Criminal Trial- Burden of proof in criminal cases/ Prosecution must stand or fall on its own legs—It cannot derive any strength form the weaknesses of the defence

Held:

A. Criminal Trial—Burden of proof in criminal cases—Prosecution must stand or fall on its own legs—It cannot derive any strength form the weaknesses of the defence (Para-26)

Case-law relied on : Sharad Birdhichand Sarda vs. State of Maharashtra 1984 (4) SCC 116

 B. Indian Evidence Act, 1872—Section 3—Appreciation of circumstantial evidence—Chain of circumstances should be complete in all respect and the pointer of guilt should continuously be on the accused only—Any deviation of the pointer of guilt on the accused would enure him the benefit of doubt. (Para-27)

 C. Indian Evidence Act, 1872—Section 114 (g)—Police officers who were present when the Inquest Report was prepared have not been examined—No reasons have been assigned—They could have at least explained the true picture and proved recovery of dying declaration and pocket telephone index diary from possession of deceased—Such non examination is held fatal to prosecution.  (Para-28)

 D. Indian Evidence Act, 1872—Section 32 (1)—Dying declaration—Dying declaration should be such, which should immensely strike to be genuine and stating true story of its maker—It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts— It should not be the result of tutoring

SUPREME COURT OF INDIA

DEEPAK VERMA & K.S. RADHAKRISHNAN, JJ.

Criminal Appeal No. 2496 of 2009 with Criminal Appeal No. 2497 of 2009

Decided on : 11.06.2010

NANHAR & ORS. Appellants     v  STATE OF HARYANA Respondent

ORDER:

 1. Appellant five in number, in both the appeals, feeling aggrieved by the judgment and order of conviction dated 7/5/2008 passed in Criminal Appeal No.919-DB/2006 by Division Bench of High Court of Punjab and Haryana at Chandigarh, arising out of the judgment and order of conviction dated 24/11/2006 and order of sentence dated 25/11/2006 pronounced by Additional Sessions Judge, Bhiwani, convicting them for commission of offences under Sections 302/149 of the IPC and awarding sentence to undergo RI for life, together with fine of Rs.2,000/-, are before us challenging the same on variety of grounds.

2. It may be mentioned herein that initially charge-sheet was filed only against four accused namely Nanhar, Virender @ Binder, Rampat and Rajbir @ Meda under Sections 306/34 IPC. The name of the fifth accused Umed Singh was added subsequently by the Trial Court on an application being filed by the prosecution under Section 319 of the Code of Criminal Procedure and allowed on 3.6.2004. The order of committal makes it clear that the first four appellants were charged and prosecuted for commission of offence under Sections 306/34 IPC. Accordingly it was committed to Court of Sessions for being tried for the aforesaid offences. However, on 5.10.2004 charge was framed by the learned Trial Judge under Sections 302/34 IPC. Even though Umed Singh was added subsequently as one of the accused but the charge was not altered to one under Section 149 of the I.P.C.

 3. Thumbnail sketch of the facts of the case is as under: Kartar Singh elder brother of Vijay deceased had filed an application on 27/2/2004 before the Superintendent of Police Bhiwani, alleging therein that he is resident of village Malkosh Tehsil Charkhi Dadri, District Bhivani and has been serving Armed forces for last 20 years. He has a residential house of his own in Rewari Town wherein his family and aged mother are residing. His younger brother Vijay, the deceased, was residing in Malkosh and was looking after the agricultural land owned by them. One Bhajani wife of Roop Ram, of the same village was on visiting terms to the house of Vijay as he was having small flour mill in his house. She used to come for grinding of wheat. In the course of time she developed family relations with Vijay. There was a rumour in the village that she had forced her own daughter-in-law Kamlesh, wife of Rampat, one of the accused herein, to have illicit relations with deceased Vijay. In lieu whereof it was said that she had received a sum of Rs. 1,000/- from Vijay. It was also the case of the prosecution that Vijay and Kamlesh wife of Rampat – appellant No.3 were seen in the field by many villagers and they had a doubt about their relationship. In fact, their relationship had become talk of the village. Rampat, the accused, came to know about the said relationship. Therefore, he along with other co-accused Nanhar Virender and Rajbir decided to finish Vijay. On coming to know about the motive of the accused, Vijay had left village Malkosh for some time.

 4. It was further mentioned that aforesaid four accused had told PW.11 Dalip, uncle of deceased Vijay, about their intention. They wanted to take revenge with Vijay on account of his relationship with Kamlesh, wife of Rampat. They further informed that this illicit relationship will not be tolerated by them and therefore they are planning to kill Vijay.

5. On 24/2/2004 PW.7 Sudesh, cousin of deceased Vijay informed PW.9 Kartar Singh, on telephone that Vijay has been murdered and his dead body was lying in his field. It was further informed that some poisonous substance was administered to Vijay by accused Nanhar, Virender and Rajvir and Rampat. He was asked to reach Malkosh from Rewari immediately. On the same night, Kartar Singh reached village Malkosh and found his brother dead. On enquiries being made by him it was found from the villagers that he has been done away with by administering poisonous substance to him by aforesaid persons. This fact stood fortified from a small note said to be Vijay’s dying declaration, written on the inside paper of the match box, recovered from the pocket of his pants. In the same, name of Meda Panch was also mentioned that they had mixed sulphas in the drink which was administered to him and it is likely to take away his life.

 6. The said two pages written complaint dated 27.2.2004 was submitted by Kartar Singh to Superintendent of Police, Bhiwani. A note was endorsed by the Superintendent of Police to Deputy Superintendent of Police to look into the matter and do the needful. DSP sent it to SHO of Police Station Bhond Kalan, who was directed to investigate the matter, in accordance with law. The said written complaint was treated as an F.I.R. and formal FIR came to be registered on 6/3/2004, that is to say almost after 11 days from the date of occurrence of the incident.

 7. It is pertinent to mention here that on 24.2.2004, PW.11 Dalip while proceeding to lodge the report had met ASI Raj Kumar (reported to be dead) at the bus stop of Malkosh and had orally informed him about the incident. His statement to the police was entered into Daily Diary (Rojnamcha) by Sub-Inspector Raj Kumar at the Police Station.

 8. On such report being received by him, ASI Raj Kumar reached the spot and prepared the inquest report Ext.PN. In column No.12, dealing with in what manner or by what weapon of instrument such marks or injuries appeared to have been inflicted, he recorded:

 “appears to have taken poisonous substance”.

 9. In the same inquest report, ASI Raj Kumar recorded detailed version of Dalip as was given to him. According to Dalip, his nephew Vijay either took poisonous substance himself on account of the fact that villagers had come to know about his illicit relationship with Kamlesh, wife of Rampat or someone had forcibly administered it to him. He further got it recorded that he had left his other nephew PW.7 Sudesh at the place of occurrence for the safety of dead body and had come to the Police Station. But since ASI Raj Kumar met him at the bus stop of Malkosh, he is getting the said statement recorded.

