Rajendra Kumar Dubey vs The State of Madhya Pradesh

The present revision under Section 397 r/w 401 of Cr.P.C. has been preferred by applicant/accused against the order dated 24.09.2016

passed by Special Judge (Prevention of Corruption Act) Hoshangabad in Special Case No.1/2016 whereby the application under Section 227 of

Cr.P.C. preferred by applicant seeking discharge from the offences registered against him has been dismissed.

As per prosecution the complainant has filed an application u/s 250 of M.P. Land Revenue Code for removal of encroachment before Tahsildar

Sohagpur. It is alleged that the applicant who was working as Reader to Tahsildar had made a demand of Rs.10,000/- as illegal gratification from

complainant in order to get the aforesaid proceedings decided in favour of complainant. In pursuance of demand, under direction of Lokayukt

Police the complainant paid Rs.5000/- smeared with phenolphthalein power to applicant which has been recovered and seized from his

possession. After due investigation, a charge-sheet under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 has been filed

by Special Police Establishment Lokayukt.

The applicant moved an application under Section 227 of Cr.P.C. seeking discharge from the offence registered against him on the ground that

there is no evidence to establish that applicant has made any demand of bribe or received the money as illegal gratification. Therefore, no offence is

made out against him. The trial Court by passing impugned order dated 24.09.2016 dismissed the application and framed the charge of offence

punishable under Section 7 and Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988.

It is contended by learned counsel for the applicant that as per complainant the demand of money by applicant was made on 24.02.2015 during

conversation on mobile phone. The report was made by complainant on 06.05.2016 after inordinate delay. This creates doubt on the allegation of

demand. The prosecution has relied upon transcripts of conversation between complainant and applicant dated 11.05.2015 and 20.05.2015. In

both transcripts it is not found that the applicant had made demand of illegal gratification. It is clear that accused did not utter a single word for

settling the demand. There is no prove that applicant has received the marked currency notes. The money is not recovered from his possession and

on washing of his hands in the solution of the sodium carbonate, no colour change was found. Thus, the demand and acceptance of illegal

gratification is not proved against the applicant. The finding of trial Court in this regard is perverse. Learned counsel has relied upon the case laws

M.K. Harshan v. State of Kerala, (1996) 11 SCC 720 and Satvit Singh v. State of delhi, (2014) 13 SCC 143 : (2014) 5 SCC (Cri) 619, wherein

it is held that mere demand by itself is not sufficient to establish the offence under the Prevention of Corruption Act. The acceptance of illegal

gratification is also very important to be proved. In case law Krishan Chander v. State of Delhi, (2016) 3 SCC 108 : (2016) 1 SCC (Cri) 725, it

is held that ""It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offence punishable

under Section 7 and 13(1)(d) r/w Section 13(2) of PC Act."" In case law Mukhtiar Singh v. State of Punjab, (2017) 8 SCC 136 it is held that to

prove the charge under Section 7 and 13 of Act, the demand and acceptance of illegal gratification has to be established by proper proof.

Learned counsel for respondent has submitted that from the evidence on record it is duly established prima facie that the applicant has made the

demand and accepted the illegal gratification from the complainant. At this stage no meticulous scrutiny of evidence collected during investigation

can be made. The trial Court has committed no illegality in framing the charge of alleged offences. At present more than six prosecution witnesses

has been examined during trial.

Heard arguments and perused the record.

It is not disputed that the complainant has instituted a proceeding under Section 250 of M.P. Land Revenue Code for removal of encroachment

before Tahsildar at Sohagpur where the applicant is working as Reader. As per prosecution, the applicant has made a demand of Rs.10,000/-

from complainant first time on 24.02.2015 by mobile call. As complainant is resident of village Chapara, the applicant called him with money in the

month of May. Thereafter, the complainant made a complaint to Lokayukt police on 06.05.2015. therefore, only on the ground of delay at this

stage we cannot doubt the veracity of complaint. From the perusal of transcripts of conversation between complainant and applicant dated

11.05.2015 and 20.05.2015, prima facie it cannot be inferred that no demand of illegal gratification was made by the applicant. Prima facie, it

appears that the currency notes were kept by the complainant in the drawer of office table of applicant under his direction. The currency notes

have been recovered from the drawer in presence of applicant. The statement of complainant and seizure witnesses recorded under Section 161

Cr.P.C. also corroborates above facts. Therefore, from perusal of record of the case and documents submitted therewith a strong suspicion arises

indicating the demand and acceptance of illegal gratification by the applicant.

In the case law Amit Kapoor Vs. Ramesh Chander and another (2012) 9 SCC 460 it is observed by Hon''ble Apex Court that :-

Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 CrPC, unless the accused is discharged under Section

227 CrPC. Under both Sections 227 and 228 CrPC, the court is required to consider the ""record of the case"" and the documents submitted

therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for

presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section concerned exists, then

the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is

not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that

offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie.

Hon''ble Apex Court in case law State of Rajasthan Vs. Fateh Karan Mehdu (2017) 3 SCC 198 observed that :-

The scope of interference and exercise of jurisdiction under Section 397 CrPC has been time and again explained by this Court. Further, the

scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At this stage of framing of a charge,

the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong

suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage

final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly

guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of the Code of Criminal

Procedure.

In view of the legal principles as mentioned above and on perusal of police report and documents submitted there with, a prima facie case is

made out against the applicant under alleged offences. The trial Court has rightly framed the charge of alleged offences. We do not find any

perversity or illegality in the impugned order passed by learned trial Court.

Consequently, revision is hereby dismissed.