REPORTABLE  IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1336 OF 2017  

(Arising out of Special Leave Petition (Crl.) No. 10249 OF 2014)

State through Central Bureau of Investigation              .... Appellant(s)

Versus

Dr. Anup Kumar Srivastava              .... Respondent(s)

J U D G M E N T

R.K. Agrawal, J.

1)  Leave granted.

2)  This  appeal  is  directed  against  the  judgment  and  order

dated 21.11.2013 passed by learned single Judge of the High

Court of  Delhi  at  New Delhi  in Crl.  M.C. No. 4360 of  2012

whereby  the  High  Court  allowed  the  petition  filed  by  the

respondent herein against the order dated 08.11.2012 passed

by the Special Judge (CBI-01), New Delhi in C.C. No. 02/2012

wherein  charges  have  been  framed  against  the  respondent

herein.  

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3) Brief facts:

(a)    At  the  relevant  time,  Dr.  Anup  Kumar

Srivastava-respondent  herein  was  posted  as  the

Commissioner, Central Excise, Delhi-1 Commissionerate.  On

02.01.2012, on the basis of source information, a case under

Section 120-B of the Indian Penal Code, 1860 (in short ‘the

IPC’) read with Sections 7, 8, 10, 12 and 13(2) read with 13(1)

(d) of the Prevention of Corruption Act, 1988 (in short ‘the PC

Act’) was registered by the CBI, AC-1, New Delhi being RCAC

2012 A0001 against the respondent herein along with other

officials of the Central Excise Department, Delhi for obtaining

illegal gratification by corrupt and illegal means owing to their

alleged role in a raid in Delhi.

(b)   The  chargesheet  dated  29.02.2012  was  filed  in  the

Court of  Special  Judge, Patiala House Court,  New Delhi  for

framing of charges wherein it was alleged that on 28.12.2011,

a team of  officials of  Central  Excise,  Delhi-I,  lead by Lallan

Ojha,  Superintendent,  conducted  an  illegal  raid  at  the

premises of Dilip Aggarwal and Anand Aggarwal at Najafgarh

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Road, New Delhi.   It was further alleged in the chargesheet

that  the  respondent  herein  through  one  Hemant  Gandhi

(private person) negotiated with the owners of the premises for

illegal  gratification  in  lieu  of  not  taking  any  action  against

them and finalized the bribe amount of Rs. 60 lakhs to be paid

to the above named private person.  The private person was in

regular touch with the owners of the premises and received

Rs. 20 lakhs in cash along with a cheque of Rs. 20 lakhs as

security for the remaining amount from them.  Further, the

private person was in regular touch with the officials of the

Excise  Department  as  well  and he  actually  negotiated  with

them including the respondent herein for some concession in

the amount on behest of the owners.  In the whole process, the

private  person  worked  as  a  middleman  and  conveyed  the

illegal gratification fixed to the respondent herein.

(c) The  investigation  further  revealed  that  as  per  the

intercepted  conversation  received  from  Special  Unit,  CBI,

Delhi,  the  respondent  herein  was  in  regular  contact  with

Hemant Gandhi through telephone and also through personal

meetings  who  used  to  organize  illegal  searches  under  the

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directions  and  protection  of  the  respondent  herein  through

other officials of the Department.    

(d) On 08.11.2012,  an  order  was  passed  by  the  Court  of

Special Judge, (CBI-01), Patiala House Courts, New Delhi in

C.C. No. 02/2012 wherein the respondent herein was charged

with Section 120-B of the IPC and Sections 7, 12 and 13(2)

read with Section 13(1)(d) of the PC Act.   

(e) Aggrieved  by  the  order  framing  charge  dated

08/17.11.2012, the respondent herein preferred Crl. M.C.(M)

No. 4360 of 2012 under Section 482 of the Code of Criminal

Procedure, 1973 (in short ‘the Code’).  Learned single Judge of

the High Court, vide judgment and order dated 21.11.2013,

quashed the order dated 08/17.11.2012  qua the respondent

herein.    

(f) Aggrieved  by  the  order  dated  21.11.2013,  the

appellant-State through CBI has filed this appeal by way of

special leave before this Court.

4) Heard  Mr.  P.K.  Dey,  learned  counsel  for  the

appellant-State and Mr. Joy Basu, learned senior counsel for

the respondent.