 10. ASI Raj Kumar recorded further in the said inquest report that after getting this information he went to the place of occurrence and found dead body of Vijay. The same was lying in a straight posture, mouth and eyes were found to be little open. He was wearing terricot pants along with ready made shirt but no external injuries were found on the body of the deceased. Height of the deceased was about 5? 9?. Mouth was full of froth, a steel glass containing poisonous substance, and two bottles containing water and little liquor were found. However, Raj Kumar was not able to come to definite conclusion with regard to cause of death. Therefore, he thought it fit to wait till post- mortem report was received by him.

 11. It is pertinent to mention here that neither in the statement of Dalip nor in the Inquest Report, there was any mention with regard to recovery of hand written dying declaration said to have been ascribed by deceased, from his pants.

 12. Recovery memo was prepared by Raj Kumar, ASI in presence of two witnesses namely Dalip (PW.11) and Sudesh (PW.7). In the same it is said following articles were seized from the spot:- one hand written note authored by deceased Vijay, on the cover of the match box, two separate bottles, one containing water and another containing little liquor, one steel glass with name of Rampat ingraved. Earth containing white powder said to be poisonous substance was also collected. They all were sealed in different parcels and taken into police custody.

 13. Translated copy of Ext.PG, dying declaration has been filed. The exact Hindi version written by him in the slip reads as thus:

 “”Daru ke sath Sulphas pila rahe hai. Marenge.”

(underlining by us)

 The said Inquest Report was prepared at the spot. In the site plan prepared there, neither recovery of pocket telephone directory nor recovery of pen was made. The statements of witnesses were recorded.

14. As mentioned hereinabove, initially Raj Kumar, ASI (now dead) did not find commission of any cognizable offence, thus he dropped the proceedings. Only after registration of the FIR on 6/3/2004, the criminal machinery was set into motion.

 15. Post-mortem on the dead body of the deceased Vijay was performed by PW.4 Dr. Kuldeep Singh. Post-Mortem Report is marked as Ext.PD. Doctor has opined that deceased was aged about 32 years, well built, having a height of about 5? 6?, appears to be more appropriate than what was mentioned in the Inquest. He has further categorically recorded that on the dead body no bruises or wounds were found. Bladder and stomach both were found to be empty. The time of death was shown to be 36 hours prior to performing of post mortem. The cause of death was shown to be excessive drinking of alcohol with poisonous substance. On the strength of FSL report (Ext.P.1), poisonous substance was found to be aluminium phosphide. According to the doctor, consumption of excessive alcohol coupled with poisonous substance was sufficient to cause death in ordinary course of nature.

 16. From the post-mortem report Exh. PE as also from the deposition of Dr. Kuldeep Singh- PW.4, either deceased had met with homicidal death or committed suicide.

 17. Now the question that crops up for consideration before us is whether it was the act of the aforesaid five appellants, on account of which he met with the homicidal death or it was Vijay himself, with an intention to save his status and glory in the society, had consumed poisonous substance, thereby committed suicide.

 18. Prosecution in all had examined 12 witnesses on its behalf, to bring home the charges levelled against the appellants. The accused had generally denied the charges levelled against them and submitted that Vijay had committed suicide, on account of his misdeeds. They pleaded innocence. They deposed that they have falsely been roped in by the prosecution on the strength of manufactured and engineered documents. The appellants did not lead any evidence on their behalf.

19. On appreciation of evidence available on record, learned Trial Judge found them guilty for commission of offences under Sections 302/149 of the IPC and awarded them sentences as mentioned hereinabove. The appeal filed by them in the High Court of Punjab and Haryana was dismissed and the findings recorded by the Trial Court were affirmed and the judgment and order of conviction of the Trial Court was maintained. Hence these appeals.

 20. We have accordingly heard learned senior counsel Mr. S.K. Dubey with Ms. Mrinamayee Sahu and Sh. Ajay Beer Singh for the appellants and Mr. Kamal Mohan Gupta, learned counsel for the respondent and perused the record. Evidence adduced have also been critically and microscopically gone through by us.

 21. Sheet anchor of the prosecution story has been the alleged dying declaration Exh. PG said to have been written by deceased Vijay, on the inside paper of a match box. English translation thereof reads thus: Rajbir Singh S/o Bhuru Rampat S/o Ruppa Binder Nanhar are drinking liquor by mixing the Sulphas and would kill. It was written in vernacular language and in Hindi, as mentioned earlier, reads as under:

 “Daru ke sath Sulphas pila rahe hai. Marenge.”

 22. The aforesaid dying declaration has been found to be sufficient by the two courts below and appellants have been found guilty for commission of offences under Sections 302/149 of the I.P.C. and have been awarded sentence as mentioned hereinabove.

 23. Whether the same would fall in the category of dying declaration and if so, if it was sufficient to uphold the conviction and sentence awarded to them on the strength thereof, is required to be examined by us.

 24. After critically going through the documents, not only Exh. PG but also the oral and other documentary evidence available on record, we find the following lacunae, shortcoming, lapses and deficiencies in the prosecution story:

 (i)                 the said dying declaration has not been signed by deceased Vijay.

(ii)                If the appellants were really present when the said dying declaration was said to have been written, then obviously they would not have allowed him to write the said dying declaration.

(iii)              No recovery of pen was made from the site or from the person of the the deceased.

(iv)               There is nothing either in the site plan or in the recovery memo to suggest that the deceased was able to get any platform on which he could have written the said dying declaration.

(v)                 The inner pocket of the match box together with match sticks was not at all recovered.

(vi)               It is not established by the prosecution that the deceased was a smoker of bidi or cigarette. No butts or bidis were recovered from the place of occurrence.

(vii)             As per the post-mortem report performed on 25.2.2004, the death had occurred within 36 hours from the time of performing of the post-mortem, meaning thereby that the incident must have taken place some time in the night.

(viii)           There is nothing on record to show availability of electricity or any source of light at the spot.

(ix)               In the Inquest Report prepared by ASI Raj Kumar (now dead), there is no mention with regard to the recovery of the dying declaration Exh. PG or recovery of pocket index telephone directory.

(x)                 Similarly, in the site plan prepared on the spot, there is no mention with regard to the recovery of dying declaration, pen or pocket diary from the place of occurrence or from the body of the deceased.

(xi)               No finger prints either of the deceased or of the accused were taken, even though the same were available.

(xii)             Report of the Chemical Examiner dated 6.10.2004 shows that the packets were received by him only on 10.3.2004 but no remnants of poisonous substance were found either in the two bottles or in the steel glass but were found only in the earth so collected from the place of occurrence. The poisonous substance has been described as Aluminium Phosphide.

(xiii)           Except for the evidence of PW-7 Sudesh, PW-8 Ramesh, PW-9 Kartar Singh, PW-11 Dalip, who all happened to be closely related to the deceased, evidence of an independent witness was not recorded, even though there is evidence available to show that many villagers were available.

