Telangana High Court
Indur Jagadeesh vs The State Of Telangana on 1 August, 2022
Author: Chillakur Sumalatha
Bench: Chillakur Sumalatha
HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
CRIMINAL PETITION No.9027 of 2021
ORDER:
Projecting that continuation of proceedings against him are unsustainable in law and thereby, seeking the Court to quash such proceedings, the petitioner is before this Court.
2. The petitioner is arrayed as accused No.1 in Crime No.5/RCO-ACB-NZB/2020 of ACB, Nizamabad Range. The allegation against the petitioner, as per the contents of the F.I.R., is that he committed offences falling within the purview of Section 7(a) and 7(c) of the Prevention of Corruption Act, 1988, which is punishable under Section 12 of the said Act and that, he has also committed the offence punishable under Section 120-B read with Section 34 IPC. The designation of the petitioner/accused No.1, as per the contents of the F.I.R., as on the date of offence is Inspector of Police. Accused No.2 is a private person and accused No.3 is the Sub-Inspector of Police.
3. Heard the submission of learned counsel for the petitioner as well as learned Special Public Prosecutor for 2 Dr.CSL, J CrlPNo.9027 of 2021 ACB. Despite service of notice upon respondent Nos.2 and 3, they failed to appear. Also, gone through the contents of the counter-affidavit that is filed by the learned Special Public Prosecutor for ACB, the written submission made by the learned counsel for the petitioner.
4. The matrix of the case which formed basis for the DSP, ACB Nizamabad Range to initiate proceedings against the petitioner is that he attempted to obtain undue advantage by abusing his official position and by demanding a sum of Rs.5 lakhs through a private person and accepting Rs.50,000/- out of the said amount for release of one Bathula Sudhakar, who is figured as respondent No.3 in this Criminal Petition.
5. The crux of the case is that one Gaddam Satish Goud (respondent No.2 herein) got acquaintance with one Bathula Sudhakar (respondent No.3 herein). One Sujay was in the habit of betting on IPL cricket matches. Bathula Sudhakar used to act as mediator. Sujay used to pay money to him. Later, Bathula Sudhakar decided not 3 Dr.CSL, J CrlPNo.9027 of 2021 to bet on cricket matches or to act as mediator for others. However, Sujay started forcing Bathula Sudhakar to act as mediator. Later, Sujay started threatening Bathula Sudhakar that if he does not obey him, he will lodge a complaint against him and he will see that a betting case is booked against him as he knows all the police officials of Kamareddy Police Station including Inspector. Bathula Sudhakar informed the matter to Gaddam Satish Goud, who in turn, informed the matter to their common friend- Ande Ramesh.
6. Bathula Sudhakar accompanied by one Police constable by name Ravi went to the house of Gaddam Satish Goud on 05.11.2020 and informed him that the said Police constable is taking him to Kamareddy Police Station. Bathula Sudhakar requested Gaddam Satish Goud to accompany him. Accordingly, he accompanied. However, Gaddam Satish Goud was not allowed into the Police Station and therefore, he waited outside. After some time, Gaddam Satish Goud was called into the Police Station and he met Bathula Sudhakar. He 4 Dr.CSL, J CrlPNo.9027 of 2021 informed Bathula Sudhakar to reveal the truth whether he participated in betting or not. In the meanwhile, he was sent out by Police officials. Thereafter, Gaddam Satish Goud met the petitioner and requested him to allow him to speak with him for two minutes. But, the petitioner informed that there is nothing to speak with him and if he want to speak anything, he can speak with accused No.2. On that, Gaddam Satish Goud spoke to accused No.2. Accused No.2 informed him to get Rs.5 lakhs to enable Bathula Sudhakar to come out of the betting case. Later, Bathula Sudhakar also came into verandah and informed Gaddam Satish Goud that the petitioner is asking Rs.5 lakhs for release. He also informed that out of Rs.5 lakhs, the share of the petitioner is Rs.3 lakhs and the rest of the amount i.e., Rs.2 lakhs will be shown as the amount seized in the betting case which would be booked against him. Later, a police constable by name Ravi, accused No.2 and another person by name Ramesh came out along with Bathula Sudhakar. Sujay informed Gaddam Satish Goud that Bathula Sudhakar is being taken to Banswada. Bathula 5 Dr.CSL, J CrlPNo.9027 of 2021 Sudhakar was taken in the car of accused No.2 and Gaddam Satish Goud could not follow their car. After half-an-hour, Bathula Sudhakar called Gaddam Satish Goud over phone and told him that they returned to Police Station and asked him to come to Police Station. On that, Gaddam Satish Goud went to Police Station, but Police did not allow him to speak with Bathula Sudhakar and therefore, he returned.
