The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.3139 of 2023 (In the matter of an application under Section 482 of the Criminal Procedure Code, 1973) ----------- Sanjay Kumar Samal @ Sanjay Samal ……. Petitioner -Versus- State of Odisha (Vigilance) ……. Opp. Party For the Petitioner : Mr. Soumendra Pattanaik, Advocate For the Opp. Party : Mr. Niranjan Maharana, Addl. Standing Counsel (Vigilance) CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA _________________________________________________________ Date of Hearing: 20.03.2024 : Date of Judgment : 05.04.2024 _________________________________________________________ S.S. Mishra, J. 1. The Petitioner has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. seeking quashing of the entire criminal prosecution initiated against him by the Vigilance Department of the State. 2. The Petitioner is an accused in Rourkela Vigilance P.S. Case No.19 of 2022 corresponding to VGR No.16 of 2022 under Section 7 of the Prevention of Corruption(Amendment) Act, 2018 (in short <the P.C. Act=). The case of the prosecution is that one Mahadev Lakra being the complainant has lodged the F.I.R. inter alia stating that on 25.08.2022, he has requested the Petitioner for issuance of School Leaving Certificate, Mark Sheet and Migration Certificate of his daughters. Both the daughters of the complainant were studying in Kumjharia Government High School, wherein the Petitioner was the Headmaster. The Petitioner demanded a bribe of Rs.12,000/- from the complainant for issuance of the certificate of his daughters. Therefore, he reported to the Vigilance Department. 3. On 26.08.2022, a trap was laid down on the basis of the complaint of one Mahadev Lakra. As per the trap plan, the demanded bribe was handed over to the Petitioner. The Petitioner after receiving the said
Legal Reasoning
prima facie establish the case under Section 7 of the P.C. Act. This is a trap case and onus is absolutely on the Petitioner to prove his case. 11. Mr. Pattanaik, learned counsel for the Petitioner has relied upon a judgment of the Hon’ble Supreme Court in the case of P. Satyanarayana Muthy vrs. District Inspector of Police, State of Andhra Pradesh and another reported in (2015) 10 SCC 152. He supplies emphasis of paragraphs-20 & 21, which reads as under:- <20.This Court in A. Subair v. State of Kerala3, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that (at SCC p. 593, para 28) the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and illegal gratification, which are vital acceptance of ingredients necessary to be proved to record a conviction. 21. In State of Kerala v. C.P. Rao4, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.= Page 6 of 11 Further, he relies upon paragraph-10 of the judgment of this Court in the case of Rajeev Ranjan vrs. Republic of India reported in (2022) 88 OCR 763 which reads as under:- <10. Law is well settled that mere receipt of money by the accused is not sufficient to fasten his guilt, in the absence of any evidence with regard to demand and acceptance of the same as illegal gratification. In order to constitute an offence under section 7 of 1988 Act, proof of demand is a sine qua non. (Ref: V. Sejappa -Vrs.- The State reported in (2016) 64 Orissa Criminal Reports (SC) 364, B. Jayaraj (supra), K. Shanthamma (supra), Sidhartha Kumar Nath (supra), N. Vijay Kumar (supra)). The burden rests on the accused to displace the statutory presumption raised under section 20 of the 1988 Act by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in section 7 of the 1988 Act. While invoking the provision of section 20 of the 1988 Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. For arriving at the conclusion as to whether all the ingredients of the offence i.e. demand, acceptance and recovery of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in its entirety. The standard of burden of proof on the accused vis-à-vis the standard of burden of proof on the prosecution would differ. The proof of demand of illegal gratification is the gravamen of the offence under sections 7 and 13(1)(d)(i) and (ii) of 1988 Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person of accused of the offence under sections 7 or 13 of the Act would not entail his conviction thereunder. The evidence of the complainant should be corroborated in material particulars and the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars Page 7 of 11 connecting the accused with the crime has to be insisted upon. (Ref: Satyananda Pani -Vrs.- State of Orissa (Vig.) reported in (2017) 68 Orissa Criminal Reports 795, Debananda Das (supra), Punjabrao (supra), Shyam Sundar Prusty (supra), N.Vijay Kumar (supra), Dnyaneshwar Laxman Rao Wankhede (supra)). In case of Krishan Chander -Vrs.