(xiv)           The evidence of PW-7 Sudesh and PW-11 Dalip is highly contradictory inasmuch as Sudesh has not deposed anything with regard to recovery of pocket index telephone diary from the person of the deceased; whereas Dalip has categorically deposed with regard to recovery of pocket index telephone diary from his possession. It is pertinent to mention here that PW-7 Sudesh and PW-11 Dalip are the witnesses to the recovery memo said to have been prepared by ASI Raj Kumar who is said to have died during the pendency of the sessions trial, also does not record its recovery.

(xv)             It is extremely difficult to comprehend if the deceased was in a position to write the dying declaration, more so, after having consumed excessive amount of Alcohol mixed with poisonous substance. Fact of excessive amount of Alcohol mixed with poison stands proved from the evidence of PW-4 Dr. Kuldeep Singh, who had performed post-mortem (Exh. PD) on the person of the deceased.

(xvi)           The post-moretm report further reveals that the deceased was aged about 32 years having a height of 5 feet 6 inches with a robust body. It is inconceivable to believe that if the appellants would have tried to administer him Alcohol mixed with poisonous substance, he would not have resisted to the same or at least would not have made any hue and cry. It also stands proved from the evidence of PW-4 Dr. Kuldeep Singh and the post-mortem report that no bruises and external injuries were found on the person of the deceased.

(xvii)         No explanation has been offered by the prosecution as to why the blank pages of the pocket index telephone diary were not used to scribe it, if the same had been recovered from his possession.

(xviii)       The doctrine of motive could not be established by the prosecution at all. Thus another ground of holding them guilty on account of motive, completely shatters the prosecution story and falls flat.

(xix)          It could not be established that dying declaration and pocket index telephone diary belonged to the deceased only. This aspect of the matter has not been established by the prosecution.

(xx)             Even if it stood established from the opinion of the Handwriting Expert that dying declaration and pocket index telephone diary were in the same hand, still it could not be established that it belonged to the deceased only.

(xxi)           Possibility of implanting of these documents cannot be ruled out.

(xxii)        The said dying declaration does not inspire confidence, much less to hold the appellants guilty for commission of the said offence.

 25. In fact, the salient features noted above with regard to the deficiencies are sufficient, in our considered opinion, to come to the conclusion that the Courts below committed grave error in holding the appellants guilty for commission of offence under Sections 302/149 of the I.P.C. But with intention to fortify our views, we would like to reiterate what this Court has already held in its earlier leading judgments.

 26. Almost 25 years back, this Court in celebrated judgment in Sharad Birdhichand Sarda vs. State of Maharashtra, reported in 1984 (4) SCC 116, held in paragraph 151 and 161 thereof that it is well settled law that the prosecution must stand or fall on its own legs and it cannot derive any strength form the weaknesses of the defence. For ready reference, the said paragraphs are reproduced hereunder:

“151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.

 161. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant’s case (supra). Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so-called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in Hanumant’s case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-General.”

27. Similarly, when the case is based on circumstantial evidence, it has now been well settled by several authorities of this Court that the chain of circumstances should be complete in all respect and the pointer of guilt should continuously be on the accused only. Any deviation of the pointer of guilt on the accused would enure him the benefit of doubt.

 28. No doubt it is true that ASI Raj Kumar, who had prepared the Inquest Report had died during the pendency of the trial, but no reasons have been assigned as to why other police personnel present along with ASI Raj Kumar, were not examined. They could have at least explained the true picture and proved recovery of dying declaration and pocket telephone index diary from possession of deceased Vijay.

 29. Admittedly, from the evidence of PW-7 Sudesh, it has come on record that the deceased Vijay was having bank account and he was also a member of some society, where his standard signatures were available. But those standard signatures were not made the basis for comparison of his hand-writing alleged to have been found from his possession. In the case of Sharad Birdhichand Sarda (supra), it has been dealt with elaborately as to how the chain of circumstantial evidence has to be complete in all respect. The relevant paragraphs 153 & 154 are reproduced herein below:

 “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

 1)      the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made: ‘Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.’

2)      The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty.

3)      The circumstances should be of a conclusive nature and tendency.

4)      They should exclude every possible hypothesis except the one to be proved, and 164.

5)      There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

    154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

 30. The aforesaid cardinal principles with regard to the completion of chain of circumstantial evidence for holding the appellants guilty could not be established at all by the prosecution in the present case. With such broken chain of circumstantial evidence, at many places, it would neither be safe nor prudent to hold the appellants guilty.

 31. Apart from the above, it is extremely difficult for us to come to the conclusion if Exh. PG can fall in the category of dying declaration at all or can be said to be legally admissible. Even though we have categorically, minutely and with microscopic eyes gone through the said document number of times, but it does not inspire confidence, more so, the manner in which it has been written. We have already mentioned hereinabove that after having consumed excessive liquor, it would not have been possible for any one, much less for Vijay, to have written the said dying declaration with so much of precision or with steady hand. In our considered opinion, dying declaration should be such, which should immensely strike to be genuine and stating true story of its maker. It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts. It should not be the result of tutoring. But dying declaration in the present case does not fulfill these conditions.

 32. In HWV Cox Medical Jurisprudence and Toxicology, Seventh Edition, at page 936, under title “Alcohols”, deals with handwriting after consumption of liquor. While coming to the general behaviour after excessive drinking, apart from other things, it has specifically been noted:

 “Character of hand-writing: There is often difficulty with letters, N, M and W.”

 33. In the same book, it is further described that blood reaches all the organs, mainly the brain and interferes with normal brain functions like judgment and coordination of muscular movements. The blood alcohol level influences the behaviour of the person. The amount of alcohol present in the stomach and intestine has no effect but only indicates the ingestion.

 34. Obviously, it would go to show and we also come to the conclusion that after going through the handwriting, as has been found by us in the alleged dying declaration Ext. PG, it would have been extremely difficult for him to write it as he could not have been in a mentally fit condition to have written the same.

 35. Unfortunately, this aspect of the matter has neither been considered by the learned Trial Judge nor has been adverted to by the Division Bench of the High court and yet the appellants have been found guilty for commission of the aforesaid offence.

 36. In our considered opinion, the said judgment and order of conviction passed by the Trial Court and upheld by the High Court, cannot be sustained in law. They are accordingly set aside and quashed. As a necessary consequence thereof, the appellants would be set at liberty forthwith, if not required in connection with any other criminal case. Both the appeals are allowed accordingly.

Criminal Procedure Code, 1973 -Second complaint on the same facts/Protest Petition

Criminal Procedure Code, 1973 -Second complaint on the same facts/Protest Petition

Head Note:

1.   Law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.

2.   The Protest Petition can always be treated as a complaint and proceeded with in terms of Chapter XV of Cr.P.C. Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second Protest Petition can also similarly be entertained only under exceptional circumstances. In case the first Protest Petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the court, a fresh Protest Petition is filed giving full details, is maintainable.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

Dr. B.S. CHAUHAN AND T.S. THAKUR, JJ.

