LOK PAL SINGH, J.
1. Heard learned counsel for the parties. Applicant, who is in jail, is seeking regular bail in connection with R.C. No. 0072018A0003 for the offence
punishable under section 7 and 13 (2) read with Section 13(1)(d) of Prevention of Corruption Act and section 120B IPC
2. A first information report was lodged with the averments that the vehicle TATA Magic, having registration number UK06-CA-4908 of one Prem
Kishore (complainant) was seized by SSB Official at Dhanushpur, Banbasa District Champawat. The same was handed over to the Custom Office at
Khatima. The Custom Department, Bareilly, provisionally released the vehicle of the complainant. After receiving release order, when the complainant
approached to Custom Office at Khatima, there Mr. Anil Kumar Sharma, Inspector had demanded Rs. 10,000/- as bribe for release of the vehicle. On
the request of the complainant, Mr. Anil Kumar Sharma, Inspector agreed to reduce the amount to Rs. 5,000/- and directed him to pay the same till
10.04.2018, and threatened him to seize the vehicle in future, in case, he will not pay the amount. Mr. Navneet Mishra, Verification Officer, submitted
the report and after verifying the facts from the complainant, the FIR was lodged and trap was done on 12.04.2018 at Khatima. There was
conversation between the applicant, complainant and some other accused persons on phone, recorded by the owner of the vehicle, which depicts that
there was a demand/gratification on the pretext of release of vehicle.
3. It is the contention of the learned counsel for the applicant that the Verification Officer has not done the inquiry as per the mandate of 8.24 of the
C.B.I. Crime Manual and submitted the report after inquiry from the complainant. It is further submitted that Chapter 8.24 of the C.B.I. Crime
Manual has not been followed and there was no occasion for the applicant and other accused persons to ask the bribe from the complainant, as the
Custom Department, Bareilly had already released the vehicle provisionally. It is further submitted that FIR was lodged at 12.04.2018 at 11 hrs.,
thereafter TLO was appointed at Dehradun and alleged trap was conducted at Khatima, on the same day at 12:20 hrs., and applicant was arrested. It
is further contended that applicant has falsely been implicated by the CBI. Mr. Navneet Mishra, Verification Officer, also became the part of the trap
team which confirms that he is an interested witness. It is further contended that permission as required under section 197 Cr.P.C. has also been not
obtained yet.
4. Per contra, Mr. Sandeep Tandon, learned counsel for C.B.I. submits that the applicant has not denied involvement in the conversation which depicts
that the applicant also demanded bribe from the complainant. He further submits that application under section 197 Cr.P.C. has already been moved
for seeking permission from the concerned department which has not been received yet. It is further submitted that at this stage, sanction is not
mandatory.
5. Charge sheet under section 7 & 13(2) read with section 13(1)(d) of Prevention of Corruption Act has been filed. For kind reference, section 7 of
the Act is quoted hereunder:-
7. Public servant taking gratification other than legal remuneration in respect of an official act.â€" Whoever, being, or expecting to be a public servant,
accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other
than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his
official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central
Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company
referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not
less than six months but which may extend to five years and shall also be liable to fine.
(Explanations) â€"(a) “Expecting to be a public servantâ€. If a person not expecting to be in office obtains a gratification by deceiving others into a
belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this
section.
(b) “Gratificationâ€. The word “gratification†is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) “Legal remunerationâ€. The words “legal remuneration†are not restricted to remuneration which a public servant can lawfully demand,
but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) “A motive or reward for doingâ€. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a
position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus
induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an
offence under this section.
(1) A public servant is said to commit the offence of criminal misconduct
(d) if he,â€
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
6. Though, the vehicle of the complainant had been released, but it was released on the assurance that the complainant will pay the amount of bribe by
10.04.2018 to the applicant. This averment of the FIR has not been rebutted in the bail application. The conversation part and the averment made in
the counter affidavit has also not been rebutted by way of filing rejoinder affidavit.
7. The Prevention of Corruption Act was enacted to improve the culture of the society in not demanding and taking gratification by the public
servants. The Act curb illegal activities of public servants and should be liberally construed so as to advance its object and not liberally in the favour of
the accused.
8. The Hon’ble Apex Court in the case of State of M.P. and others vs. Ram Singh reported in (2000) 5SCC 88 has held as follows:-
“14. It may be noticed at this stage that a three Judge Bench of this Court in H.N. Rishbud & Anr.vs. State of Delhi had held that a defect or
illegality in investigation, however, serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. Referring to the
provisions of Section 190, 193, 195 to 199 and 537 of the Code of Criminal Procedure (1898) in the context of an offence under the Prevention of
Corruption Act, 1947, the Court held:
“A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial.
No doubt a police report which results from an investigation is provided in Section 190, CrPC as the material on which cognizance is taken. But it
cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, CrPC is one
out of a group of sections under the heading Conditions requisite for initiation of proceedings. The language of this section is in marked contrast with
that of the other sections of the group under the same heading, i.e., Sections 193 and 195 to 199.