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Point for consideration:

5) The  only  point  for  consideration  before  this  Court  is

whether in the present facts and circumstances of the case,

the appellant-State has made out a case for setting aside the

order passed by the High Court?

Rival contentions:

6) Learned counsel for the appellant-State contended that

the duty casts upon the courts at the time of framing of charge

is  limited  to  the  extent  of  examining  the  prima  facie case

against the accused and not to run a mini trial at the time of

framing of  charge.   Learned counsel  further contended that

the  Special  Court  rightly  framed  the  charges  against  the

respondent-accused.   He  further  contended  that  the  order

passed  by  the  High  Court  is  based  on  assumption  and

hypothesis which ignores the crucial evidence in the form of

intercepted telephonic conversation, viz., Call No. 51 wherein

the amount of “Six Zero” was referred which clearly proves his

involvement in the crime and the High Court erred in law in

considering  that  vide  Call  No.  51  final  bribe  amount  was

conveyed to the respondent-accused.

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7) Learned counsel further contended that apart from prima

facie evidence, there were appropriate and sufficient evidence

against  the  respondent-accused  and  in  all  likelihood  the

quashing of criminal proceeding  qua the respondent-accused

would severally affect the ongoing trial against other accused.

He further contended that the High Court completely lost sight

of the fact that the respondent-accused was in constant touch

with co-accused Hemant Gandhi who was updating him with

every development during and after  the raid through Lallan

Ojha-Superintendent,  which  prima  facie establishes  his

involvement in the entire conspiracy.  Learned counsel finally

contended that the evidence in the form of intercepted calls

clearly  indicating  “Six  Zero”  and  “Mission  Successful”,

deposition of prosecution witnesses, involvement of a private

person in the raid and recovery of bribe amount in cash and in

cheque  clearly  prove  the  involvement  of  the

respondent-accused  and the  High  Court  erred  in  law while

quashing the charges against  him.   The power of  quashing

criminal proceedings, particularly, pursuant to charges framed

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is to be exercised very sparingly and with great circumspection

and that too in rarest of rare case.

8) Per  contra,  learned  senior  counsel  for  the  respondent

submitted that there is no illegality in quashing of chargesheet

against the respondent herein on the basis of examination of

grounds  taken  by  him.   The  High  Court  did  not  exercise

revisional jurisdiction rather exercised powers under Section

482 of the Code while passing the order after considering the

evidence on record in order to form a  prima facie opinion in

accordance with settled legal position.     

9) Learned  senior  counsel  further  submitted  that  the

statements under Section 164 of the Code do not implicate the

respondent herein in the present case and the witnesses have

resiled  from the  said  statements  that  were  obtained  under

threat of arrest and false implication in the case.   

10) Learned senior counsel further submitted that Call No.

48 between Hemant Gandhi and Mahendra Kapoor completely

belies the prosecution story about the alleged involvement of

the respondent herein.  He further submitted that Call No. 51

is also of no help as there is no material on record to suggest

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that  respondent  herein  had  agreed  to  demand  the  illegal

gratification and there is  no direct talk between respondent

herein and Lallan Ojha or with any of the team members of

the  alleged  raiding  team.   Learned  senior  counsel  finally

contended that the judgment passed by the High Court was

well within the parameters in terms of settled legal position for

considering the matter  at  the stage of  framing of  charge or

discharge of the accused and no interference is called for by

this Court in this regard.

Discussion:

11) A  final  report  was  filed  in  the  Special  Court,  Patiala

House  in  the  FIR  being  No.  RCAC  2012  A0001  dated

29.02.2012  alleging  that  on  28.12.2011,  the  respondent

herein,  who  was  at  the  relevant  time  posted  as  the

Commissioner, Central Excise, Delhi-I Commissionerate, along

with other persons of the Department and with one Hemant

Gandhi (private person), planned a fake raid at the premises of

Mr.  Dilip Aggarwal and Anand Aggarwal at  Najafgarh Road,

New Delhi in order to obtain illegal gratification by illegal and

corrupt means through Hemant Gandhi.

