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TMI Blog2016 (6) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner; contention regarding missing chain of circumstances in the present case and the contention regarding the fact that despite having no evidence against the petitioner, the charges have been framed against him by the Trial Court culminates into non-interference in the order passed by the Trial Court as the disputed facts cannot be made the basis for quashing, the order on charge and the charge framed, in a petition under Section 482 Cr.P.C. as the same are subject matter of the Trial Court to be determined on the basis of evidence led by the parties. - CRL.M.C. 1974/2014 - - - Dated:- 1-6-2016 - MR. P.S. TEJI J. For the Appellant: Mr. P.P. Malhotra, Sr. Adv. with Mr. Vineet Malhotra, Adv., Mr. Yasir Rauf, Adv. Mr. S. Kaushik, Adv. For the Respondent: Ms. Sonia Mathur, Standing Counsel for CBI with Mr. Sushil K. Dubey, Adv. Mr. A. Chauhan, Adv., Ms. Shreshtha Jain, Adv., Mr. Rajul Jain, Adv. Ms. Shreya Sinha, Adv, Ms. Ragini Singh, Adv. with Mr. Lalit Phullar, Investigating Officer. P.S.TEJI, J. 1. The present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter shall be referred to as the Cr.P.C. ) has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jaj out of which ₹ 70,000/- was recovered from his residence. Investigation also revealed that accused S.K. Garg was also involved in the payment of bribe to the officials of Income Tax Department. It was further alleged that accused Anil Kumar Jaiswal played a role in fixing meeting of officers of M/s Eldeco Group with the officers of Income Tax Department. 3. After completion of investigation, charge sheet was filed in the Court. After hearing the arguments on charge, the learned Trial Judge passed the order on charge on 21.09.2013. On 07.10.2013, charge under Section 120-B IPC read with Sections 7, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act was framed against accused Kunal Singh, Ratan Singh, Uma Kant, Harish Dhondiyal, S.K. Garg and Anil Kumar Jaiswal. Accused Kunal Singh was also charged for substantive offences under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Feeling aggrieved by the same, the present petition has been preferred by the petitioner. 4. Arguments advanced by the learned Senior Counsel for the petitioner as well as learned standing counsel for the CBI were heard at length. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no conversation between accused Pankaj Bajaj and Ratan Singh in this regard. The conversation dated 27.05.2012 shows that the petitioner was avoiding meeting Pankaj Bajaj. The conversation dated 28.05.2012 between Pankaj Bajaj and Dhirendra Khare further shows that there was no demand of money by the petitioner as Pankaj Bajaj told Dhirendra Khare that the petitioner was not meeting him and was not cooperating with him. Further it is argued that Pankaj Bajaj is the main culprit and CBI in order to shield and protect him, made him an approver in an illegal manner. Confession of Pankaj Bajaj has not been recorded in accordance with Section 164(4) of Cr.P.C. On this point, judgment in the case of Dhananjay Reddy v. State of Karnataka 2001 (4) SCC 9 has been relied upon in which it was observed that an alleged judicial confession proved to have not been legally recorded cannot be used as extrajudicial confession. 7. Next argument advanced is that the statement of co-accused is not a substantive evidence against other accused and the same can be used only for lending reassurance to the guilt which is based on other evidence. On this point, judgments in the case of Kash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bribe of ₹ 30-35 lacs and Kunal Singh will be given bribe of ₹ 30 lacs for undue favours. Pankaj Bajaj had already made payment to Ratan Singh on 31.05.2012. On 15.04.2012, Pankaj Bajaj and Anil Jaiswal paid bribe of ₹ 10 lacs to Umakant at his residence and bribe of ₹ 2 lacs at his office. During search, illegal gratification of ₹ 9.7 lacs was recovered from his residence. Accused Ratan Singh had asked Pankaj Bajaj to settle the matter with Kunal Singh. Prior information was received by CBI that Pankaj Bajaj would come at the residence of Kunal Singh on 03.06.2012 to deliver bribe. A trap was laid and CBI team recovered bribe amount of ₹ 30 lacs from the residence of Kunal Singh. 11. Next argument advanced is that the Constitutional Bench of Hon ble Apex Court in Dr. Subramanian Swamy v. Director, CBI 2014 (6) Scale 146 has held Section 6A of the DSPE Act as unconstitutional and violative of Article 14 of the Constitution of India, thus the petitioner cannot claim the benefit of Section 6A of the DSPE Act. It is further argued that CBI Manual does not prohibit registration of regular case instead of preliminary enquiry. In this con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is available to a government servant and thus, there is no force in the argument advanced on behalf of the petitioner that he was having protection as per Section 6 of the DSPE Act which prohibits the member of DSPE Act to conduct enquiry or investigation against the officers of the level of Joint Secretary and above except with the previous approval of the Central Government. 14. The petitioner has further asserted that there is no evidence or material on record to show any demand or acceptance of alleged bribe by the petitioner and in the absence of demand and acceptance, the alleged recovery of money is of no consequence. It is also the contention of the petitioner that the recorded conversations do not prove in any manner the demand of bribe by the petitioner, rather it shows the reluctance of the petitioner to meet Pankaj Bajaj who has now turned an approver. 15. The conversation dated 26.05.2012 between Pankaj Bajaj and S.K. Garg shows that accused Ratan gave assurance of helping them. As per the conversation he suggested to give his senior 5 more than what was given to him i.e. 25. Then Pankaj agreed to give 30 to the senior of accused Ratan. The conversatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged by the CBI as well. 18. Learned Senior Counsel for the petitioner further argued that the cognizance taken by the Trial Court in the present matter is defective as no separate sanction was taken for the offences under the Indian Penal Code. There is no force in this contention of the petitioner in view of the ratio of the judgment in the case of Harihar Prasad v. State of Bihar (1972) 3 SCC 89 in which it was observed that so far as the offence of criminal conspiracy and the offences under the Prevention of Corruption Act are concerned, the same cannot be said to be the part of the duty of a public servant, therefore, there is no requirement of sanction under Section 197 Cr.P.C. 19. In Romesh Lal Jain v. Naginder Singh Rana Ors (2006)1 SCC 294 , it was observed that : The upshot of the aforementioned discussions is that whereas an order of sanction in terms of Section 197 Cr. P.C. is required to be obtained when the offence complained against the public servant is attributable to discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained has nothing to do with the same. A plea relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instance of accused persons in exercise of its inherent jurisdiction by appreciating the material filed by the prosecution along with charge-sheet. The High Court therein had held that no case was made out on the basis of the contents of the charge sheet and the material filed in support thereof as in the opinion of the High Court, it was insufficient to frame the charge against the accused for their prosecution for commission of offence punishable Under Section 5(1)(d) and (2) of the Prevention of Corruption Act. The accused were accordingly discharged by the High Court without compelling them to face the trial on merits. 102. In an appeal filed by the State against the order of the High Court, this Court allowed the State's appeal, set aside the order of the High Court and upheld the charge sheet and the charges which were framed by the trial court and laid down the law which we have reproduced in para 88 above. 103. Coming back to the facts of this case, the High Court committed the same error which was committed by the High Court in S.B. Johari's case (supra) because in this case also the High Court went into the questions of fact, appreciated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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