Abhay Kumar Gupta vs State of Chhattisgarh

T.P. Sharma, J.—By this Petition u/s 482 of the Code of Criminal Procedure, 1973 (in short ''the Code'') petitioner has prayed for quashment of criminal proceeding pending before the Special Judge, Durg in special case No. 1/08 and quashment of the charge-sheet in crime No. 12/07 registered at Anti Corruption Bureau, Raipur against the petitioner.

As per brief facts, on the basis of copy of charge-sheet and other documents filed on behalf of the petitioner, present petitioner was working as Deputy Commandant in CISF, at the relevant time he was working at Durg. One main accused Pawan Kumar Lakhotia alias Pawan Maheshwari has tried to offer bribe of Rs. 5,00,000 to complainant Shri Tarachand Sahu then Member of Parliament a Public Servant for not taking any interest/ action against Pawan Kumar Lakhotia relating to his illegal and criminal activities. As per copy of documents, Pawan Kumar Lakhotia contacted with aforesaid Public Servant by telephone and has also met personally and requested him that by his act, he is in trouble. He also requested for withdrawal of complaint, he has also requested him that he has ready to please/serve him which he denied and directed that he is not a man of aforesaid nature and he is not in need of money. Thereafter on 31.7.2007 at evening present petitioner after obtaining permission to meet the Public Servant visited his office and met with complainant, during discussion with the complainant, present petitioner canvassed for main accused Pawan Kumar Lakhotia. He also told the Public Servant that Pawan Kumar Lakhotia is good man and he will send Pawan Kumar Lakhotia to him. He also told that without managing to all persons aforesaid work could not be possible, Shri Tarachand Sahu annoyed on petitioner and directed him not to send any person to him thereafter on 2.8.2007 Pawan Kumar Lakhotia told him that he is coming with Rs. 5,00,000. Report was made to State Anti Corruption Bureau, Raipur, a trap party was arranged, Pawan Kumar Lakhotia was caught red-handed while he was offering bribe of Rs. 5,00,000 to Shri Tarachand Sahu, a Public Servant. After completion of investigation, charge-sheet was filed before the Special Judge, Durg who took cognizance for the offence punishable u/s 12 of the Prevention of Corruption Act, 1988 (in short ''the Act'').

Learned counsel for the parties are heard.

Learned counsel for the petitioner vehemently argued that initially Shri Tarachand Sahu, Member of Parliament a Public Servant has not made any complaint against the present petitioner relating to any abatement of the offence but after laying of trap, when his statement was recorded u/s 161 of the Code then he has stated aforesaid statement relating to present petitioner. Present petitioner is a Member of CISF controlled by the Central Government therefore, Anti Corruption Bureau of State was not empowered to investigate the offence relating to Member of CISF controlled by Central Government.

Learned counsel for the petitioner further argued that if the statement of Shri Tarachand Sahu. Member of Parliament and his P.A. Shri Ram Krishna Gupta is admitted in its face value then same would not be sufficient for conviction of the petitioner u/s 12 of the Act.

Learned counsel for the petitioner also argued that at the versed, it can be treated advice or recommendation to co-accused which is not offence punishable u/s 12 of the Act.

Learned counsel for the petitioner placed reliance in the matter of Purushothaman and Ors. v. State of Kerala 1, in which High Court of Kerala has held that mere advice is not punishable u/s 12 of the Act.

On the other hand, learned counsel for the respondent/State opposed the petition and submits that although complainant has not made any allegation against the petitioner in his initial complaint but in his statement, he has clearly made allegation that present petitioner has instigated and abated the complainant to receive bribe which is offence punishable u/s 12 of the Act. His statement is corroborated by the evidence of Shri Ram Krishna Gupta his P.A. Even present petitioner has Admitted the fact in his Department Enquiry that he has visited the complainant a Member of Parliament without obtaining any permission from his superior Officer which corroborate the fact that present petitioner has visited the complainant and abated the offence punishable under Sections 7 and 11 of the Act.

Scope of Section 482 of the Code is very limited. In all cases of illegality or irregularity High Court is not required to exercise its inherent jurisdiction. It should be used sparingly in an exceptional circumstances, while dealing with exercise of power u/s 482 of the Code in the matter of M/s Zandu Pharmaceutical Works Ltd. and Ors. v. Md. Sharaful Haque and Ors. 2 the Supreme Court has held thus:

Exercise of power u/s 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new power on the High Court, It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (1) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent power apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserve inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle, "quando lex a liquid alicui concedit, concedere videtur et id quo res ipsae essee non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court, or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

Present petitioner bas not filed any petition before the trial Court for dropping of proceeding or his discharge on the ground that State Anti Corruption Bureau is not empowered to investigate the offence related to member of CISF. Petitioner is having alternate remedy to raise the aforesaid ground before the trial Court therefore at this stage any finding relating to aforesaid. ground is not call for. He may raise the ground before the Trial Court.

As per statement of the complainant Shri Tarachand Sahu, Member of Parliament recorded u/s 161 of the Code admittedly co-accused Pawan Kumar Lakhotia was in regular contact with complainant. He was trying to give bribe to him and finally he attempted to give bribe Rs. 5,00,000 to the petitioner. As per his statement, during course of aforesaid transaction on 31.7.2007 present petitioner in-charge of Power Plaint Purena and Power Plant Bhilai where co-accused Pawan Kumar Lakhotia was running his business after obtaining permission from complainant has visited him and canvassed Pawan Kumar Lakhotia and requested the complainant that (Hindi Matter) Thereafter on 2.8.2007 co-accused Pawan Kumar Lakhotia visited the office of complainant with Rs. 5,00,000 and tried to give the bribe to complainant. Offence punishable u/s 12 of the Act is related to abetment of the offence punishable under Sections 7 and 11 of the Act i.e. for demand and acceptance bribe by the Public Servant.

In case of Purushothaman and others (Supra) High Court of Kerala has held that student met with teacher about another teacher whom the petitioner of that case advised that teacher is a man of money minded thereafter students gave money to first person. Definitely, that accused has merely advised or informed the person about the specific character of third person. He is neither aided nor abeted the offence. In the present case there was no occasion to meet or visit the complainant who was Political Person by the petitioner without any cogent reason. As per statement of the complainant present petitioner has visited him during the period of regular contact of co-accused Pawan Kumar Lakhotia, he canvassed for Pawan Kumar Lakhotia and requested the complainant that Pawan Kumar Lakhotia is a good man. He will send Pawan Kumar Lakhotia to him he also requested to inform the complainant that without managing to all work would not be possible and the accused Pawan Kumar Lakhotia would have managed all persons. This statement/request of present petitioner clearly reveals that he has canvassed for co-accused Pawan Kumar Lakhotia. He has abatted the complainant for receiving bribe from Pawan Kumar Lokhotia and as a result within 2 days Pawan Kumar Lakhotia visited the house of complainant and offered bribe of Rs. 5,00,000 which has been seized by the trap party.

If the aforesaid material is admitted by the petitioner then same would be sufficient for conviction of the petitioner u/s 12 of the Act. Consequently, charge-sheet or pendency of criminal proceeding would not be groundless or abuse of the process of the Court. I do not find any scope for interference in exercise of extraordinary inherent jurisdiction for quashment of the criminal proceeding and charge-sheet. Consequently, petition is liable to be dismissed and is hereby dismissed. However, petitioner is at liberty to raise the question of competency of investigation before the trial Court.

All interim applications are also dismissed.