therefore, he told OK. As the recording facility available in my mobile, I have recorded the telephonic conversations in my mobile and I will produce the same. I lodge my complaint at the ACB Police Station, Gandhinagar today. I have no any dealing, business or any kind of financial transaction with Bharatbhai nor I have had any kind of dispute, altercation or discord with him. I have come here to lodge the complaint as I have not to pay him a bribe amount of Rs. 4000/. I will produce the amount of bribe.
My complaint is typed on your government laptop as per my dictation. After taking print out and reading the same, I put my signature. Complaint registered at 14:00 hrs."
5 The further statement of the first informant dated 1st October 2016, which is at page: 18 to this application, is extracted hereunder:
"Date: 01/10/2016 My name is Mahendrasinh Dabhi, age - 35, occupation - agriculture, residing - at Mohanpur, Taluka - Talod, District - Sabarkantha, mobile number - 8141008137, 9429111357.
I lodge my complaint in person that I am residing at the aforesaid address with my parents, wife and daughter. I am maintaining my family by doing agricultural work. In addition to the address at which we are residing presently, I am also having one plot at the Mahiyal area of Talod. The said plot was rented to a scrap dealer.
The day before yesterday i.e. on Wednesday dated 2809 2016, while setting the plastic waste on fire at the aforesaid plot and as the plastic waste was in excess quantity, fire broke out. To close the Page 5 of 21 R/CR.MA/4484/2018 JUDGMENT matter, Bharatbhai, a P.S.O. of the Talod Police Station demanded bribe amount of Rs. 10,000/ from me and then, demanded Rs. 5000/ and lastly, Rs. 4000/ was fixed. For which, I lodged a complaint before the A.C.B. Police Station, Gandhinagar on yesterday dated 30092016. Alongwith the complaint, I produced the recording of conversation with the alleged person. As I was given my complaint for reading, I admitted the same to be true and correct, on the basis of my complaint, you called two panchas on 30/09/2016 and laid a trap and during the course of panchnama, I made a phone call to the alleged Bharatbhai to his mobile number 9825166899 from my mobile number 8141008137 in presence of both the panchas, keeping the speaker on. I said, "Bharatbhai, Mahendra is speaking, Mahendrasinh Mohanpurwala." Therefore, the alleged person replied, "Yes, speak! speak." Therefore, I asked him as to how long you would be available at the police station. Hence, the alleged persons stated that, "he will remain upto six o'clock. What is the matter? speak" Then, I told that, "as per talk earlier, may I give you today." Then, the alleged person replied that, "yes, you can come." Therefore, I told him that, "it is suitable for you if I come and give you, I am here, as I am passing through that area?" Therefore, the alleged person said, "OK" and disconnected the call. The said conversation over phone was recorded. As the alleged person called me at the police station to take money from me, I, both the panchas, raiding party and you went to the Talod Police Station. But, somehow, as the alleged person came to know about the bribe trap, he did not accept the money and he said, "everything is over". Now I am fully confident that he will not accept the money. As he has demanded the bribe amount from me and for which the conversation has been recorded on mobile in presence of the Panchas when the trap was laid, it is my complaint to register an offence of demand of bribe against him.
As you typed the facts of my complaint on the laptop and gave me print out for reading, I have put my signature, having read and understood the same. The complaint was completed at 16.30 hours."Page 6 of 21
R/CR.MA/4484/2018 JUDGMENT 6 The applicant, apprehending arrest at the hands of the police,
preferred the Criminal Miscellaneous Application No.533 of 2016 in the Sessions Court of Sabarkantha at Himmatnagar for anticipatory bail. The Court below, by order dated 28th October 2016, rejected the anticipatory bail application observing as under:
"10. The learned advocate for applicant - accused has also placed reliance on the judgment delivered by the Honourable High Court of Gujarat in case of Rajendra Bhanuprasad Yagnik & 1 V/s State of Gujarat in Criminal Misc. Application (For Anticipatory Bail) No. 3662 of 2013. But in the said case, the offence was registered in which CID (Crime), Gandhinagar Zone for alleged offence punishable under Sections 217, 218, 219, 221, 465, 468, 471 and 467 read with Section 120B of Indian Penal Code and Sections 7, 13(1)(a)(b) read with Section 13(2) of Prevention of Corruption Act, 1988. But in the said case, the offence was not registered before the ACB for alleged offence punishable under Prevention of Corruption Act and it was registered before the CID (Crime), Gandhinagar Zone, along with other offence against Deputy Superintendent of Police and Head Constable. The Honourable High Court observed that the complainant has not filed a complaint before the ACB and has not chosen to lay the trap for alleged demand of bribe of Rs. 30 lacs. The Honourable High Court has also taken into consideration the statement recorded by the investigating officer of complainant, his uncle and other person. The statements were not corroborating to each other and therefore,the Honourable High Court was pleased to grant anticipatory bail to the applicant.
