Section 12 in The Prevention Of Corruption Act, 1988

Section 12 in The Prevention Of Corruption Act, 1988

12. Punishment for abetment of offences defined in section 7 irregular 11.- Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to five.

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"under Section 12 of the Prevention of Corruption Act, 1988read with Section 120B of the Indian Penal Code and also against Mr. Naresh Dwiwedi who had not preferred any petition up-till-now before this Court. When cognizance had already been taken on 8-1 -1998 by the Special Judge on the basis of the Charge-sheet submitted on 21-8-1997, then the petitioners came up with an amendment petition for modification of the reliefs earlier craved and also for inclusion of furl her prayer of quashing of the entire criminal proceeding against the petitioners together with order of coginzance as mentioned above."

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Patna High Court

Gopal Krishan Saran And Etc. vs The State Of Bihar And Ors. on 5 April, 2000

Equivalent citations: 2000 CriLJ 3609

Author: P K Deb

Bench: P K Deb, A K Prasad

JUDGMENT

Prasun Kumar Deb, J.

1. Both these writ petitions have been heard together as they relate to the same criminal case in which both the petitioners have been entangled.

2. Originally both the writ petitions had been filed for quashing the entire proceedings arising out of First Information Report lodged in Mufassil Thana (Chaibasa) P.S. Case No. 14 of 1991 for offences under Section 161 and 120B of the Indian Penal Code and under Section 5(2) of the Prevention of Corruption Act, 1947 which was filed before respondent No. 3, that is, the Officer-in-charge of Chaibasa Mufassil P.S. by respondent No. 2 Sri Murlidhar Vishwakarma, the then Stenographer to the Deputy Commissioner of Chaibasa. At the time of the writ petitions were filed, the case was pending as Mufassil P.S. Case No. 14 of 1991 before the Special Judge, (P.C. Act) at Ranchi although originally it was pending before the Chief Judicial Magistrate, Chaibasa. Before the Special Judge, the Case was registered as Special Case No. 6 of 1991.

3. On 14-2-1991, respondent No. 2 Murlidhar Vishwakarma, Stenographer, lodged the First Information Report at the instance of the then Deputy Commissioner, Ms. Rajbala Verma of Chaibasa alleging that on that date at about 5 p.m., he was working at the residential office of the Deputy Commissioner, Chaibasa and at about 7.30 PM he was called by the Deputy Commissioner in her chamber and gave some dictations. At about 7.45 P.M., Naresh Dwiwedi programme Manager, Chaibasa who was then incharge of the General Section of the Deputy Commissioner, came to the residential office of the Deputy Commissioner and brought a connected file of M/s Usha Martin for grant of no objection certificate and on the notes prepared by him, he requested the Deputy Commissioner to pass necessary direction in the file. The Deputy Commissioner, then went through the file and ordered for issuance of no objection certificate. Soon after the file was signed with the direction as mentioned above, said Mr. Dwiwedi expressed before the Deputy Commissioner that the General Manager (Commercial) Mr. R. K. Jhunjhunwala, petitioner in Cr. W. J.C. No. 30 of 1991 R and Mr. Gopal Krishan Saran, the Manager, (Services Co-ordination of M/s Usha Martin Company) were standing at the door and then he presented a raxine bag on the table of the Deputy Commissioner taking the same from Mr. Jhunjhunwala for presentation to the Deputy Commissioner. At this, Ms. Rajbala Verma, the then Deputy Commissioner prohibited Mr. Dwiwedi for keeping the bag on the table and after a while on suspicion, asked him to open the bag in her presence and when the same was opened by Mr. Dwiwedi, two bundles of notes were found inside it and seeing this, the Deputy Commissioner, became very angry and started scolding Mr. Dwiwedi and then further asked him to count the bundles. Mr. Dwiwedi, the programme Manager, stated on counting that the total amount of Rs. 15000/-was there in the bag. Ms. Verma, the Deputy Commissioner, raised cries and screams and started scolding everybody there including Mr. Dwiwedi. The Peon who was outside, came inside the residential office. By that time, both the petitioners Mr. Rajendra Kumar Jhunjhunwala and Gopal Krishan Saran taking the advantage of the situation, had left the place through the gate of the residence of the Deputy Commissioner and went away in a white car bearing No. 16-C 9200. Mr. Dwiwedi was then asked to sit in the office. The respondent No. 2 Murlidhar Vishwakarama was again asked by the Deputy Commissioner to count the notes and then at her instance, the First Information Report was prepared and then transmitted to the Officer -in-charge of Mufassil P.S. Chaibasa. The allegation is that the petitioner of these two writ petitions, in collusion with Mr. Naresh Dwiwedi, hatched a conspiracy to bribe the Deputy Commissioner.

