SB CR.REV. No.660/09. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CRIMINAL REVISION PETITION NO.660/2009. Narayan Das Adwani Vs. C.B.I. Date of Order : November 25, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.K. Jain for the petitioner. Shri T.P. Sharma for respondent-C.B.I. ****** Reportable BY THE COURT:- This criminal revision petition under Section 397 Cr.P.C. has been filed by accused-petitioner- Narayan Das Adwani challenging the order dated 26/2/2009 passed by the learned Special Judge Printing & Stationery Embezzlement Cases and Additional Additional Special Judge C.B.I. Cases, Jaipur in Special Criminal Case No.55/08 (1/06) by which, the said Court framed charge against the accused- petitioner for offence u/Ss.7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter be referred as the “Act of 1988”). 2) Factual matrix of the case is that petitioner was at the relevant time serving as Assistant Post Master in the Head Post Office at Jaipur. One Virendra Gaur, who was also working as Postal Assistant in the SB CR.REV. No.660/09. 2 same post office, made a complaint to the Superintendent of Police, Central Bureau of Investigation (for short, “C.B.I.”), Jaipur stating that he was facing trial in F.I.R. No.69/2005 which was pending before the Court of learned Additional Chief Judicial Magistrate No.2, Jaipur City, Jaipur. Accused-petitioner herein i.e. Narayan Das Adwani was a prosecution witness in that case. It was alleged that accused-petitioner demanded a sum of Rs.18,000/- from complainant Virendra Gaur to give statement in his favour in the said trial which was agreed to be paid in two installments. After pursuation however, accused-petitioner agreed to take first installment of Rs.5000/- at the time of hearing of the case in the court, balance amount of Rs.4000/- was agreed to be paid within 10-15 days thereafter and rest Rs.9000/- was agreed to be paid after statement was recorded in the court. On receipt of such complaint, C.B.I. lodged first information report against the petitioner on 13/10/2005. A trap was organized in which, petitioner was caught red handed while accepting illegal gratification of Rs.5000/- from Virendra Gaur. C.B.I. filed charge-sheet against the accused-petitioner on 24/11/2005 for offence u/Ss.7 and S.13(1)(d) r/w. S.13 (2) of the Act of 1988. After hearing arguments of the parties, learned Special Court framed charge against the accused-petitioner for all the aforesaid offences vide impugned-order dated 26/2/2009. Aggrieved thereby, petitioner has challenged aforesaid order SB CR.REV. No.660/09. 3 framing charge and preferred present revision petition. 3) I have heard Shri R.K. Jain, learned counsel for accused-petitioner, Shri T.P. Sharma, learned counsel for C.B.I. and perused the material available on record. 4) Shri R.K. Jain, learned counsel for accused- petitioner has argued that learned Special Judge has erred in law in framing charge against the accused- petitioner against the material on record and contrary to the settled principles of law. Learned Special Judge failed to consider that alleged demand of illegal gratification by the accused-petitioner was not in the capacity of public servant but it was private matter between the accused-petitioner and Shri Virendra Gaur. It was private case against Shri Virendra Gaur. This cannot be said to fall within the purview of 'official act'. Provisions of the Act of 1988 could therefore have no application to this case. Real story was that accused-petitioner loaned some money to complainant Virendra Gaur which was returned by him and accused-petitioner has been falsely implicated in the matter. In support of his argument, learned counsel has placed reliance on the judgments of Supreme Court and Allahabad High Court respectively in The State of Ajmer (now Rajasthan) Vs. Shivji Lal : AIR 1959 SC 847 and Dr. K.L. Anand Vs. The State : AIR 1956 Allahabad 673. It was argued that petitioner should have been discharged from the SB CR.REV. No.660/09. 4 alleged offence. There was nothing on record to support the order framing charge against him. It is therefore prayed that revis;ion petition be allowed. 5) Per contra, Shri T.P. Sharma learned counsel appearing for C.B.I. has argued that what trial court is required to see at the stage of framing charge is that there should exist some prima-facie evidence to sustain charge. At the stage of framing charge, court was thus merely required to form an opinion whether or not there was some case worth framing charge against an accused and thus the trial court rightly did so in the present case while framing charge against the petitioner as it found a case worth framing charge against him. The court was however not required to appreciate evidence at that stage to conclude whether or not material produced are sufficient for convicting the accused. Learned counsel in support of his argument relied on the judgments of Supreme Court in State of M.P. Vs. Mohanlal Soni : (2000) 6 SCC 338 and State of Orissa Vs. Debendra Nath Padhi : (2003) 2 SCC 711. 