- State of Delhi reported in (2016) 3 Supreme Court Cases 108, it is held that the demand for the bribe money is sine qua non to convict // 26 // Page 26 of 47 the accused for the offences punishable under sections 7 and 13(1)(d) read with section 13(2) of the 1988 Act. In case of P. Satyanarayana Murthy -Vrs.- District Inspector of Police reported in (2015) 10 Supreme Court Cases 152, it is held that the proof of demand has been held to be an indispensable essentiality and of permeating mandate for offences under sections 7 and 13 of the Act. Qua section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under section 7 and not to those under section 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under section 20 of 1988 Act would also not arise. In the case of C.M. Girish Babu (supra), it is held that it is well settled that the presumption to be drawn under section 20 of 1988 Act is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption, the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under section 20 of 1988 Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. In the case of Khaleel Ahmed (supra), it is held that the presumption raised under section 20 for the offence under section 7 is concerned, it is the settled law that the presumption raised under section 20 is a rebuttable presumption, and that the burden placed on is one of the accused for rebutting the presumption preponderance of probabilities.= Page 8 of 11 Relying upon the aforesaid judgments, he submits that from the factual narration of the prosecution case neither the demand nor the acceptance could be proved on record. Therefore, the statutory presumption under Section 20 of the P.C. Act does not operate against the Petitioner. 12. Mr. Pattanaik, has also relied upon the judgment of this Court passed in CRLMC No.1325 of 2021 in the case Bamadev Sankhula vrs. State of Odisha (Vigilance). He supplies emphasis of paragraphs-20 & 24, which read as under:- <20. Further, taking cognizance on 13.11.2017 by the learned Special Judge Vigilance, Dhenkanal in T.R. No.72 of 2017 also suffers from certain glaring infirmities in so far as the tainted bribe amount which was never delivered to the petitioner by the complainant and at the time of presence of co-accused i.e., Nilamani Pradhan at the quarter of the petitioner. Neither was the complainant present nor was the over hearing witness present. Hence, the Court below should have been extra careful while framing charge and directing the petitioner to be tried under two charge heads u/s 13(2) r/w s.7 & 13(1)(d) of the Prevention of Corruption Act 1988 vide order dated 20.01.2018 in T.R. No.72 of 2017. It is a settled principle of law that mere recovery of tainted bribe money cannot prove the charges of the prosecution. 24. In catena of judgments rendered by the Hon’ble Apex Court held that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. B. Jayraj Vs State of Andhra Pradesh (supra) C.M. Sharma v. State of A-P.2 and C.M., Girish Babu v. CBP (supra), P. Satyanarayana Murthy vs District Inspector of Police, State of Andhra Pradesh and Another (supra) and so on are some of the sheet anchor of similar sentiments. Page 9 of 11 These precedents vindicate the stand of the petitioner legally.= 13. I have perused the record and gave a conscious consideration to the submission made by the learned counsel for the Petitioner. The Petitioner by relying upon the documents placed on record of the present case has tried to create a doubt on the prosecution story regarding the demand and acceptance of the bribe. On the strength of the judgments relied upon, he submits that demand of illegal gratification is sign qua non to constitute the offence and mere recovery of currency notes per-se will not attract the offence under Section 7 of the P.C. Act. Unless, it is proved beyond all reasonable doubt that the accused has voluntarily accepted the money knowing it to be the bribe, no offence is made out. In the instant case to begin with the Petitioner has accepted the money from the informant. However, he immediately handed over the tainted notes to one Parameswar Ray. Phenolphthalein powder test was also conducted on the Petitioner. Therefore, prima facie the story of the prosecution regarding acceptance is brought on record by the prosecution. Insofar as the demand is concerned, the fact that the Petitioner has asked the complainant to pay Rs.12,000/- is not denied. However, the petitioner suggests that the said money was demanded towards the outstanding dues against the daughters of the complainant. Page 10 of 11 Therefore, the factum of demand per-se is also borne out from the record. However, reasons for such demand being a fact to be proved on record during the trial alone. Therefore, the petitioner may have a case to create doubt regarding the <demand= and <acceptance=. However, the same needs to be proven during rigors of the trial. The judgments relied upon by the learned counsel for the petitioner will not enure to the benefit of the Petitioner on facts which are distinguishable. Therefore, I am not inclined to entertain the petition under the jurisdiction of Section 482 Cr.P.C. at this stage. 14. Accordingly, the CRLMC is dismissed. However, liberty is granted to the Petitioner to raise all the points at the appropriate stage of the trial. The High Court of Orissa, Cuttack. Dated the 5th Day of April, 2024/ Swarna, Sr. Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 06-Apr-2024 11:41:55 ……………… S.S. Mishra (Judge) Page 11 of 11
