Bombay High Court
Shivaji Dattatraya Davbhat vs The State Of Maharashtra on 21 December, 2021
Author: V.G.Bisht
Bench: V.G.Bisht
J-WP-1921-2021FINAL.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1921 OF 2021
Shivaji Dattatraya Davbhat ...Petitioner
Versus
The State of Maharashtra ...Respondent
......
Mr.Shyam Dewani a/w. Mr. Pravin Bhai i/b. Sneha G. Sanap
for the Petitioner.
Mr. H.J. Dedhia, APP for the Respondent -State.
......
CORAM : V.G.BISHT, J.
RESERVED ON : 6TH DECEMBER, 2021
PRONOUNCED ON : 21ST DECEMBER, 2021
ORDER
1. Rule. Rule returnable forthwith.
2. The petitioner is seeking quashing of the order dated 23rd February, 2021 passed by learned Additional Sessions Judge, Palghar whereby discharge application of the petitioner was rejected.
3. In nutshell, the prosecution case is as under :
(a) According to complainant, Appeal Nos. 32 of 2016, 33 of 2016, 34 of 2016 and 35 of 2016 regarding Trupti 1/27 J-WP-1921-2021FINAL.DOC mutation entries of complainant's father's properties were pending before the petitioner, who was at the relevant time was Sub- Divisional Officer, Palghar.
Prosecution alleges that the petitioner and other accused, namely, Satish Maniwade, Nayab Tahsildar of Sub Divisional Office, Palghar demanded Rs. 50 lakhs to pass the orders in favour of the complainant. Since complainant was averse to pay the bribe, he approached the office of Anti Corruption Bureau (ACB) on 26 th August, 2016 and lodged the complaint.
(b) Prosecution next contends that the office of ACB with the help of complainant set up first trap on 29 th August, 2016. However, since verification of the demand could not be done, trap was postponed. Thereafter, again on 20th September, 2016, the second trap was arranged when despite the complainant met petitioner and as there was no demand of any bribe amount, again there was no verification of the demand from the office of petitioner. Lastly, third trap on 24 th Trupti 2/27 J-WP-1921-2021FINAL.DOC November, 2016 was laid. It is alleged that on that day, the complainant met petitioner in his cabin and asked for exchange of 22 -25 new notes saying " fol iapohl Ik;Zar Eg.kts dk;?, " "Bhd vkgs rqEgh clk."
(c) It is further alleged that as per above discussion, the complainant prepared dummy notes of Rs. 1000/- of which 50 bundles were made ready. The complainant had Rs. 3 lakhs in old notes i.e. denomination of Rs.1000/-. On the said notes anthracene powder was applied and were kept in one blue coloured cloth bag.
(d) It then appears that another trap was set up by putting the voice recorder on the complainant and he was sent along with other Panchas with the bag of moneys. In the passage of office of the petitioner, accused No.3, namely, Jayesh Patil, driver of the petitioner met complainant and received Rs. 50 lakhs and kept the money in record room. Thereafter, as per trap, the complainant went to the office of accused No.2 Satish Maniwade and informed him that the money has Trupti 3/27 J-WP-1921-2021FINAL.DOC been given to accused No. 3. Afterwards, the complainant gave signal to the Panchas, who were standing outside the office and accused No.3 was caught red handed. The money was recovered from accused No.3, who was sitting in the office of petitioner. Accordingly the First Information Report came to be filed.
4. Mr. Dewani, learned Counsel for the petitioner, submits that there is no direct evidence or material on record to show that at any point of time the petitioner had any discussion with complainant about the matter, leave apart making any demand. Even there is no material to show that the petitioner in any manner had instructed any of the two accused to take any bribe on his behalf for doing any favour to the complainant. Rather, the conversation dated 20th September, 2016 relied upon by the prosecution would show that the petitioner was totally unaware of the matter and what was allegedly transpiring between the complainant and other accused persons.
