Himachal Pradesh High Court
Vinod Kumar vs State Of Himachal Pradesh on 25 June, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:4079
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CrMMO Nos. 625 and 626 of 2023
Date of Decision: 25.6.2024
_____________________________________________________________________
1. CrMMO No. 625 of 2023
Vinod Kumar
.........Petitioner
Versus
State of Himachal Pradesh
.......Respondent
2. CrMMO No. 626 of 2023
Pritam Thakur
r .........Petitioner
Versus
State of Himachal Pradesh
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner(s): Mr. Nitin Thakur and Mr. Udit Shaurya
Kaushik, Advocates.
For the Respondent(s): Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
B.C. Verma, Additional Advocates General
with Mr. Ravi Chauhan, Deputy Advocate
General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Since common questions of facts as well as law are involved in the above captioned cases and similar relief has been claimed therein, ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 2 matters were heard together and are being disposed of vide common .
judgment.
2. By way of present petition filed under Section 482 CrPC, prayer has been made by the petitioners-accused for quashing of FIR No.05/21, dated 28.11.2021, registered at Police Station Mandi, District Mandi, Himachal Pradesh, under Sections 7 and 7A of Prevention of Corruption Act 1988 (in short "Act" ), alongwith consequential proceedings, pending in the competent court of law.
3. For having bird's eye view, facts relevant for adjudication of the case are that on 26.11.2021, a source report from General Public, Mandi, was received in Police Station State Vigilance and Anti Corruption Bureau (SV & ACB), Mandi, that post of MVI was lying vacant in District Mandi.
MVI from other District was being deputed at District Mandi for passing of vehicles and driving tests. As per source information, it was alleged that MVI was passing the vehicles without proper procedure and also taking bribe through touts. A team of officials of State Vigilance and Anti Corruption Bureau, Mandi, proceeded to Kansa ground, Dador, on 27.11.2021 and found three vehicles bearing registration Nos. HP678900, HP658784 and HR05Y4392 on the spot, wherein two persons namely Pritam Kumar and Vinod Kumar i.e. petitioners herein, were allegedly ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 3 carrying files in the vehicles, as detailed herein above. A lot of people were .
also seen gathered around the vehicles. Team noticed that co-accused Abhishek, who is an MVI, was being assisted by the petitioners, who admittedly were not government servants, but Transporters. As per FIR, petitioners could be seen collecting the files from people gathered there for passing of the vehicles and carrying them to the co-accused Abhishek. As per FIR, co-accused Abhishek was also found to have deputed another private person for making necessary entry in the Vehicle Passing Register.
Aforesaid conduct, especially with regard to working style and activities of the petitioner as well as co-accused Abhishek made the police officials suspicious and as such, they followed car bearing registration No. HP658784, which was subsequently found stopped near Lake View point BBMB Lake Sundernagar, District Mandi, Himachal Pradesh. Other vehicles bearing registration Nos. HP678900 and HR05Y4392 were already parked on the spot. After having reached the spot, detailed herein above, police checked all the vehicles from outside and inside and besides above, personal search of the petitioner as well as co-accused named herein above, was also carried out. During personal search, sum of Rs. 2000/- was recovered from the pocket of co-accused Abhishek, Rs. 45,300, from the petitioner Pritam Kumar and Rs. 40320/- from the petitioner Vinod Kumar.
Sum of Rs. 25,500/- was found kept inside the files placed on the rear seat ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 4 of the vehicle bearing registration No. HP658784. 46 files relating to the .
vehicles, 24 registration certificates, 3 driving license and a rubber stamp of SDM Sarkaghat, District Mandi, Himachal Pradesh, were recovered from the vehicle bearing registration No. HP658784, whereas 6 files of vehicles were recovered during the search of the vehicle bearing registration No.HR05Y4392. 13 files and one Vehicle Passing Entry Register were recovered from car bearing registration No.HP678900. Since petitioners as well as other co-accused were unable to render cogent and convincing explanation qua the possession of money as well as files recovered from their persons as well as cars, police after having completed necessary codal formalities registered FIR as detailed herein above. Though FIR was registered on 28.11.2021, but fact remains that till date, charge sheet has not been filed.
4. Co-accused Abhishek had approached this Court by way of CrMMO No. 17 of 2022 filed under Section 482 of Cr.PC for quashing of FIR on the ground that prior sanction as envisaged under Section 17A of the Act, was not taken by the police before lodging FIR, however, vide judgment dated 10.5.2023, afore petition filed by the co-accused Abhishek was rejected. Judgment dated 10.5.2023, passed by the coordinate Bench of this Court was laid challenge by way of SLP filed before the Hon'ble Apex ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 5 Court, but same also came to be dismissed vide judgment dated 21.8.2023 .