6) Shri T.P. Sharma, learned counsel further placed reliance on the judgment of Supreme Court in Satya Narayan Sharma Vs. State of Rajasthan : (2001) 8 SCC 607 to argue that there is a specific bar on grant of stay of criminal proceedings by any court including High Courts. Therefore, interim-order passed by this Court in the instant revision petition on 27/8/2009 staying further proceedings before the trial SB CR.REV. No.660/09. 5 court be vacated. 7) I have given my anxious consideration to the rival submissions of the parties, perused the material available on record and studied the case law cited by the learned counsel for parties. 8) What is to be seen in the present case is whether allegation of accepting illegal gratification for giving a statement favourable to complainant-Shri Virendra Gaur would be in respect of an “official act” so as to attract provisions of Section 7 of the Act of 1988? Before however making any further discussion on this question with reference to the provisions of the Act of 1988, it is considered appropriate to briefly discuss the judgments relied on by the learned for accused-petitioner in support of his submission, one of Supreme Court and another of Allahabad High Court, respectively in Shivji Lal and Dr. K.L. Anand supra. 9) Supreme Court in Shivji Lal supra was dealing with a case in which the government servant was a teacher entrusted with the performance of a public duty, namely, to teach students and was a public servant within the meaning of ninth clause of Section 21 of the Indian Penal Code, 1860. Allegation against him was that he received money by corrupt means for procuring job for the complainant in Railway Running Shed. Provisions of Section 5 of the Prevention of Corruption Act 1947 (hereinafter be referred as the “Act of 1947”), which are in paramateria with the provisions of Section 7 of the SB CR.REV. No.660/09. 6 Act of 1988, fell for consideration of the Supreme Court. It was held that mere receiving of money by a public servant, even if it be by corrupt means, is not sufficient to make out an offence under S.5(2) read with S.5(1)(d) of the Act of 1947. The words “by otherwise abusing his position” read along with the words “in the discharge of his duty” appearing in Section 5(1)(d) make it quite clear that an offence under that section requires that the public servant should misconduct himself in the discharge of his own duty. It is no part of the duty of a Government teacher to make appointments in a Railway Running Shed. In those facts, it was held by the Supreme Court that there was no question of his committing misconduct in the discharge of his duty when he takes money for procuring a job for a person in the Running Shed in Railway. 10) Division Bench judgment of Allahabad High Court in Dr. K.L. Anand supra arose out of a case in which, allegation against the accused was that he being a public servant in the capacity of Medical Officer in the Government hospital accepted Rs.100/- from a person as illegal gratification for showing his one of the injuries grievous in nature. Evidence proved that accused-petitioner had right to private practice. It was held that for that reason if accused accepted Rs.100/- from the complainant, it cannot be said that he did so as a motive or reward for doing or forbearing to do any official act or for showing or SB CR.REV. No.660/09. 7 forbearing to show in the exercise of his official function, favour or disfavour to any person. 11) So far as the judgment of Supreme Court in Shivji Lal supra is concerned, although in that case accused was a teacher in a government school and certainly was a public servant within the meaning of ninth clause of Section 21 of Indian Penal Code but his action of accepting money for procuring employment to the complainant was held to be not in discharge of his duty. Supreme Court held so because it was no part of the duty of a government servant to make appointment in Running Shed in Railway. 12) In Dr. K.L. Anand supra, Allahabad High Court held so because it was of the view that alleged act did not constitute misconduct in discharge of the duty as public servant as referred to in Section 5(1) (d) of the Act of 1947 because the accused-medical officer was not acting as a public servant but in exercise of his right as a private practitioner. It was therefore held that this cannot be regarded as an official act and thereby he committed no misconduct in discharge of his duty as a public servant. 