11. While in case before me, the offence has been registered in the ACB and necessary trap was also laid against applicant - accused. There was also statement of complainant and the Panch witness corroborative to each other. The conversation between the applicant - accused and complainant has also recorded by the ACB and therefore, it can be said prima facie that no false and frivolous complaint has been filed against applicant - accused. Therefore, the ratio laid down in the aforesaid cases relied on by the learned advocate for applicant - accused cannot help him for this anticipatory bail application at this juncture.
12. The Honourable High Court, in case of Ghanshyambhai Rambhai Saida V/s State of Gujarat, has also taken into consideration the observation made by the Honourable Apex Court in para 87 and 88 of the Page 7 of 21 R/CR.MA/4484/2018 JUDGMENT judgment in case of Shri Gurubaksh Singh Sibbia & Ors. In para 87, the Honourable Apex Court emphasized the need for the trial Court to examine the complaint thoroughly. While in para 88, the Honourable Apex Court held that the gravity or charge and the exact role of the accused must be properly comprehended. It is also observed by the Honourable High Court that thus, it is imperative for the Courts to carefully and with meticulous precision evaluate the facts of the case. Therefore, in case before me, on examining the complaint of the complainant and material collected by the investigating officer during the investigation, it can be said prima facie that there is prima facie case against the applicant - accused.
13. The object behind enacting the provision of anticipatory bail under Section 438 is to protect the innocent person from being arrested in false and frivolous cases and therefore, I am of the opinion that if it is prima facie made out by the applicant - accused that he has been implicated or he is being implicated falsely in the case, then the discretion vested in the Court as per Section 438 of Criminal Procedure Code may be exercised in favour of the said person. But if it is not prima facie come on record that false and frivolous complaint for any alleged offence has been filed against applicant - accused, then in such type of cases, considering the interest of the society against the liberty of the applicant - accused, anticipatory bail should not be granted and therefore, in view of the object of the provision of Section 438 of Criminal Procedure Code, I am of the opinion that the discretion should not be exercised in favour of the applicant - accused, who has prima facie committed an offence punishable under Section 7 and / or under Section 13(1)(a) of the Prevention of Corruption Act. So, the application of applicant - accused for anticipatory bail is liable to be rejected. Hence, I pass following order:
O R D E R Application for anticipatory bail, is hereby rejected.
Signed and pronounced in open Court today on this 28th day of October, 2016."
7 As the Court below declined to exercise its discretion in favour of the applicant accused, the applicant has come up before this Court with the present application.
8 The principal argument of the learned counsel appearing for the
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R/CR.MA/4484/2018 JUDGMENT
applicant is that even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence punishable under Section 13 (1)(a) of the Act, 1988 are spelt out. According to the learned counsel, the case at best could be termed as one of an attempt to commit an offence under the Act, 1988. It is further submitted that all that has been alleged against the applicant is that he demanded illegal gratification from the complainant. It is argued that the trap, ultimately, failed and it is not the case of the prosecution that the bribe amount was accepted by the applicant. It is submitted that once there is no acceptance of the bribe amount, then mere demand by itself will not constitute an offence. In the alternative, it has been submitted that even if the demand of illegal gratification is to be believed at this stage, as alleged, but as the trap failed and there was no acceptance of the bribe amount, then, in such circumstances, the accused cannot be prosecuted for the offence punishable either under Sections 13(1)(a) read with 13(2) or Section 7 of the Act, 1988. It is submitted that as there is no prima facie case against the applicant accused, this Court may exercise discretion in favour of the applicant accused and grant him anticipatory bail.
9 On the other hand, this application has been vehemently opposed by Ms. Moxa Thakkar, the learned Additional Public Prosecutor appearing for the State. The learned A.P.P. submitted that the demand of illegal gratification by itself is an offence. Even if the trap failed and the applicant did not accept the bribe amount, the fact that there was a demand of gratification is sufficient to prosecute the applicant. The learned A.P.P. pointed out that the result of the Voice Spectrography Test has come 'positive'. The report of the Forensic Science Laboratory indicates that the voice sample of the applicant, which was collected, matches with the voice of the applicant so far as the tap recorded Page 9 of 21 R/CR.MA/4484/2018 JUDGMENT telephonic conversation between the applicant accused and the complainant is concerned. According to the learned A.P.P., this evidence at this stage by itself is sufficient to reject this application seeking anticipatory bail. It is submitted that the offence under the Prevention of Corruption Act should be viewed very seriously and no special case has been made out by the applicant for grant of anticipatory bail. No exceptional circumstances have been shown by the applicant for grant of anticipatory bail.