Shiv Shankar Singh Vs. State of Bihar & Anr on November 22, 2011

CRIMINAL APPEAL NO. 2160 of 2011 

(Arising out of SLP(Crl.) No. 2768 of 2010) 

J U D G M E N T : Dr. B.S. Chauhan, J.

1. This appeal has been preferred against the judgment and order dated 6.5.2009 passed by the High Court of Judicature at Patna in Criminal Miscellaneous No. 36335 of 2008, by which the cognizance taken by the Magistrate vide order dated 2.8.2008 against the respondent no.2 under Section 395 of the Indian Penal Code, 1860 (hereinafter called `IPC’) has been quashed.

2. Facts and circumstances giving rise to this case are that:

A.   A dacoity was committed in the house of present appellant Shivshankar Singh and his brother Kameshwar Singh on 6.12.2004 wherein Gopal Singh son of Kameshwar Singh was killed by the dacoits and lots of valuable properties were looted. The police reached the place of occurrence at about 3.00 AM i.e. about 2 hours after the occurrence. An FIR No. 147/2004 dated 6.12.2004 was lodged by the appellant naming Ramakant Singh and Anand Kumar Singh alongwith 15 other persons under Sections 396/398 IPC. 

B.    However, Kameshwar Singh, the real brother of the appellant and father of Gopal Singh, the deceased, approached the court by filing a case under Section 156 (3) of the Code of Criminal Procedure, 1973, (hereinafter called `Cr.P.C.’). Appropriate orders were passed therein and in pursuance of which FIR No. 151/2004 was lodged on 29.12.2004 in respect of the same incident with the allegations that the present appellant, Bhola Singh, son of the second complainant and Shankar Thakur, the maternal uncle of Bhola Singh had killed Gopal Singh as the accused wanted to grab the immovable property. 

C.    Investigation in pursuance of both the reports ensued. When the investigation in pursuance of both the FIRs was pending, the appellant filed Protest Petition on 4.4.2005, but did not pursue the matter further. The court did not pass any order on the said petition. After completing investigation in the Report dated 6.12.2004, the police filed Final Report under Section 173 Cr.P.C. on 9.4.2005 to the effect that the case was totally false and Gopal Singh had been killed for property disputes. 

D.    After investigating the other FIR filed by Kameshwar Singh, father of the deceased, charge-sheet was filed under Sections 302, 302/34, 506 IPC etc. on 29.8.2005 against the appellant, Bhola Singh, son of complainant and others. The matter stood concluded after trial in favour of the accused persons therein. 

E.    It was on 22.9.2005, the appellant filed a second Protest Petition in respect of the Final Report dated 9.4.2005. After considering the same and examining a very large number of witnesses, the Magistrate took cognizance and issued summons to respondent Anand Kumar Singh and others vide order dated 2.8.2008. 

F.     Being aggrieved, the respondent Anand Kumar Singh filed Criminal Miscellaneous No. 36335 of 2008 for quashing the order dated 2.8.2008 which has been allowed by the High Court on the ground that second Protest Petition was not maintainable and the appellant ought to have pursued the first Protest Petition dated 4.4.2005. Hence, this appeal.

3. Shri Gaurav Agrawal, learned counsel appearing for the appellant has submitted that the High Court failed to appreciate that the so-called first Protest Petition having been filed prior to filing the Final Report was not maintainable and just has to be ignored. The learned Magistrate rightly did not proceed on the basis of the said ProtestPetition and it remained merely a document in the file. The second petition was the only Protest Petition which could be entertained as it had been filed subsequent to filing the Final Report. The High Court further committed an error observing that the Magistrate’s order of summoning the respondent No.1 was vague and it was not clear as in which Protest Petition the order had been passed. More so, the facts of the case in Joy Krishna Chakraborty & Ors. v. The State & Anr., 1980 Crl. L.J. 482, decided by the Division Bench of the Calcutta High Court and solely relied by the High Court were distinguishable as in the said case the first Protest Petition had been entertained by the Magistrate and an order had been passed. Protest Petition is to be treated as a complaint and the law does not prohibit filing and entertaining of second complaint even on the same facts in certain circumstances. Thus, the judgment and order impugned is liable to be set aside.

4. On the contrary, Shri Awanish Sinha and Shri Gopal Singh, learned counsel appearing for the respondents have vehemently opposed the appeal contending that the second petition was not maintainable and the appellant ought to have pursued the first Protest Petition. The High Court has rightly observed that the order of the Magistrate summoning the respondent No.1 and others was totally vague. Even otherwise, as the appellant himself had faced the criminal trial in respectof the same incident, he cannot be held to be a competent/eligible person to file the Protest Petition. He had purposely lodged the false FIR promptly after committing the offence himself. Therefore, the facts of the case do not warrant any interference by this court and the appeal is liable to be dismissed.

5. We have considered the rival submissions made by the learned counsel for the parties and perused the record.

6. We do not find any force in the submission made on behalf of the respondents that as in respect of same incident i.e. dacoity and murder of Gopal Singh, the appellant himself alongwith others is facing criminal trial, proceedings cannot be initiated against the respondent No.1 at his behest as registration of two FIRs in respect of the same incident is not permissible in law, for the simple reason that law does not prohibit registration and investigation of two FIRs in respect of the same incident in case the versions are different. The test of sameness has to be applied otherwise there would not be cross cases and counter cases. Thus, filing another FIR in respect of the same incident having a different version of events is permissible. (Vide: Ram Lal Narang v. State(Delhi Admn.), AIR 1979 SC 1791; Sudhir & Ors., v. State of M.P., AIR 2001 SC 826;T.T. Antony v. State of Kerala & Ors., AIR 2001 SC 2637; Upkar Singh v. Ved Prakash & Ors., AIR 2004 SC 4320; and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254).

7. Undoubtedly, the High Court has placed a very heavy reliance on the judgment of the Calcutta High Court in Joy Krishna Chakraborty & Ors. (supra), wherein the Protest Petition dated 19.3.1976 was entertained by the Magistrate issuing direction to the Officer-in-Charge of the Khanakul Police Station under Section 156(3) Cr.P.C. to make the investigation and submit the report to the court concerned by 10.4.1976. The Officer-in-Charge of the said police station did not carry out any investigation on the ground that the incident had occurred outside the territorial jurisdiction of the said police station. The second Protest Petition filed by the same complainant on 23.3.1976 was entertained by the learned Magistrate. In fact, it was in this factual backdrop that the Calcutta High Court held that the matter could have been proceeded with on the basis of the first Protest Petition itself by the Magistrate and second Protest Petition could not have been entertained.

8. The facts of the present case are completely distinguishable. Therefore, the ratio of the said judgment has no application in the facts of this case.