These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190
does not. While no doubt, in one sense, clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to
say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b)
of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error
in a proceeding antecedent to the trial. To such a situation Section 537 CrPC which is in the following terms is attracted:
‘Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or
altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order,
judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity,
has in fact occasioned a failure of justice
If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no
doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a
miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for
trial is well settled as appears from the cases in Prabhu v. Emperor, and Lumbhardar Zutshi v. R.
It further held:
“In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial, the court will have to consider the
nature and extent of the violation and pass appropriate orders for such investigation as may be called for, wholly or partly, and by such officer as it
considers appropriate with reference to the requirements of Section 5-A of the Act. It is in the light of the above considerations that the validity or
otherwise of the objection as to the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings,
determined.â€
In Bhajan Lals case this Court had found on facts that the SP had passed the order mechanically and in a very casual manner regardless of the settled
principles of law. The provisions of Section 17 of the Act had not been complied with. As earlier noticed the SP while authorising the SHO to
investigate had made only endorsement to the effect please register the case and investigate. The SP was shown to be not aware either of allegations
or the nature of the offences and the pressure of work-load requiring investigation by an Inspector. There is no denial of the fact that in cases against
the respondents in these appeals, even in the absence of the authority of the SP the Investigating Officer was in law authorised to investigate the
offence falling under Section 13 of the Act with the exception of one as is described under sub-section (1)(e) of the Act. After registration of the FIR
the Superintendent of Police in the instant appeals is shown to be aware and conscious of the allegations made against the respondents, the FIR
registered against them and pending investigations. The order passed by the SP in case of Ram Singh on 12.12.1994 with respect to a Crime
registered in 1992 was to the effect:
“In exercise of powers conferred by the provisions on me, under Section 17 of the Prevention of Corruption Act, 1988, I P.K. Runwal,
Superintendent of Police, Special Police Establishment, Division-I Lokayukt Karyalaya, Gwalior Division Gwalior (M.P.), authorised Shri D.S. Rana,
Inspector (SPE) Lak-Gwl (M.P.) to investigate Crime No.103/92 U/s 13(1)(E), 23(2) of the Prevention of Corruption Act, 1988 against Shri Ram
Singh D.O. Excise, Batul (M.P.).
Similar orders have been passed in the other two cases as well. The reasons for entrustment of investigation to the Inspector can be discerned from
the order itself. The appellant-State is, therefore, justified in submitting that the facts of Bhajan Lals case were distinguishable as in the instant case
the Superintendent of Police appears to have applied his mind and passed the order authorising the investigation by an Inspector under the peculiar
circumstances of the case. The reason for entrustment of investigation were obvious. The High Court should not have liberally construed the
provisions of the Act in favour of the accused resulting in closure of the trial of the serious charges made against the respondents in relation to
commission of offences punishable under an Act legislated to curb the illegal and corrupt practices of the public officers. It is brought to our notice
that under similar circumstances the High Court had quashed the investigation and consequent proceedings in a case registered against Shri Ram
Babu Gupta against which Criminal Appeal No.1754 of 1986 was filed in this Court which was allowed on 27th September, 1986 by setting aside the
order of the High Court with a direction to the trial court to proceed with the case in accordance with law and in the light of the observations made
therein.
16. Under these circumstances the appeals are allowed and the judgments of the High Court impugned in these appeals regarding the interpretation of
Section 17 and holding the investigation to have not been investigated by an authorised officer being not sustainable in law are hereby set aside with
the direction to the Trial Court to proceed with the trial in accordance with the provisions of law. The respondents would be at liberty to defend their
cases on all such contentions on facts and law as are available to them which have not been adjudicated upon against them by the High Court and this
Court.
9. The Hon’ble Apex Court further in the case of State of Maharashtra and another vs. Prabhakar and another reported in (2002) 7SCC 636 has
held as follows:-
“5. Unfortunately, the High Court in its order has not considered this question at all. It has proceeded on the assumption that section 21 of the
Indian Penal Code is the relevant provision for determination of the question whether the accused in the case is a public servant. As noted earlier,
section 21 IPC is of no relevance to consider the question which has to be, on interpretation of provision of section 2(c) of the Prevention of
Corruption Act, 1988, read with the relevant provisions of Maharashtra Cooperative Societies Act, 1960.â€
10. Learned counsel for the petitioner has also submitted above that Navneet Mishra, is an interested witness as he was the Verification Officer and
become the member of the TLO. Submission of the learned counsel has no force, as there is no provision that the person who was the verification
Officer cannot become part of the TLO and cannot investigate with the team.
11. The allegations made against the applicant are serious in nature and, prima facie, constitute offence punishable under section 7 & 13(2) read with
section 13(1)(d) of Prevention of Corruption Act and section 120B IPC. The audio conversation in regard to the involvement of the applicant in
demanding gratification is not denied by way of filing rejoinder affidavit. On the perusal of the contents of the affidavit and material available on
record and also considering the fact that allegations against the applicant are serious in nature, in view of this Court the applicant is not entitled for bail
at this stage.
12. The bail application is rejected.