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12) It is the case of the prosecution that on 28.12.2011, a

team  of  officials  of  the  Central  Excise  Department  led  by

Lallan Ojha, Superintendent, conducted an illegal raid at the

premises of Dilip Aggarwal and Anand Aggarwal at 71/7, A-4,

First  Floor,  Najafgarh  Road  Industrial  Area,  New  Delhi.

Further,  Lallan Ojha,  in  conspiracy  with  respondent  herein

and Hemant Gandhi and others negotiated with the owners of

the premises for illegal gratification in lieu of not taking any

action against them and finalized the bribe amount of Rs. 60

lakhs to be paid by them through the private person.  The

factum of the said raid was telephonically conveyed by Lallan

Ojha  to  the  respondent  herein  through  Hemant  Gandhi.

Hemant Gandhi was in regular touch with the owners of the

premises and received a huge amount of Rs. 20 lakhs in cash

along  with  a  cheque  signed  by  Anand Aggarwal  for  Rs.  20

lakhs  as  security  for  the  remaining  amount  of  illegal

gratification.  Hemant Gandhi also spoke to Lallan Ojha and

the respondent herein for some concession in the amount.   

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13) The  investigation  further  revealed  that  as  per  the

intercepted  conversations  received  from  Special  Unit,  CBI,

Delhi,  the  respondent  herein  was  in  regular  touch  with

Hemant  Gandhi  over  phone  and  also  through  personal

meetings  for  the  last  6-7  months  and  Hemant  Gandhi  got

arranged illegal searches under the directions and protection

of the respondent herein in order to collect illegal gratification

from the parties so raided.  The entire conversation shows that

search was conducted with the sole motive of obtaining illegal

gratification and the owner of the premises were pressurized to

obtain illegal gratification and final settlement was arrived at

for  an  amount  of  Rs.  60  lakhs.   The  investigation  further

revealed that Hemant Gandhi was acting as the middleman of

the respondent herein for collection of illegal gratification by

scouting for his known businessmen who could be raided and

illegal  gratification  could  be  extracted  from  them.   The

fraudulent nature of the search as well as the entire motive for

collection  of  illegal  gratification  is  said  to  be  established

through intercepted conversations of Hemant Gandhi, Lallan

Ojha and the respondent herein.  The private person-Hemant

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Gandhi  is  said  to  have  informed  telephonically  about  the

recoveries during the search, success of the mission and the

settlement  of  Rs.  60 lakhs  in a  cryptic  language by  saying

“mission  successful”  and  “six  zero”  and  the  same  was

acknowledged by the respondent herein by saying “ok”.

14) In view of the above, it  can be easily  gauged from the

case  of  the  CBI  that  the  case  solely  rests  upon  96

conversations recorded between 23.12.2011 to 02.01.2012 by

the Special Unit (SU), CBI, New Delhi on the basis of the legal

technical surveillance.  In this regard, the appellant-State has

heavily relied upon Call Nos. 48 and 51 and it is pertinent to

mention  here  the  details  of  above  said  calls  which  is  as

under:-

Call No. 48

Call  No.  48  dated 28.12.2011,  Time at  13:33:08,  Duration  205 Sec.,  file  format  1.47  MB,  Conversation  between  Mahender  Kapoor (1123379010) and Hemant Gandhi (11-25225641)

HG Hello  Kapoor Hello  

HG Yes brother  Kapoor Yes

HG Mission Successful  Kapoor Mission

HG Successful Kapoor Very Good, Very Good

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HG Lallu is very fast, (Abusive Language)  Kapoor He is fast  

HG Yes, Yes Kapoor He is not a fool.  

HG Yes, I call him by the name of Lallu. Kapoor Then, at which time they went there

HG They reached there at 7.30, (Abusive Language)  

Kapoor They reached at 7.30 and when they entered HG … at Sharp 10.30  

Kapoor Ok, they are telling huge recovery. HG They have recovered the material of about

four crore from inside  Kapoor Now the work is fit.  

HG Yes, but it was not deserving, deal has been made for six zeroes, this is the figure. Don’t tell  it  to Bhai  Sahab also,  don’t  tell  this  to anyone.  

Kapoor Ok HG No one should learn about this because only I

know this figure and Lallu knows. Even that Muchhad  (man  with  moustache)  does  not know.  

Kapoor No,  no  we  will  not  talk  with  them  in  this regard.