13) Before however advancing discussion further, it would be apposite to briefly notice relevant provisions of the Act of 1988. “Public duty” has been defined in Section 2(b) to mean a duty in the discharge of which the State, the public or the community at large has an interest. “Public servant” has been defined under Section 2(c)(i) to mean any SB CR.REV. No.660/09. 8 person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty. Section 7 of the Act of 1988 provides that 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 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. 14) When the facts of the present case are analyzed in the light of the aforenoted provisions and cited judgments, it is found that petitioner was an Assistant Post Master in Head Post Office at Jaipur where complainant Virendra Gaur was also posted as Postal Assistant and the criminal case against Virendra Gaur was regarding an offence, which he committed in relation to post office itself where a SB CR.REV. No.660/09. 9 bogus post office account was opened with his active connivance and certain other accused were also involved with him. When a criminal case was registered against those, who opened a forged post office account in the post office in which Virendra Gaur was working as a Postal Assistant and accused-petitioner was working as an Assistant Post Master, which was in relation to working of the post office, the accused- petitioner was required to give his statement as a prosecution witness. This was so because he in his statement u/s.161 Cr.P.C. to the Investigating Officer stated that it was Virendra Gaur, who brought the application form of one Sukhdev Maurya for opening the account. Though, identification of Sukhdev Maurya was made by Rajendra Sharma, the beat Postman but on petitioner's askance, Virendra Gaur, pointed towards a person standing across the counter and said he was Sukhdev Maurya, and that he was known to him. It is then only that petitioner opened his account, which ultimately was found to be bogus. Can it still be therefore said that the demand of illegal gratification by the accused-petitioner from Virendra Gaur was a private act on his part and there was nothing official about? In these facts, there is hardly any justification to contend that there was no element of “public duty” or “official act” in what was done by petitioner. 15) When litmus test as given in Section 7 of the Act of 1988 is applied to the facts of the present SB CR.REV. No.660/09. 10 case, it is found that petitioner certainly was a 'public servant' in his capacity as Assistant Post Master in the post office where a bogus post office account was opened by him at the instance of Virendra Gaur, Postal Assistant with the connivance of some unscrupulous statt of the same post office and in a criminal case relating to the said offence, accused- petitioner accepted illegal gratification of Rs.5000/- from Virendra Gaur for giving favourable statement in that criminal trial being a prosecution witness. Virendra Gaur was made an accused in the abovesaid criminal case registered at the instance of one Sukhdev Maurya to whom a cheque of Rs.21,195/- issued by the L.I.C. drawn in U.C.O. Bank, Jaipur was sent through registered post. An imposter opened a forged account in the post office in the name of Sukhdev Maurya with the connivance of Virendra Gaur and other unscrupulous statt of the same post office by producing forged ration card of another person and allegation is that in this manner, the amount was illegally withdrawn on 12/1/2004. It is already noticed above when statement of accused-petitioner Narayan Das Adwani was recorded by the investigating agency under Section 161 Cr.P.C., he stated that he verified the form for opening the account in the name of Sukhdev Maurya at the askance of accused Virendra Gaur when the latter said that Sukhdev Maurya was known to him and he verified/ attested the form believing Virendra Gaur on 12/1/2004, who later also SB CR.REV. No.660/09. 11 produced withdrawal form of Rs.21,195/- and the said amount was allowed to be withdrawn by him again at the askance of Virendra Gaur. Receiving illegal gratification by the accused-petitioner in the present case was certainly 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 function by making a statement favourable to accused Virendra Gaur. It cannot therefore be said that statement that was to be made by the accused- petitioner as a prosecution witness had nothing to do with his official capacity or it was not an official act on his part because offence for an act of forgery and cheating had been committed in relation to his own working in the post office itself as Assistant Post Master. 