10 In such circumstances referred to above, the learned A.P.P. submitted that there being no merit in this application, the same be rejected.
11 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether I should exercise my discretion in favour of the applicant accused for the grant of anticipatory bail.
12 I was inclined to reject this application solely on the ground that the same has been filed after a period of almost two years from the date of registration of the F.I.R. It is true that in the past, i.e. in the year 2016, the applicant accused had preferred one application in this Court seeking anticipatory bail, but he did not bother to remove the objections, which were raised by the Registry, and in such circumstances, the said application came to be dismissed for nonprosecution. For a period of two years, no steps were taken by the applicant to file a fresh application. However, having regard to few important legal issues raised by the applicant and with a view to clear a serious misconception of law in the mind of the learned counsel appearing for the applicant, I have thought fit to look into this application on merits.
Page 10 of 21R/CR.MA/4484/2018 JUDGMENT 13 Section 7 of the Act, 1988 reads as under:
"7. Public servant taking gratification other than legal remuneration in respect of an official act Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Explanations. (a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating but he is not guilty of the offence defined in this section.
(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) "A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."
Page 11 of 21R/CR.MA/4484/2018 JUDGMENT 14 Section 13(1)(a) of the Act, 1988 reads as under: "13. Criminal misconduct by a public servant
(1) A public servant is said to commit the offence of criminal misconduct,
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or"
15 Thus, in an offence under Section 7 of the Act, 1988, the points requiring proof are:
(i) that, the accused at the time of the offence was, or expected to be, a public servant;
(ii) that, he accepted or retained or agreed to accept, or attempted to obtain from some person a gratification;
(iii) that, such gratification was not a legal remuneration due to him;
(iv) that, he accepted such gratification as a motive or reward, proof of which is essential for
(a) doing or forbearing to do an official act, or
(b) showing or forbearing to show favour or disfavour to someone in exercise of his official functions, or
(c) rendering or attempting to render any service, or disservice to someone, with the legislative or executive government, or with any public servant.
16 From the aforesaid ingredients, it is clear that the acceptance or Page 12 of 21 R/CR.MA/4484/2018 JUDGMENT retention of the bribe money, agreement to accept the bribe money, or attempt to obtain bribe money are the essential prerequisites or the essence of the offence under Section 7 of the P.C. Act, 1988.
17 Further it is seen that, Section 7 speaks of the "attempt" to obtain a bribe as being in itself an offence. Mere demand or solicitation, therefore, by a public servant amounts to commission of an offence under Section 7 of the P.C. Act. The word "attempt" is to imply no more than a mere solicitation, which, again may be made as effectually in implicit or in explicit terms.
18 Actual exchange of a bribe is not an essential requirement to be prosecuted under this law. Further, those public servants, who do not take a bribe directly, but, through middlemen or touts, and those who take valuable things from a person with whom they have or are likely to have official dealings, are also punishable as per Sections 10 and 11 respectively.
19 In the aforesaid context, I may refer to and rely upon a Division Bench decision of the Bombay High Court in the case of Ashok; Madhav vs. State of Maharashtra (through Secretary), Home Department, Police Inspector, Bhagyanagar Police Station, Ganapti reported in 2017 (1) BCR (Cri) 366. The relevant observations are extracted hereunder:
"10. As per Section 7 of the P.C. Act, whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any Page 13 of 21 R/CR.MA/4484/2018 JUDGMENT person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government company referred to in clause (C) of Section 2, or with any public servant, whether named or otherwise, shall be liable to be punished. It is, thus, clear that even after a public servant agrees to accept or attempts to accept from any person any illegal gratification, he can be said to have committed offence punishable under Section 7 of the P.C. Act. It is not necessary to actually accept the illegal gratification for constituting the offence punishable under Section 7 of the P.C. Act.
11. In the present case, the trap failed, because after confirmation of the demand for bribe from the side of the applicants suspecting that there would be a trap, the applicants are stated to have decided not go ahead with their demand and did not extend the complainant Nandkumar Dakhore an opportunity to hand over the amount of bribe to them in response to their earlier demand. Consequently, there was no question of recovery of bribe amount from them. Applicant no.2, prima facie, seems to have aided, assisted and thus, abetted applicant no.1 in demanding the bribe amount. As such, there is sufficient material on record to show prima facie involvement of the applicants in the offences punishable under Sections 7 and 12 of the P.C. Act.