(Annexure P-3).
5. Alongwith the petitions at hand, co-accused Abhishek had also filed fresh petition under Section 482 CrPC i.e. CrMMO No. 1194 of 2023, for quashing of FIR on the ground that no case much less under Sections 7 and 7A of the Act, is made out against him. Before same could be heard and decided on its own merits, learned counsel for the above named accused sought permission to withdraw the petition with a direction to the court below to conclude the proceedings expeditiously.
6. Having taken note of the aforesaid innocuous prayer made by the learned counsel for the petitioner, this Court vide judgment dated 25.6.2024, permitted the co-accused Abhishek to withdraw the petition with direction to the investigating agency to conclude the investigation within two months.
7. Precisely, the grouse of the petitioners, as has been highlighted in the petitions and further canvassed by Mr. Udit Shaurya Kaushik, learned counsel for the petitioners is that no cause much less under Sections 7 and 7A of the Act, is made out against the petitioners. While referring to the provisions contained under Sections 7 and 7A of the Act, above named counsel, strenuously argued that aforesaid provision of law, in any ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 6 eventually, could not have been invoked against the petitioners, especially .
when it is not in dispute that they are not the public servant, rather transporters. Apart from above, learned counsel for the petitioners while making this court peruse FIR vehemently argued that at no point of time, there was any complaint, if any, with regard to bribe, if any, demanded by the co-accused as well as private respondents, who are petitioners herein.
Above named counsel argued that amount allegedly recovered from their pocket was belonging to them and there is nothing adduced on record by the investigating agency that such amount, if any, was collected by the petitioners, who otherwise had no authority, if any, to pass order for passing of the vehicles, which otherwise in case could have been passed by the MVI concerned. Lastly, Mr. Kaushik, submitted that more than two years have passed, but till date, no charge sheet has been filed and on account of pendency of the petition, serious prejudice is being caused to the petitioners, who apart from suffering harassment, are under great mental tension. Above named counsel submitted that since case initiated against them, is bound to fail on account of fact that no case much less under Sections 7 and 7A of the Act, is made out, no fruitful purpose would be served in case FIR as well as consequent proceedings are allowed to sustain, rather that would amount to sheer abuse of process of law.
::: Downloaded on - 27/06/2024 20:30:47 :::CIS 78. To the contrary, Mr. Vishal Panwar, learned Additional Advocate .
General, while justifying registration of the case against the petitioners attempted to argue that though petitioners are not the public servants, but once they were working in connivance with MVI Abhishek Sharma and substantial amount was recovered from their pockets, no illegality can be said to have been committed by the investigating agency while lodging FIR sought to be quashed in the instant proceedings. While referring to the judgment dated 10.5.2023, passed by the coordinate Bench of this Court in CrMMO No. 17 of 2022, Mr. Panwar, argued that prayer made by one of the co-accused for quashing of FIR already stands rejected and as such, present petition otherwise deserves outright rejection, however, he was unable to dispute that co-accused, at the relevant time, was discharging his official duty being MVI, whereas presence of the petitioners herein on the spot could be on account of their having come to the spot for passing of their vehicles. Lastly, Additional Advocate General submitted that since investigation is still on, it may be premature, at this stage, to conclude that no cause much less under the aforesaid provisions of law is made out against the petitioners and as such, this is not a fit case to exercise power under Section 482 CrPC for quashing of FIR as well as consequent proceedings.
::: Downloaded on - 27/06/2024 20:30:47 :::CIS 89. Before ascertaining the genuineness and correctness of the .
submissions and counter submissions having been made by the learned counsel for the parties vis-à-vis prayer made in the instant petitions, this Court deems it necessary to discuss/elaborate the scope and competence of this Court to quash the criminal proceedings while exercising power under Section 482 of Cr.PC.
10. Hon'ble Apex Court in judgment titled State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335 has laid down several principles, which govern the exercise of jurisdiction of High Court under Section 482 Cr.P.C. Before pronouncement of aforesaid judgment rendered by the Hon'ble Apex Court, a three-Judge Bench of Hon'ble Court in State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699, held that the High Court is entitled to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. Relevant para is being reproduced herein below:-
"7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 9 permitted to degenerate into a weapon of harassment or persecution.
.
In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the 59 inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
11. Subsequently, Hon'ble Apex Court in Bhajan Lal (supra), has elaborately considered the scope and ambit of Section 482 Cr.P.C.