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5. According to learned Counsel, the ingredients of Sections 7, 8, 12, 13 (1) (d) read with 13 (2) of The Prevention of Corruption Act, 1988 (fort short, "the said Act") are totally missing. Since there was no demand of illegal gratification by the petitioner from complainant, the alleged offences therefore must fail.
6. Learned counsel also invited my attention to various transcriptions of conversations recorded during all the three traps and would forcefully submit that the learned Sessions Court failed to take into consideration the proper import of those transcriptions. According to learned Counsel, the prosecution is only relying on conversation between the petitioner and complainant which does not in any manner connect the petitioner to the alleged offence. For all these reasons, the Petition needs to be allowed by setting aside the impugned order of the Sessions Court, argued learned Counsel. He also placed reliance in case of Niranjan Singh Karam Singh Punjabi, Advocate Versus Jitendra Bhimraj Trupti 5/27 J-WP-1921-2021FINAL.DOC Bijjaya and Others1 and in case of P. Satyanarayana Murthy Versus District Inspector of Police, State of Andhra Pradesh and Another. 2 ..
7. Per contra, Mr.Dedhia, learned APP, vehemently opposes the submissions by submitting that at the relevant time the petitioner was working as Sub Divisional Officer, Palghar. Learned APP invited my attention to the transcriptions of various conversations recorded during the traps and would submit that all three accused in collusion with each other took bribe or illegal gratification from the complainant. According to learned APP, accused No.3 had received the bribe amount on behalf of petitioner, which came to be seized from the office of latter. Learned APP also invited my attention to the Result of Analysis i.e. the auditory analysis of the voice samples of petitioner and other accused and submitted that the petitioner can prove his innocence at the time of trial. 1 (1990) 4 Supreme Court Cases 76 2 (2015) 10 Supreme Court Cases 152 Trupti 6/27 J-WP-1921-2021FINAL.DOC
8. By way of reply, learned Counsel for the petitioner submits that if the petitioner's subordinates had done anything wrong then he cannot be held responsible. Since, prima facie, there is no involvement of the petitioner, the entire conversation has to be read in a proper perspective.
9. For the purpose of present matter, I would like to refer Section 227 of the Code of Criminal Procedure, 1973 (for short, "the Cr.PC") and then Sections 7 and 13 of the said Act.
10. Section 227 of the Cr.PC reads as under:
"Discharge- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing".
11. In Union of India Versus Prafulla Kumar Samal and Another3, the Hon'ble Apex Court after considering the scope 3 (1979) 3 Supreme Court Cases 4 Trupti 7/27 J-WP-1921-2021FINAL.DOC of Section 227 of the Cr.PC observed that the words 'no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a post office to frame the charge at the behest of the prosecution but has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence. After considering the case law on the subject, the Hon'ble Court deduced as under :
"(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.Trupti 8/27
J-WP-1921-2021FINAL.DOC (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 adduced 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 Code is a senior and experienced Judge cannot act merely as a Post office or a mouthpiece 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 Trupti 9/27 J-WP-1921-2021FINAL.DOC roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial".
12. After considering Union of India (supra), the Hon'ble Apex Court in case of Stree Atyachar Virodhi Parishad's versus Dilip Nathumal Chordia & Anr4 case has held as under :
"14..... In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The Court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor it is necessary to delve deep into various aspects. All that the Court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into".
4 (1989) 1 SCC 715 Trupti 10/27 J-WP-1921-2021FINAL.DOC
13. In Niranjan Singh Karam Singh Punjabi, Advocate (supra), the Hon'ble Apex Court held that under Section 227 Cr.PC, a duty is cast on the judge to apply his mind to the material on record and if on examination of the record he does not find sufficient ground for proceeding against the accused, he must discharge him. On the other hand if after such consideration and hearing he is satisfied that a prima facie case is made out against the accused, he must proceed to frame a charge as required by Section 228 of the Code. At the Sections 227-228 stage 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 disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence.