HG Yes, I mean his CHA also does not know the figure.  

Kapoor Yes HG If  it  comes  out  immediately,  deal  has  been

made for sixty, will given tomorrow.  Kapoor Ok, Ok, Ok.

HG Then  take….  I  did  not  come  in  picture anywhere.  

Kapoor Yes. HG I did not come in picture  

Kapoor Very good, very good.  HG They have made direct all the post deal.  

Kapoor Yes, it is good.  HG He was talking with me continuously.  I said

you should do there.  Kapoor Yes, yes  

HG He was asking about guarantee, I said he will not annoy you dear.  

Kapoor Yes, yes

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HG He is  saying  for  tomorrow….  he  is  ill  also, saying that wil given tomorrow.  

Kapoor Yes, yes  HG Should do, I said you can see.  

Kapoor Yes, then how it will be done.  HG Yes, now how they will do.  He was asking me

that how it will be done.  I said you should not worry.  

Kapoor Yes, Yes  HG He was asking to come in the evening, I do

not know whom he is calling now, (Abusive Language).

Kapoor Ok, Ok, no he was calling thereafter.  HG In the morning when it was talked.  

Kapoor Ok. HG When it was under process.  

Kapoor Ok, Ok, Ok. HG I said……… I am busy in your work  

Kapoor Yes, yes. HG He is saying that ok, come in the evening.  

Kapoor It is alright, there is no harm in meeting. HG I do not know brother, now I fear in meeting

with him.  Kapoor Ok, then refuse him for today.  

HG Yes Kapoor Yes, ask him that I am busy somewhere.

HG Yes Kapoor You  may  ask  him  that  you  are  going

somewhere for work. HG It is okay.

Kapoor It is Okay.

Call No. 51

Call No. 51 dated 2 dated 28.12.2011, Time at 16:12:06. Duration 68 Sec., file format  518  KB,  Conversation  1.47  MB,  Conversation  between  Mahender  Kapoor (1123379010) and Hemant Gandhi (11-25225641)

HG Hello  Kapoo

r Hello  

HG Yes Please PA to AKS  

A… Sir, Hemant Gandhi Ji is there.

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HG Yes, Yes.  PA to AKS

Sir, Commissioner sahib will talk.  

Anoop Yes, Hemant. HG Sir, the mission is successful

Anoop Yes, will you come to me.  HG Sir, actually I had to take my father to a doctor,

I was trying to tell this to you in the morning also, but you had disconnected.  

Anoop Ok, when will you come home.  HG I will come tomorrow.  

Anoop At which time. HG Tomorrow in the afternoon at about 11-12

noon.  Anoop Ok then come.  

HG And Sir, that eight and fifteen. Anoop Yes, Ok.

HG And they said that it was received. Anoop No, still did not meet HG A…… Six  

Anoop Chairman had come.  HG Six Zero, is it ok.  

Anoop Ok HG Yes Sir.  

Call No. 48 was made by Hemant Gandhi on 28.12.2011 after

the completion of the alleged illegal  raid.  It  is  also evident

from the call that Mahender Kapoor-Superintendent also had

the  knowledge  of  the  alleged  raid  and  Hemant  Gandhi

informed him that the raid was successful and that they have

recovered a lot of goods worth about four crores from inside

the premises.  Further, during the call, Hemant Gandhi told

Mahender Kapoor that this figure should not be disclosed to

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anyone as the same is known only to him and Lallan Ojha.

Even Hemant Gandhi asked Mahender Kapoor to not to inform

this thing to ‘Muchhad’ i.e.,  the respondent-herein to which

Mahender Kapoor replied in affirmative and maintained that

this should not even be shared with anyone.  Hemant Gandhi

also informed him that an amount of Rs. 60 lakhs has been

fixed  for  the  deal  without  him  (Hemant  Gandhi)  being  in

picture.   He further admits that  this  information about the

premises was given by him only.  It is also on record that for

the first time the words ‘mission successful’  and ‘six zeroes’

have been used in this call between the Mahender Kapoor and

Hemant Gandhi.    

