DIGVIJAY NATH MISHRA Vs. STATE OF U.P.

JUDGEMENT

(1.) Present petition has been filed with the prayer to quash the further proceeding of Special Case No. 06/2007, State of U.P. v. Digvijay Nath Mishra, pending in the Court of Special Judge ( Prevention of Corruption Act), Varanasi arising from Case Crime No. 405 of 2006, under Section 7/ 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act) PS Cantt., District Varanasi as well as the impugned order dated 11.7.2012, whereby the learned Special Judge rejected the discharge application moved by the applicant. The facts as emerge out of this case are that one Paras Nath Chaudhary presented an application by way of complaint in the office of Sri Nandlal Yadav, Dy. Suptd. of Police, Anti Corruption Cell, Varanasi to the effect that Shed No. 2 of Harijan Industrial Estate, Ram Nagar, Varanasi was allotted to him on lease by the Harijan Social Welfare Deptt. 35-36 years ago for business purposes but as the document with regard to the said lease was not being available in the Deptt., notices for cancellation of the shed were being sent to him by the Deptt. from time to time and ultimately the allotment of the shed was cancelled in the year 2006. Aggrieved with the said cancellation, the complainant approached the District Social Welfare Officer for restoring his allotment, who in turn told him to contact the Asstt. Manager of the Deptt. Sri Digvijay Nath Mishra (applicant). Then the complainant approached the applicant, who told him that he would have to spend money for this work and demanded Rs. 5000/- from him for recommending his case for allotment. When the complainant denied to do so, a threatening was made that the shed allotted to him shall be cancelled and action shall be taken for allotting the same to any other person. The complainant anyhow managed to pursue the applicant to settle the deal for Rs. 2000/- in lieu of allotment order and agreed to pay the said amount on 14.11.2006 as told by the applicant. The complainant stated that he never wanted to be associated with the applicant in this matter of demand of money as bribe but in order to teach him a lesson by getting him caught red handed and under compulsion, he accepted to give money to the applicant as per his saying.