7. Gaddam Satish Goud informed the matter to his friend by name Ramesh on 06.11.2020. On the same day, Ramesh informed Gaddam Satish Goud that the petitioner is demanding Rs.5 lakhs as bribe. Meanwhile, Bathula Sudhakar called Ramesh over phone and enquired about his location and asked him to get Rs.5 lakhs. It was also informed that Rs.1.5 lakhs was collected till then. Bathula Sudhakar again called Ramesh over pone and asked him to bring Rs.50,000/- or Rs.1 lakh more. Bathula Sudhakar again called Ramesh over phone and enquired about his location. When 6 Dr.CSL, J CrlPNo.9027 of 2021 Ramesh informed that he went to Banswada for money, Bathula Sudhakar asked him to come soon with money.
8. Gaddam Satish Goud was not willing to pay the demanded bribe. Therefore, he approached the ACB officials.
9. On 06.11.2020 at about 7.45 pm., Ramesh went to Kamareddy Town Police Station by switching on the electronic gadgets which were handed over to him by the ACB officials. After some time, Ramesh came out and informed the ACB officials that when he went inside, accused No.2 took him to one side of the verandah in the Police Station and asked him as to how much amount he has brought. When he responded that Rs.50,000- was brought, accused No.2 asked him to give that amount and go away. When Gaddam Satish Goud enquired accused No.2 whether Bathula Sudhakar will be released, accused No.2 informed that Bathula Sudhakar will be inside only. Ramesh also informed ACB officials that he also met Bathula Sudhakar. Ramesh also informed that when he told Bathula Sudhakar that he wanted to speak 7 Dr.CSL, J CrlPNo.9027 of 2021 with the petitioner, Bathula Sudhakar stopped him from talking with the petitioner. At 9.15 pm., again, as per the instructions of ACB officials, Gaddam Satish Goud went to Kamareddy Police Station by switching on the spy gadget. On seeing him, the petitioner asked him to come by keeping the cell phone outside. Meanwhile, accused No.2 entered into the chamber of the petitioner. In the chamber, accused No.2 asked Gaddam Satish Goud about the demanded amount. On that, Gaddam Satish Goud informed him that as the said day being Friday, he could not mortgage the gold and that, he would adjust the money on the next day. The petitioner informed that he gave word to the officials and now, he could not keep up the word. The petitioner also asked Gaddam Satish Goud to pay Rs.1.5 lakhs in advance. For that, Gaddam Satish Goud responded that he had already paid Rs.50,000/- through Ramesh. On that, accused No.2 stated that nobody by name Ramesh gave him Rs.50,000/-. On that, the petitioner asked them to go out and speak. Gaddam Satish Goud came out of the Police Station and handed over the electronic spy gadget to the 8 Dr.CSL, J CrlPNo.9027 of 2021 Inspector of Police, ACB, Nizamabad Range. On 07.11.2020, Gaddam Satish Goud and his friend Ramesh went to the Office of DSP, ACB, Nizamabad Range and met him. They were instructed to meet the petitioner once again by carrying the electronic spy gadget and to record the conversation. On that, Gaddam Satish Goud, Ramesh and the Deputy Superintendent of Police, ACB proceeded to Kamareddy. Gaddam Satish Goud and Ramesh went to Police Station and at that time, the petitioner was coming out of the Police Station and he stopped the vehicle and asked them to come to DSP office, Kamareddy. On that, they followed the vehicle of the petitioner. The petitioner asked them to wait outside. After some time, the petitioner came out of the DSP Office and instructed them to come to Police Station. On that, they went to Police Station. The petitioner informed that Bathula Sudhakar was detained since few days in the Police Station and as such, a case would be booked against him and he would give station bail to him. The petitioner also assured that he would manage the officials and see that Bathula Sudhakar would not get any 9 Dr.CSL, J CrlPNo.9027 of 2021 problems in future. The petitioner also told that Bathula Sudhakar accumulated huge money, plots and house. He enquired whether they had brought the bribe amount. Ramesh, to know his intention, informed the petitioner that as per his instructions they brought Rs.4 lakhs. However, the petitioner asked them to come on the next day. Further, the petitioner pointed out one person and instructed Ramesh to hand over the bribe amount to that person. After some time, the said person came to them and informed them to come on the next day. Ramesh recorded the conversation.
