Allahabad High Court
Suresh Chandra Maurya vs State Of U.P. & Another on 10 January, 2020
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 11 Case :- U/S 482/378/407 No. - 8569 of 2019 Applicant :- Suresh Chandra Maurya Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Bal Keshwar Srivastava Counsel for Opposite Party :- Govt. Advocate Hon'ble Rajeev Singh,J.
Heard learned counsel for the applicant and the learned A.G.A.
This application has been filed for quashing of the order dated 11.11.2019 as well as entire proceedings of Case No. 3197 of 2019 arising out of F.I.R. No. 1118 of 2018, under Section 12 of Prevention of Corruption Act, P.S. Chinhat, District Lucknow.
Facts, in brief, of the case are that on the initiation of the complainant-Vikas Batham, a trap was arranged by the team of police officials of Anti Corruption Organization on 29th November, 2018, in which Dinesh Kumar Srivastava, Junior Assistant, Director Electricity Safety, U.P. was trapped along with Rs.60,000/- and was arrested on the spot. Thereafter, a recovery memo was made, on the basis of which, F.I.R. No. 1118 of 2018 under Section 7 of the Prevention of Corruption Act, P.S. Chinhat, District Lucknow was lodged. Charge sheet was filed by the Investigating Officer against Dinesh Kumar Srivastava on 14.01.2019. During the course of investigation, involvement of applicant was also found by the Investigating Officer and a supplementary charge sheet dated 1st August, 2019 was filed against the applicant, on which, the trial court had taken cognizance and issued summoning order on 13.08.2019.
Submission of learned counsel for the applicant is that applicant was not named in the F.I.R. and has falsely been implicated in the case. He has further submitted that the supplementary charge sheet filed against the applicant and the summoning order dated 13.08.2019 was challenged by the applicant in Criminal Case (u/s 482 Cr.P.C.) No. 6509 of 2019 (Suresh Chand Maurya Vs. State of U.P. & Anr.), which was disposed of vide order dated 24th September, 2019 with liberty to file discharge application before the court below, but the same was wrongly rejected vide impugned order dated 11.11.2019 without considering the facts and circumstances of the case. It has also been submitted that the court below was competent enough to discharge the applicant. In support of his contention, reliance has been placed on the decision of the Hon'ble Supreme Court in the case of State by the Inspector of Police Chennai Vs. S. Selvi, AIR 2018 SC 81.
Learned A.G.A. while opposing the prayer of the applicant, has submitted that ample evidence was collected by the Investigating Officer against the applicant. Vikas Batham-informant/complainant has also categorically stated and defined the role of applicant in his statement. He has also submitted that neither the arrest of Dinesh Kumar Srivastava nor the amount recovered from his possession, is disputed by the learned counsel for the applicant. Dinesh Kumar Srivastava, in his statement, also stated the role of the applicant. In such circumstances, there is no illegality in the order passed by the court below and the application is liable to be dismissed.
I have considered the arguments advanced by the learned counsel for the parties.
Hon'ble Supreme Court while dealing with identical issue in the case of State represented by Deputy Superintendent of Police, Vigilance and Anti-Corruption, Tamilnadu Vs. J. Doraiswamy & Ors., (2019) 4 SCC 149, held as under (paras 9 to 20) :
9. We have gone through the record including the impugned order with a view to find out as to whether any prima facie case is made out against the respondents on the basis of documents filed by the State along with the charge-sheet.
10. Having gone through the documents, the contents of the charge-sheet and the impugned order [State v. J. Doraiswamy, 2016 SCC OnLine Mad 17955] , we are of the view that though the High Court referred to the law laid down by this Court on the subject inYogesh v. State of Maharashtra [Yogesh v. State of Maharashtra, (2008) 10 SCC 394 : (2009) 1 SCC (Cri) 51] , but erred in not properly applying the principles laid down therein thereby committed an error in allowing the applications filed by the respondents under Section 227 CrPC for their discharge.
11. We find that the High Court acted like an appellate court than as a revisionary court as if it was hearing the appeal against the final verdict of the Special Court.