14. From the above discussion, it seems that while considering the discharge application under Section 227 of the Cr.PC, it is not for the Magistrate or the Judge concerned Trupti 11/27 J-WP-1921-2021FINAL.DOC to analyze all materials including pron and cons, reliability or acceptability etc. It is only at the trial, the Court has to appreciate their evidentiary value, credibility or otherwise of the statement, truthfulness of documents and then take an appropriate decision.
15. It is expedient at this juncture to set out the relevant extract of Sections 7 and 13 of the said Act under which the petitioner has been charged.
"7. Public servant taking gratification other than legal remuneration in respect of an official act.-- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Trupti 12/27 J-WP-1921-2021FINAL.DOC 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 three years but which may extend to seven years and shall also be liable to fine".
"13. Criminal misconduct by a public servant.--
(1) A public servant is said to commit the offence of criminal misconduct,--
(a)...........
(b) ..........
(c) ..........
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;"Trupti 13/27
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16. The Hon'ble Apex Court in A. Subair v. State of Kerala5, while dwelling on the purport of Sections 7 and 13 (1) (d) of the said Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients, which are necessary to be proved to record a conviction.
17. In State of Kerala v. C.P. Rao6, this Court reiterating its earlier dictum vis-a-vis the same offences held that mere recovery by itself would not prove the charge against accused and in absence of any demand to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 5 (2009) 6 SCC 587 6 (2011) 6 SCC 450 Trupti 14/27 J-WP-1921-2021FINAL.DOC
18. Similarly, in order to discern the imperative prerequisites of Sections 7 and 13 of the said Act, in B. Jayaraj v. State of Andhra Pradesh7, it has been underlined in unequivocal terms that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13 (1) (d) (i) and (ii) of the said Act. The proof of demand, thus, has been held to be an indispensable essentially and of permeating mandate for an offence under Sections 7 and 13 of the said Act.
19. In P. Satyanarayana Murthy (supra), the Hon'ble Apex Court has held and reiterated that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would not be sufficient to bring home the charge under Sections 7 and 13 of the said Act.
7 (2014) 13 SCC 55 Trupti 15/27 J-WP-1921-2021FINAL.DOC
20. In the light of above, the proof of demand of illegal gratification thus is the gravamen of the offence under Sections 7 and 13 (1) (d) (i) and (ii) of the said Act and in absence thereof unmistakably the charge therefore would fail.
21. Keeping in mind the above principles, let me go through the investigation papers.
22. The prosecution case stems from the complaint lodged by one Yohan Ardeshar Mubarki to ACP, Thane alleging that the petitioner, who at the relevant time was SDO, Palghar and SDM, had demanded Rs. 50 lakhs by way of illegal gratification and acting on the complaint, a case was registered. It seems that in all three traps were laid.
23. First trap was laid on 29th August, 2016 to verify the demand of bribe from the petitioner. Excerpts of relevant conversation dated 29th August, 2016 between accused No.2 Satish Maniwade and complainant are available on record. Accused No.2 Satish Maniwade takes responsibility of the Trupti 16/27 J-WP-1921-2021FINAL.DOC work of complainant when the complainant says amount of Rs.50 lakhs is too much. Accused No.2 replied that there are 5 cases and petitioner will not agree to less amount as he is very mad for monies.
24. It further seems that complainant suggested to accused No.2 Satish Maniwade if opposite party has given offer then he will pay the double of that amount but it should not go above 40. The complainant then requests accused No.2 Satish Maniwade to arrange a meeting with petitioner but accused No.2 Satish Maniwade takes responsibility and gives confirmation that work will be done.
25. Accused No. 2 Satish Maniwade further assures that he will write suitably and take care of law of limitation so that there will be no adverse effect even if opposite party goes in appeal. Lastly, complainant again requests accused No.2 Satish Maniwade to see that a meeting is arranged with petitioner (but there is neither commitment nor a positive Trupti 17/27 J-WP-1921-2021FINAL.DOC assurance to that effect).