10. On 08.11.2020, Gaddam Satish Goud went to ACB office along with Ramesh and submitted his further complaint stating that he is not willing to give the bribe amount. On verification of the reputation of the petitioner, it was found that he is not enjoying good reputation. As there was sufficient evidence for demand and acceptance of Rs.50,000/- towards part of bribe, efforts were made to lay trap. The petitioner in spite of receiving Rs.50,000/- as part of bribe amount, registered 10 Dr.CSL, J CrlPNo.9027 of 2021 a case against Bathula Sudhakar in Crime No.404 of 2020 under Sections 3 and 4 of the A.P. Gaming Act. Therefore, laying of trap could not be materialized. But, the ACB officials met Bathula Sudhakar on 13.11.2020. Bathula Sudhakar submitted a typed complaint narrating the facts. He also narrated that accused No.2 forcibly took his ATM card of Canara Bank and withdrew money to a tune of Rs.89,500/- from his account. He further informed that on the instructions of the petitioner, accused No.3 and his staff took him to a tin shed at CSI ground, Kamareddy and there, they took some photographs and pretended as if they have done some panchanama and registered a false case against him. He also informed that after registration of the case, he was released. But, he was again called on 10.11.2020 and was asked to sign on some papers and further, accused No.3 demanded Rs.20,000/- as bribe. On verification of the reputation of accused No.3, it was found that he is not enjoying good reputation. Thus, accused Nos.1 and 3 being public servants failed to maintain absolute integrity in discharge of their official duties. 11
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11. Making his submission, the learned counsel for the petitioner contended that the petitioner is implicated in a false case and he has no role whatsoever in the alleged crime. Learned counsel also contended that the averments in the complaint itself reveals that the allegations are fabricated and created to make them fall under the provisions of the Prevention of Corruption Act, 1988, more particularly under Section 7 of the said Act. Learned counsel also contended that the contents of the complaint itself reveals that the persons who approached the ACB officials are habituated in cricket betting. Learned counsel highlighted the aspect that the petitioner is not the Investigating Officer in any of the cases where allegations are levelled against Bathula Sudhakar or others. Learned counsel further stated that when information was received that the offence falling under the provisions of the AP. Gaming Act is being committed, the petitioner immediately instructed the Station House Officer, Kamareddy Police Station to investigate and therefore, the role that is played by the petitioner being the Inspector of Police is nil. Learned 12 Dr.CSL, J CrlPNo.9027 of 2021 counsel also stated that cricket betting was in vogue and many a time, the petitioner being the Inspector of Police threatened all those suspects, of whom the defacto complainant and others were present, that he would be taking stringent action against those who committed the act of cricket betting and when Police were making their own preparation to get hold of the culprits who are involved in cricket betting and committing offence under the provisions of the A.P.Gaming Act red-handed, the unlawful elements became a syndicate and some of them approached the ACB officials. Learned counsel stated that in case, the version of the defacto complainant is true and correct, the ACB officials would not have waited for such a long period to lay trap. Learned counsel brought to the notice of this Court the contents of F.I.R. Learned counsel projected that at Column No.3 of F.I.R., it is clearly indicated that the information was received by the ACB officials on 06.11.2020, 08.11.2020 and 13.11.2020. Learned counsel pointed out that nothing prevented the ACB officials to take steps for laying a trap immediately. But, they did not do so on 06.11.2020. 13
Dr.CSL, J CrlPNo.9027 of 2021 Learned counsel also stated that they would have done the same at least on 07.11.2020 or 08.11.2020, but they did not do so. He further pointed out that the ACB officials indicated in the F.I.R. that they received further information on 08.11.2020. But, they did not respond even by that time. He further stated that they did not take any steps even on 09.11.2020, 10.11.2020, 11.11.2020 and 12.11.2020. It is further mentioned that they received information on 13.11.2020. He stated that even at that time, they did not take any steps. He pointed out that the case was registered on 19.11.2020. The contents of the F.I.R. reveals justification in the said submission. The contents of the F.I.R. itself goes to show that the trap was not materialized.