15) A bare perusal of the above call, prima facie, shows that

Mahender Kapoor was actually the man behind the raid who

was  guiding  Hemant  Gandhi  about  the  manner  in  which

Lallan Ojha should proceed for ensuring the payment of the

agreed amount such as by preparing seizure memo etc.  It is

also clear from the above that after the raid Hemant Gandhi

was afraid of the respondent-herein and does not want to meet

him.  In this view of the matter, we are of the opinion that Call

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No. 48 does not implicate respondent herein with regard to the

settlement of  illegal gratification in lieu of  not taking action

against the owners of  the premises.  In fact,  this call,  read

with  Call  No.  64,  proves  the  complicity  and  connivance  of

Mahender Kapoor and Hemant Gandhi apart from Lallan Ojha

and  Ashok  Aggarwal  wherein  Hemant  Gandhi  is  requesting

Mahender Kapoor to get the money for him out of the alleged

illegal gratification amount which shows that it was Mahender

Kapoor  who  was  receiving  the  alleged  illegal  gratification

amount and distributing the same. In our considered opinion,

Call No. 48 does not implicate the respondent herein in the

commission of offence.

16) Call  No.  51  was  made  by  Hemant  Gandhi  to  the

respondent  herein  on  28.12.2011  wherein  Hemant  Gandhi

informed  the  respondent  herein  that  the  mission  was

successful.   It  is  the  case  of  the  prosecution  that  Hemant

Gandhi  informed  about  the  alleged  raid  to  the  respondent

herein that it was successful which fully implicates him in the

offence.  But on a careful  scrutiny of  the call,  it  cannot be

inferred that the respondent herein had agreed to demand the

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illegal gratification and also there was no direct talk between

Lallan Ojha and the respondent herein who was supposed to

inform his senior officer on whose direction he was leading the

raiding team.  In the call, it was Hemant Gandhi who used the

words ‘mission successful’.   In our opinion, the prosecution

has wrongly connected the words “mission successful’ in call

No. 48 with that of in Call No. 51.  In Call No. 48, it is very

much clear that Mahender Kapoor and Hemant Gandhi were

talking  about  the  alleged  raid  and  Hemant  Gandhi  himself

accepted that he provided the information for the same. When

the respondent herein was not at all in picture in Call No. 48

how can he be connected in Call No. 51 by showing the use of

words ‘mission successful’ and ‘six zero’ that too when none of

the members of the raiding team informed about the same to

him.  Further, during the alleged conversation in Call No. 51,

it has also been noticed that Hemant Gandhi has used three

more  figures  ‘eight’,  ‘fifteen’  and  ‘six’  which  makes  the

conversation ambiguous and beyond any comprehension and

it does not make out any logical understanding of the actual

conversation between the parties making it. Hence, no adverse

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inference can be  drawn against  the respondent  herein with

regard to the same.  

17) The statements under Section 164 of the Code also do

not implicate the respondent herein in the present case as the

witnesses have retracted from their statements.  Further, on

the  contrary,  the  said  witnesses  have  deposed  that  the

aforesaid  statements  under  Sections  161  and  164  were

obtained under threat of  arrest and false implication in the

case  and  therefore  are  not  voluntary.   Admittedly,  the

statements of Lallan Ojha as well as the respondent herein are

not on record.  Even from the statement made by Ms. Rekha

Rani (PW-6)-PS to the respondent herein, it can be easily seen

that Hemant Gandhi was a frequent visitor to the office of the

respondent herein.  Several times, PW-6 connected his call to

the  respondent  herein  but  in  her  deposition  she  clearly

mentioned that earlier he used to call on the landline number

of the office but for the last 5-6 months he was meeting the

respondent herein personally in his office.  Though the said

deposition  proves  the  nearness  of  that  particular  private

person with the respondent herein but it cannot be inferred

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that  the  private  person  was  in  constant  touch  with  the

respondent and was apprising him about every development

before,  during and after  the alleged raid.   The claim of  his

nearness  to  the  respondent  herein  is  baseless  as  he  was

working as the informer to the evasion wing and the alleged

phone calls made by him to the respondent herein or meetings

with the respondent herein cannot and will not be sufficient to

implicate the respondent herein.     

18) Framing of charge is the first major step in a criminal

trial where the court is expected to apply its mind to the entire

record  and  documents  placed  therewith  before  the  court.

