While taking potshots on the growing most reprehensible tendency of registering offence of corruption against public servants at the drop of a hat just on written complaints alone without supportive material and terming it as disastrous, the Madhya Pradesh High Court in a learned, laudable, landmark and latest judgment titled Narendra Mishra v. The State of Madhya Pradesh Through P.S. Special Police Establishment Lokayukt Jabalpur (M.P.) in Misc. Criminal Case No. 10053 of 2021 that was delivered recently on February 23, 2022 quashed the charge-sheet and consequential proceedings in a case that was registered for offences under the Prevention of Corruption Act, 1988 (PC Act), observing that the investigating agency proceeded for prosecution based on half-baked material, and that allowing trial to proceed on the basis of the same would be an exercise in futility, inevitably resulting in the discharge of the accused. It must be mentioned that the Division Bench of Justice Sheel Nagu and Justice Purushaindra Kumar Kaurav was essentially dealing with an application under Section 482 of CrPC that was seeking directions of the Court to quash the charge-sheet and the consequential proceedings against the applicant for offence under Section 7 of the Prevention of Corruption Act. This learned judgment deserves to be applauded in no uncertain terms.
To start with, this brief, brilliant, bold and balanced judgment authored by Justice Sheel Nagu for a Bench of Madhya Pradesh High Court comprising of herself and Justice Purushaindra Kumar Kaurav first and foremost puts forth in para 1 that, “A short but interesting question is involved in the present petition filed under Section 482 of Code of Criminal Procedure, 1973 (“Cr.P.C.” for brevity) invoking the inherent powers of this Court seeking quashment of charge-sheet bearing Crime No.154/2019 registered at Police Station Special Police Establishment Lokayukt, Jabalpur and the consequential proceedings in shape of Special Case (Lokayukt) No.1/2021 pending before the Court of Special Judge (Lokayukt) Jabalpur.”
As we see, the Bench then stipulates in para 2 that, “The question is whether the quashment of impugned charge-sheet is permissible in law when the only evidence collected during investigation is as follows:
“(i) The written complaint dated 22.07.2019 of the complainant. (ii) The conversation in the Digital Voice Recorder (“DVR” for brevity) which when matched with the sample voice of the petitioner resulted into the following information of the Regional Forensic Laboratory, Bhopal:
From the poorly recorded questioned voice recording marked Q-1 (A)/Q-1(B) and the specimen voice recording marked S-1(A)/S-2(B), sufficient common words/sentences having sufficient amount of speech data for auditory and spectrographic analysis could not be detected. Hence, opinion cannot be given as to whether the voice marked exhibit Q-1(A)/Q-1(B) is the probable voice of the person whose specimen voice is marked exhibit S-1(A)/S-2(B).
(iii) The statement of the shadow witness Constable – Dinesh Dubey who merely saw the complainant and the petitioner sitting in a Car, from a distance but did not hear the conversation between them.””
Be it noted, the Bench then points out in para 5.1 that, “In the instant case, the facts reveal that beside the written complainant of the complainant and the statement of the shadow witness – Constable Dinesh Dubey u/S. 161 of Cr.P.C., there is no other implicative piece of evidence collected by the prosecution. The analysis of the aforesaid two pieces of evidence reveals thus:
“(i) The written complaint of the complainant dated 11.07.2019 alleges that a final bill claiming Rs.24 lakh put up by the complainant is pending in the Divisional Office of MPPKVVCL, Jabalpur and for clearing the same, the Divisional Engineer Neelabh Shrivastava (not made accused) demanding Rs.4.5 lakhs and the petitioner demanded Rs.1.7 lakh as bribe. The complaint further alleges that the complainant does not wish to oblige Neelabh Shrivastava and petitioner and instead, wants to catch them red handed.
(ii) The aforesaid complaint is mere allegation which give a cause to the prosecution to lay a trap so as to collect implicative evidence in support of the complaint whereafter a cognizable offence u/S. 7 or 13 of PC Act, as the case may be, can be registered.
