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TMI Blog2017 (8) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... nal conspiracy and Call No. 51 is also unable to prove the complicity of the accused in the crime because of its out of the context conversation. In view of the above, we are of the considered opinion that Call Nos. 48 and 51, heavily relied upon by the prosecution, lack object and purpose to prove the complicity of the respondent herein in the crime. Thus vide Call Nos. 48 and 51, the prosecution is not able to prove the guilt of the respondent herein in the alleged raid. There is no material evidence on record in order to bring home the charge of conspiracy against the respondent. There is no direct or circumstantial evidence to prove that the respondent has demanded any illegal gratification and has accepted or obtained any such illegal gratification. Further, the premises that was alleged to be raided was neither a manufacturing unit nor packing or repacking activity was carried out there and hence no case of central excise could have been made out which could grant any jurisdiction to the respondent to do some favour or disfavor in the discharge of his official functions. The High Court was well within its powers while quashing the order framing charge as there was no mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gular touch with the officials of the Excise Department as well and he actually negotiated with them including the respondent herein for some concession in the amount on behest of the owners. In the whole process, the private person worked as a middleman and conveyed the illegal gratification fixed to the respondent herein. (c) The investigation further revealed that as per the intercepted conversation received from Special Unit, CBI, Delhi, the respondent herein was in regular contact with Hemant Gandhi through telephone and also through personal meetings who used to organize illegal searches under the directions and protection of the respondent herein through other officials of the Department. (d) On 08.11.2012, an order was passed by the Court of Special Judge, (CBI-01), Patiala House Courts, New Delhi in C.C. No. 02/2012 wherein the respondent herein was charged with Section 120-B of the IPC and Sections 7, 12 and 13(2) read with Section 13(1)(d) of the PC Act. (e) Aggrieved by the order framing charge dated 08/17.11.2012, the respondent herein preferred Crl. M.C.(M) No. 4360 of 2012 under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code ). Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly prove the involvement of the respondent-accused and the High Court erred in law while quashing the charges against him. The power of quashing criminal proceedings, particularly, pursuant to charges framed is to be exercised very sparingly and with great circumspection and that too in rarest of rare case. 8) Per contra, learned senior counsel for the respondent submitted that there is no illegality in quashing of chargesheet against the respondent herein on the basis of examination of grounds taken by him. The High Court did not exercise revisional jurisdiction rather exercised powers under Section 482 of the Code while passing the order after considering the evidence on record in order to form a prima facie opinion in accordance with settled legal position. 9) Learned senior counsel further submitted that the statements under Section 164 of the Code do not implicate the respondent herein in the present case and the witnesses have resiled from the said statements that were obtained under threat of arrest and false implication in the case. 10) Learned senior counsel further submitted that Call No. 48 between Hemant Gandhi and Mahendra Kapoor completely belies the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions received from Special Unit, CBI, Delhi, the respondent herein was in regular touch with Hemant Gandhi over phone and also through personal meetings for the last 6-7 months and Hemant Gandhi got arranged illegal searches under the directions and protection of the respondent herein in order to collect illegal gratification from the parties so raided. The entire conversation shows that search was conducted with the sole motive of obtaining illegal gratification and the owner of the premises were pressurized to obtain illegal gratification and final settlement was arrived at for an amount of ₹ 60 lakhs. The investigation further revealed that Hemant Gandhi was acting as the middleman of the respondent herein for collection of illegal gratification by scouting for his known businessmen who could be raided and illegal gratification could be extracted from them. The fraudulent nature of the search as well as the entire motive for collection of illegal gratification is said to be established through intercepted conversations of Hemant Gandhi, Lallan Ojha and the respondent herein. The private person-Hemant Gandhi is said to have informed telephonically about the recoveries durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HG No one should learn about this because only I know this figure and Lallu knows. Even that Muchhad (man with moustache) does not know. Kapoor No, no we will not talk with them in this regard. HG Yes, I mean his CHA also does not know the figure. Kapoor Yes HG If it comes out immediately, deal has been made for sixty, will given tomorrow. Kapoor Ok, Ok, Ok. HG Then take . I did not come in picture anywhere. Kapoor Yes. HG I did not come in picture Kapoor Very good, very good. HG They have made direct all the post deal. Kapoor Yes, it is good. HG He was talking with me continuously. I said you should do there. Kapoor Yes, yes HG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sir, Hemant Gandhi Ji is there. HG Yes, Yes. PA to AKS Sir, Commissioner sahib will talk. Anoop Yes, Hemant. HG Sir, the mission is successful Anoop Yes, will you come to me. HG Sir, actually I had to take my father to a doctor, I was trying to tell this to you in the morning also, but you had disconnected. Anoop Ok, when will you come home. HG I will come tomorrow. Anoop At which time. HG Tomorrow in the afternoon at about 11-12 noon. Anoop Ok then come. HG And Sir, that eight and fifteen. Anoop Yes, Ok. HG And they said that it was received. Anoop No, still did not meet HG A Six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on amount and distributing the same. In our considered opinion, Call No. 48 does not implicate the respondent herein in the commission of offence. 16) Call No. 51 was made by Hemant Gandhi to the respondent herein on 28.12.2011 wherein Hemant Gandhi informed the respondent herein that the mission was successful. It is the case of the prosecution that Hemant Gandhi informed about the alleged raid to the respondent herein that it was successful which fully implicates him in the offence. But on a careful scrutiny of the call, it cannot be inferred that the respondent herein had agreed to demand the illegal gratification and also there was no direct talk between Lallan Ojha and the respondent herein who was supposed to inform his senior officer on whose direction he was leading the raiding team. In the call, it was Hemant Gandhi who used the words mission successful . In our opinion, the prosecution has wrongly connected the words mission successful in call No. 48 with that of in Call No. 51. In Call No. 48, it is very much clear that Mahender Kapoor and Hemant Gandhi were talking about the alleged raid and Hemant Gandhi himself accepted that he provided the information for the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there exists no ground to proceed against the accused, the court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the court may discharge him or quash the proceedings in exercise of its powers under the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptable evidence. 21) Further, what constitutes illegal gratification is a question of law; whether on the evidence that crime has been committed is a question of fact. If, therefore, the evidence regarding the demand and acceptance of a bribe leaves room for doubt and does not displace wholly, the presumption of innocence, the charge cannot be said to have been established. 22) In P. Satyanarayana Murthy vs. District Inspector of Police, State of A.P. (2015) 10 SCC 152, this Court has held as under:- 22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Sections 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of charge framed against him the court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. The court is required to consider the record of the case and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. 24) We have no doubt to hold that in Call No. 48, the respondent herein was not at all in pi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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