Uttarakhand High Court
Avneesh Kumar Gupta vs Central Bureau Of Investigation on 24 April, 2017
Author: U.C.Dhyani
Bench: U.C.Dhyani
1
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Misc. Application No. 510 of 2017
(Under Section 482 Cr.P.C.)
Avneesh Kumar Gupta .............. Applicant
versus
Central Bureau of Investigation, Dehradun .......... Respondent
Mr. Vipul Sharma and Rajneesh Gupta, Advocates, present for the
applicant.
Mr. Sandeep Tandon, Advocate, present for the respondent/C.B.I.
U.C. Dhyani, J. (Oral)
The applicant, by means of present application under Section 482 Cr.P.C., seeks to quash the order dated 08.02.2017, passed by Court of Special Judge, Anti Corruption (CBI) by means of which application under Section 227 read with 239 Cr.P.C. of the applicant has been dismissed and the consequential order dated 08.02.2017 by means of which charge under Sections 7, 13, 1(d) and 13 (2) of EC Act, 1988 and charge under Section 120-B IPC read with Section 7 and 13(2) of Prevention of Corruption Act, 1988 has been framed against the present applicant.
2. A trap was laid by Trap Team. Accused was summoned to face the trial. During the course of trial, an application was moved by the applicant for his discharge. The Trial Court/Special Judge, Anti Corruption, CBI, Dehradun, by an elaborate and well reasoned order, dismissed such an application and, thereafter, framed charge against the accused-applicant. Aggrieved against both the orders, the 2 applicant has preferred present Application under Section 482 Cr.P.C.
3. Principal allegation against the applicant is that when he was posted as Intelligence Officer in Directorate General, Central Excise Intelligence (DGCEI), Region Dehradun, he demanded illegal gratification of Rs. 20 lacs in August, 2015, in presence of Senior Intelligence Officer, DGCEI, Assistant Director, DGCEI and Intelligence Officer, DGCEI from the complainant. In his capacity as public servant, by corrupt or illegal means, and by abusing his position as Public Servant, he obtained for himself a sum of Rs. 10 lacs as gratification/pecuniary advantage other than legal remuneration from the complainant.
4. Learned counsel for the applicant placed reliance upon decisions rendered by Hon'ble Apex Court K.S. Panduranga vs. State of Karnatka, reported in (2013) 3 Supreme Court Cases 721 and M.K.Harshan vs. State of Kerala, reported in (1996) 11 Supreme Court Cases 720.
5. Learned counsel for the applicant argued that there should be clinching or corroborative evidence to support the version of the complainant. In M.K.Harshan case (supra) Hon'ble Supreme Court observed that "unless the Court is satisfied on this aspect, it is difficult to hold that an accused has accepted the illegal gratification or obtained the same within the meaning of Section 5 (1) (d) of Prevention of Corruption Act, particularly, when the version of the accused appears probable."
It may be mentioned here that the prosecution evidence has not been adduced in the instant case as yet. The decision rendered by Hon'ble Apex Court may be applied by the Trial Court only at the time of giving final judgment, after the prosecution evidence is closed. Here, there is no such occasion to apply the decision 3 rendered in M.K.Harshan case (supra) to the facts of the present applicant.
6. Similar is the position with Panduranga's decision (supra), in which Hon'ble Apex Court rejected the concocted story of loan repayment, demand and acceptance of bribe from the complainant and capability of the accused to show official favour to the complainant. The Hon'ble Apex Court observed that the High Court and Sessions Court rightly disbelieved concocted and highly improbable story of borrowing of money from PW1.
It may be mentioned here, at the cost of repetition, that the time is not yet ripe for the Trial Court to apply the decision of Panduranga's case to the facts of instant case, inasmuch as, the prosecution evidence is yet to be adduced before the Trial Court. Only the charge has been framed against the applicant, against which he has filed present application under Section 482 Cr.P.C.
7. The scope of discharge has been highlighted by the Hon'ble Apex Court in a catena of decisions, including the one in Shoraj Singh Ahlawat & others vs State of U.P. & another, AIR 2013 SC 52.
