21 Jan 2121

Demand of illegal gratification is sine qua non for constitution of offence under Section 7 of Prevention of Corruption Act, 1988 - Delhi High Court

Case : P. C. Mishra v. Central Bureau of Investigation CRL.A.692/2010

Court : Delhi High Court

Bench : Justice Suresh Kumar Kait

Decided on : 21 Jan 2121

The Relevant Statutes

Sections 7, 13(1)(d), 13(2), 20 and 5(2) of the Prevention of Corruption Act, 1988

Sections 161, 164, 306 and 313 of the Code of Criminal Procedure, 1973

Sections 10, 60, 145 and 157 of the Indian Evidence Act, 1872

Brief facts of the case

1. P.C. Mishra works as an Assistant Commissioner of the Sales Tax Department. An appeal was filed by Gulshan Kumar Sikri and was pending adjudication before P.C. Mishra. In the course of the hearing of the appeal on 28.2.1996, P.C. Mishra demanded Rs. 4000/- as a bribe for favouring Gulshan Kumar Sikri in appeal. Raid was organized by the Central Bureau of Investigation with the aid of electronic devices and public Panch witnesses as it was required by a raiding officer for listening to the conversation between P.C. Mishra and Gulshan Kumar Sikri. The conversation that transpired between them was recorded on microcassettes and normal cassettes. Gulshan Kumar Sikri was directed to give bribe money to his reader Ravi Bhatt, who was sitting in another room.

2. Gulshan Kumar Sikri gave bribe money to Ravi Bhatt in his separate room where he was sitting and was apprehended by a trap laying officer and bribe money was recovered from the left pocket of his pant. P.C. Mishra and co-accused were arrested on 02.03.1996 and they were produced before Special Judge, Delhi at 2:00 pm. The judge granted bail to both of them and passed several strictures against the Central Bureau of Investigation and also reprimanded them after going through case diary.

3. After that, an investigating officer investigated the case and witnesses statements were recorded by them. On 6th August 1996, Ravi Bhatt moved an application in the court of Special Judge, Delhi for recording his confessional statement under section 164 of Code of Criminal Procedure, 1973. The application was marked by Learned Special Judge to Shri Rakesh Garg who was Learned Metropolitan Magistrate.

4. Learned Metropolitan Magistrate recorded the statement of Ravi Bhatt under section 164 of Code of Criminal Procedure, 1973 on 7th August 1996. But investigating officer A.K. Kapur didn’t use that statement for securing a conviction against Ravi Bhatt on 24th October 1996. Again, the application was moved before Special Judge, Delhi for granting pardon on account of his personal or vested interest.

5. The Learned Special Judge, Delhi neither considered the application nor passed the order under section 5(2) of Prevention of Corruption Act, 1988 rather directed the Chief Metropolitan Magistrate to dispose of the application. The Learned Chief Metropolitan Magistrate further directed the application Shri Praveen Kumar who is a Learned Metropolitan Magistrate. The Learned Metropolitan Magistrate vide his order dated 2nd November 1996 granted pardon to Ravi Bhatt under section 306 of Code of Criminal Procedure, 1973.

6. Charge sheet was filed on 20th May 1998. P.C. Mishra submitted before Trial Court that Gulshan Kumar Sikri did not support the Prosecution’s case. P.C. Mishra also submitted that Learned Trial Court passed the order without application of mind and in violation of law and justice declared by Honorable Supreme Court and without invoking section 20 of Prevention of Corruption Act, 1988.

The Issue of the Case

Whether illegal gratification is a necessary ingredient to constitute the offence under section 7 of the Prevention of Corruption Act, 1988?

The Observations of the Court

1. The Honourable Delhi High Court relied on the judgment of State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200 in this case it was held that demand of illegal gratification is the sine qua non for the constitution of an offence under the provisions of Prevention of Corruption Act, 1988. The Honorable Delhi High Court also relied on the judgment of the Honourable Supreme Court in the case of B. Jayraj v. State of Andhra Pradesh, 2014 Crl. L.J. 2433 in this case it was held that mere possession and recovery of currency notes is not enough to constitute the offence under section 7 of Prevention of Corruption Act, 1988, and in this case, Honorable Supreme Court acquitted the accused even though demand and recovery were proved and complainant turned hostile and was not supporting demand.