12. Learned Special Public Prosecutor for ACB submitted that in normal course, when complaints are given to ACB officials, cases would not be registered immediately against the public servants and only after verification, cases would be registered. 14
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13. In the case on hand, the gap is not a day or two. When the information was received on 06.11.2020, the case was registered on 19.11.2020. That part, as per the contents of the complaint itself, nothing was left to be done by the date of registration of the case. As earlier pointed out, the version of the ACB officials is that the trap could not be materialized.
14. Learned counsel for the petitioner, during the course of his arguments, pointed out that the petitioner, even as per the contents of the complaint, never demanded the bribe to a tune of Rs.5 lakhs and it is not the version of the defacto complainant also that the petitioner demanded such an amount. He further pointed out that even the defacto complainant did not state that the petitioner accepted the said amount of Rs.50,000/-. The learned counsel further contended that there is no material whatsoever on record to show that the said amount of Rs.50,000/- passed into the hands of the petitioner.
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15. Per contra, learned Special Public Prosecutor contended that subsequent to registration of the case, a raid was conducted at the house of the petitioner and the locker of the petitioner was also checked and the inventories to that effect were prepared. However, it is not the version of the prosecution that the amount found at the house of the petitioner or at the locker relates to the crime in question. Learned counsel for the petitioner apart from all these facts, brought to the notice of this Court that the person who alleged that the petitioner has detained him illegally and demanded bribe, himself accepted his guilt before the competent Court in the case booked against him and paid fine. Learned counsel for the petitioner also brought to the notice of this Court the contents of the case registered against Bathula Sudhakar and others in Crime No.404 of 2020 of Kamareddy Police Station. The said case was registered on 08.11.2020. It is the relevant time, which as per the version of the ACB officials, when the petitioner demanded money for release of the said Bathula Sudhakar. The version of Police, as per the contents of the F.I.R., is that the Sub-Inspector of 16 Dr.CSL, J CrlPNo.9027 of 2021 Police, Kamareddy Police Station received credible information that there is Online betting regarding the IPL 2020 cricket match that was being held on that day between the teams of Delhi and Hyderabad, and therefore, he along with his staff apprehended Bathula Sudhakar and one Jangam Amarnath and they confessed the commission of the offence. It is also narrated that cell phones were seized from them, which revealed whatsapp messages, voice messages and calls in respect of the said betting and the information is being received through Apps like Crick buzz, crick link and cricket secretes and the amount was being transferred through PhonePe and Googlepay. It is also mentioned that cash transactions and Online transactions were being executed by the younger brother of Bathula Sudhakar and others, and on that, under a cover of seizure panchanama, two mobile phones were seized apart from Rs.1,14,000/- net cash. It is also brought to the notice of this Court that cognizance of the offences was taken by the Court of Special Judicial Magistrate of Second Class, Kamareddy and the case was registered as S.T.C.No.1393 of 2021. It is further brought 17 Dr.CSL, J CrlPNo.9027 of 2021 to the notice of this Court that when Bathula Sudhakar was examined by the said Court, he admitted that on 08.11.2020, he was involved in Online cricket betting and that a sum of Rs.1,30,000/- and the cell phones were seized by Police. He had pleaded guilty. Same is the case with the other two accused.
16. The order passed by the Special Judicial Magistrate of Second Class, Kamareddy in the said case- STC.No.1393 of 2021 dated 26.8.2020 is as follows:-
"Accused Nos.1 to 3 produced and they are examined under Section 251 Cr.P.C. for the offence under Section 4 of the T.S. Gaming Act, for which they were convicted under Section 252 Cr.P.C. and sentenced to pay a fine of Rs.1,000/- each, in default, they shall undergo S.I. for a period of (5) days. The fine shall be remitted to the State forthwith.
Each fine of Rs.1,000/-. Total fine amount of Rs.3,000/-.
The seized amount of Rs.1,30,000/- shall be confiscated to the State. Three cell phone auction amount of Rs.3,000/-. Total amount of Rs.1,33,000/- is confiscated to the State."18
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16. The copies of counter foils regarding payment of fine are also filed and are brought to the notice of this Court.