26. It is apparent from panchnama dated 29th August, 2016 that no demand could be verified from the petitioner as he was not present in the office.
27. If the above quoted excerpts from conversation are to be seen in its entirety, then it will emerge that the whole conversation was between the complainant and accused No. 2 Satish Maniwade and it also appears that the complainant was aware of the fact that opposite party had also approached and therefore, he showed his readiness to pay the double amount which the opposite party may offer to the petitioner.
28. What is interesting to note is that accused No.2 Satish Maniwade assured complainant and took responsibility that the work will be done. He nowhere says that the petitioner had agreed to do his work for certain amount and the said amount shall not be less than the amount which have been Trupti 18/27 J-WP-1921-2021FINAL.DOC offered to him by the opposite party.
29. It is also interesting to note from the said conversation that accused No. 2 Satish Maniwade made a commitment that he will write the judgment in such a way and will take care of law of limitation so that there will be no adverse effect even if the opposite party goes in appeal. This also goes to show prima facie that accused No.2 Satish Maniwade had decided to do everything possible so as to favour complainant but for demand.
30. I now come to second trap laid on 20 th September, 2016. In the conversation, all the three accused viz. petitioner (A-1), Satish Maniwade (A-2) and Jayesh Patil, driver of the petitioner (A-3) participated. Transcription of conversation is on record.
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31. A plain and simple reading of the transcription would show that the complainant greets petitioner and thanks for the work done by him. Petitioner then enquires as to which work he (complainant) was referring to. The complainant then says about four cases and then asks if accused No. 2 Satish Maniwade had not told him about those cases. The petitioner then said that he would verify from accused No.2 Satish Maniwade, however, he had not seen any matter. Complainant then requests that he (petitioner) should see those matters and petitioner answers in affirmative and further contends unless he sees matters, he would not comment.
32. It seems that again demand could not be verified. Panchnama dated 20th September, 2016 to above effect is on record. Learned APP, during the course of argument, point out certain portion wherein driver of petitioner, i.e. accused No.3 asked complainant whether money is brought by him. Trupti 20/27
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33. I may point it out here that during the above conversation, accused No.2 Satish Maniwade was also very much there. Had the petitioner wanted to do the work of complainant in lieu of favour or gratification, he could not have feigned ignorance when he was asked by complainant whether accused No. 2 Satish Maniwade had briefed him about those files. Moreover, what is relevant to note here is that despite having an opportunity that is to say when the complainant and petitioner were conversating, the petitioner could have directly demanded or suggested about gratification in lieu of work sought to be done by complainant but that was not done.
34. According to learned counsel for petitioner, which is seen from the pleadings, in the meanwhile, on 8th November, 2016, the Government of India announced the demonetization of all 500 and 1000 banknotes. On 24 th November, 2016, accused No.2 Satish Maniwade approached the petitioner alone and enquired if the petitioner has any old Trupti 21/27 J-WP-1921-2021FINAL.DOC notes and whether he is interested in exchanging, as his friend has come from Pune. Thereafter, complainant came to the cabin of petitioner with accused No.2 Satish Maniwade with the offer of exchange of demonetized (old) notes. This is referred by prosecution as third trap to verify the demand of bribe from petitioner.
35. Before that I may note that the pleading aspect of the petitioner is nowhere assailed or tested by learned APP during the course of argument. Relevant conversation relied upon by the prosecution is at page Nos. 119 to 120 to the effect that complainant suggested "v/ksZ ikghts rj acnyh d#u nsrks-" to which petitioner allegedly replied "gk ex rs rl jkgy rj rs cj jkghy uk tjk". Immediately thereafter complainant allegedly said "
vWDpqyh fol iapohl Ik;Zar eh uksVk cnyh d# 'kdrks---- ckdhp ex dl djk;p--- eyk VkbZe ykxsy rs iSls cnyh djk;yk ---" Again petitioner enquired " fol iapohl Ik;Zar Eg.kts?" To which complainant replied "fol fol Eg.kts ... vka fol Eg.kts R;kpk v/kkZ eh d# 'kdrks-"
Upon this petitioner then allegedly told him "Bhd vkgs rqEgh clk]"
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36. This is the only conversation which prosecution is heavily relying upon. There is no other material relied upon by prosecution against petitioner. From the above conversation also, it does not clearly and unequivocally establish that there was any demand put forth by petitioner for acceptance of any gratification other than legal remuneration of an official act. The whole conversation does not even remotely suggests that there was very clear and specific demand from the side of petitioner in lieu of proposed work of the complainant. There is no material on record to show at any point of time the petitioner instructed any of the other accused to take any bribe on his behalf for doing any favour to complainant.
