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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL     APPEAL     NO.1222     OF     2012   [Arising out of Special Leave Petition (Crl.) No.4845 of 2010]

STATE OF RAJASTHAN …        APPELLANT

Vs.

DR. RAJKUMAR AGARWAL & ANR. …        RESPONDENTS

JUDGMENT

(SMT.)     RANJANA     PRAKASH     DESAI,     J.   

1. Leave granted.   

2. This appeal, by special leave, filed by the State of  

Rajasthan is directed against judgment and order dated  

10/9/2009 delivered by the High Court of Rajasthan in Cri.  

Misc. Petition No.307 of 2009 filed by respondent 1 herein –  

Dr. Rajkumar Agarwal under Section 482 of the Code of  

Criminal Procedure, 1973 (for short, “the Code”).  By the

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impugned judgment, a learned Single Judge of the High Court  

has quashed the complaint filed against respondent 1 by one  

Sohan Lal (the complainant) alleging that respondent 1  

demanded Rs.5,000/- as illegal gratification for performing the  

operation of Smt. Sita Devi, whom he treated as his aunt. The  

question before this court is whether the exercise of powers  

under Section 482 of the Code by the High Court to quash the  

complaint was warranted in the facts of this case.  

3. The facts, briefly stated, are as follows:

Respondent 1 was working as Junior Specialist (Surgery),  

Government Hospital, Suratgarh, District Sriganganagar,  

Rajasthan. On 11/12/2007, the Complainant submitted a  

written complaint to the Police Station, Anti Corruption  

Bureau (for short, “the ACB”) Chowki, Sriganganagar stating  

that on 7/12/2007, respondent 1 performed the operation of  

uterus of his aunt - Smt. Sita Devi w/o. Navranglal in a  

Government Hospital at Suratgarh.  According to the  

complainant, respondent 1 demanded Rs.5,000/- as bribe for  

the operation and for better treatment.  The complainant gave  

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a sum of Rs.2,500/- at the time of operation.  The  

complainant stated that his aunt was still in the hospital and  

respondent 1 was demanding the remaining sum of  

Rs.2,500/-.  According to the complainant, he did not want to  

give the money but he apprehended that respondent 1 may  

cause harm to his aunt, if he does not pay the amount.  

4. It is the case of the petitioner that on the same day at  

about 11.00 a.m., a blank cassette “A” was inserted in a small  

tape-recorder and handed over to the complainant at the ACB  

Office.  The complainant was explained about its functioning.  

Mr. Jagdish Rai, Ct.No.179 was sent along with the  

complainant to Suratgarh for verification of the demand of  

bribe.   At 5.00 p.m., both the complainant and Mr. Jagdish  

Rai returned to the ACB office. The tape-recorder was played  

and the demand was found corroborated.  Its memo was  

prepared and the cassette was sealed and labelled.   It is the  

case of the appellant that preparation for trap was made.  Two  

independent witnesses i.e. Mr. Darshan Singh, Assistant  

Engineer and Mr. Kripal Singh, Assistant Project  

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(Samanvayak) Office, Sarva Shiksha Abhiyan, Sriganganagar  

were introduced to the complainant.  Currency notes of  

Rs.1,500/- produced by the complainant which were to be  

handed over to the appellant were smeared with  

phenolphthalein powder.  The necessary procedure was  

followed.  A new blank cassette was inserted in the tape  

recorder and it was handed over to the complainant.  On  

12/12/2007, the Additional Superintendent of Police along  

with the complainant, the two independent witnesses and  

others left for Suratgarh.  The complainant was given  

necessary direction for contacting respondent 1.  The trap  

party waited there.  The complainant came out of the  

residence of respondent 1 and gave fixed signal to the  

Additional Superintendent of Police.  The raiding party along  

with the independent witnesses went to the complainant, who  

stated that respondent 1 had kept the bribe money of the  

complainant in the drawer of his table.  The conversation of  

respondent 1 and the complainant was heard on the tape  

recorder.  Thereafter, the raiding party, two independent  

witnesses and the complainant went inside the house of  

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respondent 1.  Upon being questioned, respondent 1 stated  

that he had kept the money in the drawer of his table.  The  

money was recovered and hand wash of respondent 1 was  

taken which turned pink.  After following the necessary  

formalities, FIR came to be registered under Sections 7 and  

13(1)(d)(2) of the Prevention of Corruption Act, 1988 (for short,  

“the PC Act”) at Police Station, ACB Chowki, Sriganganagar,  

against respondent 1. Sanction for prosecution was  

obtained from the competent authority on 23/6/2009.  