(iii) The complainant was explained the procedure to be followed for voice recording with the aid of DVR and the shadow witness – Dinesh Dubey Constable was directed to accompany the complainant. Thereafter, on 11.07.2019, the complainant along with the DVR entered into a conversation with the petitioner in a Car at 7.30 p.m. The conversation was recorded by the hidden DVR and when the conversation was going on, the shadow witness – Constable Dinesh Dubey is said to be sitting on his motorcycle at a distance from the Car watching the complainant and the petitioner conversing with each other. Importantly, the conversation between petitioner and complainant was not heard by the said shadow witness.
(iv)Thereafter, the complainant made a further written complaint on 22.07.2019 to the prosecuting agency handing over the DVR and detailing the events that took place on 11.07.2019 at 7.30 p.m.. This complaint dated 22.07.2019 expressed apprehension that in all probability, petitioner has become suspicious and, therefore, would not accept any bribe from the complainant.
(v) The voice sample was also collected from the petitioner to enable the expert to compare voice recorded in the DVR with the voice sample.
(vi) On 12.05.2020, the Regional Forensic Science Laboratory, Bhopal issued a report opining that the available voice recording in the DVR and the voice sample are insufficient for auditory and spectrographic analysis and thus no opinion can be given as to whether the two voice samples are of the same person or not.””
Of course, the Bench then rightly maintains in para 5.2 that, “A close scrutiny of the aforesaid events which took place on 11.07.2019 and 12.05.2020 what comes out loud and clear is that the written complaint letter dated 11.07.2019 contains mere allegation against the petitioner which could have matured into registration of offence punishable u/S.7 of P.C. Act and filing of a charge-sheet only when the voice in the DVR and the voice sample collected from petitioner had matched.”
Quite forthrightly, the Bench then also rightly pointed out in para 5.3 that, “The voice recording and the voice sample provided by the prosecution were insufficient for the expert to give any opinion and, therefore, the allegation contained in the complaint dated 11.07.2019 remained mere allegation and thus could not have fructified into registration of offence or filing of a charge-sheet.”
Most significantly, what must capture maximum eyeballs as this is what forms the real essence of this notable judgment is then encapsulated in para 5.4 wherein it is held that, “In an offence punishable u/S. 7 of the PC Act, the least that is required of the Investigating Agency is to collect implicative evidence/material to support the allegation contained in the written complaint. In absence of any such supportive implicative material/evidence, if an offence is registered, merely on the basis of written complaint of complainant, then disastrous consequence can befall upon all public servants thereby exposing them to registration of offence and filing of charge-sheet. A written complaint can be made by any person who nurses a grudge or prejudice against the public servant. The public servant would stand exposed to criminal prosecution on the mere making of a written complaint. This scenario would led to chaos in the administration of service. The public servant shall not be able to discharge his official duties in a free and fair manner due to the ever present feeling of lurking fear in the mind that any act of discharge of official duties can trigger a criminal prosecution.”
While citing the relevant case law, the Bench then enunciates in para 5.5 that, “In somewhat similar circumstances before the Apex Court in the case of Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 where the forensic report found the sample supplied insufficient to come to any conclusion, Supreme Court found it to be a wasteful exercise to proceed with the prosecution. The relevant extract of the said judgment is reproduced below for ready reference and convenience:-
16. It is to be noted that in the first complaint filed by the second respondent, the de facto complainant, there is no allegation for any demand for bribe by the appellant. The allegation of demand is specifically against accused 2 only. That allegation against the appellant is raised only subsequently. Be that as it may, the only basis for supporting the allegation is the conversation that is said to be recorded by the voice recorder. The Directorate of Forensic Science Laboratories, State of Maharashtra vide Annexure-B report has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis. Learned Counsel for the respondents submit that the conversation has been translated and the same has been verified by the panch witnesses. Admittedly, the panch witnesses have not heard the conversation, since they were not present in the room. As the voice recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by this Court in Anvar P.V. v. P.K. Basheer.
17. The Magistrate, having seen the records and having heard the parties, has come to the conclusion that no offence is made out against the appellant under the provisions of the PC Act so as to prosecute him. Even according to the High Court, “the crux of the matter is the conversation between the complainant and the accused 1 of 22.11.2010”. That conversation is inaudible and the same is not to be taken in evidence. Therefore, once the ‘crux’ goes, the superstructure also falls, lacking in legs. Hence, prosecution becomes a futile exercise as the materials available do not show that an offence is made out as against the appellant. This part, unfortunately, the High Court missed.