9. In Bhagwant Singh v. Commissioner of Police & Anr., AIR 1985 SC 1285, this Court dealt with an issue elaborately entertaining the writ petition and accepting the submission in regard to acceptance ofthe Final Report to the extent that if no case was made out by the Magistrate, it would be violative of principles of natural justice of the complainant and therefore before the Magistrate drops the proceedings the informant is required to be given hearing as the informant must know what is the result of the investigation initiated on the basis of first FIR. He is the person interested in the result of the investigation. Thus, in case the Magistrate takes a view that there is no sufficient ground for proceeding further and drops the proceedings, the informant would certainly be prejudiced and therefore, he has a right to be heard.

10. In Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432, this Court held that the second complaint lies if there are some new facts or even on the previous facts if the special case is made out. Similarly, inPramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876, this Court has held as under:

“An order of dismissal under Section 203 of the Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances e.g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other personshould be given another opportunity to have his complaint enquired into.” 

11. After considering the aforesaid judgment along with various other judgments of this Court, in Mahesh Chand v. B. Janardhan Reddy & Anr., AIR 2003 SC 702, this Court held as under:

“..It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 CrPC may take cognizance of an offence and issue process if there is sufficient ground for proceeding….” 

In Poonam Chand Jain & Anr v. Fazru, AIR 2005 SC 38, a similar view has been re-iterated by this Court.

12. In Jatinder Singh & Ors. v. Ranjit Kaur,AIR 2001 SC 784, this Court held that dismissal of a complaint on the ground of default was no bar for a fresh Complaint being filed on the same facts. Similarly inRanvir Singh v. State of Haryana, (2009) 9 SCC 642, this Court examined the issue in the backdrop of facts that the complaint had been dismissed for the failure of the complainant to put in the process fees for effecting service and held that in such a factsituation second complaint was maintainable.

13. Thus, it is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.

14. The Protest Petition can always be treated as a complaint and proceeded with in terms of Chapter XV of Cr.P.C. Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second Protest Petition can also similarly be entertained only under exceptional circumstances. In case the first Protest Petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the court, a fresh Protest Petition is filed giving full details, we fail to understand as to why it should not be maintainable.

15. The instant case is required to be decided in the light of the aforesaid settled legal propositions. Order dated 2.8.2008 passed by the Magistrate concerned is based on the depositions made by the appellant-Shivshankar Singh, and a very large number of witnesses, namely, Sonu Kumar Singh, Suman Devi, Nirmala Devi, Ganesh Kumar, Udai Kumar Ravi, Ram AchalSingh, Jateshwar Acharya, Neeraj Kumar Singh, Krishna Devi and Dr. Narendra Kumar. More so, the record of the Sessions Trial No. 866 of 2005, wherein the appellant himself has been put to trial was also summoned and examined by the learned Magistrate. Thus, the Magistrate further took note of the fact that for the same incident, trial was pending in another court. After appreciating the evidence of the complainant and other witnesses deposed in the enquiry, the learned Magistrate passed the following order :

“On the basis of aforesaid discussion, I find that there are materials available on the record to proceed against the accused person. A prima-facie case under Section 395 IPC has been made out against all the accused person of this case. O/c is directed to issue summons on filing of the requisite. Put up the record on 13.8.2008 for filing of the requisites.” 

16. The High Court without taking note of the aforesaid evidence set side the order of the Magistrate on a technical ground that the second Protest Petition was not maintainable without considering the fact that the first Protest Petition having been filed prior to filing of the Final Report was not competent. More so, the High Court without any justification made the following remarks:

“The Court can only record that the learned Judicial Magistrate has not conducted himself in a fair manner because he has intentionally left the impugned order vague as to which protest petition he was actingupon, so that advantage may accrue to Opposite Party No.2.” 

17. In our opinion, there was no occasion for the High Court to make such sweeping remarks against the Magistrate and the same remain unjustified and unwarranted in the facts and circumstances of the case.

18. In view of the above, the appeal succeeds and is allowed. The order impugned of the High Court is set aside and the order of the Magistrate is restored. Respondent No.1 is directed to appear before the Magistrate on 1.12.2011 and the learned Magistrate is requested to proceed in accordance with law. However, we clarify that any observation made in this judgment shall not adversely prejudice the cause of the respondent to seek any further relief permissible in law as the said observations have been made only to decide the controversy involved herein. 

Prevention of Corruption Act, 1988 – Section 19(1)(c) – Removal from his office – Previous sanction necessary for prosecution

Held:- In our opinion, office means a position which requires the person holding it to perform certain duties and discharge certain obligations and removal from his office would mean to snap that permanently. By repatriation, the person holding the office on deputation may not be required to perform that duty and discharge the obligation of that office, but nonetheless he continues to hold office and by virtue thereof performs certain other duties and discharge certain other obligations. Therefore the power to repatriate does not embrace within itself the power of removal from office as envisaged under Section 19(1)(c) of the Act. The term removal means the act of removing from office or putting an end to an employment. The distinction between dismissal and removal from service is that former ordinarily disqualifies from future employment but the latter does not.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 459 OF 2013

(@SPECIAL LEAVE PETITION (CRIMINAL) No. 1593 of 2007)

STATE OF UTTARAKHAND                                                                           … APPELLANT

VERSUS

YOGENDRA NATH ARORA & ANR                                                       . …RESPONDENTS

J U D G M E N T : CHANDRAMAULI KR. PRASAD, J.

            Yogendra Nath Arora (hereinafter referred to as “the Accused”) was earlier employed as Deputy General Manager in U.P. Industrial Consultants, an undertaking of the State of Uttar Pradesh. Consequent upon reorganization of the State of Uttar Pradesh, he was taken on deputation on 23rd January, 2003 and posted as Deputy General Manager of the State Industrial Development Corporation,  (hereinafter referred to as “SIDCUL”), a Government undertaking of the State of Uttarakhand. While working as the Deputy General Manager of SIDCUL, a trap was laid on 30th of June, 2004 and he was arrested while accepting an illegal gratification of Rs.30,000/-. This led to lodging of Criminal Case No. 168 of 2004 at Police Station Dalanwala, District Dehradun under Section 7 read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act”). The accused was repatriated on the same day to his parent organization by the State Government of Uttarakhand. It also granted sanction for his prosecution on 23^rd of August, 2004 and the charge sheet was submitted on 25th of August, 2004 in the Court of Special Judge, Anti-Corruption-II, Nainital. Accused prayed for discharge, inter alia contending that the materials on record are not sufficient for framing of the charge and further, in the absence of valid sanction from the competent authority, as required under Section 19(1)(c) of the Act, the trial can not legally proceed. The Special Judge, by his order dated 18th of August, 2005 rejected his contention, inter alia, observing that there is sufficient material on record for framing of the charge. As regard the plea of absence of sanction, the learned Judge observed as follows:

“…the question of sanction being merely an incident to the trial of the case is not to be considered at this stage. It is undoubtedly true, that the accused was an employee of the State of  Uttar Pradesh and was on deputation to the State of Uttaranchal and under the subordination and administrative control of the State of Uttaranchal. Thus, the question of sanction being incident to the trial of the case and on perusal of the record, there is a sufficient material on record to charge the accused, the accused shall be charged under Section 7 read with Section 13(a)(d) and 13(2) of the Prevention of Corruption Act, 1988.”

