SUBHASH CHANDRA SINGH Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) The accused -petitioner has filed this Criminal Misc. Petition under Sec. 482 Cr.P.C. to challenge the order dated 30.7.2015 passed by the Special Judge (CBI Cases) No. 1, Jaipur in Special Criminal Case No. 2/2013 whereby the learned trial Court has ordered to frame charge against the petitioner for offence under Sec. 120 -B IPC and for offences under Sec. 7 and 13(1)(d) read with Sec. 13(2) of the Prevention of Corruption Act, 1988 (hereinafter to be referred as "the Act").

(2.) Brief relevant facts for the disposal of this petition are that complainant -Shri Satish Chandra Gupta on 4.5.2012 submitted a written complaint to the Superintendent of Police CBI, Jaipur alleging therein that firm of his wife M/s. Garg Electricals, Jaipur was awarded three annual maintenance contracts by BSNL, Udaipur for three places for a period of two years on 20.03.2012 for a total amount of Rs. 40,00,000/ - and the petitioner having additional charge of Jaipur has demanded an amount of Rs. 80,000/ - as bribe from him for awarding the aforesaid contracts and out of it, has already unwillingly paid Rs. 40,000/ - to him through co -accused Shri Sushil Sharma, Executive Engineer (Electrical), BSNL, Kota in the month of March 2012 and the petitioner is demanding the remaining amount of Rs. 40,000/ - through co -accused but the complainant is not willing to pay the same and intends to take legal action against both of them. In the complaint it was also alleged that the petitioner is incharge of the aforesaid works and supervising the same. The aforesaid complaint was handed over for necessary action to Shri J.R. Yadav, Inspector of Police (CBI), Jaipur and Shri Yadav to verify the allegations made in the complaint orally interrogated the complainant on 4.5.2012 and on being satisfied with the allegations made in the complainant and to further verify the allegations two independent witnesses were called in the office of CBI. The further case of the prosecution is that in the presence of the witnesses the complainant was directed to make a telephonic call from his mobile on the mobile phone of co -accused -Shri Sushil Sharma at 2.45 p.m. upon which the recipient of the call from the complainant said to the complainant that he is available in the Circle Office of BSNL at Jaipur and is busy and, therefore, he would talk lateron. According to prosecution ultimately on 4.5.2012 at about 5.17 p.m. complainant received a call from co -accused -Shri Sushil Sharma and during the said conversation co -accused asked the complainant to visit him on 5.5.2012 at about 12.00 -1.00 p.m. in his office alongwith bribe money. The alleged conversation between the complainant and co -accused -Shri Sushil Sharma was recorded and transcription of the same was prepared. A verification report was prepared and on that basis FIR No. RC -JAI 2012(A)0009 was registered for offence under Sec. 120 -B IPC and for offence under Sec. 7 of the Act against the petitioner and co -accused in the office of Superintendent of Police, CBI, Jaipur. According to the prosecution on 5.5.2012 preparations were made to trap the co -accused -Shri Sushil Sharma and petitioner and in presence of both the independent witnesses and CBI trap party Rs. 40,000/ - were handed over by complainant to co -accused who accepted the money and put it into in right side pocket of the pant. It is the case of prosecution that co -accused in presence of independent witnesses admitted that he has demanded and accepted the amount of Rs. 40,000/ - from the complainant as gratification and he further disclosed that the same has been demanded and accepted by him for and on behalf of the petitioner. The amount of Rs. 40,000/ - so accepted by the co -accused was recovered from him and he was asked to make a phone call to petitioner and ask him what to do with the amount received by him from the complainant. It is further case of the prosecution that the aforesaid amount was lateron handed over by the co -accused to the petitioner in his office room and the same was recovered in the presence of the complainant and both the independent witnesses from the possession of the petitioner. The investigating officer undertook further investigation and after completion of the same charge -sheet was filed against the petitioner and co -accused and the impugned order was passed which has been challenged by way of this petition.

