Court No. - 1
Case :- APPLICATION U/S 482 No. - 14127 of 2018 Applicant :- Dr. Waheedul Hasan @ Waheedul Haque Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Araf Khan,Lihazur Rahman Khan Counsel for Opposite Party :- G.A.
Hon'ble Ramesh Sinha,J. Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Araf Khan, learned counsel for the applicant, Sri N.K. Verma, learned A.G.A. for the State and perused the record.
2. This application under Section 482 Cr.P.C. has been filed with a prayer to set-aside the cognizance order dated 13.1.2016 as shown in the charge sheet dated 7.9.2015 and entire criminal proceeding arising out of said charge sheet in S.T. No.47 of 2016, Crime No.292 of 2015, u/s 7 and 13 Prevention of Corruption Act, 1988, P.S. Khalilabad, district Sant Kabir Nagar passed by Special Judge (Anti Corruption), Sant Kabir Nagar to the extent of applicant only.
3. The contention of learned counsel for the applicant is that according to FIR, one team of doctors comprising the present applicant was deputed for medical examination of the aspirants/candidates of police services, wherein one Dev Kumar, S/o Mahavir, R/o Village Bhaura, Police Station Rakod, district Bulandshahr moved a complaint dated 6.4.2015 before the Addl. Superintendent of Police Dr. Manoj Kumar alleging that when he appeared before the doctor who was examining feet, he was told that he had a flat foot and therefore demanded Rs.25,000/- else to face re-medical as a consequence of which Dev Kumar gave him the said amount, thus, after the complaint having been moved, the Addl. S.P. along with other police personnel and C.M.O Sri Anand Prakash Srivastava entered the hall where the candidates/aspirants were being medically examined by the Medical Board including the applicant and conducted a search in which from Dr. Krishna Kumar Chaudhary, Rs.46,110/-, from Dr. Shiv Om Bhu, Rs.60,000/-, from Dr. Pradeep Kumar Jain, Rs.7,000/-, from Dr.Wahidul Hasan, Rs.8,000/-, from Dr. Krishna Pal Singh, Rs.60/- and from Dr. (Ms.) Shipra Singh, Rs.40/- only were recovered.
5. It is alleged that in accordance with the brochure dated 19.3.2015 with regard to U.P. Police Recruitment and Promotion Board for Constable and Equivalent Post Direct Recruitment- 2013, an officer of Dy.S.P. Rank was to remain present. When the Medical Board was conducting examination, there was heavy police force deployed on duty at the main entrance gate, therefore, it was not possible for the complainant to bring in Rs.25,000/- inside the hall. There was no opportunity for the applicant to extort any money from any one including from the complainant as the applicant is a surgeon and therefore had no occasion to examine the complainant. No explanation was sought from the applicant with regard to Rs.8,000/- shown to have been recovered from him being alleged to be an amount of illegal gratification. Rs. 60/- recovered from Dr. Krishna Pal Singh and Rs.40/- recovered from Dr. (Ms.) Shipra Singh were returned to them. The Addl. S.P. Manoj Kumar and C.M.O have stated that they once thought of calling the Anti-Corruption Bureau but the same could not be made available, therefore, they themselves, with the police team started the search process. The complainant Dev Kumar had moved a complaint dated 6.4.2015 without naming any doctor. From the statement of C.MO Sri Anand Prakash Srivastava to the effect that when he received complaint about Dr. Dharmendra Kumar, he was replaced by Dr. Krishna Kumar Chaudhary, goes to indicate that there was no complaint made against the applicant. In the alleged complaint of Dev Kumar, no allegation is made against the present applicant neither oral nor in black and white. The trap procedure was not at all adopted, hence there was no way to identify the currency notes as the identification test was not held in accordance with Section 9 of the Evidence Act. No search warrant was got issued against the applicant nor any order of Magistrate of Ist Class had been obtained by the I.O Uttam Singh (Dy.S.P.) to investigate the case. No warrant/order to arrest the applicant was issued by the S.P. which is a manifest violation of Section 13(1)(e) and Section 17 P.C. Act, 1988 as the I.O. was not clothed with the power to investigate or arrest the applicant and investigation was completed illegally without authority and charge sheet dated 7.9.2015 was filed, whereon cognizance was taken on 13.1.2016 illegally, hence the same deserves to be quashed. It is further contended that the applicant was enlarged on bail with the observation that the complaint was made against orthopedic surgeon to have demanded bribe nor could it be established that the amount of Rs.8,000/- was taken by the applicant as a bribe as defined in P.C. Act, 1988. In fact the said money belongs to the applicant. It is further argued that the C.M.O Anand Prakash Srivastava was on inimical terms with the accused-applicant and the other doctors who were member of the medical board, therefore, as a consequence of departmental vendetta, the accused has been falsely implicated with a concocted and frivolous version. The candidates who were being examined were being allowed to appear before the Medical Board inside the hall only in underwear. Moreover, heavy police personnel were deployed in the premises, hence there could be no chance of any candidate taking money with him inside the hall which could be delivered as a bribe. It is further argued that complainant Dev Kumar has not disclosed the name of the doctor before whom he appeared and who had stated that he had a flat foot.