        Accordingly, the Special Judge rejected the prayer of the accused.

       Aggrieved by the same, the accused preferred an application under Section 482 of the Criminal Procedure Code before the High Court challenging the aforesaid order. It was contended before the High Court that the accused being an employee of an undertaking of the State Government of Uttar Pradesh, the State Government of Uttarakhand is not competent to grant sanction. This submission found favour with the High Court. The High Court held that the accused being an employee of an undertaking of the State Government of Uttar Pradesh and having been repatriated to his parent department, it is the State Government of the Uttar Pradesh which is competent to remove him and to grant necessary sanction. Accordingly, the High Court quashed the prosecution of the accused being without valid sanction and, while doing so, observed that the State Government of Uttarakhand shall be at liberty to prosecute the accused after obtaining valid sanction from the State Government of Uttar Pradesh.

           Aggrieved by the aforesaid order, the State of  Uttarakhand has filed the present special leave petition.

             Leave granted.

             It is common ground that without prejudice to the contention raised in the present appeal, the State Government of Uttarakhand has written to the State Government of Uttar Pradesh for granting sanction. But, till date no decision has been communicated.

            Ms. Rachana Srivastava, learned counsel representing the State of  Uttarakhand concedes that sanction by the competent State Government is necessary for prosecution of an accused for an offence punishable under Section 7 and 13 of the Act. She points out that the accused being on deputation to an undertaking of the State Government of Uttarakhand, it had the power to repatriate him which would mean the power of removal from office by the State Government of Uttarakhand. According to her, dislodging an accused from an office and repatriating him would mean removal from his office. Removal from office, according to her, would not mean the removal from service. She emphasizes that the expression used in Section 19(1)(c) is ‘removal from his office’ and not ‘removal from service’. Section 19(1)(c)  of the Act which is relevant for the purpose reads as follows:

“19. Previous sanction necessary for  prosecution.(1) No court shall take cognizance of an offence punishable under Sections 7,10,11,13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-………..

(a) xxx                                                 xxx                                                               xxx

(b) xxx                                                 xxx                                                                xxx

 (c)in the case of any other person, of the authority competent to remove him from his office.”

            In support of the submission reliance has been placed to a Constitution Bench judgment of this Court in the case of R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183 and our attention has been drawn to the following passage from paragraph 23 of the judgment which reads as follows:

“…Each of the three clauses of subsection(1) of Section 6 uses the expression ‘office’ and the power to grant sanction is conferred on the authority competent to remove the public servant from his office and Section 6 requires a sanction before taking cognizance of offences committed by public servant. The offence would be committed by the public servant by misusing or abusing the power of office and it is from that office, the authority must be competent to remove him so as to be entitled to grant sanction. The removal would bring about cessation of interrelation between the office and abuse by the holder of the office. The link between power with opportunity to abuse and the holder of office would be severed by removal from office. Therefore, when a public servant is accused of an offence of taking gratification other than legal remuneration for doing or forbearing to do an official act (Section 161 IPC) or as a public servant abets offences punishable under Sections 161 and 163 (Section 164 IPC) or as public servant obtains a valuable thing without consideration from person concerned in any proceeding or business transacted by such public servant (Section 165 IPC) or commits criminal misconduct as defined in Section 5 of the 1947 Act, it is implicit in the various offences that the public servant has misused or abused the power of office held by him as public servant. The expression ‘office’ in the three sub-clauses of Section 6(1) would clearly denote that office which the public servant misused or abused for corrupt motives for which he is to be prosecuted and in respect of which a sanction to prosecute him is necessary by the competent authority entitled to remove him from that office which he has abused. This interrelation between the office and its abuse if severed would render Section 6 devoid of any meaning. And this interrelation clearly provides a clue to the understanding of the provision in Section 6 providing for sanction by a competent authority who would be able to judge the action of the public servant before removing the bar, by granting sanction, to the taking of the cognizance of offences by the court against the public servant. Therefore, it unquestionably follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider.”

           In fairness to her, she concedes that power to remove the accused from service is with the State Government of Uttar Pradesh and if her contention that power to repatriate would mean the power to remove from service does not find favour, it shall be the State Government of Uttar Pradesh which would be competent to grant sanction.

             Mr. R.G. Srivastava, learned counsel representing the accused, however, contends that the expression removal from office would mean termination from service and un disputably in the facts of the present case it was the State Government of Uttar Pradesh which was competent to terminate the service of the accused. According to him, removal from office would mean removal from permanent employment.

              In view of the rival submissions, the question which falls for determination is as to whether the expression removal from his office would mean dislodging him from holding that office and shifting him to another office. In other words, the power of the State Government of Uttarakhand to repatriate the accused would mean that it has power to remove. In our opinion, office means a position which requires the person holding it to perform certain duties and discharge certain obligations and removal from his office would mean to snap that permanently. By repatriation, the person holding the office on deputation may not be required to perform that duty and discharge the obligation of that office, but nonetheless he continues to hold office and by virtue thereof performs certain other duties and discharge certain other obligations. Therefore the power to repatriate does not embrace within itself the power of removal from office as envisaged under Section 19(1)(c) of the Act. The term removal means the act of removing from office or putting an end to an employment. The distinction between dismissal and removal from service is that former ordinarily disqualifies from future employment but the latter does not. Hence, we reject this submission of Ms. Srivastava.

               The view which we have taken finds support from the decision of this Court in the case of V.K. Sharma v. State (Delhi Admn.), 1975 (1) SCC 784 in which it has been held as follows:

“…..The purport of taking the sanction from the authority competent to remove a corrupt government servant from his office is not only to remove him from his temporary office but to remove him from government service.”

                We are told by Ms. Srivastava that the request of the State Government of Uttarakhand for sanction of prosecution of the accused is still pending before the State Government of Uttar Pradesh. Hence, we deem it expedient that the latter takes decision on the request so made, if already not taken, within 8 weeks from the date of communication of this order. It is made clear that we are not expressing any opinion in regard to the merit of the request made by the State Government of Uttarakhand and it shall be decided by the State Government of Uttar Pradesh on its own merit in accordance with law.

                   Let a copy of this order be forwarded to the Chief Secretary of the State Government of Uttar Pradesh for appropriate action forthwith.

                   In the result, we do not find any merit in this appeal and it is dismissed accordingly with the aforesaid observation.

…………………………………………………………J.

(CHANDRAMAULI KR. PRASAD)

…………….………………………………………J.

(V. GOPALA GOWDA)

NEW DELHI,

MARCH 18,2013

Practice and procedure – Quashing of FIR – Corruption – Bribe demanded by government doctor – Practice of reliance on affidavits submitted by witnesses in support of accused – Whether Proper?

Held:- It is risky to encourage the practice of filing affidavits by the witnesses at the stage of investigation or during the court proceedings in serious offences such as offences under the PC Act. If such practice is sanctioned by this Court, it would be easy for any influential accused to procure affidavits of witnesses during investigation or during court proceedings and get the FIR and the proceedings quashed. 

