State through Central Bureau of Investigation v/s Dr. Anup Kumar Srivastava (4th August 2017)

CaseState through Central Bureau of Investigation v/s Dr. Anup Kumar Srivastava, 2017
CourtBefore the Supreme Court of India
Case Number CRIMINAL APPEAL NO. 1336 OF 2017
BenchJustice AK SIKRI, Justice R.K. AGRAWAL
Author of the judgementJustice R.K. Agrawal
Counsel for the appellant-stateMr. P.K. Dey
Counsel for the respondentMr. Joy Basu
Relevant Act/SectionsIndian Penal Code, 1860 (Section 120-B, Section 7, section 8, section 10, section 12)
Prevention of Corruption Act, 1988- (Section 13(1) (d), section 13(2))
Decided OnAUGUST 4, 2017.
Author of the briefAditya Gor

BRIEF FACTS AND PROCEDURAL HISTORY:

Dr. Anup Kumar Srivastava-respondent herein was posted as the Commissioner, Central Excise, Delhi-1 Commissionerate. On 02.01.2012, on the basis of source information, a case under Section 120-B of the Indian Penal Code, 1860 read with Sections 7, 8, 10, 12 and 13(2) read with 13(1) (d) of the Prevention of Corruption Act, 1988 was registered by the CBI, New Delhi against the respondent herein along with other officials of the Central Excise Department, Delhi for obtaining illegal gratification by corrupt and illegal means owing to their alleged role in a raid in Delhi. (Para 3(a))

The charge-sheet dated 29.02.2012 was filed in the Court of Special Judge, Patiala House Court, New Delhi for framing of charges wherein it was alleged that on 28.12.2011, a team of officials of Central Excise, Delhi-I, lead by Lallan Ojha, Superintendent, conducted an illegal raid at the premises of Dilip Aggarwal and Anand Aggarwal at Najafgarh Road, New Delhi. It was further alleged in the charge-sheet that the respondent herein through one Hemant Gandhi (private person) negotiated with the owners of the premises for illegal gratification in lieu of not taking any action against them and finalized the bribe amount of Rs. 60 lakhs to be paid to the above named private person. In the whole process, the private person worked as a middleman and conveyed the illegal gratification fixed to the respondent herein. (Para 3(b))

The investigation further revealed that as per the intercepted conversation received from Special Unit, CBI, Delhi, the respondent herein was in regular contact with Hemant Gandhi through telephone and also through personal meetings who used to organize illegal searches under the 3 directions and protection of the respondent herein through other officials of the Department. (Para 3(c))

On 08.11.2012, an order was passed by the Court of Special Judge, Patiala House Courts, New Delhi wherein the respondent herein was charged with Section 120-B of the IPC and Sections 7, 12 and 13(2) read with Section 13(1)(d) of the PC Act. (Para 3(d))

Aggrieved by this order framing charge dated 08/17.11.2012, the respondent herein preferred an appeal under Section 482 of the Code of Criminal Procedure, 1973. Learned single Judge of the High Court, vide judgment and order dated 21.11.2013, quashed the order dated 08/17.11.2012 qua the respondent herein. Aggrieved by the order dated 21.11.2013, the appellant-State through CBI has filed this appeal by way of special leave before this Court. (Para 3(e)(f))

Issues before the court:

Whether in the present facts and circumstances of the case, the appellant-State has made out a case for setting aside the order passed by the High Court? (Para 5)

Arguments for the appellant-state:

  • The duty casts upon the courts at the time of framing of charge is limited to the extent of examining the prima facie case against the accused and not to run a mini trial at the time of framing of charge. It was further contended that the order passed by the High Court is based on assumption and hypothesis which ignores the crucial evidence in the form of intercepted telephonic conversation, viz., Call No. 51 wherein the amount of “Six Zero” was referred which clearly proves his involvement in the crime and the High Court erred in law in considering that vide Call No. 51 final bribe amount was conveyed to the respondent-accused. (Para 6)
  • It was contended that apart from prima facie evidence, there were appropriate and sufficient evidence against the respondent-accused and in all likelihood, the quashing of criminal proceeding qua the respondent-accused would severally affect the ongoing trial against other accused. (Para 7)
  • The respondent accused was in constant touch with the private person who was constantly updating him about every development which prima facie establishes his involvement in the entire conspiracy. (Para 7)
  • It was contended that the power of quashing criminal proceedings, particularly, pursuant to charges framed is to be exercised very sparingly and with great circumspection and that too in rarest of rare case. (Para 7)

Arguments of the respondent:

  • There is no illegality in quashing of charge sheet against the respondent herein on the basis of examination of grounds taken by him. The High Court did not exercise revisional jurisdiction rather exercised powers under Section 482 of the Code while passing the order after considering the evidence on record in order to form a prima facie opinion in accordance with settled legal position.(Para 8)
  • The statements under Section 164 of the Code do not implicate the respondent herein in the present case and the witnesses have resiled from the said statements that were obtained under threat of arrest and false implication in the case. (Para 9)
  • It was further submitted that Call No. 48 between Hemant Gandhi and Mahendra Kapoor completely belies the prosecution story about the alleged involvement of the respondent herein. It was further submitted that Call No. 51 is also of no help as there is no material on record to suggest that respondent herein had agreed to demand the illegal gratification and there is no direct talk between respondent herein and Lallan Ojha or with any of the team members of the alleged raiding team. (Para 10)
  • It was finally contended that the judgment passed by the High Court was well within the parameters in terms of settled legal position for considering the matter at the stage of framing of charge or discharge of the accused and no interference is called for by this Court in this regard. (Para 10)

Ratio as given by the author of the judgement:

A bare perusal of the calls, prima facie, shows that Mahender Kapoor was actually the man behind the raid who was guiding Hemant Gandhi about the manner in which Lallan Ojha should proceed for ensuring the payment of the agreed amount such as by preparing seizure memo etc. It is also clear from the above that after the raid Hemant Gandhi was afraid of the respondent-herein and does not want to meet him. In this view of the matter, it is opined that Call 15 No. 48 does not implicate respondent herein with regard to the settlement of illegal gratification in lieu of not taking action against the owners of the premises. In fact, this call, read with Call No. 64, proves the complicity and connivance of Mahender Kapoor and Hemant Gandhi apart from Lallan Ojha and Ashok Aggarwal wherein Hemant Gandhi is requesting Mahender Kapoor to get the money for him out of the alleged illegal gratification amount which shows that it was Mahender Kapoor who was receiving the alleged illegal gratification amount and distributing the same. Thus according to the Supreme Court, Call No. 48 does not implicate the respondent herein in the commission of the offence. (Para 15)

Call No. 51 was made by Hemant Gandhi to the respondent herein on 28.12.2011 wherein Hemant Gandhi informed the respondent herein that the mission was successful. It is the case of the prosecution that Hemant Gandhi informed about the alleged raid to the respondent herein that it was successful which fully implicates him in the offence. But on a careful scrutiny of the call, it cannot be inferred that the respondent herein had agreed to demand the illegal gratification and also there was no direct talk between Lallan Ojha and the respondent herein who was supposed to inform his senior officer on whose direction he was leading the raiding team. In the call, it was Hemant Gandhi who used the words ‘mission successful’. Thus it was opined that the prosecution has wrongly connected the words “mission successful’ in call No. 48 with that of in Call No. 51. In Call No. 48, it is very much clear that Mahender Kapoor and Hemant Gandhi were talking about the alleged raid and Hemant Gandhi himself accepted that he provided the information for the same. Further, during the alleged conversation in Call No. 51, it has also been noticed that Hemant Gandhi has used three more figures ‘eight’, ‘fifteen’ and ‘six’ which makes the conversation ambiguous and beyond any comprehension and it does not make out any logical understanding of the actual conversation between the parties making it. Hence, no adverse inference can be drawn against the respondent herein with regard to the same. (Para 16)

The statements under Section 164 of the Code also do not implicate the respondent herein in the present case as the witnesses have retracted from their statements. Further, on the contrary, the said witnesses have deposed that the aforesaid statements under Sections 161 and 164 were obtained under threat of arrest and false implication in the case and therefore are not voluntary. (Para 17)

The framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but the framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. (Para 18)

Similarly, the law on the issue emerges to the effect that conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. The object of the conspiracy is to achieve the ultimate aim of conspiracy. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do. (Para 19)

Further, what constitutes illegal gratification is a question of law; whether on the evidence that crime has been committed is a question of fact. If therefore, the evidence regarding the demand and acceptance of a bribe leaves room for doubt and does not displace wholly, the presumption of innocence, the charge cannot be said to have been established. (Para 21)

Hence, the proof of demand has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the PC Act which is absent in the case at hand. (Para 22)

Decision held:

The High Court was well within its powers while quashing the order framing charge as there was no material on record to connect the respondent with the offence in question. Further, the appeal filed by the CBI is accordingly, dismissed. However, the present conclusion is confined only to the disposal of this appeal and the trial court is free to decide the case on merits with regard to other accused persons. (Para 25 & 26)

 

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