17. In the light of the above facts, it has to be seen whether the proceedings of the competent Court have to be believed, or whether the bare statement in the F.I.R. that basing on the information given by the defacto complainant, a case was registered against the petitioner and was being investigated into, but the trap failed, has to be believed.
18. Section 7 of the Prevention of Corruption Act, 1988 reads as under:-
"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 19 Dr.CSL, J CrlPNo.9027 of 2021 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 20 Dr.CSL, J CrlPNo.9027 of 2021 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.."
19. Therefore, it is incumbent on part of the complainant to at least prima face make out a case that the facts and circumstances enumerated in the F.I.R. falls within the purview of the said provision.
20. Making a submission that proof of demand of bribe and its acceptance by a public servant are sine quo non for establishing the offence under Section 7 of the Prevention of Corruption Act and failure on part of the prosecution to satisfy those facts would be fatal, the learned counsel for the petitioner relied upon the decision of the Hon'ble Apex Court in the case between K.Shanthamma Vs. State of Telangana1, wherein the Court at para 7 of the order held as under:-
"The offence under Section 7 of the P.C. Act relating to public servant taking bribe requires a demand of illegal gratification and the acceptance thereof. The 1 2022 LiveLaw (SC) 192 21 Dr.CSL, J CrlPNo.9027 of 2021 proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the P.C.Act."
Making an observation that when the demand of illegal gratification was not proved by the prosecution, and as demand and acceptance of bribe are sine quo non for establishing the offence under Section 7 of the Prevention of Corruption Act, conviction is not maintainable, the Hon'ble Apex Court allowed the aforesaid appeal.
21. Even in the case on hand, there is no material whatsoever at least prima facie to show that there was either demand or acceptance of bribe by the petitioner. When as per the admission made by one of the defacto complainants himself before the competent Court that he was involved in the offence of betting in IPL cricket matches on 08.11.2020, the question of believing the prosecution story that Police detained him illegally on 05.11.2020 and he continued to be in detention thereafter cannot be believed.
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22. Further, making a submission that when the case registered has no legs to stand and when there is no basis for continuation of proceedings, quash of proceedings is desirable, the learned counsel for the petitioner relied upon the decision of this Court in the case between Jerusalem Mathai Vs. State of Telangana in Criminal Petition No.5520 of 2015, dated 03.6.2016, wherein the Court at paras 43 to 45 of the order held as follows:-
"(43) The further contention is that the respondent police have not followed the mandatory procedure contemplated under Section 154 and 157 of Cr.P.C.
as the report of the 2 nd respondent was said to have been received on 28.05.2015 and the respondent police, for the reasons best known to them, did not choose to register a crime till 31.05.2015 and sent the copy of the F.I.R to the Court concerned on 01.06.2015, that the respondent police cannot investigate into any crime without registering the crime and also cannot apprehend any person without conducting investigation, but in this matter the respondent police even though they received a written report on 28.05.2015, instead of registering the same, investigated into and later it was registered as a 23 Dr.CSL, J CrlPNo.9027 of 2021 crime and more so the respondent police while remanding the accused, does not indicate that a statement was recorded from the 2nd respondent/defacto-complainant preceding the written report, that the written report alleging the offence was said to have been submitted on 28.05.2015, whereas the F.I.R was forwarded to the Court concerned on 01.06.2015 with an abnormal delay which is contrary to Section 157 Cr.P.C. It is further contended that according to the 2 nd respondent, the petitioner approached him and offered money and flight tickets either to abstain from voting or to cast vote in favour of a particular party, that the said allegation is vague, incorrect and suffers from want of particulars as no person could either be prosecuted or convicted basing on such vague allegations, that in any event without admitting, it is submitted that at best such allegations may come under the offence relating to elections as codified under Chapter IX-A of I.P.C and shall not come under the provisions of P.C. Act, that the said offences have been incorporated in I.P.C with a specific intent to curb the electoral malpractices and to punish the offenders, that while amending the I.P.C, the intent of the Legislature is to specifically deal with the electoral malpractices exclusively under this provision, that however, the intention of the legislature is to keep the penal offence as non-cognizable and bailable, that the act of the Anti Corruption Bureau in 24 Dr.CSL, J CrlPNo.9027 of 2021 registering the crime under the provisions of the Prevention of Corruption Act is nothing short of an attempt to defeat the Legislative intent. (44) The further contention is that the 2nd respondent did not complain to the officials of the Election Commission, who were conducting the elections, that in the event of giving such a report, it is for the election authority to conduct enquiry and file a complaint before the Court concerned as the alleged offence is non-cognizable and bailable, that the respondent police with a malafide intention to implicate the petitioner and other accused sought a report from the 2 nd respondent with vague allegations and conducted a stage managed trap merely to register the crime under the P.C. Act, that the registration of a crime for the offence under Section 12 of the P.C. Act and proceeding with the investigation are nothing but an abuse of process of criminal justice system and such act is liable to be set aside and hence prayed to quash the entire proceedings.
