Order 9

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA,
SPECIAL JUDGE
(PC ACT) (ACB-01), RADC, NEW DELHI.
CC No. 39/2022
FIR No. 17/2019
PS : ACB
State Vs. Manish Lal
16.11.2022
ORDER ON CHARGE
1. Brief facts of the case are that on 27.11.2019, Sh. Bijender
S/o Late Sh. Prem Chand, complainant approached the ACB
and gave a handwritten complaint wherein it has been stated
that his father, who expired on 17.11.2012, was working in
MCD as a permanent sweeper in Ward no. 111, Rajouri
Garden. It is further stated that the complainant had given an
application for release of amount due on account of death of
his father and also for getting a job on compassionate ground
in MCD and in this regard he met with the accused Manish Lal
who was posted as Bill Clerk Helper (BC-H) in MCD, for
processing the file for releasing the aforesaid amount and for
getting a job on compassionate ground in MCD. It is further
stated that the accused Manish Lal demanded Rs.1,00,000/- as
bribe for processing the aforesaid file but the complainant had
shown his inability to pay such huge bribe amount and told the
complainant to pay the bribe amount in installments. Pursuant
to the aforesaid demand of accused Manish Lal, the
complainant arranged Rs.5,000/- i.e. 10 GC notes of Rs.500/-
denomination and went to ACB where he gave his handwritten
complaint for taking action against accused Manish Lal. The
aforesaid complaint of the complainant Bijender was marked
to Insp. Kailash Chand who constituted a raiding party and
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conducted raid on 27.11.2019 at 4th Floor, SDMC Office,
Rajouri Garden and accused Manish Lal was caught red-
handed while demanding and accepting Rs.5,000/- from the
complainant Bijender and kept the same in right pocket of his
pant in the presence of panch witness Pardeep Pal, LDC in
Food & Supply Department, GNCT of Delhi. On taking search
of accused Manish Lal, the bribe amount of Rs.5,000/- was
recovered from the right side pocket of his pant. Thereafter,
the present case FIR was registered U/s 7 of PC Act and during
the course of investigation, FSL result and sanction to
prosecute accused U/s 19 of PC Act were obtained and after
completion of investigation chargesheet was filed.
2. I have heard arguments of Sh. Vikash Kumar, Ld. Addl. PP
for the State and also of Sh. Kuldeep Rana, Ld. Defence
Counsel for the accused.
3. Ld. Defence counsel argued that prosecution has filed two
sanction orders alongwith the chargesheet and that the sanction
order itself shows that competent authority has not applied its
mind and accorded the sanction in a mechanical manner. It
has been submitted that there is no reference of the documents
which were perused by the competent authority before
granting the sanction. Ld. Defence counsel further argued that
there is even no whisper that the sanctioning authority
endorsed all the documents relied upon. My attention is drawn
in respect of one authority reported as Gokulchand Dwarkadas
Morarka Vs The King, (1948) 50 BOMLR 399.
4. Per contra, Ld. Addl. PP for the State argued that accused
was caught red-handed while accepting bribe from the
complainant and there is ample evidence against the accused
that he demanded bribe from the complainant for processing
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his case regarding dues of his late father as well as for getting
a job on compassionate ground in MCD. Ld. Addl. PP for the
State argued that second sanction order was passed as there
was some rectification regarding the sections mentioned in the
first sanction order. It has been submitted that the competent
authority has mentioned that he carefully examined the
material documents, statements of witnesses as well as
relevant documents produced before him and thereafter,
granted the sanction. It has been submitted that as there was
some minor rectification in the sanction order, it cannot be said
that competent authority has not applied its mind.
5. In Settu Vs. State of NCT of Delhi, CRL. REV.P.
13/2022 dated 10.03.2022, Hon’ble High Court has observed
that :
“It is well settled law that at the stage of framing
of charge, the court has power to shift and weigh
the evidence for the limited purpose of finding
out whether or not a prima facie case against
accused has been made out. When the material
placed before the court discloses great suspicion
against the accused which has not been properly
explained, the court will be justified in framing
charge. No roving inquiry into the pros and cons
of the matter and evidence is not to be weighed
as if a trial was being conducted. If on the basis
of materials on record a court could come to the
conclusion that commission of the offence is a
probable consequence, a case of framing of
charge exists.
9.To put it differently, if the courts were to think
that the accused might have committed the
offence it can frame a charge, though for
conviction the conclusion is required to be that
accused has committed the offence. At the stage
of framing of a charge, probative value of the
materials on records cannot be gone into, the
material brought on record by the prosecution
has to be accepted as true at that stage. The
truth, veracity and effect of the evidence which
the prosecutor proposes to adduce are not to be
meticulously judged, nor any weight is to be
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attached to the probable defence of the accused.
It is not obligatory for the judge at that stage of
the trial to consider in any detail and weigh in a
sensitive balance whether the facts, if proved,
would be incompatible with the innocence of the
accused or not.
10.The standard of test and judgment which is to
be finally applied before recording a finding
regarding the guilt or otherwise of the accused is
not exactly to be applied at this stage of deciding
the matter under Section 227 or under Section
228 of the Code. But at the initial stage, if there
is a strong suspicion which leads the court to
think that there is ground for presuming that the
accused has committed an offence, then it is not
open to the court to say that there is no sufficient
ground for proceeding against the accused.