Criminal Procedure Code, 1973 - Section 482 - Inherent powers of High Court - Principles. 

Held:- The plentitude of the power under Section 482 of the Code by itself makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. 

Prevention of Corruption  Act, 1988 – Section 7 and 13 - Plea of Mercy -Respondent is on the verge of retirement - He has suffered the agony of investigation since 2007 – Held, Rampant corruption is seen in every walk of our life. People, particularly those holding high office, are frequently seen accepting illegal gratification. In such serious cases showing mercy at this stage may send wrong signals. 

Prevention of Corruption Act, 1988 -Sections 7 & 13(1)(d)(2) - Criminal Procedure Code, 1973 - Section 482 -Practice and procedure - Quashing of FIR – Corruption - Bribe demanded by government doctor - Whether the exercise of powers under Section 482 of the Code by the High Court to quash the complaint was warranted in the facts of this case? 

Held:- By the impugned judgment, a learned Single Judge of the High Court has quashed the complaint filed against respondent 1 by one Sohan Lal (the complainant) alleging that respondent 1 demanded Rs.5,000/- as illegal gratification for  performing the operation of Smt. Sita Devi, whom he treated as his aunt. The conversation of respondent 1 and the complainant was heard on the tape recorder. Thereafter, the raiding party, two independent witnesses and the complainant went inside the house of respondent 1. Upon being questioned, respondent 1 stated that he had kept the money in the drawer of his table. The money was recovered and hand wash of respondent 1 was taken which turned pink. After following the necessary formalities, FIR came to be registered the PC Act at Police Station, ACB Chowki, Sriganganagar, against respondent 1. Sanction for prosecution was obtained from the competent authority on 23/6/2009. How far the evidence collected by the investigating agency is credible can be decided only when the evidence is tested by cross examination during the trial. But, in our opinion, in view of the contents of the FIR and nature of evidence collected by the investigating agency, this is certainly not a case where the FIR can be quashed. If we examine the instant FIR in light of the principles laid down by this Court in Bhajan Lal it is not possible to concur with the High Court that the allegations made in the FIR and the evidence collected in support of the same do not disclose the commission of any offence.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1222 OF 2012

[Arising out of Special Leave Petition (Crl.) No.4845 of 2010]

AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ. On AUGUST 17, 2012

STATE OF RAJASTHAN                       … APPELLANT

Vs.

DR. RAJKUMAR AGARWAL & ANR            . … RESPONDENTS

JUDGMENT : (SMT. ) RANJANA PRAKASH DESAI , J .

1. Leave granted.

2. This appeal, by special leave, filed by the State of Rajasthan is directed against judgment and order dated 10/9/2009 delivered by the High Court of Rajasthan in Cri. Misc. Petition No.307 of 2009 filed by respondent 1 herein – Dr. Rajkumar Agarwal under Section 482 of the Code of Criminal Procedure, 1973 (for short, “the Code”). By the impugned judgment, a learned Single Judge of the High Court has quashed the complaint filed against respondent 1 by one Sohan Lal (the complainant) alleging that respondent 1 demanded Rs.5,000/- as illegal gratification for performing the operation of Smt. Sita Devi, whom he treated as his aunt. The question before this court is whether the exercise of powers under Section 482 of the Code by the High Court to quash the complaint was warranted in the facts of this case.

3. The facts, briefly stated, are as follows:Respondent 1 was working as Junior Specialist (Surgery), Government Hospital, Suratgarh, District Sriganganagar, Rajasthan. On 11/12/2007, the Complainant submitted a written complaint to the Police Station, Anti Corruption Bureau (for short, “the ACB”) Chowki, Sriganganagar stating that on 7/12/2007, respondent 1 performed the operation of uterus of his aunt - Smt. Sita Devi w/o. Navranglal in a Government Hospital at Suratgarh. According to the complainant, respondent 1 demanded Rs.5,000/- as bribe for the operation and for better treatment. The complainant gavea sum of Rs.2,500/- at the time of operation. The complainant stated that his aunt was still in the hospital and respondent 1 was demanding the remaining sum of Rs.2,500/-. According to the complainant, he did not want to give the money but he apprehended that respondent 1 may cause harm to his aunt, if he does not pay the amount.

4. It is the case of the petitioner that on the same day at about 11.00 a.m., a blank cassette “A” was inserted in a small tape-recorder and handed over to the complainant at the ACB Office. The complainant was explained about its functioning. Mr. Jagdish Rai, Ct.No.179 was sent along with the complainant to Suratgarh for verification of the demand of bribe. At 5.00 p.m., both the complainant and Mr. Jagdish Rai returned to the ACB office. The tape-recorder was played and the demand was found corroborated. Its memo was prepared and the cassette was sealed and labelled. It is the case of the appellant that preparation for trap was made. Two independent witnesses i.e. Mr. Darshan Singh, Assistant Engineer and Mr. Kripal Singh, Assistant Project(Samanvayak) Office, Sarva Shiksha Abhiyan, Sriganganagar were introduced to the complainant. Currency notes of Rs.1,500/- produced by the complainant which were to be handed over to the appellant were smeared with phenolphthalein powder. The necessary procedure was followed. A new blank cassette was inserted in the tape recorder and it was handed over to the complainant. On 12/12/2007, the Additional Superintendent of Police along with the complainant, the two independent witnesses and others left for Suratgarh. The complainant was given necessary direction for contacting respondent 1. The trap party waited there. The complainant came out of the residence of respondent 1 and gave fixed signal to the Additional Superintendent of Police. The raiding party along with the independent witnesses went to the complainant, who stated that respondent 1 had kept the bribe money of the complainant in the drawer of his table. The conversation of respondent 1 and the complainant was heard on the tape recorder. Thereafter, the raiding party, two independent witnesses and the complainant went inside the house ofrespondent 1. Upon being questioned, respondent 1 stated that he had kept the money in the drawer of his table. The money was recovered and hand wash of respondent 1 was taken which turned pink. After following the necessary formalities, FIR came to be registered under Sections 7 and 13(1)(d)(2) of the Prevention of Corruption Act, 1988 (for short, “the PC Act”) at Police Station, ACB Chowki, Sriganganagar, against respondent 1. Sanction for prosecution was obtained from the competent authority on 23/6/2009.

5. As stated above, respondent 1 filed petition under Section 482 of the Code for quashing of the said FIR. The High Court has quashed the said FIR. The State of Rajasthan is in appeal before us.

6. Mr. Manish Singhvi, Addl. Advocate General for the appellant submitted that the High Court has fallen into a grave error in quashing the FIR. Counsel submitted that the High Court misinterpreted the ratio of the judgment of this court in State of Haryana v. Bhajan Lal, 1992 Supp. (1)335. Counsel submitted that the FIR and the other material collected by the prosecution prima facie make out a strong case against respondent 1.