4. On the basis of the information being lodged copy of which has been annexed as Annexure-1 to the writ petitions, a case was registered by respondent No. 3 under Section 161/120B of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947.

Thereafter the same was sent to the Chief Judicial Magistrate, Chaibasa with an application for issuance of non-bailable warrant of arrest as well as attachment and proclamation under Section 82/83 of the Code of Criminal Procedure.

5. The Chief Judicial Magistrate, on the basis of the prayer being made, although he had no jurisdiction under Section 5(A) of the Prevention of Corruption Act, took steps for apprehending the petitioners and then as stated, in that process, the houses of the petitioners had been ransacked by the police and many valuables had been taken away. It is the contention of the petitioners that from the contents of the First Information Report/itself, no case could be made out. against the petitioners rather the Deputy Commissioner hereself, for some reasons, or the other was against the executives of M/s. Usha Martin Company and as such they had falsely been implicated in the present case. It has also been stated by annexing several documents and orders of the Calcutta High Court to the effect that M/s Usha Martin Company and Usha Alloys and Steel Limited had already been merged and in that way, there was no necessity of obtaining any no objection certificate from the Deputy Commissioner at Chaibasa for the purpose of the retaining of petro Chemicals and hence, the very purpose for which the abetment of the giving of bribe have been alleged, have no base at all and the case is nothing but a cook and bull story only to harrass the petitioners. It has also been urged in both the writ petitions that the First Information Report should be quashed and the entire Criminal prosecution should be held to be an abuse of the process of the Court.

6. It appears from the order sheet of these cases that vide order dated 8-3-1991, a Division Bench of this Court, had admitted the writ petitions and ordered that the writ petitions should be heard by a Division Bench. The investigation of the case had not been stayed and considering, the fact that the petitioner's bail petitioners were not being considered in the proper prospective by the special Judge, bail order was passed by this Court asking for release of the petitioners on furnishing bail bonds of Rs. 10,000/- each with two sureties of the like amount each.

7. As the investigation of the case was not stayed and these writ petitions were kept pending, in the meantime, charge-sheet had been submitted after closure of investigation and the special Judge took cognizance of the officers under Section 12 of the Prevention of Corruption Act, 1988 read with Section 120B of the Indian Penal Code and also against Mr. Naresh Dwiwedi who had not preferred any petition up-till-now before this Court. When cognizance had already been taken on 8-1 -1998 by the Special Judge on the basis of the Charge-sheet submitted on 21-8-1997, then the petitioners came up with an amendment petition for modification of the reliefs earlier craved and also for inclusion of furl her prayer of quashing of the entire criminal proceeding against the petitioners together with order of coginzance as mentioned above.