“28 Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course.”
(Pepsi Foods Limited v. Special Judicial Magistrate Para 28). The process of the criminal court shall not be permitted to be used as a weapon of harassment.
Once it is found that there is no material on record to connect an accused with the crime, there is no meaning in prosecuting him. It would be a sheer waste of public time and money to permit such proceedings to continue against such a person.
(See State of Karnataka v. L. Muniswamy)
18. Unmerited and undeserved prosecution is an infringement of the guarantee under Article 21 of the Constitution of India.
“60…….. Article 21 assures every person right to life and personal liberty. The word personal liberty is of the widest amplitude covering variety of rights which goes to constitute personal liberty of a citizen. Its deprivation shall be only as per procedure prescribed in the Code and the Evidence Act conformable to the mandate of the Supreme law, the Constitution. …
(State of Bihar v. P.P. Sharma)”.”
It cannot be lost on us that the Bench then in para 5.6 states that, “The Apex Court in the case of Subramanian Swamy Vs. Manmohan Singh and another, 2012 (3) SCC 64 (Para 73 and 74) realizing this special status admissible to public servants has held in regard to the protection given to them. The relevant extract of the said judgment is reproduced below for ready reference and convenience:-
“73. It was pointed out by the Constitution Bench of this Court in Sheonandan Paswan Vs. State of Bihar, (1987) 1 SCC 288:
“14……It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in A.R. Antulay V. R.S.Nayak, 1984 (2) SCC 500, this Court pointed out that (SCC p. 509, para 6)..
74. Keeping those principles in mind, as we must, if we look at Section 19 of the P.C. Act which bars a Court from taking cognizance of cases of corruption against a public servant under Sections 7, 10, 11, 13 and 15 of the Act, unless the Central or the State Government, as the case may be, has accorded sanction, virtually imposes fetters on private citizens and also on prosecutors from approaching Court against corrupt public servants. These protections are not available to other citizens. Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption.””
No doubt, the Bench then citing another relevant case law enunciates in para 5.7 that, “This Court is supported in its view by the decision of the Apex Court in the case of State of Haryana and others Vs. Bhajanlal and others, 1992 Supp.1 SCC 335. The relevant extract of the said judgment reproduced below for ready reference and convenience:-
“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) 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;
(4) xxx xxx xxx
(5) 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; [Emphasis Supplied].”
It is worth noting that the Bench then stipulates in para 5.8 that, “For an allegation to mature into an FIR, least that is required is that the allegation/first information discloses commission of cognizable offence. Whereas for an FIR to mature into a charge-sheet/final report u/S.173(2) Cr.P.C., it has to undergo the arduous journey from Sec.154 to Sec. 176 (Chapter XII) Cr.P.C. where implicative evidence if any is collected in support of the FIR in a unilateral process called investigation.”
On a pragmatic note, the Bench then observes in para 5.9 that, “Investigation is a unilateral process, being out of bounds for the accused. The investigating agency is thus expected to act in a free, fair and impartial manner with no element of prejudice coming into play for or against the accused or victim. Investigation as is well known is a probe in the dark starting from the known to the unknown moving backwards in time, in search of truth.”
Practically speaking, the Bench then concedes in para 5.10 that, “The task of investigating agency is rendered all the more difficult in face of the accused being entitled to remain silent. Ironically the accused despite knowing the truth cannot be compelled to disclose the same.”
On the face of it, the Bench then propounds in para 5.11 that, “Investigating agency is thus obliged while discharging it’s statutory duty under Chapter XII of Cr.P.C. to ensure that the final report u/S. 173(1) Cr.P.C. if prepared and filed in the Court is accompanied with such supportive/corroborative evidence which gives rise to serious and strong suspicion of involvement of accused in the offence alleged. Another test of a valid and lawful charge-sheet/final report is that if the evidence/material contained therein is left uncontroverted then the same can sustain a conviction.”