12. In the case of Narendra Champalal Trivedi v. State of Gujarat 2014 (4) MhLJ (Cri) 434 cited by the learned Counsel for the applicants, it is observed in paragraph 12 that mere recovery of the tainted money is not sufficient to record conviction unless there is evidence that bribe has been demanded or money has been paid as bribe. This observation would be certainly applicable against a public servant for the offence punishable under Section 13(a) and (d) of the P.C. In the present case, the applicants have not been connected under any of these clauses of Section 13 of the P.C. Act. Consequently, the abovementioned preposition of law would not be helpful to the applicants to claim discharge and seek quashment of the F.I.R. lodged against them."
20 I may also refer to and rely upon a Division Bench decision of the Calcutta High Court in the case of Ratan Moni Dey vs. Emperor reported in (1905) I.L.R. 32 Calcutta 292. The entire order is extracted hereunder:
"The petitioner has been convicted of attempting to obtain for Page 14 of 21 R/CR.MA/4484/2018 JUDGMENT himself some gratification other than legal remuneration as a motive or reward for doing an official act, and has been sentenced to six months' rigorous imprisonment.
A Rule was issued by this Court to show cause why the conviction and sentence passed on the petitioner should not be set aside on the ground that the facts found in the judgment do not constitute an attempt to commit an offence under Section 161 of the Indian Penal Coide, and also to show cause why the sentence should not be modified.
The petitioner was a Civil Court peon and as such he had to serve summonses on the witnesses in a suit instituted by the firm in which the complainant was the head gomastha. He asked the complainant to pay him dusturi, if he wished him to serve the summonses without an identifier, and this is the act for doing which he has been convicted.
It is urged on his behalf that the facts found do not constitute an attempt to obtain the dusturi. With this argument we are unable to agree. It appears to us that the attempt was complete when the demand was made; there was nothing further for the petitioner to do to complete his attempt. He made the request, and it lay with the person from whom he demanded the money to comply with the request or not. We are in complete agreement with the opinion expressed by Mr. Justice Pearson in Empress of India v. Baldeo Sahai [(1879) I.L.R. 2 All 253] where that learned Judge lays down that to ask for a bribe is an attempt to obtain one.
The learned pleader who appeared on behalf of the petitioner quoted several cases to show what is an attempt what is not. We need not refer to these in detail. We may take the case of the woman who was convicted of having attempted to commit suicide, reported in Queen Empress v. Ramakha [(1884) I.L.R. 8 Mad. 5]. In this case the woman had run towards a well with the intention of jumping down it. Here it was held that there was no attempt to commit suicide, and the reason is obvious. The mere running would not put an end to her life; there was some further act to be done, namely, jumping down the well, before the attempt would be complete.
In the case before us, there was nothing further for the petitioner to do; he made the request and, as we have said, whether he received the gratification or not did not depend on himself but on the person from whom it was demanded.
As regards the sentence, we are of opinion that in the circumstances of the case it is not too severe. The petitioner not only demanded the reward but refused to serve the summons if it were not paid, and also used abusive language towards the complainant.Page 15 of 21
R/CR.MA/4484/2018 JUDGMENT We accordingly see no reason to interfere. The Rule is discharged.
The petitioner must be called on to surrender and to serve the remainder of the sentence."
21 I may also refer to and rely upon a Division Bench decision of the Bombay High Court in the case Damodar Krishna Kamli vs. State reported in 1955 Cr.L.J. 181. Justice P.B. Gajendragadkar (as His Lordship then was), speaking for the Bench, observed as under:
"...If we turn to Section 161, it would be clear that a public servant would be guilty of the offence of taking gratification under the said section even if he agrees to accept the prohibited gratification. It is thus not necessary in order to bring home to the public servant the charge under Section 161 to prove that he has actually accepted or obtained illegal gratification. It would be enough if it be shown that he had agreed to accept the said illegal gratification. In other words, if a proposal is made to the public servant in respect of payment of illegal gratification and the proposal is accepted by the public servant, he would be guilty under Section 161, Penal Code..."
22 Section 161 of the I.P.C. came to be omitted at the time when the Prevention of Corruption Act, 1947 came to be repealed and the Prevention of Corruption of Act, 1988 came into force. Section 161 of the I.P.C. is pari materia to Section 7 of the Act, 1988.