Arguments
tainted money handed over the same to one Sri Parameswar Ray, the Electrician. The tainted money was recovered from Sri Parameswar Ray. After the recovery of the tainted money, Sodium Carbonate Solution Page 2 of 11 Test was conducted, which was found to be positive. The Petitioner stated that he has handed over Rs.17,500/- to Sri Parameswar Ray, which included Rs.12,000/- which he received from Mr. Lakra. Therefore, the prime defence of the Petitioner is that the money is not recovered from his possession. 4. After investigation, the Vigilance Department filed a charge-sheet on 09.02.2023 for the alleged offence under Section 7 of the P.C. Act. The learned Special Judge (Vigilance), Sundargarh took cognizance of offence under Section 7 of the P.C. Act on 21.04.2023. The Petitioner has assailed the aforementioned proceeding in the present petition. 5. Heard Mr. Soumendra Pattanaik, learned counsel for the Petitioner and Mr. Niranjan Maharana, learned Additional Standing Counsel for the Vigilance at length. 6. The primary attack of Mr. Pattanaik, learned counsel for the Petitioner to the prosecution case is on three grounds namely:- (i) The tainted money was not recovered from the exclusive possession of the accused/ petitioner. (ii) There was no occasion for demand made by the petitioner. (iii) Mere turning of finger tip does not hold a person guilty. It is to be seen under what circumstances it turned pink.= Page 3 of 11 7. Mr. Pattanaik, learned counsel for the Petitioner has elaborated all the three aforementioned grounds in very detail. He submits that there was no occasion for demanding the bribe from the complainant. The money paid by him was the outstanding dues of his daughters, which was supposed to be paid at the time of taking final certificates from the School. He has relied upon a register maintained in the School which indicates that all the students those who have taken certificates had to take no due certificate after paying the outstanding dues. Insofar as the daughter of the complainant namely Priya Lakra is concerned, Rs.12,000/- is shown as outstanding against her. Relying upon the said document, learned counsel for the Petitioner submits that the amount so paid by the complainant is nothing but towards the discharge of the liability and to get the no due certificate. In order to support the said stand, he has also relied upon various circulars issued by the School & Mass Education Department of the Government. Primarily, he is relying upon a notification dated 20.02.2018 issued by the Government of Odisha, School & Mass Education Department and the letters dated 30.12.2022 & 22.08.2022 issued by the Block Education Officer, Kuarmunda. On the strength of the aforementioned Government orders, he submits that the School was well within its power to demand fee and Page 4 of 11 the fees so demanded was due insofar as the daughters of the complainant are concerned. While issuing the final certificate, he was supposed to demand the amount and issue no due certificate to all the outgoing students. Therefore, he has attacked the very ingredient of <demand= to sustain the charge of Section 7 of the P.C. Act.= 8. Mr. Pattanaik, further submits that it is apparent on record that the tainted money was not recovered from the physical possession of the Petitioner. It was recovered from Sri Parameswar Ray. Relying upon the statement of Sri Parameswar Ray, he submits that Sri Ray has inter alia stated that he has received Rs.17,500/- from the Petitioner and he has paid that money to a Contractor for the purpose of cleaning of the latrine tank of the School. Had it been bribe money, he would not have utilized the same for the School. Therefore, it was School’s due and was used for the School. 9. If the statements of Sri Ray and the Contractor namely Shivanarayan Lohar are weighed with the documents he has relied upon as discussed above, neither the factum of demand nor the acceptance could be proved on record. No doubt, the Petitioner has a very strong point of defence. However, at what stage, the said probable defences of Page 5 of 11 the Petitioner would be taken into consideration is the vital question in the present proceeding. 10. Mr. Maharana, learned Additional Standing Counsel for the Vigilance submits that enough materials on record are available which