Briefly stated, the Bench concedes in para 5.12 that, “Thus to allow the trial to proceed on the basis of an uncorroborated complaint would be an exercise in futility leading to no fruitful result except wasting the precious time of the trial Court.”
Going forward, the Bench then holds in para 5.13 that, “Therefore, a charge-sheet/final report can fructify into taking of cognizance of offence alleged only when the implicative evidence in charge-sheet gives rise to a triable case where foundational ingredients of offence alleged are prima facie palpable.”
Quite remarkably, the Bench then points out in para 6 that, “In a recent decision, the Apex Court while noticing absence of supporting material to the FIR held that the jurisdiction under Section 482 of Cr.P.C. can very well be exercised on the anvil of the law laid down in the case of State of Haryana and others Vs. Bhajanlal (supra) and the recent decision in the case of Neeharika Infrastructure Pvt.Ltd. Vs. State of Maharashtra and others, AIR 2021 SC 1918. The relevant extract of the said judgment reproduced below for ready reference and convenience:-
“15. As observed hereinabove, there may be some cases where the initiation of criminal proceedings may be an abuse of process of law. In such cases, and only in exceptional cases and where it is found that non interference would result into miscarriage of justice, the High Court, in exercise of its inherent powers Under Section 482 Code of Criminal Procedure and/or Article 226 of the Constitution of India, may quash the FIR/complaint/criminal proceedings and even may stay the further investigation. However, the High Court should be slow in interfering the criminal proceedings at the initial stage, i.e. quashing petition filed immediately after lodging the FIR/complaint and no sufficient time is given to the police to investigate into the allegations of the FIR/complaint, which is the statutory right/duty of the police under the provisions of the Code of Criminal Procedure. There is no denial of the fact that power Under Section 482 Code of Criminal Procedure is very wide, but as observed by this Court in catena of decisions, referred to hereinabove, confernment of wide power requires the court to be more cautious and it casts an onerous and more diligent duty on the court. Therefore, in exceptional cases, when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts.””
Quite rightly, the Bench then holds in para 7 that, “In the conspectus of above discussion, the material collected by the prosecution falls desperately short of the minimum required standard necessary for filing a final report u/S. 173 of Cr.P.C. and taking cognizance.”
Without mincing any words, the Bench then observes in para 7.1 that, “Pertinently when the Investigating Agency was faced with a non-implicative Forensic Report then the only option available to the Investigating Agency was to go in for a fresh exercise of recording of statement of petitioner by laying of another trap. Instead, the Investigating Agency decided to proceed with the half baked material in shape of written complaint and the statement of shadow witness – Constable Dinesh Dubey, who had not even heard the conversation between petitioner and the complainant. This kind of an exercise by Investigating Agency amounts to utter abuse of process of Court. The charge-sheet filed is thus a waste of precious time of the Court which would be involved in a trial where discharge is inevitable and fait accompli.”
Most remarkably, the Bench then mentions in para 8 that, “Regard being had to the above, this case is one of those rarest of rare cases where without entering into the reliability, genuineness or veracity of the evidence collected, this Court is compelled to invoke it’s inherent powers u/S.482 Cr.P.C. to truncate the prosecution which in turn is based on premature investigation.”
Frankly speaking, the Bench then rightly concedes in para 9 that, “Consequently, this Court is left with no option but to hold that the filing of the charge-sheet in Crime No.154/2019 and the consequential proceeding in Special Case (Lokayukt) No.1/2021 pending before Court of Special Judge (Lokayukt) Jabalpur are abuse of process of the Court.”
Finally, the Bench then concludes by holding in para 10 that, “Accordingly, the charge-sheet in respect of FIR/Crime No.154/2019 registered at Police Station Special Police Establishment (Lokayukt), Jabalpur and the consequential proceeding in respect of Special Case (Lokayukt) No.1/2021 pending before the Court of Special Judge (Lokayukt) Jabalpur stand quashed.”
In conclusion, the Madhya Pradesh High Court has made it amply clear that full caution should be exercised before registering cases of corruption against public servants. We have already dwelt in detail hereinabove. The same must be followed always in all such cases. No denying it!
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