(45) Coming to delay in registering FIR in addition to what is laid down in Lalitha Kumari supra, directions abdicated by the investigating officer for not making any G.D entry of requirement of any preliminary enquiry and not showing need of preliminary enquiry and not showing by G.D entry date, time and particulars of the report if received and even given credence from the endorsements of 25 Dr.CSL, J CrlPNo.9027 of 2021 the superior police officers received by the I.O on same date of 28.05.2015, the FIR should have been registered and atleast a G.D entry of requirement of preliminary enquiry should have been made for no cognizable offence constituted if at all against any accused persons and that is not even the case herein from what is stated in the remand report case diary referred supra. In fact, in T.T.Antony V. State of Kerala {(2001)6 SCC 1871}, the Apex Court held on the scope of Sections 154 to 157, 162, 169, 170 and 173 CrPC observed at paras 17 to 20 that, F.I.R under Section 154 CrPC is as its nick name suggests, the earliest and the first information of a cognizable offence recorded by an officer in-charge of a police station. It sets the criminal law in motion and makes the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. It is quite possible and it happens not frequently that more than one piece of information is given to a police officer in-charge of a police station in respect of a same incident regarding one or more than one cognizable offences. In such a case, he need not enter everyone of them in the station house diary and this is implied in Section 154 CrPC. Apart from vague information by a phone call or a cryptic telegram, the information first entered in the Station House Diary, kept for this purpose, by a 26 Dr.CSL, J CrlPNo.9027 of 2021 police officer incharge of a police station is the first information report postulated by Section 154 CrPC. Only information about commission of a cognizable offence which is first entered in Station House Diary by officer in-charge of police station can be regarded as F.I.R under Section 154 CrPC. All subsequent informations will be covered by Section 162 CrPC, for no such information/statement can properly be treated as F.I.R. The scheme of CrPC is that an officer incharge of police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. Thus, the alleged FIR after commencement of investigation has no sanctity of Section 154 CrPC as first information report but for hit by section 162 CrPC even against A-1 to A-3 leave about nothing to survive the crime much less to register even thereafter to file charge sheet against the petitioner as A-4."
23. Disputing the applicability of the afore-mentioned decisions and contending that as corruption threatens the very foundation of Indian democracy, prosecution should be continued against the petitioner, the learned Special Public Prosecutor relied upon the decision of the Hon'ble Apex Court in the case between Subramanian 27 Dr.CSL, J CrlPNo.9027 of 2021 Swamy Vs. Manmohan Singh and another2 and also the decision in the case between Central Bureau of Investigation and another Vs. Thommandru Hannah Vijayalakshmi @ T.H.Vijayalakshmi and another3. In the said decision, a detailed discussion was made as to when the power under Section 482 Cr.P.C. can be exercised. Learned Special Public Prosecutor highlighted the observations made by the Court at paras 43 and 44 of the said judgment. For better understanding, the observations made by the Hon'ble Apex Court in the said judgment are extracted as under:
"43. The well settled test is whether, as they stand, the allegations contained in the FIR make out an offence. The locus classicus on this issue is the judgment of a two Judge Bench of this Court in State of Haryana v. Bhajan La {1992 Supp (1) SCC 335}, where the Court provided an illustrative set of situations where the High Court may exercise its jurisdiction under Article 226 of the Constitution or Section 482 of the CrPC. Delivering the judgment, Justice S Ratnavel Pandian held:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under 2 (2012) 3 SCC 64 3 2021 SCC Online SC 923 28 Dr.CSL, J CrlPNo.9027 of 2021 Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the 29 Dr.CSL, J CrlPNo.9027 of 2021 commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide 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."30
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44. In a more recent decision of a three Judge Bench of this Court in Neeharika Infrastructure Infrastructure Pvt. Ltd. v. State of Maharashtra {2021 SCC Online SC 315}, Justice M. R.Shah, speaking for the Bench consisting also of one of us (Justice D.Y.Chandrachud), enunciated the following principles in relation to the Court exercising its jurisdiction under Article 226 of the Constitution or Section 482 of the CrPC:
"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/charge sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/ complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;31
Dr.CSL, J CrlPNo.9027 of 2021
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court 32 Dr.CSL, J CrlPNo.9027 of 2021 and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; 33
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xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the 34 Dr.CSL, J CrlPNo.9027 of 2021 investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/charge sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
35
Dr.CSL, J CrlPNo.9027 of 2021 xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted"
within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
24. In the counter filed, it was mainly projected that Bathula Sudhakar was in the custody of the petitioner from 05.11.2020 onwards till the date of registration of the case. In view of the relevant material produced with regard to registration of the case against Bathula Sudhakar and his subsequent admission of guilt before the competent Court that he was involved in cricket betting on 08.11.2021 and that, he was caught red- handed, this Court is not inclined to accept the version of the prosecution. Admittedly, for continuation of the proceedings, F.I.R. forms basis and the evidence of the defacto complainant is crucial.