12. It is clear from the perusal of the entire order including its concluding para 14, which reads as under: (J. Doraiswamy case [State v. J. Doraiswamy, 2016 SCC OnLine Mad 17955] , SCC OnLine Mad) "14. That being so, when the charges which are identical, could not be established in the departmental proceedings, for the same set of facts, for framing a charge in the criminal proceedings, chance of conviction would be very remote. At the same time, this Court is also well aware of the legal position that mere exoneration from the departmental proceedings cannot be taken as a sole ground to allow the discharge petition. Therefore, it is necessary to see as to whether any prime facia case has been made out by the prosecution to frame charge against an accused. In this case, the case of the prosecution has mainly relied upon the statement of witness/complainant Sundarrajan and his cousin brother Sekar. As observed by the trial court, there are inconsistencies in the statements of prosecution witnesses. Moreover, as observed by the trial court, the prosecution has not produced any evidence much less documentary evidence to show that A-1 and A-2 were present in Room No. 4 of the said Arunachala Lodge/Guest House. Though it is the case of the prosecution that the said sum of Rs 5 lakhs was paid in the said Room No. 4 in the said Lodge, in the statement of Sekar recorded under Section 161 CrPC on 14-9-2010 before Subbiah, Additional Superintendent of Police, DV & AC, Special Investigation Team, Chennai, he has referred to the date of payment of money as 15-1-2004, but in the statement before ADSP-Crime (Vellore), Juilan on 9-7-2004, he has stated that the said amount was paid one or two days before 15-2-2004. Therefore, there is material contradiction, more particularly with regard to the date of the abovesaid payment of Rs 5 lakhs to A-1 and A-2. Except the ipse dixit statement of the said Sekar, absolutely there is no other material before this Court to prove the demand of money by A-1 and A-2."
13. In our view, such approach of the High Court while deciding the discharge applications of the respondents (accused) is not legally correct and, therefore, it cannot be upheld.
14. In our view, consideration of the record for discharge purpose is one thing and the consideration of the record while deciding the appeal by the appellate court is another thing.
15. While considering the case of discharge sought immediately after the charge-sheet is filed, the court cannot become an appellate court and start appreciating the evidence by finding out inconsistency in the statements of the witnesses as was done by the High Court in the impugned order [State v. J. Doraiswamy, 2016 SCC OnLine Mad 17955] running in 19 pages. It is not legally permissible.
16. We have neither set out the facts and nor the evidence (which is yet to be led and tested in the trial) in detail and have also refrained ourselves from recording any finding on the merits of the case, else it will cause prejudice to the rights of the parties while prosecuting their case in the trial.
17. All that we can say while allowing these appeals is that there is no prima facie case made out for discharge of the respondents at this stage of the trial. They, therefore, have to stand for trial on merits in the light of the documents and contents of charge-sheet filed pursuant to the order of the Court. The Special Court (CJM) should have, therefore, allowed the State to adduce the evidence on merits in support of the charge-sheet to prove the charges.
18. In view of the foregoing discussion, the appeals succeed and are accordingly allowed. The impugned order [State v. J. Doraiswamy, 2016 SCC OnLine Mad 17955] is set aside. As a consequence, the applications filed by the respondents under Section 227 CrPC are dismissed.
19. The Special Court (CJM) is directed to proceed with the trial and conclude it within six months in accordance with law.
20. The Special Court will decide the case strictly on the basis of evidence adduced by the parties in the trial in accordance with law uninfluenced by any observations made by the High Court and this Court in these proceedings."
Considering the above facts and discussions and also going through the contents of the F.I.R. No. 1118 of 2018 (supra), statement of Vikas Batham, statement of Jata Shanker, Inspector and Dinesh Kumar Srivastava, co-accused, who was trapped and the amount of Rs.60,000/- was recovered from his possession, there appears to be no illegality in the order passed by the court below.
The application is, accordingly, dismissed.
However, it is provided that if the applicant surrenders before the courts below within thirty days from today and applies for bail, his application for bail shall be considered and decided by the court below in view of the settled law laid down by the Full Bench of this Court in the case of Amrawati & Another Vs. State of U.P. reported in 2004 (57) ALR 290, as affirmed by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC).
It is made clear that this order shall not be treated as an implied direction of this Court to grant bail to the applicant and the court concerned shall be at liberty to pass appropriate order in accordance to law.
Till the aforesaid period of thirty days, no coercive measures shall be taken against the applicant in the aforesaid case.
In case, applicant fails to surrender before the Courts below within the stipulated period of thirty days, he will not get benefit of this order.
Order Date :- 10.1.2020 VKS