6. As per Addl. S.P., the complainant Dev Kumar had accompanied the police who was involved in search process but at no point of time could he identify the doctor who had demanded the bribe from him nor has he stated under 161 Cr.P.C. the name of the doctor who had demanded the alleged bribe. The applicant was initially appointed as a Medical Officer and subsequently his services were regularized having blotless career and due to good work and conduct. There is no iota of evidence on record nor any eye-witness account regarding bribe being demanded and taken. The said amount of Rs.8,000/- alleged to have been recovered from him was being possessed by him for the purpose of getting oil filled in his motor-car. Further it is urged that other two doctors namely Dr. Shipra Singh and Krishna Pal Singh were also searched and during the process of search, Rs.40/- and 60/- were respectively recovered from them but the said amount was returned to them and have been left to go scot free. They were present on the spot as colleagues. They have rather been made approver against the applicant and other accused doctors although both of them had refused to sign the search and seizure memo prepared by the police. Had these two doctors known about the irregularities being committed in the Medical Board why they stayed away from making any complaint with regard to irregularities
7. Reliance has been placed by learned counsel for the applicant upon the case of State of Haryana Vs. Bhajan Lal, 1992 supp (1) S.C.C. 335 at para no.102 wherein seven kind of instances have been laid down where the whole criminal proceedings may be quashed and the case of the applicant fits in those guidelines. Further it is stated that even though no case was made out u/s 7/13 P.C. Act, yet the cognizance has been taken on 13.1.2016 by the Special Judge, Sant Kabir Nagar without applying his mind.
Further it is argued that the case diary though mentions about the sanction of prosecution having been obtained by the I.O. but the same has not been enclosed.
8. Further reliance is placed by the learned counsel for the applicant upon the case of B. Jayaraj Vs. State of Andhra Pradesh (2014) 13 SCC 55. stating that there was no pre-trap raid or post raid formalities adopted such as treatment of Phenolphthalein powder, Sodium Carbonate Solution, tainted currency notes' numbers of different denomination, panch witnesses/shadow witnesses, preliminary memo, report of Forensic Science Laboratory etc. nor search warrant was got issued from concerned Magistrate, hence recovery alleged to have been made is wholly arbitrary, illegal, false ex-facie.
9. There is no demand or acceptance of gratification which is a sine qua non, for a case under the P.C. Act, as laid down in Satvir Singh Vs. State of Delhi (2014) 13 SCC 143.
10. Further reliance has been placed by the learned counsel for the applicant upon the case of State of M.P Vs. Sheetla Sahai, (2009) 8 SCC 617 at 640, para 54 wherein it is held that if upon perusal of the entire material on record, the Court forms an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial.