37. On the contrary, from the conversation dated 20th September, 2016 relied upon by prosecution, it is clear that the petitioner was totally unaware of the matter as to what was transpiring between complainant and other accused persons.
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38. From the material on record, I gather impression that the prosecution on the basis of conversation has drawn inferential deduction as to the culpability of the petitioner, which is impermissible in law. Suspicion, however grave, cannot take the place of proof and the prosecution cannot be complacent to rest its case in the realm of "may be" true but has to rank it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture.
39. It seems that prosecution proposes to prove the guilt of petitioner on the basis of said conversation which I have referred to here-in-above. I am of the opinion that even if that conversation is fully accepted before it is tested by cross- examination or rebutted by the defence evidence, if any, even then it show that the accused had indulged in demand of gratification.
40. I have extensively referred excerpts from the transcripts filed on record which nowhere makes out an offence against Trupti 24/27 J-WP-1921-2021FINAL.DOC the petitioner with respect to accepting, obtaining, agreeing to accept or attempting to obtain from complainant or any other person any amount towards gratification for doing or forbearing to do any official act or any other act in exercise of his official functions or even otherwise. Neither the said transcripts show any abetment on part of the petitioner to induce any person to obtain any valuable thing from any other person including the complainant.
41. Reverting back to the first trap and second trap, the complainant never had any communication in those traps. Further, the third trap makes it abundantly clear that the petitioner had denied any knowledge of the matter or any alleged talks of the complainant with other accused persons.
42. It is also to be noted that the bribe amount was handed over to accused No.3 and was also report at his instance. All this material aspects were simply given go-bye by learned Sessions Judge.
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43. The material on record when judged on the touchstone of the legal principles adumbrated here-in-above, leave no manner of doubt that the prosecution has failed, prima facie, to prove any demand and establish the vitally essential ingredient of the offence both under Sections 7 and 13 (1) (d)
(i) and (ii) of the said Act. The learned Additional Session Judge has committed a manifest error in coming to the conclusion that there is sufficient material to frame charges against the petitioner. The ingredients are conspicuously absent. The learned Additional Session Judge lost sight that the prosecution has not come with a case that there was a meeting in between the complainant and petitioner and demand of gratification was raised by petitioner.
44. Similarly for proving an offence under Section 12 of the said Act, it is necessary for the alleged abettor must have intentionally aided or facilitated the commission of a crime, or the alleged abettor must have engaged in some conspiracy with one or more other person or persons for the commission Trupti 26/27 J-WP-1921-2021FINAL.DOC of an offence. It thus contemplates existence of some nexus between the acts of the alleged abettor and the act of offence abetted. In the entire charge-sheet that element is missing and therefore, there are no requisites of Section 12 of the said Act as well.
45. For the reasons aforesaid, I am constrained to allow the Petition. Consequently, the impugned order dated 23rd February, 2021 passed by learned Additional Sessions Judge, Palghar is set aside and the petitioner is discharged from the charges levelled against him in the charge-sheet.
46. Rule is made absolute accordingly.
(V.G.BISHT, J.) Digitally signed by TRUPTI TRUPTI SADANAND SADANAND BAMNE BAMNE Date:
2021.12.22 21:53:36 +0530 Trupti 27/27