8. Because of the subsequent development in the case, practically, both the writ petitions had lost its significance and for all practical purposes, now the writ petitions have been emerged to simple petitions under Section 482 of the Code of Criminal Procedure for quashing of the criminal proceedings including the order of cognizance. Counter' affidavit filed from the vigilance Department which had practically investigated the case afterwards as required under the Prevention of Corruption Act controverted all the submissions made on behalf of the petitioners. It has been stated that the Deputy Commissioner Mrs. Rajbala Verma was a new incumbent at Chaibasa at the relevant time holding the charge of Deputy Commissioner and there was no reason why she should have a grudge against the petitioners or their company. It has furthere been averred that the petitioners had made all attempts to bribe the Deputy Commissioner for the purpose of getting their no objection certificate signed by the Deputy Commissioner but when they found the Deputy Commissioner to be of different character, then they had no alternative but to (lee away from the place of occurrence but the bribe money which was brought by them, had already been brought to the notice of the Deputy Commissioner and was placed at her table by the co-accused Mr. Naresh Dwiwedi. The said accused is also facing trial along with the present petitioners and that he has also been suspended from his service and is facing departmental proceedings also. It has further been averred that the petitioners were directly involved with the crime and as such, at this initial stage of the criminal case, there is no socpe to interfere by this Court.

9. Mr. P.S. Dayal, learned senior counsel appearing for and on behalf of the petitioners has submitted that no case could be made out for attracting any penal provisions against the petitioners. His submission is that the cognizance is bad on the face of it and these two petitioners had not been included within the column of accused being sent for trial in the charge sheet rather their names were included in the printed form in the column of "accused not sent up for trial" which suggests that no case was found to be made out against the petitioners and as such, final form was submitted against the petitioners and only the case was found to be true against the co-accused Naresh Dwiwedi and charge sheet has been submitted against him alone. This point has already been dealt with by the learned special Judge in the impugned order dated 8-1-1998 by which cognizance has been taken against the petitioners also.

10. It appears that due to mistake, names of the petitioners had been included in the column 'accused not sent up for trial' perhaps, because petitioners had never been submitted to the investigating agency during the course of investigation and they could be able to take bail from this Court only as already mentioned above and practically during the course of investigation they were absconding in the eyes of the investigating agency. Learned special Judge, while taking cognizance against the petitioners had perused the case diary and then came to the finding that prima facie case has been made out against the petitioners also. When such position was there, this Court, vide order dated 9-4-1999, had called for the case diary for appreciating the submissions from both sides. On perusal of the case diary by this Court, it could be found that the names of the petitioners had mistakenly been indicated in wrong column. The petitioners and the other co-accused Naresh Dwiwedi, as per materials found during the course of investigation, stood on the same footing and as such, charge-sheet was submitted against all the three on the basis of the material son case diary. Hence, I am also of the same view that the learned Special Judge had rightly observed that due to mistake, the petitioners' names were shown in the wrong column in the printed form of the charge sheet.

11. The basic point required in such sort of cases is to see whether there is prima facie material for going into the trial against the petitioners or their inclusion in the charge-sheet or the cognizance being taken is nothing but an abuse of the process of the Court. It is true that the case was registered on a wrong notion and wrong section of the Indian Penal Code by the regular police agency as it was registered under Section 161/120B of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act. By the time, the case was registered, already Section 161 IPC had been deleted because of coming into force of Section 12 of the Prevention of Corruption Act, 1988 (Act No. 49 of 1988) and this has been corrected by the learned special Judge while taking cognizance of. The deletion of Section 161 of the IPC is due to introduction of Section 12 of the Prevention of Corruption Act, 1988. Section 161 IPC related to abetment of the offence of bribing and practically, Section 12 of the Prevention of Corruption Act is almost, with some modification verbatim of Section 161 IPC and for this reason the same has been deleted from the general sections of the IPC.

12. Now coming to the factual aspect and legal position, it has been streneously argued by Mr. Dayal, learned senior counsel for and on behalf of the petitioners that from the factual aspect of the case as revealed from the First Information Report, the offence of bribery has not been completed as even if the bribe money was taken to be granted as offered by the petitioners, the same had not been accepted by the then Deputy Commissioner Ms. Rajbala Verma and hence, when an offence of bribery has not been completed, the question of abetment is redundant. It is stated that the abetment as contemplated under Section 12 of the Prevention Of Corruption Act related to the offence of abetment as contemplated under Section 109 of the Indian Penal Code and as per the statutory illustrations and examples being given, under Section 109 of the Indian Penal Code, it is submitted that when no offence of bribery is concluded, there remains no scope of charge of abetment. The illustration-(a) under Section 109 of the Indian Penal Code runs as follows:

A" offers a bribe to "B", a public servant as a reward for showing "A" some favour in the exercise of his official functions. "B" accepts the bribe. "A" has abetted the offence defined under Section

161.