Subsequently, Hon'ble Apex Court in Vineet Kumar and Ors. v. State of U.P. and Anr., while considering the scope of interference under Sections 397 Cr.PC and 482 Cr.PC, by the High Courts, has held that High Court is entitled to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to quashed. The Hon'ble Apex Court has further held that the saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose i.e. a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In the aforesaid case, the Hon'ble Apex Court taking note of seven categories, where power can be exercised under Section 482 Cr.PC, as enumerated in Bhajan Lal ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 10 (supra), i.e. where a criminal proceeding is manifestly attended with .
malafides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, quashed the proceedings.
12. Hon'ble Apex Court in Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, while drawing strength from its earlier judgment titled as Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330, has reiterated that High Court has inherent power under Section 482 Cr.PC., to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charge, but such power must always be used with caution, care and circumspection. While invoking its inherent jurisdiction under Section 482 of the Cr.P.C., the High Court has to be fully satisfied that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts and the material adduced on record itself overrules the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 11 conscience of the High Court would persuade it to exercise its power under .
Section 482 Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. In the aforesaid judgment titled Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, the Hon'ble Apex Court has held as under:-
"22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor wherein this Court inter alia held as under: (2013) 3 SCC 330, paras 29-30)
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 12 reasonable person to dismiss and condemn the actual basis of the .
accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
30.1 Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
30.2 Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. 30.3 Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
30.4 Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal - proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
13. Hon'ble Apex Court in Asmathunnisa v. State of A.P. (2011) 11 SCC 259, has held as under:
"12. This Court, in a number of cases, has laid down the scope and ambit of the High Court's power under section 482 of the Code of Criminal Procedure. Inherent power under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified 9 by the tests specifically laid down in this section itself. Authority of the court ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 13 exists for the advancement of justice. If any abuse of the process .
leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
13. The law has been crystallized more than half a century ago in the case of R.P. Kapur v. State of Punjab AIR 1960 SC 866 wherein this Court has summarized some categories of cases where inherent power can and should be exercised to quash the proceedings. This Court summarized the following three broad categories where the High Court would be justified in exercise of its powers under section 482:
(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
14.In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, according to the court, the process against the accused can be quashed or set aside :
"(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no 10 prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like".
15. This court in State of Karnataka v. L. Muniswamy & Others (1977) 2 SCC 699, observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice requires that the proceedings ought to be quashed. The High ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 14 Courts have been invested with inherent powers, both in civil and .
criminal matters, to achieve a salutary public purpose. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the Legislature. This case has been followed in a large number of subsequent cases of this court and other courts."
14. Hon'ble Apex Court in Asmathunnisa (supra) has categorically held that where discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like, High Court would be justified in exercise of its powers under S. 482 CrPC.
15. From the bare perusal of aforesaid exposition of law, it is quite apparent that exercising its inherent power under Section 482 Cr.PC., High Court can proceed to quash the proceedings, if it comes to the conclusion that allowing the proceedings to continue would be an abuse of process of the law.
16. Now being guided by the aforesaid law laid down by the Hon'ble Apex Court from time to time, this court would make an endeavour to find out "whether prayer made in the instant petition can be allowed or not?"
::: Downloaded on - 27/06/2024 20:30:47 :::CIS 15Admittedly, bare perusal of FIR, sought to be quashed, reveals that police .
reached the spot after having received secrete information that bribe is being demanded by MVI concerned for passing the vehicles. It is also not in dispute that while search was being conducted pursuant to source information, no complaint, if any, was ever received by the police from an individual that bribe was demanded by the MVI or a person helping MVI in discharge of his duty. As per own case of the investigating agency, many vehicles were parked on the spot for passing and petitioners alongwith few other persons were carrying files from one spot to other. It is not in dispute that no recovery of files or money was effected at the spot, rather petitioners alongwith co-accused left the spot, they went towards BBMB Lake View, Sundarnagar. After having reached the place, as detailed herein above, police conducted search of the vehicle as well as owner of the same and allegedly, recovered amount, as detailed herein above. Merely, on the basis of recovery of some files from the cars as well as money from their pocket, investigating agency proceeded to register case against the petitioners under Sections 7 and 7 A of the Act.
17. To ascertain whether case, if any, under aforesaid provisions of law is made out against the petitioner, it would be apt to take note of Sections 7 and 7A of the Act, which reads as under:
::: Downloaded on - 27/06/2024 20:30:47 :::CIS 16.
"7. [ Offence relating to public servant being bribed- Any public servant who,-
(a)obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b)obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c)performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation 1. - For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
Illustration. - A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section. Explanation 2. - For the purpose of this section,-
(i)the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 17 using his personal influence over another public servant; or by any .
other corrupt or illegal means;
(ii)it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party."