7. Mr. Pallav Shishodia, learned senior advocate for respondent 1, on the other hand, submitted that the High Court has rightly quashed the complaint. He pointed out that Smt. Sita Devi was not related to the complainant. Therefore, the complainant’s case that he went to respondent 1 in connection with the uterus operation of Smt. Sita Devi and the amount was demanded by respondent 1 from him is inherently improbable. Counsel submitted that the complainant owns a Chemist shop near the hospital in which respondent 1 is working. The complainant does not have the necessary licence to run the Chemist shop. The illegalities committed by the complainant were known to respondent 1 and, therefore, the complainant has falsely implicated respondent 1 in this case. Counsel pointed out that in their statements recorded under Section 161 of the Code, Smt. Sita Devi as well as her husband have stated that they were notaware whether the appellant demanded any money from respondent 1. In fact, Smt. Sita Devi and her husband have filed affidavits stating that respondent 1 never asked for money and his behaviour towards Smt. Sita Devi was good and the allegations made by the complainant are false. In support of his submission, counsel relied on the judgments of this court in V.P. Shrivastava v. Indian Explosives Limited & Ors. (2010) 10 SCC 361 andShiji alias Pappu & Ors. V. Radhika & Anr. (2011) 10 SCC 705. Counsel submitted that since Smt. Sita Devi and her husband have not supported the prosecution case, the prosecution has become a lame prosecution and in all probability the case will end in acquittal. Therefore, the High Court has rightly quashed the complaint because if the proceedings are allowed to continue, that will be an abuse of the process of court. Counsel submitted that in any case, even if this court comes to a conclusion that the complaint discloses a prima facie cognizable offence, considering the fact that the offence is of the year 2007; that respondent 1 is on the verge of retirement and that he has suffered the agony of investigationand possibility of a criminal trial from 2007 onwards till today, this court may take a kindly view of the matter. Counsel submitted that in the facts of this case, ends of justice would be met if the High Court’s order is confirmed.

8. We find no substance in Mr. Shishodia’s submissions. It is true that the complainant is not related to Smt. Sita Devi but nothing has been brought on record to even prima facie establish that the complainant holds any grudge against respondent 1 because respondent 1 had knowledge about the alleged irregularities in respect of his Chemist shop. Since Mr Shishodia has referred to statements of Smt. Sita Devi and Navrang Lal recorded under Section 161 of the Code, we have perused them. In these statements, Smt. Sita Devi and Navrang Lal have stated that the complainant was treating Smt. Sita Devi as his aunt and he had admitted her to the hospital. Navrang Lal has stated that because of his work he had to leave Suratgarh and therefore, the complainant admitted Smt. Sita Devi in the hospital. So far as the alleged demand for money made by respondent 1 is concerned, theyhave stated that respondent 1 did not demand any money from them and they were not aware whether respondent 1 demanded any money from the complainant. Thus, these statements support the complainant’s case that he was treating Smt. Sita Devi as his aunt; that he had admitted her to the hospital and that he had dealt with respondent 1. Respondent 1 is relying on three affidavits. Affidavits have been filed by Smt. Sita Devi, Navrang Lal and another patient by name Devcharan Bhagat. Surprisingly, in these affidavits, Smt. Sita Devi and Navrang Lal have given a totally contrary version. They have gone on to say that the complainant has lodged a false complaint against respondent 1. In his affidavit Devharan Bhagat, another patient of respondent 1, has given a certificate to respondent 1 that he is an expert doctor and he had never taken any money from him for treatment. At this stage, we do not want to give any final opinion on these affidavits but we find it difficult to quash the complaint on the basis of these affidavits. As we have already noted, Smt. Sita Devi and her husband have in their statements recorded under Section 161 of the Code partly supported the complainant. Apart from these statements there is another prima facie clinching circumstance against the appellant. The police claim that they have taped the conversation between respondent 1 and the complainant. We have read the transcript of this tape recorded conversation. It is not possible for us to agree with the High Court that the transcription does not corroborate the FIR. Prima facie, we feel that if it is read against the background of the other facts, it is apparent that it relates to the operation of Smt. Sita Devi and the demand pertains to the said operation. Besides, according to the prosecution, the trap was successful. Money smeared with phenolphthalein powder was found with respondent 1. The notes recovered from the respondent 1 tallied with the notes given by the complainant to the police for the purpose of trap and respondent 1’s hand wash turned pink. It is also pertinent to note that when the complaint was lodged, Smt. Sita Devi was still in hospital, probably because after the money was handed over, she was to be discharged, and in fact, her discharge card was found on the table of respondent 1. It is also the case of the appellant that respondent 1refused to give his voice sample for the purpose of investigation. How far the evidence collected by the investigating agency is credible can be decided only when the evidence is tested by cross examination during the trial. But, in our opinion, in view of the contents of the FIR and nature of evidence collected by the investigating agency, this is certainly not a case where the FIR can be quashed. If we examine the instant FIR in light of the principles laid down by this Court in Bhajan Lalit is not possible to concur with the High Court that the allegations made in the FIR and the evidence collected in support of the same do not disclose the commission of any offence.

9. There is yet another and a very sound reason why we are unable to quash the instant FIR. It is risky to encourage the practice of filing affidavits by the witnesses at the stage of investigation or during the court proceedings in serious offences such as offences under the PC Act. If such practice is sanctioned by this Court, it would be easy for any influential accused to procure affidavits of witnesses during investigationor during court proceedings and get the FIR and the proceedings quashed. Such a practice would lead to frustrating prosecution of serious cases. We are therefore, wary of relying on such affidavits. So far as the judgment cited by Mr. Shishodia in V.P. Shrivastava is concerned, it is purely on facts and can have no application to this case. Shiji @ Pappu also does not help respondent 1. That case involved a civil dispute. Parties had settled their civil dispute and therefore, the complainant was not ready to proceed with the proceedings. It is against this background that in Shiji @ Pappu, this Court held that exercise of power under Section 482 of the Code was justifiable. However, this court added that the plentitude of the power under Section 482 of the Code by itself makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. We feel that in the instant case, the High Court failed to appreciate that the wholesome power vested in it under Section 482 of the Code has to be exercised with circumspection and very sparingly. It is not possible for us, on the facts of this case, to come to a conclusion that no offence is made out at all against respondent 1 and continuance of proceedings would be abuse of the process of court.

10. Mr. Shishodia submitted that respondent 1 is on the verge of retirement. He has suffered the agony of investigation since 2007 and therefore, this court may take a kindly view of the matter. Rampant corruption is seen in every walk of our life. People, particularly those holding high office, are frequently seen accepting illegal gratification. In such serious cases showing mercy at this stage may send wrong signals. We are, therefore, unable to accede to Mr. Shishodia’s request.

11. In the circumstances, we set aside the impugned judgment and order. It is not necessary for us to say the obvious that all observations made by us are prima facie observations and the court which may be seized of this mattershall deal with it strictly on merits and in accordance with law.

12. The appeal is disposed of in the afore-stated terms.