Taking cognizance of an offence has been stated to necessitate

an application of mind by the court but framing of charge is a

major  event  where  the  court  considers  the  possibility  of

discharging  the  accused  of  the  offence  with  which  he  is

charged  or  requiring  the  accused  to  face  trial.  There  are

different categories of cases where the court may not proceed

with the trial  and may discharge the accused or pass such

other orders as may be necessary keeping in view the facts of a

given case. In a case where, upon considering the record of the

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case and documents submitted before it, the court finds that

no  offence  is  made  out  or  there  is  a  legal  bar  to  such

prosecution under the provisions of the Code or any other law

for  the  time  being  in  force  and  there  exists  no  ground  to

proceed  against  the  accused,  the  court  may  discharge  the

accused. There can be cases where such record reveals the

matter to be so predominantly of a civil nature that it neither

leaves  any  scope  for  an  element  of  criminality  nor  does  it

satisfy  the  ingredients  of  a  criminal  offence  with which the

accused is charged. In such cases, the court may discharge

him or quash the proceedings in exercise of its powers under

the provisions.

19) Similarly, the law on the issue emerges to the effect that

conspiracy is an agreement between two or more persons to do

an illegal act or an act which is not illegal by illegal means.

The object behind the conspiracy is  to achieve the ultimate

aim  of  conspiracy.  For  a  charge  of  conspiracy  means

knowledge about indulgence in either an illegal act or a legal

act  by  illegal  means  is  necessary.  In  some cases,  intent of

unlawful use being made of the goods or services in question

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may  be  inferred  from the  knowledge  itself.  This  apart,  the

prosecution has not to establish that a particular unlawful use

was intended, so long as the goods or service in question could

not  be  put  to  any  lawful  use.  Finally,  when  the  ultimate

offence  consists  of  a  chain  of  actions,  it  would  not  be

necessary for the prosecution to establish, to bring home the

charge of  conspiracy, that each of  the conspirators had the

knowledge of what the collaborator would do.   

20) At this stage, it would be appropriate to quote a decision

of  this  Court  in  Central  Bureau  of  Investigation,

Hyderabad vs. K. Narayana Rao (2012) 9 SCC 512 wherein

it was held as under:-

“24. The  ingredients  of  the  offence  of  criminal conspiracy  are  that  there  should  be  an  agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may  not  be  illegal.  In  other  words,  the  essence  of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct  evidence  or  by  circumstantial  evidence  or  by both and in a matter of common experience that direct evidence  to  prove  conspiracy  is  rarely  available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the  accused.  Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties

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to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere  suspicion and surmises  or  inference  which are not supported by cogent and acceptable evidence.”

21) Further,  what  constitutes  illegal  gratification  is  a

question of law; whether on the evidence that crime has been

committed is  a  question of  fact.   If,  therefore,  the  evidence

regarding the demand and acceptance of a bribe leaves room

for doubt and does not displace wholly,  the presumption of

innocence,  the  charge  cannot  be  said  to  have  been

established.   

22) In P. Satyanarayana Murthy vs. District Inspector of

Police, State of A.P. (2015) 10 SCC 152, this Court has held

as under:-  

22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere  possession  and  recovery  of  currency  notes  from an accused  without  proof  of  demand would  not  establish  an offence under Section 7 as well as Sections 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any  proof  of  demand  for  illegal  gratification,  the  use  of corrupt  or  illegal  means  or  abuse  of  position as  a  public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been  held  to  be  an  indispensable  essentiality  and  of

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permeating mandate for an offence under Sections 7 and 13 of  the  Act.  Qua  Section  20  of  the  Act,  which  permits  a presumption  as  envisaged  therein,  it  has  been  held  that while it is extendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) and (ii) of the Act, it is contingent  as  well  on  the  proof  of  acceptance  of  illegal gratification for  doing  or  forbearing  to  do  any official  act. Such  proof  of  acceptance  of  illegal  gratification,  it  was emphasised, could follow only if there was proof of demand. Axiomatically,  it  was  held  that  in  absence  of  proof  of demand, such legal presumption under Section 20 of the Act would also not arise.

23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of  illegal  gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery  of  the  amount  from  the  person  accused  of  the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.

Hence,  the  proof  of  demand  has  been  held  to  be  an

indispensable essentiality and of permeating mandate for an

offence under Sections 7 and 13 of the PC Act which is absent

in the case at hand.

