Muhammad Ashraf Bhat vs State of Jammu & Kashmir (Vigilance) and Another

Sunil Hali, J.—Vide order dated 30.06.2007, the petitioner has been charged by the learned Special Judge, Anti Corruption, Kashmir-

Srinagar u/s 5(2) of the J&K P.C. Act read with Sections 161,120-B RPC for having demanded Rs. 1000/- as illegal gratification for releasing

pending bills of the complainant Ghulam Mohammad Mir. Aggrieved of the same, the petitioner has filed this petition u/s 561 -A Cr.P.C for

quashing order of learned Special Judge Anti Corruption, Kashmir-Srinagar.

To appreciate the controversy in the present case, factual background is that the complainant Ghulam Mohd Mir son of Abdul Salam Mir

resident of Seer Jagir, Sopore lodged a complaint before the State Vigilance Organization, Srinagar on 07.10.2004 in which he alleged that he had

been allotted work for Rs. 90,000/-, out of which Rs. 70,000/- stood already released in his favour and the balance of Rs. 20,000/- has been

withheld by the concerned Block Development Officer and the accused petitioner demanded Rs. 1000/- as illegal gratification for release of the

balance amount of Rs. 20,000/-. Accordingly, the Vigilance Department registered FIR against the petitioner and pursuant thereto trap was laid on

07.10.2004. The raid was conducted by the team of officials/officers of Vigilance Department, which also consists of Shri Shafat Hussain Qadeemi

the then Executive Engineer PHE, Rajinder Singh, AEE Mechanical, Sopore, who accompanied the trap party as an independent witnesses. The

trap party along with the complainant and shadow witness Rajinder Singh entered the room of the accused petitioner. The petitioner and other

accused Mohd Ramzan Sofi, Orderly were sitting in the office. The petitioner directed the complainant to place the demanded amount of illegal

gratification at his office table, which was subsequently picked up by the accused Mohd Ramzan Sofi, Orderly on the asking of the accused

petitioner. Thereafter, the said Orderly left the room of the accused and returned back. In the meanwhile raiding party entered the office of the

accused petitioner and demanded money from the accused. The money was recovered at the instance of the accused Mohd. Ramzan Sofi and the

same was recovered from the window sill of another room. Hand and pocket wash of the accused orderly were taken in two separate solutions of

sodium carbonate which turn into pink. This is the nutshell of the prosecution story.

The grievance of the petitioner in this petition is that the withheld amount could not have been released in favour of the complainant as it was to

be verified from the department record as to how much material was received by the complainant from the departmental store. This amount could

not be released unless verification is done. The grievance of the petitioner is that the demand of Rs. 1000/- made by him is incorrect. Other ground

taken by the petitioner is that there was no demand made by him as the amount was not recovered from him. It is the admitted case of the

prosecution that the petitioner had not received money nor had touched the same. It is stated that if the petitioner had to accept this money he

should have directly taken it without asking his Orderly to take the money. The story of the complainant is concocted and has no factual basis.

I have heard learned Counsel for the parties and perused the record. In order to prove the trap, three ingredients are required to be proved by

the prosecution i.e. demand, acceptance and recovery.

In the present case, this Court has been called to deal with this aspect at the charge stage. What are the powers of the court for

framing/discharging of the accused, is an issue which is no longer res Integra. The court at this stage is not to appreciate or sift the evidence. It has

come in the prosecution story that Rs. 20,000/- of the complainant was withheld by the petitioner as a result of which he demanded Rs. 1000/- for

releasing the same. The amount was demanded by the petitioner in presence of the shadow witness. No doubt the amount was not recovered from

the person of the petitioner, but at his direction other the accused namely Mohd. Ramzan Sofi, Orderly took the money from the table of the

accused and kept the same in the sill of the window. It has also come in evidence that on the asking of the other accused, the money was

recovered from the sill of the window, which fact was proved once hand wash and pent wash of the said accused was taken. These are some of

the circumstances which have come in the prosecution story. This case is not based on record. The accused can take the benefit of record relied at

the time of trial. The court cannot at this stage analyze as to whether amount was rightly or illegally withheld by the petitioner. All that the court is

required to see at this stage is that the money was demanded and consequently it was recovered from the other accused. The court at this stage of

framing of-charge has only to come to conclusion that if there is ground for presuming that the accused has committed the offence, it can justifiably

be said that a prima face case against him exists. The 'presumption' means to take as proved until evidence to the contrary is forthcoming. It is not

safe for this Court to examine the merit of the prosecution version qua the accused at this stage.

It has already been discussed hereinabove that there is sufficient evidence to put the accused to trial. The petitioner may have a case to dispute

the contention of the prosecution during the course of the trial.

In view of the above, I find no merit in this petition which is, accordingly, dismissed along with connected CMP(s) if any.