13. The wordings of Section 109 also relates to commission of the offence of bribery in consequence of the abetment, and as such, it has been strenously argued that when offence has not been committed no question of abetment comes in. But Mr. Jerath, learned counsel appearing for and on behalf of the respondents has controverted this submission by referring to the wording of Section 12 of the Prevention of Corruption Act wherein the commission of the offence in consequence of the abetment; is not necessary. Section 12 of the Prevention Of Corruption Act, 1988 runs as follows :

Whether or not that offence is committed inconsequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

(Underlining has been made by me)

14. Thus, from the wording of the above penal provision under the Prevention of Corruption Act, 1988, it specifically differs from whatsover was there under Section 161 of the Indian Penal Code which had been deleted now. The abetment under the Prevention of Corruption Act, now is punishable even if the offence is not completed in consequence of such abetment. Thus, I find that the submission of Mr. Dayal on this score is not acceptable. Here in the present case the petitioners had abetted for commission of offence of bribery as prima facie it appears from the wordings of the First Information Report itself and the evidence and materials collected during the course of investigation.

15. It has then been submitted regarding the foundation of the case on the plea that after the merger of two companies, the Usha Martin Company had no requirement for getting a no objection certificate from the Deputy Commissioner at Chaibasa but I do not find such submission has got any force. It might be that there was a merger or no merger but the fact remains that the petitioners had made applications for and on behalf of the company for getting a no objection certificate from the Deputy Commissioner. The whole file regarding that process had been seized from the side of the Investigating Agency and on perusal of the said file which had been attached with the case diary, it appears that both these petitioners had made various correspondences with the Deputy Commissioner, Chaibasa for obtaining no objection certificate and in consequences of such correspondences from the side of the petitioners, a note was prepared by Mr. Naresh Dwiwedi and presented before the Deputy Commissioner for the purpose of no objection certificate and on the date the file was placed, the petitioners were present with bribe money and soon after the file was signed by the Deputy Commissioner, the offer was made by taking bag containing bribe money from of the petitioners, namely, Mr. Jhunjhunwala by Mr. Naresh Dwiwedi before the Deputy Commissioner concerned and when the Deputy Commissioner became very angry and started scolding, then both the petitioners left the place stealthily in the car by which they had come to the residential office of the Deputy Commissioner. From the facts as mentioned above and as revealed in the First Information Report, it is clear that a prime facie case could be made out, not only for a conspiracy in between the petitioners and Mr. Naresh Dwiwedi, the other co-accused but direct abetment for the purpose of bribing the Deputy Commissioner. So in this score that the foundation of the case was not there and the petitioners had been falsely implicated, cannot be accepted as per the documentary records available.

16. It has then been submitted by referring to a judgment of the Apex Court as reported in AIR 1990 SC 287 : 1990 Cri. LJ 600 (Sadashiv Mahadeo Yavaluje & Gajanan Shripatrao Salokhe v. The State of Maharashtra) wherein the apex Court has granted acquittal to an accused under Section 161 read with Section 165-A of the Indian Penal Code and also under Section 5(1)(d) and (2) of the Prevention of Corruption Act. That case relates to acquittal being granted after full fleged trial being held. The facts of that case is totally different from this case. Two constables were trapped regarding taking of bribe. One constable had asked the prosecutor to pay up the bribe money to another constable who shall, in turn, pay to the said constable. But one of the constables who was not found to have accepted the bribe money, had been acquitted by the trial Court . The other constable who had been trapped for receiving the bribe money, had been acquitted by the Apex Court on the plea that nothing could be related in evidence as to the money found in possession of the convicted constable, was towards the bribe to be paid to the other constable. The present case is totally different from the factual aspect of that case. Here, according to the prosecution case, the petitioners were physically present and the money was taken by the third accused Naresh Dwiwedi from one of the petitioners and then placed over the table of the Deputy Commissioner. So, abetment and conspiracy was there, prima facie, against the petitioners. The judgment referred to has got no bearing in the present case as the facts are totally different. Moreover, what material evidence would come up during the course of trial, is yet to be seen as at this pre-mature stage, it cannot be said that prima facie no case is made out against the petitioners for dragging them to the trial.