23) It  was  contended  by  learned  counsel  for  the

appellant-State that the High Court exceeded its jurisdiction

while  quashing  the  order  of  charge  passed  by  the  Special

Court, CBI Cases.  The legal position is well settled that at the

stage of framing of charge the trial court is not to examine and

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assess  in  detail  the  materials  placed  on  record  by  the

prosecution nor is it for the court to consider the sufficiency of

the  materials  to  establish  the  offence  alleged  against  the

accused  persons.  At  the  stage  of  charge  the  court  is  to

examine the materials only with a view to be satisfied that a

prima facie case  of  commission of  offence  alleged has  been

made out against the accused persons. It is also well settled

that when the petition is filed by the accused under Section

482 of  the Code seeking for  the quashing of charge framed

against  him  the  court  should  not  interfere  with  the  order

unless there are strong reasons to hold that in the interest of

justice and to avoid abuse of the process of the court a charge

framed against  the  accused needs to  be  quashed.  Such an

order  can be  passed only  in  exceptional  cases  and on rare

occasions. The court is required to consider the “record of the

case” and documents submitted therewith and, after hearing

the  parties,  may  either  discharge  the  accused  or  where  it

appears to the court and in its  opinion there is  ground for

presuming that the accused has committed an offence, it shall

frame the charge. Once the facts and ingredients of the section

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exists, then the court would be right in presuming that there

is ground to proceed against the accused and frame the charge

accordingly. This presumption is not a presumption of law as

such. The satisfaction of the court in relation to the existence

of  constituents  of  an  offence  and  the  facts  leading  to  that

offence is a  sine qua non for exercise of such jurisdiction. It

may even be weaker than a prima facie case.  

24) We  have  no  doubt  to  hold  that  in  Call  No.  48,  the

respondent herein was not at all in picture and even in Call

No. 51 he was talking to Hemant Gandhi but it is not proved

that they were talking about the same raid as they have used

certain other cryptic codes as mentioned above which makes

the  Call  highly  improbable  for  connecting  the  respondent

herein in commissioning of  the offence.   Even otherwise, in

Call No. 51, the benefit of doubt must go to the respondent

herein where the language of the call is dubious and no logical

understanding  of  the  actual  conversation  can  be  drawn.

Further,  in  the  absence  of  any  details  with  regard  to  the

amount  of  ‘six  zero’,  we  are  of  the  view  that  Call  No.  48

categorically  brings  out  that  the  respondent  herein  did  not

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have  any knowledge  of  the  alleged  criminal  conspiracy  and

Call  No.  51  is  also  unable  to  prove  the  complicity  of  the

accused  in  the  crime  because  of  its  out  of  the  context

conversation. In view of the above, we are of the considered

opinion that Call Nos. 48 and 51, heavily relied upon by the

prosecution, lack object and purpose to prove the complicity of

the respondent herein in the crime.   

Conclusion:

25) In view of the above, we are of  the considered opinion

that vide Call Nos. 48 and 51, the prosecution is not able to

prove the guilt of the respondent herein in the alleged raid.

There is no material evidence on record in order to bring home

the charge of conspiracy against the respondent. There is no

direct or circumstantial evidence to prove that the respondent

has  demanded any illegal  gratification and has accepted or

obtained any such illegal gratification.  Further, the premises

that  was alleged to  be  raided was neither  a  manufacturing

unit nor packing or repacking activity was carried out there

and hence no case of central excise could have been made out

which could  grant  any jurisdiction to  the  respondent  to  do

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some  favour  or  disfavor  in  the  discharge  of  his  official

functions.  The High Court was well within its powers while

quashing the order framing charge as there was no material

on  record  to  connect  the  respondent  with  the  offence  in

question.

26) In view of the foregoing discussion, the appeal filed by the

CBI is liable to be dismissed and is, accordingly, dismissed.

However,  it  is  made  clear  that  the  present  conclusion  is

confined only to the disposal of this appeal and the trial court

is  free  to  decide  the  case  on  merits  with  regard  to  other

accused persons.

...…………….………………………J.                (A.K. SIKRI)                                  

.…....…………………………………J.         (R.K. AGRAWAL)                         

NEW DELHI; AUGUST 4, 2017.  

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