8. First of all, the Court has to see what is the scope of interference in framing of charge? The Hon'ble Supreme Court in Shoraj Singh Ahlawat (supra) while relying upon various decisions rendered in Preeti Gupta & another vs. State of Jharkhand & another (2010) 7 SCC 667, Union of India vs. Prafulla Kumar Samal & another, (1979) 3 SCC 4; Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368; State of Orissa vs. Debendra Nath Pandhi, (2005) 1 SCC 568; Onkar Nath Mishra & others vs. State (NCT of Delhi) & another, (2008) 2 SCC 561; Shakson Belthissor vs. 4 State of Kerala & another, (2009) 14 SCC 466 and Rumi Dhar (Smt.) vs. State of West Bengal & another, (2009) 6 SCC 364, has observed as follows:
"8. On behalf of the appellant it was argued on the authority of the decisions of this Court in Preeti Gupta and Anr. v. State of Jharkhand & Anr. (2010) 7 SCC 667, Union of India v. Prafulla Kumar Samal and Anr. (1979) 3 SCC 4, Sajjan Kumar v. Central ureau of Investigation (2010) 9 SCC 368, State of Orissa v.
Debendra Nath Pandhi (2005) 1 SCC 568, Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561, Shakson Belthissor v. State of Kerala and Anr. (2009) 14 SCC 466, and Rumi Dhar (Smt.) v. State of West Bengal and Anr. (2009) 6 SCC 364, that while considering an application for discharge the Court can examine the evidence on record and discharge the accused persons if there is no possibility of the accused being found guilty on the basis of such evidence specially in cases where the accused produces unimpeachable evidence in support of his defence. It was also contended that while examining whether the Court should or should not discharge the accused, it must be remembered, that Section 498-A of the IPC is a much abused provision and that exaggerated versions of small incidents are often resented to falsely implicate, harass and humiliate the husband and his relatives. Applying the principles set out in the above decisions the appellants were, according to Ms. Geeta Luthra, learned counsel appearing for them, entitled to a discharge not only because there was an inordinate delay in the filing of the complaint by respondent No.1 but also because the statements made under Section 161 Cr.P.C. by the witnesses who were either planted or merely chance witnesses were contradictory in nature. It was argued that two Investigating Officers having investigated the matter and found the allegations to be false, there was no reason for the Court to believe the story set up by the wife who had suffered a decree for divorce in regard to which she had written to the Army Authorities nd a letter dated 2 October, 2006 stating that she was not pursuing the matter in any Court. Appellant No.3- th Naveen Ahlawat having got re-married on 30 October, 2006 the incident referred in the complaint was a fabrication which aspect the Courts below had failed to 5 consider thus failing to protect the appellants against harassment and the ignominy of a criminal trial.
9. On behalf of respondent No.2, it was per contra argued that her husband had filed a divorce petition against her in the Family Court, Meerut showing respondent No.2 to be residing with her parents at 327, Prabhat Nagar, Meerut, whereas she was actually residing with the appellants along with her daughter at No. 9, Tigris Road, Delhi Cantt, Delhi. It was further argued that appellant No.3 had obtained an ex parte decree order of divorce by fraudulent means and by forging signatures of respondent No.2, acknowledging receipt of the notice which she had never received from the concerned Court. This was conclusively established st by the fact that the ex parte decree dated 31 May, 2006 had been eventually set aside by the Court in terms of th order dated 28 July, 2007. Allegations regarding physical torture of respondent No.2 and her being abandoned on the road on the date of incident in question as also the allegation about dowry harassment were factually correct and made out a clear case for prosecuting the appellants. Appellant No.3 had, according to the counsel for the respondent, married th one Aditi on 30 October, 2006. It was also argued that letter referred to by appellant No.3 as also letter dated nd 2 November, 2006 allegedly written by respondent No.2 were forgeries committed by the appellants. The trial Court was, in the light of the available material, justified in refusing to discharge the accused persons and that the grounds for discharge set up by the appellants could be examined only after the case had gone through full-fledged trial. Reliance was placed upon a decision of this Court in Union of India v. Prafulla Kumar Samala and Anr. (1979) 3 SCC 5.
10. The case at hand being a warrant case is governed by Section 239 of the Cr.P.C. for purposes of determining whether the accused or any one of them deserved to be discharged. Section 239 is as under:
"239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the 6 accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
11. A plain reading of the above would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. Section 240 of the Code provides for framing of a charge if, upon consideration of the police report and the documents sent therewith and making suchexamination, if any, of the accused as the Magistrate thinks necessary, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561. That too was a case in which a complaint under Sections 498-A and 406 read with Section 34 of the I.P.C. was filed against the husband and parents in-law of the complainant-wife. The Magistrate had in that case discharged the accused under Section 239 of the Cr.P.C, holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial Court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing of charges or directing discharge in the following words:
"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the 7 existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence ."
