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2013 DAILYLAW 2722 (DEL)

Arun Kumar Gurjar v. CBI

2013-09-09

Sunil Gaur

body2013
JUDGMENT : 1. Impugned order of 26th February, 2013 puts petitioner on trial in Criminal Complaint No.50/2012 in RC NO.CBI/ACU-I/RC-A0003/10 under Section 120-B of IPC read with Section 7 of The Prevention of Corruption Act, 1988. The substratum of the charge framed against petitioner and his co-accused in this trap-case is as under:— "During the period of October, 2010 to December, 2010, petitioner had connived with his co-accused-Baljeet Singh while posted and functioning as public servants and entered into criminal conspiracy and in pursuance thereof by abusing their official position as public servants while scrutinizing the income tax assessment of 2008-2009 of M/s. Madhya Pradesh Vanijaya Company, petitioner and his co-accused-Baljeet Singh demanded illegal gratification of Rs.5 lac in the month of October, 2010 from Sh. Pawan Aggarwal, the partner of said company for scrutiny and finalizing the income tax assessment without any hurdle and when Sh. Pawan Aggarwal refused to pay the bribe amount of Rs.5 lac, a notice dated 20th December, 2010 was issued to the company by petitioner and subsequently when Sh. Pawan Aggarwal visited the office on 27th December, 2010, petitioner and his co-accused-Baljeet Singh again demanded bribe of Rs.5 lac from Sh. Pawan Aggarwal for finalization of entire matter without any hurdle and that illegal gratification of Rs.2 lac was accepted by petitioner and his co-accused-Baljeet Singh on 29th December, 2010 from Sh. Pawan Aggarwal on behalf of petitioner and his co-accused-Baljeet Singh, which was recovered from possession of petitioner's co-accused-Baljeet Singh." 2. Prosecution of petitioner and his co-accused for the offences under Section 7 of The Prevention of Corruption Act, 1988 as well as for the offences under 120-B of IPC read with Section 7 of The Prevention of Corruption Act, 1988 is assailed by learned senior counsel for petitioner by pointing out that the case set up in the charge-sheet is different from the version which has come in the verification of the complaint. 3. 3. During the course of the hearing, attention of this Court was drawn by learned senior counsel for petitioner to pre-trap conversation (Annexure P-3) as well as spot conversation (Annexure P-4) to assert that there was no demand of any bribe by petitioner and there is no recovery of the bribe amount from him and petitioner was not even in the office where the bribe has been purportedly taken by his co-accused-Inspector Baljeet Singh and the disclosure statement of co-accused-Inspector Baljeet Singh is inadmissible. 4. Lastly, it was asserted by learned senior counsel for petitioner that petitioner's prosecution for the offence of criminal conspiracy is unwarranted as sanction under Section 197 of Cr.P. C. has not been taken. In support of the above submissions, reliance was placed upon decisions in R.Balakrishna Pillai v. State of Kerala and Anothers (1996) 1 SCC 478 ; Rakesh Kumar Mishra v. State of Bihar and Others 2006 (1) JCC 549 : (2006) 8 SCC 40; State of Orissa v. Ganesh Chandra Jew 2004 (2) JCC 735 : (2004) 8 SCC 40 ; State of H.P. v. M.P. Gupta (2004) 2 SCC 349 ; K.K. Verma v. State 1996 (39) DRJ; Anjali Kumar v. State of Bihar 2008 (2) JCC 1337 : (2008) 5 SCC 248 ; State of Maharashtra Vs. Budhikota Subbarao (1993) 3 SCC 339 ; Prakash Singh Badal v. State of Punjab (2007) 1 SCC 1 ; State of Madhya Pradesh v. Sheetla Sahai and Others (2009) 8 SCC 617 ; General Officer Commanding, Rashtriya Rifles v. Central Bureau of Investigation and Ors. (2012) 6 SCC 228 ; A Subair v. State of Kerala (2009) 6 SCC 587 ; Banarsi Dass v. State of Haryana 2010 (3) JCC 1842 : (2010) 4 SCC 450 ; Prem Raj Meena v. CBl rendered in Criminal Appeal No.963/2008 and Roshal lal Saini v. CBI 2011 [1] JCC 102. 5. Mr. Narender Mann, Special Public Prosecutor for CBI supports the impugned order framing the charges and submits that on the sanction aspect, dictum of the Apex Court in Prakash Singh Badal v. State of Punjab (supra) is as under: - "The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the color of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity. " 6. Learned Special Public Prosecutor for CBI had submitted that in view of the afore-noted dictum, there is no requirement of obtaining sanction under Section 197 of Cr.P.C. for prosecution of petitioner, as taking bribe is not a part of official duty. To contend that bribe was demanded by petitioner, attention of this Court was drawn by learned Special Public Prosecutor for CBI to the complaint (Annexure P-2) wherein it is specifically averred as under:- "In the month of October, 2010, Shri Arun Gurjar and Shri Baljeet Singh asked me to discuss the case with them in his office. Accordingly, I visited the Office of Shri Arun Gurjar where Shri Baljeet Singh was also found available. Both of them asked me that the scrutiny will be finalized without any hurdle and demanded Rs. 5 lakhs for the same. On 27.12.2010, I personally visited the Office of Shri Arun Gurjar. I met Shri Arun Gurjar and Baljeet Singh. Both the officers asked me that there are so many discrepancies in the papers and again demanded Rs.5 lakhs for finalization of the entire matter. " 7. Learned Special Public Prosecutor for CBI had also submitted that in cases of criminal conspiracy like instant one, direct evidence is seldom available and the decisions relied upon on behalf of petitioner are of no avail to the case of petitioner as the case set out against petitioner is duly supported by the charge-sheet (Annexure P-5) and this petition deserves rejection. 8. The submissions advanced by both the sides, impugned order, the material on record as well as the decisions cited have been duly considered and thereupon, it emerges that the averments made in the complaint (Annexure P-2) have been verified in the pre-trap conversation (Annexure P-3). 8. The submissions advanced by both the sides, impugned order, the material on record as well as the decisions cited have been duly considered and thereupon, it emerges that the averments made in the complaint (Annexure P-2) have been verified in the pre-trap conversation (Annexure P-3). Although in the spot conversation (Annexure P-4), there is no direct reference to petitioner-accused but that by itself is not sufficient to discharge him at the threshold of the trial as the specific allegations levelled against petitioner in the complaint (Annexure P-2) which are required to be tested at trial and at this initial stage, it cannot be said that the ingredients of the offence for which petitioner is called upon to face trial are lacking, nor it can be said that petitioner's prosecution in this case is unwarranted due to lack of sanction under Section 197 of Cr.P.C. in view of the dictum of the Apex Court in Prakash Singh Badal (supra). 9. At the stage of framing of the charge, a prima facie case only is to be seen. Apex Court in Amit Kapoor (supra) has gone to the extent of holding that even on the strong suspicion, an accused can be put to trial. On this aspect, pertinent observations made by Apex Court in Amit Kapoor v. Ramesh Chander and Another 2012 (4) JCC 2885 : (2012) 9 SCC 460 are as under- "At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at the stage." 10. In the face of clear averments made in the complaint (Annexure P-2), it cannot be said that no case is made out against petitioner. Impugned order does not suffer from any illegality, infirmity or palpable error, therefore, this petition is dismissed while refraining to comment upon merits of this case lest it may prejudice petitioner at trial. This petition is accordingly disposed of.