IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 240 of 2008 Suresh Kumar Pokhariyal S/o Shri Aditya Ram Plkhariyal …… Petitioner Versus State of Uttarakhand …. Respondents Mr. Sandeep Tandon, Advocate for the petitioner. Mr. B.S. Parihar, Brief Holder for the State. Hon’ble J.C.S. Rawat, J. Mr. Sandeep Tandon, Advocate for the petitioner. Mr. B.S. Parihar, Brief Holder for the State. 2. With the consent of the learned counsel for the parties, this petition is being taken up today for final disposal at the motion hearing stage without it being formally admitted for hearing. 3. This petition u/s 482 Cr.P.C. has been filed for setting aside the impugned cognizance order dated 08/10/2007 passed by the learned Sessions Judge/Special Judge, Dehradun in S.S.T. No. 86 of 2007, State Vs. Suresh Kumar Pokhariyal & other u/s 7 of the Prevention of Corruption Act, 1988 and also quashing the chargesheet dated 23/09/2007. 4. According to the prosecution case, the Circle Officer Surjeet Singh Panwar made a surprise checking at checkpost Bhadrakali on 23/05/2007 at about 11:45 a.m. and found that the petitioner and one Home Guard Anil Kumar Bahuguna were present there and they were registering the names of the passengers who were going on the yatra in the register. During the course of the surprise checking, the Circle Officer found ten rupee note kept on the table. When the accused were asked about the presence of the ten rupees note, both the accused told them that the money belonged to them. The Circle Officer started inspecting the list of the passengers kept with them and found two notes of ten rupees inside the papers in which the application of the passengers were kept. When the Circle Officer started making the inquiry from the accused, all the drivers, conductors and persons present there left the police chowki. Thus, thirty rupees were recovered from the spot and fard was prepared thereof at the spot. Case was registered against the accused/petitioner and thereafter the investigation was conducted. During the course of the investigation, the I.O. recorded the statement of Circle Officer, S.S. Panwar and constable Devender Singh Chauhan. The Circle Officer, S.S. Panwar and constable Devendra Singh Chauhan have narrated the fact stated above. Rest of the witnesses are the formal witnesses. After investigation of the matter, the police submitted the chargesheet against the accused Anil Kumar Bahuguna and the present petitioner u/s 7 of the Prevention of Corruption Act, 1988. The learned Magistrate took cognizance of the offence. 5. Learned counsel for the petitioner contended that the Investigating Officer himself has admitted in the chargesheet that though no witnesses of the fact that illegal money on demand of the accused was given by any one to give them to undue advantage; he further admitted that though it is a weak case even then, he is submitting the chargesheet before the court concerned; the prosecution has not collected any evidence to the fact that thirty rupees which were recovered from the spot was an illegal gratification & was ever demanded from any of the person or it was received as a gratification in addition to their official remuneration or it was demanded for doing an act for which the person who gave the money were not entitled; the prosecution has not proved the demand and receiving of the illegal gratification, as such, the prosecution is an abuse of the process of law and as such the prosecution should be quashed. The Provision of Section 7 of the Prevention of Corruption Act reads thus :- “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 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 of 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.” 6. From the perusal of Section 7 of the Corruption of Prevention Act, 1988, it is evident that there must be a demand for the illegal gratification and that money which has been received by the public servant should have been received as a motive or reward for committing the act or omission in connection with his official function in the capacity of the Government servant or public servant to show any favour or render any service in connection with his official duties. In the instant case, both the witnesses namely, Circle Officer, S.S. Panwar and Devender Singh had nowhere stated that any of the person present at the spot has made any complaint to them that these two constables are demanding any money for the illegal works and they are harassing them for the same. The prosecution has not taken the evidence of the drivers or the person who had given the money to them. In absence of the evidence of the persons who had given the money for illegal acts or omissions the ingredient of section 7 of the Prevention of the Corruption Act is not proved. It is further important to note that the accused himself has claimed the money put there at the spot to the Circle Officer. This fact further fortifies from the fact that there is no evidence of any money given by any of the person for illegal demand. The Investigating Officer himself has indicated in the chargesheet that there is no sufficient evidence to prove the guilt even though he is filing the chargesheet. In the present case the petition has been filed by the petitioner Suresh Kumar Pokhariyal whereas the co- accused Anil Kumar Bahuguna has not filed any petition before this court. I have perused the entire record. On the basis of the principle of stare decisis, the co-accused Anil Kumar Bahuguna is also entitled to get the benefit of this judgment. 7. In view of the above, the petition is liable to be allowed and is hereby allowed. The cognizance order dated 08/10/2007 passed by the learned Sessions Judge/Special Judge, Dehradun in S.S.T. No. 86 of 2007 , State Vs. Suresh Kumar Pokhariyal & other u/s 7 of the Prevention of Corruption Act, 1988 is hereby set aside. The chargesheet and proceedings are also hereby quashed. (J.C.S. Rawat, J.) 23.12.2008 Shiv