2. The Honourable Delhi High Court also relied on the judgment of the Honourable Supreme Court in the case of P. Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and Anr. (2015) 10 SCC 152 in this case it was held that the charge under section 7 and 13(2) of Prevention of Corruption Act, 1988 would fail if the demand of illegal gratification is not proved. It was also held that reiteration of golden principle runs through the web of administration of justice in criminal cases.

3. The Honourable Delhi High Court also relied on the judgment of Sujit Biswas vs. State of Assam, (2013) 12 SCC 406 in this case it was held that graveness of suspicion will not result in proof and prosecution cannot rest on the realm of it being ‘may be’, the case should ‘must be’ in order to prove the truth and miscarriage of justice must be avoided by the court and if 2 views are possible then that view should be accepted in which accused can get the benefit of reasonable doubt.

4. The Honorable Delhi High Court also relied on the judgment of the Honourable Supreme Court in the case of  Nilesh Dinkar Paradkar vs. State of Maharashtra (2011) 4 SCC 143 in this case conditions were laid down regarding admissibility of tape-recorded voice as evidence in court. The Honorable Delhi High Court also relied on the judgment of Ram Singh and Ors. vs. Col. Ram Singh, 1985 SCC 611 in this case it was held that the voice of the speaker must be identified by the maker of the record or anyone who recognizes his voice and if it is not identified it will not be admissible as evidence in the court of law.

5. The Honourable Delhi High Court also relied on the judgment of Honorable Supreme Court in the case of Mahabir Prasad Verma vs Dr. Surinder Kaur (1982) 2 SCC 258 in this case it was held that tape-recorded evidence can only be relied upon if it is deposed by the parties to the conversation. The Honorable Delhi High Court also relied on the judgment of Madhu Koda vs. State MANU/DE/1079/2020 in this case it was held that it is necessary for the prosecution to prove illegal gratification to constitute the offence under section 13(1)(d) of Prevention of Corruption Act, 1988.

6. The Honourable Delhi High Court also relied on the judgment of Zindar Ali SK vs. State of West Bengal and Ors. MANU/SC/0141/2009 in this case it was held that the defence cannot take advantage of bad investigation when there is clinching evidence. The Honorable Delhi High Court also relied on the judgment of Krishna Mochi and Ors. vs. State of Bihar MANU/SC/0327/2002 and Girwar Singh and Ors. vs Central Bureau of Investigation MANU/DE/4551/2015 in these cases, it was held that minor contradictions in prosecution cases can be ignored if cogent evidence is available which can convict the accused.

7. The Honorable Delhi High Court relied on the judgment of the Supreme Court in the case of Subramanyam Swamy vs. Manmohan Singh and Ors. MANU/SC/0067/2012 in this case it was held that it’s the duty of the court to interpret the anti-corruption laws in order to strengthen the fight against corruption so that our county’s democracy would not be harmed and equality and liberty would be maintained.

8. The Honourable Delhi High Court also relied on the judgment of the Supreme Court in the case of Javed Masood vs. State of Rajasthan, in this case, it was held that if a witness is not declared hostile by prosecution then his evidence would be binding on the prosecution. The Honorable Delhi High Court also relied on the judgment of L. K. Advani vs. Central Bureau of Investigation, 1997 in this case it was held that it’s the duty of prosecution in case of framing of charge under section 7 of Prevention of Corruption Act, 1988 to prove that the public servant has accepted illegal gratification other than legal remuneration.

The Decision Held by the Court

Since the prosecution failed to prove the case against the appellant beyond a reasonable doubt, so the impugned order deserves to be set aside. Accordingly, an appeal is allowed and impugned judgment dated 24th May 2010 and order on sentence dated 26th May 2010 are set aside. The Appellant is acquitted of all charges and appeal is disposed of.

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