25. In the case on hand, the offence of betting in IPL cricket matches is admitted by the prime person himself 36 Dr.CSL, J CrlPNo.9027 of 2021 before the competent Court and he has also paid fine. Thus, nothing remains before the ACB officials for investigation. When the crucial aspects of demand and acceptance of bribe were not prima facie found and where there is no possibility of establishing those facts, it would be undesirable to permit the prosecuting agency to continue the proceedings against the petitioner.
26. The Hon'ble Apex Court in the case between State of Kerala and another Vs. C.P.Rao, which is relied upon by the learned counsel for the petitioner, at paras 18 and 19 of the order made the following observations:-
"18. The High Court held that since the Special Judge made attempts to secure the presence of the complainant and those attempts failed because he was not available in India, there was justification for non-examination of the complainant.
19. We find it difficult to countenance the approach of the High Court. In the absence of semblance of explanation by the investigating officer for the non- examination of the complainant, it was not open to the courts below to find out their own reason for not tendering the complainant in evidence. It has, 37 Dr.CSL, J CrlPNo.9027 of 2021 therefore, to be held that the best evidence to prove the demand was not made available before the court.
Those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in paragraph 28 of A.Subair (supra) made it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case."
27. Thus, the above referred decision make it abundantly clear that where the ingredients which constitute the offence are not made out, it is undesirable to permit continuation of proceedings. The prima facie proof of payment of illegal gratification, which is the gravamen of the offence under Section 7 of the Prevention of Corruption Act, 1988, is not made out and therefore, the prosecution has to miserably fail. Thus, when it is held that proof of payment is an indispensible essentiality and where it is found to be absent, the Court cannot permit the criminal prosecution to continue. Even the 38 Dr.CSL, J CrlPNo.9027 of 2021 element of criminality as far as the petitioner is concerned, is not made out.
28. In the case on hand, the allegations made in the F.I.R., even if they are taken on their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the petitioner. Even if the contents of the complaint are taken to be true and correct, the victim as mentioned earlier has taken a different stand and a complete 'U' turn before the competent Court. Sufficient material to that effect is produced. Further more, when the averments in the complaint which have no basis on one hand and the admission of guilt by Bathula Sudhakar before the competent Court regarding the same issue on the other hand have to be weighed, this Court has to necessarily give more value to the proceedings before the competent Court. If the same is done, the averments in the F.I.R. become unsustainable in the eye of law. Therefore, no purpose would be served even if the proceedings are permitted to be continued against the petitioner. Further, 39 Dr.CSL, J CrlPNo.9027 of 2021 it would amount to abuse of process of law. Therefore, this Court holds that the request of the petitioner requires consideration.
29. Resultantly, the Criminal Petition is allowed. The proceedings initiated against the petitioner who is arrayed as accused No.1 in Crime No.5/RCO-ACB- NZB/2020 of ACB, Nizamabad Range, are hereby quashed.
30. As a sequel, pending miscellaneous applications, if any, shall stand closed.
__________________________________ Dr.CHILLAKUR SUMALATHA, J 01.8.2022 dr