23 Section 7 is with regard to a public servant taking gratification other than the legal remuneration in respect of an official act. On the other hand, Section 13 of the Act, 1988 is with regard to criminal misconduct by a public servant. A public servant could be said to have committed an offence of criminal misconduct, if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than the legal remuneration as a motive or reward such as mentioned in Section 7 of Page 16 of 21 R/CR.MA/4484/2018 JUDGMENT the Act.
24 Indisputably, in the case at hand, the trap, which was laid, ultimately, failed and the applicant accused did not accept the bribe amount. Therefore, in such circumstances, prima facie, the case at hand remains one of demand of illegal gratification. The applicant is a P.S.O., and at the relevant point of time, was posted at the Talod Police Station, District: Sabarkantha.
25 The plain reading of Section 7 of the Act, referred to above, makes it clear that mere demand or solicitation by a public servant amounts to the commission of an offence. So far as the case at hand is concerned, there is more than a prima facie case of demand of illegal gratification by the applicant accused from the complainant. This part of illegal demand of gratification is prima facie substantiated by the Voice Spectrography Test, the result of which has come 'positive'.
26 Thus, the contention of the learned counsel appearing for the applicant that as there was no acceptance of the bribe amount, no offence worth the name could be said to have been committed by the applicant accused, is without any merit and deserves to be outright rejected.
27 In State of M.P. and another v. Ram Kishna Balothia and another [AIR 1995 SC 1198 : (1995 AIR SCW 1267)], the Supreme Court considered the nature of the right of anticipatory bail and observed as under:
"We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Page 17 of 21 R/CR.MA/4484/2018 JUDGMENT Procedure Code?.. Also anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its nonapplication to a certain special category of offences cannot be considered as violative of Article 21."
28 While deciding the aforesaid cases, the Supreme Court referred to the 41st Report of the Indian Law Commission dated 24th September, 1969 recommending the introduction of a provision for grant of anticipatory bail wherein it has been observed that "power to grant anticipatory bail should be exercised in very exceptional cases".
29 The learned counsel appearing for the applicant accused vehemently advanced the argument on the subject of life and liberty enshrined in Article 21 of the Constitution of India, by placing a very heavy reliance on the observations made by the Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra [AIR 2011 SC 312] and submitted that unless the custodial interrogation is warranted in the facts and circumstances of the case, declining to grant anticipatory bail amounts to denial of the rights conferred upon a citizen / person under Article 21 of the Constitution. I do not find any merit in this contention of the learned counsel.
30 The Supreme Court in Siddharam Satlingappa Mhetre (supra), after considering its earlier judgments, laid down certain factors and parameters to be considered while considering application for anticipatory bail :
"122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;Page 18 of 21
R/CR.MA/4484/2018 JUDGMENT ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
31 The parameters for grant of anticipatory bail in a serious offence like corruption are required to be satisfied. Anticipatory bail can be granted only in the exceptional circumstances where the Court is prima facie of the view that the applicant has been falsely enroped in the crime or the allegations are politically motivated or are frivolous. So far as the case at hand is concerned, it cannot be said that any exceptional Page 19 of 21 R/CR.MA/4484/2018 JUDGMENT circumstances have been made out by the applicant accused for grant of anticipatory bail and there is no frivolity in the prosecution. Merely because past two years, the Investigating Agency has not taken steps to arrest the applicant accused by itself is not enough to exercise discretion in favour of the applicant accused, more particularly, when the allegations are that of indulging in corruption.
32 In the aforesaid context, I may refer with profit to a pronouncement in Central Bureau of Investigation vs. V. Vijay Sai Reddy [(2013) 7 Scale 15], wherein the Supreme Court expressed thus:
"28. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."
33 For the foregoing reasons, this application fails and is hereby rejected.
34 It is necessary to state that the investigation shall be carried out keeping in mind Section 7 of the Act, 1988, and not Section 13 of the Act. More than a prima facie case is made out to attract the offence punishable under Section 7 of the Act, 1988.
Page 20 of 21R/CR.MA/4484/2018 JUDGMENT 35 It goes without saying that any observations touching the merits of
the case are purely for the purpose of deciding the applicant for grant of anticipatory bail and shall not be construed as an expression of the final opinion in the main matter.
36 It is needless to clarify that the guilt or the innocence of the applicant accused shall be decided by the Trial Court strictly on the basis of the evidence that may be led by both the prosecution as well as the defence in the course of the trial.
(J.B.PARDIWALA, J.) chandresh Page 21 of 21