Quashing the FIR – In India, the courts would not, ordinarily, quash a criminal proceeding merely because of the reason that at the end of the trial, conviction of the person, facing the trial, appears impossible on account of insufficiency of material. This restriction is, however, not a restriction of universal application. Hence, in a given case, it is possible to quash a criminal proceeding if, it is, on the basis of the materials available, reasonable to reach a conclusion that at the end of the trial, the accused would have to be acquitted.

Case Law on Corruption

IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE THE CHIEF JUSTICE

Criminal Writ Jurisdiction Case No.1000 of 2016

Arising Out of PS.Case No. -null Year- null Thana -null District- PATNA

Dr. Jitendra Gupta, son of Shri Bagwati Prasad Gupta, resident of Mahrajpur Tehsil Jarsana, P.S.-Ekka, District-Firozabad (U.P.), the then Sub Divisional Officer, Mohaniya, P.S.-Mohaniya, District-Kaimur….. …. Petitioner Versus  The State of Bihar through Vigilance Investigation, Bureau, Patna …. …. Respondent Appearance :For the Petitioner : Mr. S. Datta, Senior Advocate Mr. Ranjeet Kumar Pandey, Advocate Mr. Aniket, Advocate For the Respondent : Mr. Ramakant Sharma, Senior Advocate.

JUDGMENT AND OREDR

Date: 28-10-2016 Should the High Court in exercise of its powers, under Article 226 of the Constitution read with Section 482 code of Criminal Procedure, set aside and quash the First Information Report (in short, FIR) as well as the investigation, which commences pursuant to the FIR, which alleges existence of circumstances indicating possibilities of commission of cognizable offences? This is the basic question, which this case has raised.

2. By making this application under

Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure

(in short, „the Code‟) the petitioner has approached this Court seeking order (s) setting aside and quashing the FIR, which has resulted into registration of Vigilance Police Case No. 67/2016, under

Sections 7/8/13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act

against the petitioner.

3. The First Information Report, which is under challenge, discloses, in brief, thus:

(i) On 08.07.2016, one Jaspreet Singh, the driver of truck No. HR-58A-9867, filed an FIR against the Sub- divisional Magistrate, Mohaniya, district-Bhabhua, alleging, inter alia, that on 03.07.2016, in the morning hours, the Sub- Divisional Magistrate, along with his men, came, in a Scorpio vehicle and seized the documents of four vehicles including that of the petitioner.

(ii) Thereafter, so discloses the First Information Report, the informant went to the residential office of the Sub- divisional Magistrate and pleaded for release of the vehicles‟ documents. According to the informant, the accused/petitioner asked him to meet his driver, Sanjay, and do what Sanjay asked. The informant claims to have accordingly approached Sanjay, all the vehicles belonging to one and the same owner.

(iii) The FIR alleged that Sanjay demanded a sum of Rs. 90,000/ for release of the vehicles‟ documents. At that time, the informant approached the Vigilance Police.

(iv) A trap was laid and the demanded money was recovered from the possession of co-accused Sanjay, who gave a statement that he had collected the money on behalf of the petitioner.

(v) Based on the action taken report of the in- charge of the trap team, the Vigilance PS case got initiated. A raid was conducted at the official residence of the accused/petitioner and the documents of the truck were found from a Tata sumo vehicle parked in the compound of the said house.

4. Assailing the FIR lodged against him and the investigation that has since been pursued, in the course of which he was arrested, the petitioner has moved this Court seeking issuance of writ of certiorari and/or exercise of inherent powers of the High Court to quash the FIR and close the investigation. The petitioner has canvassed before the High Court that soon after taking over charge as Sub-divisional Magistrate Mohaniya, he had taken, was instructed by the Government, several measures to stop the illegal practice of over loaded trucks running on the National Highway and, in the process, he had annoyed the mafia controlling the wrong-doers and also some policemen involved in the illegal business of allowing over-loaded trucks to pass through since long. According to the petitioner, the present FIR is an attempt to frame him in false case.

5. The learned counsel for the petitioner has submitted that it is a case of no material against the petitioner and my attention has been drawn to the fact that it is not in dispute that the petitioner had not directly demanded any money from the informant or from the driver of the other three trucks. It has been argued that primary pre-requisite of an offence, under Section 13(1)(d) of the Prevention of Corruption Act, is proof of demand or request for valuable thing or pecuniary advantage from a public servant and, hence, absence of allegation for demand goes to show that prosecution‟s case is bound to fail.

6. Mr. S. Datta, learned Senior Counsel, appearing for the petitioner, has argued that there is not even an allegation that any money was paid to the petitioner inasmuch as the prosecution‟s case is that the money was demanded and received by the co-accused, Sanjay Tiwari. A search operation was conducted in the house of the petitioner; but no money has been recovered from the house. The prosecution, in fact, admit, as is evident from the counter affidavit, that there was no recovery of the demanded money or any portion thereof from the possession of the petitioner. In other words, it is a case of no demand and no recovery from the petitioner.

7. The petitioner‟s side has drawn my attention to certain documents like gate receipts issued by the Government of Jharkhand, which show that the truck, in question, could not have been at the place alleged in the morning of 03.07.2016 and it has, therefore, been argued that the documents go to show that the whole case of the prosecution is based on falsehood and its continuance, therefore, so argued the learned counsel, would amount to abuse of the process of the court. As I proceed further, it would transpire that even the State concedes no occurrence, as alleged in the FIR, had taken place in the morning hours of 03.07.2016. The State, thus, I must hasten to point out, admits that the alleged occurrence of taking away of the document of the vehicle by the petitioner or his associates is completely false.

8. The respondent No. 5, who is the investigating officer, has filed the counter affidavit controverting the statements made in the writ petition. The counter affidavits, when read carefully, discloses that the case of the respondent/prosecution is that co-accused, Sanjay Tiwari, demanded and received the money at behest of the petitioner and, in that context, the respondent has relied upon the statement of the co-accused recorded, under Section 161 of the Code of Criminal Procedure, to try and rope in the petitioner.

9. What is, perhaps, of great importance is that the respondent has admitted that no incident of seizing truck documents, as claimed in the First Information Report, took place in the morning of 03.07.2016. The respondents, now, assert that the incident of seizing the vehicles‟ documents took place in the morning of 04.07.2016. It has been pleaded, in the counter affidavit, that though there was incorrect mentioning of date in the First Information Report, the statement of the witnesses, including the informant, recorded under Section 161 of the Code of Criminal Procedure, shows that the incident actually began in the morning of 04.07.2016. In that background, it has been argued that mere wrong mentioning of date in the FIR should not be a ground to stop the investigation and close the case.

10. In other words, the edifice of the prosecution‟s case is based on the confession of the co-accused allegedly made to the police, whilst under investigation. Though till now, there is no confession before the Special Judge, let us assume that the co-accused makes the confession before a Special Judge stating that he had made the demand and received the money acting on the behest of the petitioner. Law is settled that the confession of co-accused cannot be treated as substantive evidence, in the strict sense, against the petitioner and cannot be made foundation for conviction of the person/petitioner, who did not make the confession.

11. The reasons for not treating the confession of a co-accused as evidence are, broadly speaking, that the confession of a co-accused is not given on oath. It is neither given in the presence of the accused against whom the confession is sought to be relied upon nor is the maker’s version tested by cross-examination. In fact, such a confession is a much weaker type of evidence than the evidence of an approver, for, the approver is cross-examined by the accused; whereas the confession of a co-accused is not subjected to cross-examination. A reference, in this regard, may be made to

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