State of Gujarat vs A.V. Ramesh

J.C. Upadhyaya, J.—Challenge in this Criminal Revision Application preferred u/s 397 read with Section 401 of Code of Criminal Procedure is to the impugned order dated 7.7.2007, rendered by the learned Additional Sessions Judge, Vadodara, in Special Case No. 14/2006, whereby, the Respondent herein, who was original accused No. 2 in said special case, came to be discharged u/s 227 of the Code of Criminal Procedure.

As per the prosecution case, there were, in all, three accused persons including the Respondent there in, and out of them, original accused No. 1 Mr. Bamniya, who was serving as Superintendent in the Excise Department in Service Tax Branch, at Vadodara, demanded illegal gratification, initially, in the sum of Rs. 1000/-, and thereafter, settled to Rs. 500/-from the original complainant Koran sinh Fateh sinh Parmar, but the said amount allegedly came to be accepted on 21.11.2005 by the original accused No. 3 Mr. R.V. Solanki, who was serving as a Sipohy in the Excise Department. So far as the Respondent -original accused No. 2 Mr. A.V. Ramesh, who was at the relevant time, serving as Inspector in the said department is concerned, the case is to the effect that he relegated the complainant Kiransinh Fateh sinh Parmar to the original accused No. 3 -R.V. Solanki for the purpose of payment. In the impugned order, the Sessions Court, examining the FIR and the relevant police papers, came to the conclusion that so far as the charge regarding demand of illegal gratification was concerned, the same was qua original accused no. 1 -Mr. Bamniya and at the time of alleged raid, original accused No. 3 -Mr. Solanki accepted the currency notes. It was, therefore, observed that so far as the opponent -original accused No. 2 is concerned, he neither demanded illegal gratification from the complainant nor accepted the gratification at the time of raid. The Sessions Court further observed by examining the papers that so far as role attributed to the opponent - original accused No. 2 that he told the complainant to go to the original accused No. 3, does not make himself an offender as provided either u/s 7 or Section 13(1)(d) of Prevention of Corruption Act, as none of the ingredients regarding demanding or accepting gratification for himself or on behalf of other would apply to the opponent - original accused no. 2.

Mr. Kartik Pandya learned APP for the Petitioner - State submitted that the impugned order passedby the Sessions Court is contrary to law and facts on record. It is submitted that as per the further statement of the complainant recorded by the ACB Police after the raid and as per the statement of the panchas of the raiding panchnama, it was the opponent - original accused no. 2, who affixed the seal containing the date on the application of the complainant and told the complainant that whatever the amount referred by Mr. Bamniya (original accused No. 2) shall be handed over to Mr. Solanki (Original accused No. 3). Mr. Pandya, therefore, submitted that so faras the role attributed to the original accused no. 2 is concerned, prima-facie case is made out from the police papers and the Sessions Court, therefore, committed serious error in discharging him solely on the ground that he neither demanded the gratification amount nor he accepted the same. Therefore, it is submitted that the revision application may be allowed and the impugned order passed by the Sessions Court maybe set aside.

Mr. Ramnandan Singh learned advocate for the respondent - original accused No. 2 supported the impugned order passed by the Sessions Court and submitted that the Sessions Court examined the FIR of the complainant as well as the relevant police papers and rightly came to the conclusion that the original accused No. 2 was neither connected with the demand nor with the recovery and that considering the alleged role attributed by the police to the original accused No. 2, none of the required ingredients contained either u/s 7 or Section 13(1)9d) of the Prevention of Corruption Act, can be said to have been attracted qua the original accused No. 2. Mr. Singh learned advocate further submitted that subsequent to the discharge of the original accused No. 2, original accused Nos. 1 and 3 came to be tried in the said special case itself by the Sessions Court, Vadodara, and both, original accused Nos. 1 and 3 came to be acquitted of all the charges levelled against them and my attention was drawn to para-23 in the judgment and order dated 14.5.2008 rendered by the Sessions Court in the aforementioned special case regarding acquittal of original accused Nos. 1and 3, that even on 21.11.2005 when the raid was laid, the Respondent - original accused No. 2 was not available in the office itself. Mr. Singh learned advocate, however, submitted that the State has challenged the judgment and order of acquittal by preferring appeal before this Court, but the case of the original accused No. 2 is totally different than the case of two accused persons, though acquitted. The role attributed to the accused No. 2 cannot be said to have been prima -facie established from the police papers, but even the ingredients of the offence, for which, the allegations are levelled, cannot be said to have been satisfied legally qua accused no. 2. Therefore, it is submitted that the revision application may be dismissed.

I have examined the impugned order rendered by the learned Additional Sessions Judge, Vadodara, regarding discharge of the Respondent - original accused No. 2, so also, the relevant papers annexed with this revision application. Admittedly, there is no dispute that so far as accused No. 2 is concerned, he neither demanded any gratification from the complainant nor at the time of alleged raid, he accepted the same. As per the prosecution case, the demand was made by original accused No. 1 -Mr. Bamniya, but at the time of raid, the gratification amount was accepted by the original accused No. 3 -Mr. Solanki on behalf of original accused No. 1 -Mr. Bamniya. The prosecution alleged that the opponent - original accused No. 2 told the complainant to go before the accused No. 3 and to pay the money as directed by original accused No. 1 -Mr. Bamniya. Under such circumstances, so faras the position of Respondent-original accused no. 2 is concerned, he neither demanded gratification amount nor accepted the same. It is not the prosecution case that the original accused No. 3 -Mr. Solanki accepted the amount of gratification either on behalf of opponent -original accused No. 2 or on behalf of both the accused, namely, original accused No. 1 and 2. From the very beginning, the prosecution case is that the gratification amount was demanded by accused No. 1, which came to be accepted by the accused No. 3 on behalf of accused No. 1. It is true that after the discharge of accused No. 2,the special case came to be tried against original accused No. 1 and 3 and vide judgment and order dated 14.5.2008, the learned Additional Sessions Judge, Vadodara, recorded acquittal of those two accused persons. There is also no dispute that the said acquittal order is under challenge before this Court. However, the important aspect is that, in para-23 in the said judgment and order, relying upon the documentary evidence, so far as accused No. 2 is concerned, the trial court came to the conclusion that the accused No. 2 was not present in the room where trap was made, but he was available at different place, called ''control room'' in the office. In the wake of above situation, so far as the presence of accused No. 2, at the time of raid, itself can be said to be in dispute. However, as a matter of fact, so far as role attributed to accused No. 2 is concerned, he is not much concerned whether remaining two persons are acquitted or convicted, but so far as his role is concerned, as well as considering the required ingredients contained u/s 7 or u/s 13(1)(d) of the Prevention of Corruption Act are considered, it clearly transpires that the accused No. 2 was not the person who had accepted or who had obtained or had agreed to accept, either for himself or for any other persons, any gratification.

In the above view of the matter, there does not appear that the Sessions Court has either committed any illegality in recording discharge of the accused No. 2 or that the discretion exercised by the Sessions Court can be termed as arbitrary exercise of powers. I do not find any perversity in the impugned order challenged in this revision application. The revision application is, therefore, devoid of any merit and deserves dismissal.

For the foregoing reasons, the Criminal Revision Application stands dismissed. Rule is discharged accordingly.