While deciding the question of framing of charge
in a criminal case, the court is not to apply
exactly the standard and test which it finally
applies for determining the guilt or otherwise.
11. What is required to be seen is whether there
is strong suspicion which may lead to the court
to think that there is ground for presuming that
the accused has committed an offence. The
above proposition is supported with law laid
down by the Hon'ble Apex Court and Hon'ble
High Court reported as “Union of India vs
Prafulla Kumar”, AIR 1979 Supreme Court
366, “State of Maharashtra and others vs Som
Nath Thapa and other” JT 1996 (4) SC 615,
“State of Bihar vs Ramesh Singh”, AIR 1997
SC 2018: (1997 CRI LJ 1606), “Umar Amdula
Sakoor Sorathia vs. Intelligence Officer
Narcotic Control Bureau” JT 1999 (5) SC 394,
“Kalu Mal Gupta vs. State” 2000 I AD Delhi
107.”
6. It is a settled legal position that prosecution is required to
prove its case beyond reasonable doubt. However, at the stage
of framing of charge, the Court has only to see whether prima
facie case is made out against the accused. In this regard, it is
held in Amit Kapoor Vs. Ramesh Chander, 2012 (9) SCC,
460 as under:
“19. At the initial stage of framing of a charge,
the court is concerned not with proof but with a
strong suspicion that the accused has committed
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an offence, which, if put to trial, could prove him
guilty. All that the court has to see is that the
material on record and the facts would be
compatible with the innocence of the accused or
not. The final test of guilt is not to be applied at
that stage.”
7. Thus, at the stage of charge, the court is not to see the
probative value of the evidence nor the sufficiency of material
is to be gone into. Whether the trial would eventually result
into conviction of the accused or not is also not material.
8. As regards application of mind by sanctioning authority in
State of Maharashtra through CBI Vs Mahesh Jain, 2013
(8) SCC 119, following principles were culled out:-
“14.1 It is incumbent on the prosecution to
prove that the valid sanction has been granted
by the sanctioning authority after being satisfied
that a case for sanction has been made out.
14.2 The sanction order may expressly show
that the sanctioning authority has perused the
material placed before it and, after
consideration of the circumstances, has granted
sanction for prosecution.
14.3 The prosecution may prove by adducing the
evidence that the material was placed before the
sanctioning authority and its satisfaction was
arrived at upon perusal of the material placed
before it.
14.4 Grant of sanction is only an administrative
function and the sanctioning authority is
required to prime facie reach the satisfaction
that relevant facts would constitute the offence.
14.5 The adequacy of material placed before
the sanctioning authority cannot be gone into
by the court as it does not sit in appeal over the
sanction order.
14.6 If the sanctioning authority has perused all
the materials placed before it and some of them
have not been proved that would not vitiate the
order of sanction.
14.7 The order of sanction is a prerequisite as
it is intended to provide a safeguard to a public
servant against frivolous and vexatious
litigants, but simultaneously an order of
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sanction should not be construed in a pedantic
manner and there should not be a
hypertechnical approach to test its validity.”
9. It was further held that :
“True it is, grant of sanction is a sacrosanct
and sacred act and is intended to provide a
safeguard to the public servant against
vexatious litigation but simultaneously when
there is an order of sanction by the competent
authority indicating application of mind, the
same should not be lightly dealt with. The
flimsy technicalities cannot be allowed to
become tools in the hands of an accused.”
10. Thus, grant of sanction is an administrative function and
only prima facie satisfaction of the sanctioning authority is
needed. The adequacy or inadequacy of material placed before
the sanctioning authority cannot be gone into by the court as it
does not sit in appeal over the sanction order and when there is
an order of sanction by the competent authority indicating
application of mind, the same should not be lightly dealt with.
Also, flimsy technicalities cannot be allowed to become tools
in the hands of accused.
11. Perusal of record shows that the sanction order was
rectified by the competent authority as in the previous sanction
order, some sections of IPC were also mentioned. The
sanction order itself says that the competent authority carefully
examined the material documents, statements of witnesses and
other relevant documents placed before him. Only due to the
reason that fresh sanction order was issued due to some
rectification, it cannot be said that the sanctioning authority
has not applied its mind. The judgment of Gokulchand
Dwarkadas Morarka Vs The King (Supra) is not applicable in
the facts and circumstances of the present case as in that case
the sanction order was not specifying the acts of the appellant
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therein which alleged to constitute such contravention. As per
case of prosecution, accused was caught red-handed while
accepting bribe of Rs.5,000/- from the complainant in the
presence of panch witness.
12. After considering the rival submissions as well as going
through chargesheet and other material placed on record, I am
of the considered opinion that prima facie a case for the
offence under section 7 of Prevention of Corruption Act is
made out against accused Manish Lal. Accordingly, charge for
the aforesaid section be framed against him.
Announced in the open court
on 16th November 2022.
(Sanjeev Kumar Malhotra)
Special Judge, PC Act (ACB-01)
RADC, New Delhi/16.11.2022
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