1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Criminal Application No.ABA No.283/2011 Sudhakar s/o Devraoji Sakharkar Vs. The State of Maharashtra =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM : U.V. BAKRE, J. DATED : 14/9/2011. 1] Heard Mr. V. M. Deshpande, learned counsel for the applicant and Mr. P. D. Kothari, learned APP for the respondent. 2] The applicant who is a Talathi of Mouza- Gundha, Tahsil Lonar and hence a public servant and who apprehends his arrest in Crime No. 3026/2011 registered with Anti Corruption Bureau, Buldana, for offence punishable under Section 7 of the Prevention of Corruption Act, 1988 ( “P. C. Act” for short), has filed this application for anticipatory bail. 3] As per the complaint lodged by one Gajanan Kisan Thorave, he had approached the applicant as he required certain documents namely: 7/12 extract, boundaries' certificate, certificate to the effect that there is no well in his field and residential certificate. According to the complainant, the applicant demanded Rs. 3000/- for giving the said certificates. 2 The complainant then approached Anti Corruption Bureau and filed written complaint regarding the said demand made by the applicant. As per the Complainant of Sk. Noor Mohammed Jan Mohammed, the Dy. S.P. of Anti Corruption Bureau, lodged on 29/6/2011, a pre-verification panchanama was done on 21.6.2011 in presence of panchas and according to the prosecution, the applicant again demanded the said amount of Rs. 3000/-. Thereafter the raid was fixed and another panchanama was drawn. But the house of the applicant was found locked on 21/6/201 as well as on 22/6/2011. Subsequently, allegedly, the applicant told the complainant not to call him on his mobile and not to bring any person with him. It is upon the said complaints and the panchanamas that the Crime No. 3026/2011 was registered. 4] In the present application, the applicant has alleged that it is not the case of the complainant that the applicant has really received any amount from the complainant and, therefore, offence has been registered only on the basis of alleged demand of Rs. 3000/-. According to the applicant, the complainant never approached him for obtaining any documents and he did not demand any amount and that the complaint has been lodged to harass him. It is further alleged by the applicant that even otherwise custodial interrogation is not all necessary since nothing is to be seized from him. He has undertaken to cooperate with 3 the Investigating Officer. 5] In the reply filed by the respondent, the facts of the complaints and the panchanamas have been stated and it is further stated that the Investigating Officer wants to recover documents from the applicant and that the offence being serious, the applicant should not be granted pre-arrest bail. 6] Heard arguments. Learned Advocate Mr. V. M. Deshpande argued on behalf of the applicant and learned APP Mr. P. D. Kothari argued on behalf of the State. 7] A perusal of the complaint dated 20.6.2011 lodged by Gajanan Kisan Thorave, the complaint dated 29.6.20011 lodged by the Dy.S.P., the pre-verification panchanama and the other panchanamas reveals that at the most it can be said that there was a demand of Rs.3000/- made by the applicant for giving the said certificates to the complainant (Gajanan). 8] Section 7 of the P.C. Act, inter-alia, provides as under:- “Section 7 - Public servant taking gratification other than legal remuneration in respect of an official act – Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from 4 any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.” 9] In the present case, though there is prima facie evidence of demand, there is admittedly no acceptance of the amount for an agreement to accept the said amount, from the side of the applicant. There is also no attempt made by the applicant to obtain the said amount of Rs. 3000/-. It is seen that the alleged attempt of the complainant(Gajanan), with the help of Anti Corruption Bureau, to pay amount to the applicant failed because every time the house of the applicant was found locked and lastly, the applicant allegedly told the complainant not to contact him. 10] Mr. V. M. Deshpande, learned counsel for the applicant, has relied upon the case of M.K. Harshan 5 Vs. State of Kerala [(1996) 11 SCC 720], wherein the Hon'ble Apex Court has held that in cases of bribery, two aspects are important. Firstly there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. It has been further held that demand, by itself, is not sufficient to establish the offence. The offence in the case (supra) was under Section 5(1)(d) of the Prevention of corruption Act, 1947 and Section 161 of the Indian Penal Code, which are almost similar to Section 7 of the P. C. Act, 1988. 11] Mr. V. M. Deshpande, learned counsel for the applicant has also placed reliance upon the case of Banarsi Dass Vs. State of Haryana [2010 ALL MR (Cri.)1608 (S.C.)], wherein the Hon'ble Apex Court has reiterated the position by stating that in order to constitute an offence under Section 161 of the IPC, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused and similarly in terms of Section 5(1)(d) of the P.C. Act 1947, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused. 12] Mr. V. M. Deshpande, learned counsel for the applicant has also relied upon the decision, dated 2nd September 2010, of the learned Single Judge of this 6 Court in Criminal Appeal No.203/2008 (Satish Pralhadrao Raikwar Vs. The State of Maharashtra) wherein it is held that essential requirement of conviction of an accused in relation to charge under Sections 7 and 13 (1)(d) read with Section 13 (2) of the P.C. Act, namely demand, acceptance and recovery of amount of bribe, ought to have been proved by the prosecution. 13] In view of the above, prima facie, it appears that offence in the present case is not complete. In any case, the amount of demand is stated to be Rs. 3000/- and admittedly, the same was not received by the applicant due to which nothing is required to be seized from the applicant. It is not known as to which documents are required to be recovered from the applicant. The nature of the documents is not mentioned in the reply. The applicant, in his application has stated that on account of the medical leave taken by him, he has handed over all the documents and records in his possession to Shri R.G. Jadhav. In my view, no purpose would be served by detaining the applicant in custody in the event of his arrest. 14] In the circumstances above, the applicant deserves to be granted anticipatory bail. It is hereby made clear that the Trial Judge shall not be influenced by the above prima facie observations made by this 7 Court which are only for the purpose of deciding the present application. 15] In the result, the application is allowed. In the event of arrest of the applicant in Crime No. 3026/2011 registered with Anti Corruption Bureau, Buldana, for offence punishable under Section 7 of the P. C. Act 1988, he shall be released on bail, upon execution of personal recognition bond in the sum of Rs. 15,000/- with one solvent surety in the like amount, under the following conditions:- (i) The applicant shall attend the office of Anti Corruption Bureau, Buldana as and when called upon by the Investigating Officer to do so. (ii) The applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) The applicant shall not leave India without previous permission of the concerned Special Judge, Buldana. (iv) Hamdast allowed. Application stands disposed of. JUDGE Ambulkar.