11. It has been further argued that no mens-rea is established with regard to demand or acceptance of any illegal gratification/bribe on the basis of its testomony of sole witnesses i.e. complainant Dev Kumar nor is there any corroborative evidence yet the cognizance has been taken to harm the career of the applicant who is on the verge of retirement. Mere demand by itself is not sufficient to establish the offence rather acceptance thereof is very important as has been laid down by the Hon'ble Supreme Court of India in M.K. Harshan Vs. State of Kerala, (1996) 11 S.C.C. 720 para 8 and Subhash Prabhat Sonwane Vs. State of Gujarat, (2002) 5 S.C.C 86 at 90 para 10.
12 Learned counsel for the applicant further relied on the judgment of the Apex Court in the case of Hari Dev Sharma Vs. State (Delhi Administration), 1977 (3) S.C. 352 at para 3, and its excerpts are quoted.
13. It is evident from the perusal of the record that the prosecution has made allegations against the present accused that an amount of Rs.25,000/- was demanded from the complainant Dev Kumar who had appeared before the Medical Board being held for recruitment in police services and on account of the fact that he was found to be flat-footed, an amount of Rs.25,000/- as illegal gratification was demanded from him to clear his name failing which he would have to undergo the medical examination again to get himself cleared. Because of that compulsion, he has alleged that he made the payment of Rs.25,000/- to the doctors comprising the Medical Board which included the present applicant. On the said complaint having been received by the Addl. S.P, a raid was conducted which consisted of C.M.O as well, and an amount of Rs.8,000/- is alleged to have been recovered from the accused-applicant besides recovery of other different amounts from other doctors who were members of the Board which is being alleged to be the same amount which might have been given by the competent aspirants. The defence is taken by the applicant that there was no way to identify the currency notes of Rs.25,000/- which are alleged to have been given as bribe to the doctors which included the present accused-applicant also. He is claiming to have been falsely implicated in this case on account of being on inimical terms with the C.M.O. as there was departmental rivalry and he wanted to implicate him in a false case. It is stated that though I.O is stated to have taken prosecution sanction but the same was not found in the case diary but it is not denied that no such prosecution sanction was taken.
13. It is evident from the aforesaid facts that whatever objections have been raised by the accused-applicant, all of them relate to factual aspect which cannot be seen at this stage in proceedings u/s 482 Cr.P.C. The findings on fact would be possible only after veracity of the statements of witnesses are tested on the touch- stone of cross-examination before the trial court. There is no reason given by the applicant as to how authority who granted prosecution sanction was harbouring any enmity towards the accused-applicant.
14. The main reliance has been placed by the learned counsel for the applicant upon the case of Haryana Vs. Bhajan Lal (Supra), in which the following seven criteria are laid down for quashing the criminal proceedings:-
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution- and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
15. It is apparent from the above guidelines that in case a cognizable offence is made out, the relief for quashing the criminal proceedings can not be granted.
16. In the case at hand it is not that a cognizable offence is not made out on the basis of allegations on the evidence collected against the accused-applicant, though it is a different matter that the veracity of the evidence on record has to be scrutinized by the trial court after giving full opportunity to the prosecution to adduce evidence and to defence to cross-examination the witness. Therefore, no benefit can be claimed on the basis of aforesaid ruling by the learned counsel for the applicant. The facts of this case are different from the facts of other rulings which have been relied upon by the applicant, hence it cannot be said that any benefit may go to the accused-applicant on the basis of those citations.
17. From the perusal of the material on record and looking to the facts of the case, at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of
Punjab, A.I.R. 1960 S.C. 866, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. Moreover in view of the recent judgement of the Apex Court in the case of Asian Resurfacing Of Road Agency Pvt. Ltd. & Another Vs. C.B.I passed in Criminal Appeal Nos.1375- 1376 of 2013 decided on 28.3.2018, no interference is required in the matter.
18. The prayer for quashing the cognizance order, the proceedings based on the charge sheet of the aforesaid case is hereby refused.
19. The present 482 Cr.P.C. application lacks merit. It is accordingly, dismissed.
(Dinesh Kumar Singh-I,J.) (Ramesh Sinha, J.) Order Date :- 24.4.2018/Gaurav