"SECTION 7A : Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence-Whoever accepts or obtains or attempts to obtain from another person for himself or for any other person any undue advantage as a motive or reward to induce a public servant, by corrupt or illegal means or by exercise of his personal influence to perform or to cause performance of a public duty improperly or dishonestly or to forbear or to cause to forbear such public duty by such public servant or by another public servant, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine."
18. Bare perusal of aforesaid provisions of law clearly reveals that it can be invoked against the public servant, however, it is not in dispute that in the instant case, petitioners are not the public servants, rather they are the transporters. Apart from above, to invoke Sections 7 and Section 7 A of the Act, it is incumbent upon the prosecution to prove that any public servant obtains or makes an attempt to obtain undue advantage with an intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant. Though co-accused Abhishek Sharma, who is admittedly a public servant, is not before this Court for ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 18 quashing, but certainly, having taken note of the allegations contained in .
the FIR, this Court finds that there is no allegation of demand, if any, made by the public servant of bribe. There is no complaint, if any, made by a person that public servant in lieu of discharging his duty, made an attempt to take undue advantage from him/her, in whose favour, such work was to be done.
19. Similarly, there is nothing on record suggestive of the fact that attempt, if any, was ever made by the petitioners to influence the public servant by corrupt or illegal means or by exercise of personal influence. It is none of the case of the Investigating Agency that petitioners being transporters, with a view to get the undue favour, gave bribe to co-accused Abhishek, rather precise case of the prosecution is that petitioners and co-
accused in connivance with each other were doing illegal activities and in lieu of passing vehicles were demanding bribe, however, there is nothing on record to show demand, if any, made by the co-accused as well as petitioners against whom otherwise, under no circumstance, provisions of Sections 7 and 7A could be invoked.
20. Had prosecution received complaint that petitioners herein with a view to get their vehicles passed illegally and fraudulently offered some amount to the co-accused Abhishek, case under Section 7A of the Act ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 19 could have been registered against them on the ground that they with a .
view to take undue advantage to influence public servant, attempted to use corrupt practice by offering money, however, there is no such allegation in the FIR against the petitioners.
21. Demand of illegal gratification is sine qua none to constitute the offence under the Act. Mere recovery of currency notes itself does not constitute the offence under the Act unless it is proved beyond reasonable doubt, that public servant voluntarily accepted the money knowing it to be bribe.
22. True it is that it is not necessary that act for which the bribe is given be actually performed, rather representation by a public servant that he has done or will do an act, impliedly, includes a representation that it was all within his power to do that act.
23. In view of the above, this Court has no reason to conclude that no case much less under Sections 7 and 7 A of the Act is made out against the petitioners, who are admittedly not public servants, rather transporters coupled with the fact that no complaint was ever received by investigating agency with regard to bribe, if any, demanded by the petitioners as well as co-accused Abhishek for passing of vehicles. Mere recovery of currency may not be sufficient to conclude the guilt, if any, of the petitioners under the ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 20 aforesaid provisions of law, rather to bring the case within the ambit of .
Sections 7 and 7A of the Act, it is incumbent upon the prosecution to prove the demand, if any, made by the public servant. In the instant case, neither there is any evidence with regard to demand nor a person who complained of demand, if any, made by the petitioner as well as co-
accused.
24. Needless to say, where allegations of FIR and other material, if any, accompanied by the FIR, do not disclose a cognizable offence, justifying an investigation by the police, High Court while exercising power under Section 482 CrPC, may proceed to quash the FIR, especially when after having seen material, it is satisfied that prosecution, if permitted, will ultimately culminate in dismissal of the trial, where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same, does not disclose the commission of any offence and make out a case against the accused, High Court while exercising power under Section 482 Cr.PC., would be justified to quash the FIR as continuance of the same, besides causing mental agony to the petitioners, would also make them victim of the protracted trial.
25. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon'ble Apex Court, present petitions ::: Downloaded on - 27/06/2024 20:30:47 :::CIS 21 are allowed and FIR No.05/21, dated 28.11.2021, registered at Police .
Station Mandi, District Mandi, Himachal Pradesh, under Sections 7 and 7A of the Act as well as consequent proceedings, if any, pending in the competent court of law are quashed and set-aside. Petitioners are acquitted of the charges framed against them in the aforesaid FIR.
Accordingly, present petitions are disposed of, so also pending applications, if any.
June 25, 2024
r (Sandeep Sharma),
(manjit) Judge
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