16) In Dr. V. Sebastian Vs. The State : 1988 Cr.L.J. 1150, Hon'ble Justice K.T. Thomas of Kerala High Court (as his lordship then was) was dealing with a somewhat similar controversy. Accused in that case was working as Municipal Health Officer. It was alleged that he demanded illegal gratification for issuing a 'life certificate' in favour of mother of a railway employee whose application for family pension was to be supported by a life certificate. Defence of the accused in that case too was that it was not an official act in giving 'life certificate'. Rejecting that contention, Court held that no line of distinction can be made as between the acts in SB CR.REV. No.660/09. 12 exercise of a particular offence and acts in exercise of his position as a public servant. If the act is done in his official capacity, as distinguished from his purely private capacity, it amounts to an official act. Even if it does not come within the scope of the functions of his offence, the act does not cease to become an official act. It would be useful to extract the relevant discussion made in para 8 of the judgment, which is as under:- “8. Under S.161 I.P.C. the act of a person accepting any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is made punishable. The word “gratification” has to be given its literal dictionary meaning. When it is shown that a public servant has received any amount of money which was not legal remuneration, the further question to be considered is whether the receipt is for doing or forbearing to do any official act. An attempt is made to show that it is not part of the official functions of a Municipal Health Officer to issue life certificates and that such certificates can be issued by any public servant holding a gazetted post. The words “official act” in S.161 I.P.C. are to be understood in that narrow sense, according to the contention of the counsel. Why should those words be interpreted narrowly? The language used in the Section does not justify the narrowing down of the scope of the words “official act”. A public servant may have power to do certain official acts by virtue of the rank he holds as a public servant. He may get other powers by virtue of the office which he holds. When he exercises either of the powers, his act is official. No line of distinction need be made as between the acts in exercise of particular office and acts in exercise of his position as a public servant. If the act is done in his official capacity, as distinguished from his purely private capacity, it amounts to official act. Even if it does not come within the scope of the functions of his office, the act does not cease to become official act”. SB CR.REV. No.660/09. 13 17) Thus, act of the petitioner accepting illegal gratification of Rs.5000/- from Virendra Gaur for giving statement favourable to him, accused in criminal case in connection with opening of bogus/forged post office account in the same post office is certainly an 'official act' as distinguished from private act or acts which are entirely non- official as the act was related to the same post office in which, both, the accused-petitioner and Virendra Gaur were working respectively on the post of Assistant Post Master and Postal Assistant. If the act is done in this official capacity as distinguished from purely private capacity (though which is not), it is not necessary that the public servant should be obliged to do that act. Merely because prosecution in the present matter has been launched against the petitioner by Anti Corruption Bureau at the instance of a private complaint, the act of the petitioner does not thereby become a private affair and it does not cease to be an official act. There is no warrant for placing such a narrow interpretation on the language used in Section 7 of the Act of 1988. 18) In view of above discussion, impugned-order dated 26/2/2009 framing charge against the petitioner for offence u/Ss.7 & 13(1)(d) read with Section 13(2) of the Act of 1988 cannot be said to suffer from legal infirmity so as to warrant interference by this Court. SB CR.REV. No.660/09. 14 19) There being no merit, this criminal revision petition is dismissed. 20) Interim-order dated passed by this Court in the instant revision petition on 27/8/2009 staying further proceedings in the trial also stands vacated. (MOHAMMAD RAFIQ), J. anil SB CR.REV. No.660/09. 15 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B.CRIMINAL MISC.STAY APPLICATION NO.599/2009. IN S.B. CRIMINAL REVISION PETITION NO.660/2009. Narayan Das Adwani Vs. C.B.I. Date of Order : November 25, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.K. Jain for the applicant-petitioner. Shri T.P. Sharma for respondent-C.B.I. ****** BY THE COURT:- Upon dismissal of main criminal revision petition, this criminal misc.stay application does not survive and the same is consequently rejected. (MOHAMMAD RAFIQ), J. anil