17. Another judgment of the Bombay High Court has been referred to by Mr. Dayal, learned counsel appearing for and on behalf of the petitioners as reported in 1999 Cri. LJ 196 (State of Maharashtra v. Ramdas Shankar Kurlekar). In that case, the prime accused against whom there was charge of taking of bribe, had been found to be not established on the evidence after trial. Then the accused who had been alleged to have abetted, in giving bribe was held that he should also be released as the abetment charge was not maintainable. The facts of that case are also totally different from the present case. Moreover, at this stage we are to see only prima facie case is whether made out or not even strong suspicion regarding the conspiracy or abetment can be sufficient enough for the purpose of cognizance and charge. There is no scope to scot-free at the threshold at very prematured stage of cognizance being taken, it is yet to be found out what material evidence comes up against the petitioners in the present case. If the materials now available can be translated into evidence during trial, then there is every possibility of the petitioners being liable for conviction.

18. At last, Mr. Dayal, learned senior counsel appearing for and on behalf of the petitioners has submitted that even if it is said that some prima facie materials are there against the petitioner Mr. Jhunjhunwala but there is not an iota of material against the other petitioners Mr. G.K. Saran as he has not been implicated in any way whatsover except that of a vague allegation that he was also present along with the other petitioner at the doors of the residential office of the Deputy Commissioner but no overt act has been attributed to him. In that way, when no overt acts is there, it is submitted that there is no scope of binding Mr. G.K. Saran for the offence alleged, it is not a case under Section 34 of the Indian Penal Code rather it is a case of conspiracy and abetment. From the records, it could be found that there were petitions made by Mr. Saran also addressing the Deputy Commissioner urging no objection certificate and it was the specific case of all the witnesses and that in the First Information Report that Mr. G.K. Saran was all along present with Mr. Jhunjhunwala and it could be presumed at this stage that they had met Naresh Dwiwedi the other accused before-hand when the file was prepared and put up, then all the three went to the residential chamber of the Deputy Commissioner. Mr. G.K. Saran was very much present there. It may be that the bag containing the bribe money was in the hands of Mr. Jhunjhunwala but by that alone from the allegation of conspiracy and abetment, at this prematured stage, it can not be said that Mr. G.K. Saran was not involved.

19. In this connection, we may refer to the points formulated by the Apex Court regarding the interference by the High Court for quashing of the criminal prosecution as reported in Antulay's case AIR 1989 SC 1140 : AIR 1988 SC 1531 : AIR 1984 SC 718 : AIR 1984 SC 1358 : AIR 1984 SC 684 : AIR 1984 SC 991 : AIR 1986 SC 2045 : 1992 Cri. LR (SC) 383 : AIR 1992 SC 1701. None of those seven points formulae can be attracted in the present circumstances of the case. Prima facie, there is definitely material for taking cognizance against the petitioners. Whether the material available is sufficient enough to get conviction of the petitioners or not, is not the matter to be considered at this stage. What materials evidence would be coming up during the course of trial is yet to be seen. But prima facie, what the materials are there, are sufficient enough to proceed against the petitioners.

20. In the result, these two writ petitions have got no force and the same are rejected. The petitioners, if they have not yet appeared before the Special Judge at Ranchi in connection with Special Case No. 6 of 1991, they are hereby directed to appear before the special Judge concerned within fifteen days next from this date otherwise, the Special judge concerned shall be at liberty to take all coercive steps against them for the purpose of procuring their attendance