(2.) On being satisfied with the contents of the application and after consultation with the complainant aforesaid, the Dy. Suptd. decided to lay a trap to nab the accused red handed and accordingly instructed the complainant to remain present in his office on 14.11.2006 at 9 a.m. with the bribe money amounting to Rs. 2000/-. The complainant accordingly met Dy. Supt. Anti team headed by the said Dy. Suptd. was formed for the purpose of trapping the accused and the said Dy. Suptd. asked the Inspector Sri Narendra Pratap Singh to bring two witnesses for the purpose, who took two witnesses namely Sri Shyam Narain Gupta and Sri Radhey Shyam Chaubey, who were also included in the trap party as witnesses. Thereafter the complainant was asked for presentation of notes to be given as bribe to the applicant and the complainant gave 20 notes of Rs. 100/- each of different numbers, total Rs. 2000/-. Initials along with date 14.11.2006 were made by the said Dy. Suptd. on the said notes and the Constable Raj Kumar Pal was instructed to apply phenolphthalein powder on the notes and hand them over to the complainant Paras Nath Chaudhary, who was instructed to count the notes in his hand and preserve them on a plain folded paper and on being asked by the applicant Digvijaya Nath Mishra, was instructed to hand over the same to him after taking out from the paper. The complainant accordingly did so. Thereafter on instructions, Constable Narendra Kumar Singh prepared a solution of Sodium Carbonate and put it into two glasses and washed the fingers of Constable Raj Kumar Pal and the complainant Paras Nath Chaudhary in the solution, which turned into pink colour. Thereafter the solution was sealed. Furd for taking the currency notes of Rs. 2000/- having Phenolphthalein powder on it and supurdaginama were prepared. Thereafter on 14.11.2006, the complainant was instructed to go to Vikas Bhawan to ensure the presence of the applicant there, who after returning to the office informed the presence of the applicant. On getting the said information, the complainant was instructed to go to Vikas Bhawan gate along with unit Constable Raj Kumar Pal and witness Sri Shyam Narain Gupta. Thereafter the said Dy. S.P. along with Inspector Sri Vijay Bahadur Singh, Dy. Inspector Sri Govind Ballabh Joshi, Constables Narendra Kumar Singh, Shesh Nath Singh and the witness Sri Radhey Shyam Chaubey reached near the gate of Vikas Bhawan in a govt. Jeep, where the complainant, constable Sri Raj Kumar Pal and witness Sri Shyam Narain Gupta were already standing. The said Jeep was parked ahead of Vikas Bhawan near the Sulabh Complex. Thereafter the Dy. S.P. and the aforesaid team members went towards the Vikas Bhawan on foot maintaining the secrecy and asked the complainant who was present at the gate to go inside. They were following the complainant and watching the activities secretly. On reaching the ground floor of Vikas Bhawan, near the varandah, a person was seen whom the complainant recognized as the applicant and the said person asked the complainant if he has brought the money. The complainant told that as per his saying he has brought the money and his work may be got done. The said person asked him to go outside. Thereafter the said person along with the complainant came out from the Vikas Bhawan Gate near Goalghar about 60-70 steps ahead and started talking with the complainant and asked for the money agreed upon. On this, the complainant took out the notes from the plain paper from the pocket of his shirt and asked the applicant for counting after handing over the notes to him. After counting the notes, the applicant told that your work has already been done and now the copy of the letter is being handed over to you. The team was secretly watching the activities and on being ensured that the said person is the applicant Digvijay Nath Mishra, Asstt. Manager, Industrial Estate, Harijan and Social Welfare Deptt. Varanasi, who made a deal with the complainant, the Dy. Suptd. after giving his identity, caught the applicant red handed while counting the notes and took possession of the notes on which initials and dates were mentioned by the said Dy. Suptd. earlier. The applicant was told that he had taken bribe of Rs. 2000/- from the complainant in lieu of restoring the allotment of the shed No. 2 in his favour, which is an offence punishable under Sections 7/ 13(2) of the Act. After informing about the offence committed by him, the applicant was arrested, who told his name to be Digvijay Nath Mishra. The fingers of the accused applicant and the complainant were got washed separately with the solution of Sodium Carbonate, which turned into Pink colour. Thereafter completing the formalities, the furd was got written by Sri Govind Ballabh Joshi and it was read over to the applicant and other witnesses and thereafter after handing over the copy of Furd to the accused applicant, his signature was taken.

(3.) On the basis of the said furd, case was got registered against the applicant Digvijay Nath Mishra as Case Crime No. 405/2006, under Section 7/ 13(2) of the Act at PS Cantt., Varanasi. The matter was investigated by the Investigating Officer and after investigation, a charge-sheet was submitted under Sections 7/ 13(2) of the Act against the accused applicant. After receiving the said charge-sheet, the learned court below took cognizance of the case. Thereafter the applicant moved an application 23 Kha before the trial court for his discharge on the ground that two letters dated 9.1.2001 and 17.2.2001 were issued to the complainant by the deptt. informing him regarding non utilizing the allotted shed by him and after waiting for three years, on the basis of the report of the applicant regarding misuse of the shed, an information was sent to the Directorate of Industry against the complainant. It was found that one Ashok Kumar was living as a sub-tenant in the shed allotted to the applicant and against him also action was taken to vacate the shed. Ultimately the allotment in favour of the complainant was cancelled on 2.2.2005, which was informed to him on 1.7.2005. On 18.9.2006 the complainant requested for re-allotment of the shed, on which Samaj Kalyan Adhikari, Varanasi strongly recommended his case for reallotment of the shed in his favour, for which the applicant objected to by his note sheet dated 16.10.2006 and due to which there developed inimical terms between the complainant and the applicant which culminated into the present prosecution.