(emphasis supplied)
12. Support for the above view was drawn by this Court from earlier decisions rendered in State of Karnataka v. L. Muniswamy 1977 Cri.LJ 1125, State of Maharashtra & Ors. v. Som Nath Thapa and Ors. 1996 Cri.LJ 2448 and State of M.P. v. Mohanlal Soni 2000 Cri.LJ 3504. In Som Nath's case (supra) the legal position was summed up as under:
"if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. "
(emphasis supplied)
13. So also in Mohanlal's case (supra) this Court referred to several previous decisions and held that the judicial opinion regarding the approach to be adopted for framing of charge is that such charges should be framed if the Court prima facie finds that there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence as if to determine whether the material produced was sufficient to convict the accused. The following passage from the decision in Mohanlal's case (supra) is in this regard apposite:
"8. The crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused."8
14. In State of Orissa v. Debendra Nath Pandhi (2005) 1 SCC 568, this Court was considering whether the trial Court can at the time of framing of charges consider material filed by the accused. The question was answered in the negative by this Court in the following words:
"18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced...... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.........
xx xx xx xx
23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material..."9
(emphasis supplied)
15. Even in Smt. Rumi Dhar v. State of West Bengal & Anr. (2009) 6 SCC 364, reliance whereupon was placed by counsel for the appellants the tests to be applied at the stage of discharge of the accused person under Section 239 of the Cr.P.C., were found to be no different. Far from readily encouraging discharge, the Court held that even a strong suspicion in regard to the commission of the offence would be sufficient to justify framing of charges. The Court observed:
"...While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law...
16. To the same effect is the decision of this Court in Union of India v. Prafulla Kumar Samal and Anr. v. (1979) 3 SCC 4, where this Court was examining a similar question in the context of Section 227 of the Code of Criminal Procedure. The legal position was summed up as under:
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge :
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present 10 Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
9. Judging by the same yardstick, the Court does not find any merit in the grounds which have been taken on behalf of the applicant in present application under Section 482 Cr.P.C. The Court need not reproduce those grounds which have been taken by the applicants, as the same are part of the record.
10. Hon'ble Supreme Court in Amit Kapoor vs. Ramesh Chander and another, (2013) 1 Supreme Court Cases (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 Cr.P.C. Some of those principles, which are relevant in the context of present case, can be summarized as below:
i. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
ii. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.11
iii. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.
iv. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
v. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
vi. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
vii. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
viii. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
ix. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its original jurisdiction.
x. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the 12 basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.
xi. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
xii. It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
xiii. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.
xiv. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
xv. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
xvi. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours otherwise, it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.
xvii. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration.13
11. Hon'ble Apex Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 has laid down certain principles. Para 28 of the said ruling is reproduced herein below for convenience:
"The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defence raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held."14
12. It is settled law that the factual controversy need not be gone into by the Court while exercising jurisdiction under Section 482 Cr.P.C. and hence this Court need not deal with factual aspects of the case in detail. Whether such offences were, in fact, committed by the applicant, or not, has to be examined by the Trial Court. Apparently, there is nothing on record to say that the applicant, prima facie, did not commit such offence. Foundation of criminal offence is, therefore, laid against the accused-applicant on a bare reading of the allegations levelled against him.
13. The accused cannot, therefore, be permitted to interfere in the proceedings every now and then, especially when it is a case of corruption, which is on different plane than other criminal cases. The experience is that an accused facing trial under the Prevention of Corruption Act will not permit the Presiding Judge to proceed even an inch further without his concurrence.
14. Criminal proceeding pending against him therefore, should not be quashed. The jurisdiction under Section 482 Cr.P.C. should not be exercised to stifle or scuttle the legitimate prosecution.
15. It is also the settled law that inherent jurisdiction under Section 482 of Cr. P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. The applicant, in the instant case, is unable to pass those tests.
1516. This Court, therefore, is of the view that no interference is called for in the proceedings of the Court below in exercise of its inherent jurisdiction. Application under Section 482 Cr.P.C. filed on behalf of the applicant is therefore, dismissed.
17. As prayed, liberty is granted to the applicant to take all the factual pleas before the Court below for securing his acquittal at an appropriate stage.
(U.C.Dhyani,J.) 24.04.2017 Kaushal 16