(3.) It was submitted by the learned counsel for the petitioner that for offences to be made out under Ss. 7 and 13(1)(d) read with Sec. 13(2) of the Act, apart from other, it is to be shown that a public servant demanded and obtained gratification, but in the present case, it is not even the case of prosecution that any demand was made by the petitioner for gratification from the complainant or any other person and he directly or indirectly accepted the same. It was pointed out that it is an admitted fact and otherwise also from the documents made available on record, it is clear that on 02.03.2012 the petitioner while functioning as Additional Chief Engineer (Electric), BSNL approved the tenders of the complainant's firm as per the recommendations of the tender purchase committee and the approval so granted by the petitioner was intimated by the office of the petitioner to the office of Executive Engineer (Electric) BSNL, Electric Division, Udaipur vide letter dated 03.03.2012 and intimation about acceptance and approval of the tenders was given to the complainant's firm by the Executive Engineer vide his letter dated 20.03.2012 and as soon as petitioner approved the recommendation of the tender purchase committee he became functus officio and thereafter, he was not having any role to monitor or supervise the work which was to be performed by the complainant's firm and, therefore, at the time of alleged demand by the petitioner no work of any kind of the complainant's firm was pending before the petitioner and there was no occasion for the petitioner to demand any bribe from the complainant -Shri Satish Chandra Gupta directly or through co -accused -Shri Sushil Sharma and this alone is clear indication of the fact that neither there was any demand by the petitioner nor any acceptance by him and he has falsely been implicated in the case, but the learned trial Court without considering this aspect of the matter in a proper perspective has ordered to frame charge against the petitioner. It was further submitted that even if the evidence collected by the investigating agency is taken to be its face value even then the essential ingredients required to constitute the offences for which the charge has been ordered to be framed are not disclosed. It was pointed out that to show demand on the part of the petitioner the prosecution mainly relies on the transcription of conversations allegedly taken place between the complainant and co -accused and co -accused and petitioner, but from the conversations it is not revealed that petitioner while functioning as a public servant demanded any bribe from the complainant for the works so allotted to him. It was submitted that the conversations so recorded do not disclose name of petitioner in any manner and only on the basis of inferences it cannot be accepted that some other officer whose role has appeared in conversations is petitioner only. It was submitted that otherwise also the evidence of such telephonic conversations is inadmissible in evidence in absence of certificate as required under Sec. 65 -B of the Evidence Act. It was also submitted that it is an admitted fact by the prosecution that first of all co -accused -Shri Sushil Sharma was caught while demanding and accepting an amount of Rs. 40,000/ - as bribe from the complainant and he was taken into custody by the officers of CBI and tainted money was recovered from his possession and he was also examined by the CBI officials. It is also an admitted fact that the co -accused was asked/compelled to have telephonic talk with petitioner and then hand over the tainted money already recovered from him to the petitioner. According to learned counsel for the petitioner the statement of the co -accused recorded by the CBI after recovery of tainted money from the co -accused and after he was taken into police custody is not relevant and admissible in evidence against the petitioner as it is well settled legal position that a confession made by the accused before a police officer or in police custody is not admissible in evidence. It was further submitted that the officers of the CBI induced and instigated the co -accused while he was in their custody to do specific action i.e. to make telephonic calls to the petitioner and deliver tainted money to him and it clearly shows that the action of co -accused was not voluntary and he was made to do so after putting him in fear or under influence and, therefore, this action on the part of the co -accused is also not relevant and admissible in evidence. It was also submitted that in this case the legality of a second trap is also in question and it is well settled legal position that evidence collected regarding a second trap cannot be used against an accused. It was submitted that in the present case the bribe was demanded and accepted by the co -accused and the bribe money was recovered from his possession and, therefore, the officers of the CBI were not legally entitled to use the same money for the purpose of conducting trap proceedings for the petitioner and it was the duty of the CBI officers to seal immediately the money which was recovered from the co -accused. It was submitted that the course adopted by the investigating agency is impermissible in law. It was submitted that it is well settled legal position that charge for an offence can be framed only on the basis of evidence which is legally admissible in evidence, but in the present case learned trial Court overlooking the well settled legal position has proceeded to frame charge against the petitioner. It was further submitted that in this case the conduct of the co -accused amounts to confession regarding an offence and handing over of the tainted money by him to petitioner on the behest of officers of CBI tantamounts to violation of Article 20(3) of the Constitution of India and such evidence is squarely hit by provisions of Sec. 25 of the Evidence Act.