5. As stated above, respondent 1 filed petition under  

Section 482 of the Code for quashing of the said FIR.  The  

High Court has quashed the said FIR.  The State of Rajasthan  

is in appeal before us.   

6.  Mr. Manish Singhvi, Addl. Advocate General for the  

appellant submitted that the High Court has fallen into a  

grave error in quashing the FIR.  Counsel submitted that the  

High Court misinterpreted the ratio of the judgment of this  

court in State of Haryana v.  Bhajan Lal,  1992 Supp. (1)  

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335.  Counsel submitted that the FIR and the other material  

collected by the prosecution prima facie make out a strong  

case against respondent 1.

7. Mr. Pallav Shishodia, learned senior advocate for  

respondent 1, on the other hand, submitted that the High  

Court has rightly quashed the complaint. He pointed out that  

Smt. Sita Devi was not related to the complainant. Therefore,  

the complainant’s case that he went to respondent 1 in  

connection with the uterus operation of Smt. Sita Devi and the  

amount was demanded by respondent 1 from him is  

inherently improbable.  Counsel submitted that the  

complainant owns a Chemist shop near the hospital in which  

respondent 1 is working.  The complainant does not have the  

necessary licence to run the Chemist shop.  The illegalities  

committed by the complainant were known to respondent 1  

and, therefore, the complainant has falsely implicated  

respondent 1 in this case.  Counsel pointed out that in their  

statements recorded under Section 161 of the Code, Smt. Sita  

Devi as well as her husband have stated that they were not  

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aware whether the appellant demanded any money from  

respondent 1.  In fact, Smt. Sita Devi and her husband have  

filed affidavits stating that respondent 1 never asked for  

money and his behaviour towards Smt. Sita Devi was good  

and the allegations made by the complainant are false.  In  

support of his submission, counsel relied on the judgments of  

this court in V.P. Shrivastava  v. Indian Explosives Limited  

& Ors. (2010) 10 SCC 361 and Shiji alias Pappu & Ors.  V.  

Radhika & Anr. (2011) 10 SCC 705. Counsel submitted that  

since Smt. Sita Devi and her husband have not supported the  

prosecution case, the prosecution has become a lame  

prosecution and in all probability the case will end in  

acquittal.  Therefore, the High Court has rightly quashed the  

complaint because if the proceedings are allowed to continue,  

that will be an abuse of the process of court.  Counsel  

submitted that in any case, even if this court comes to a  

conclusion that the complaint discloses a prima facie  

cognizable offence, considering the fact that the offence is of  

the year 2007;  that respondent 1 is on the verge of  

retirement and that he has suffered the agony of investigation  

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and possibility of a criminal trial from 2007 onwards till today,  

this court may take a kindly view of the matter.  Counsel  

submitted that in the facts of this case, ends of justice would  

be met if the High Court’s order is confirmed.    

8. We find no substance in Mr. Shishodia’s submissions. It  

is true that the complainant is not related to Smt. Sita Devi  

but nothing has been brought on record to even prima facie  

establish that the complainant holds any grudge against  

respondent 1 because respondent 1 had knowledge about the  

alleged irregularities in respect of his Chemist shop.  Since Mr  

Shishodia has referred to statements of Smt. Sita Devi and  

Navrang Lal recorded under Section 161 of the Code, we have  

perused them.  In these statements, Smt. Sita Devi and  

Navrang Lal have stated that the complainant was treating  

Smt. Sita Devi as his aunt and he had admitted her to the  

hospital. Navrang Lal has stated that because of his work he  

had to leave Suratgarh and therefore, the complainant  

admitted Smt. Sita Devi in the hospital.  So far as the alleged  

demand for money made by  respondent 1 is concerned, they  

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have stated that respondent 1 did not demand any money  

from them and they were not aware whether respondent 1  

demanded any money from the complainant. Thus, these  

statements support the complainant’s case that he was  

treating Smt. Sita Devi as his aunt; that he had admitted her  

to the hospital and that he had dealt with respondent 1.  

Respondent 1 is relying on three affidavits.  Affidavits have  

been filed by Smt. Sita Devi, Navrang Lal and another patient  

by name Devcharan Bhagat.  Surprisingly, in these affidavits,  

Smt. Sita Devi and Navrang Lal have given a totally contrary  

version.  They have gone on to say that the complainant has  

lodged a false complaint against respondent 1.  In his affidavit  

Devharan Bhagat, another patient of respondent 1, has given  

a certificate to respondent 1 that he is an expert doctor and he  

had never taken any money from him for treatment.  At this  

stage, we do not want to give any final opinion on these  

affidavits but we find it difficult to quash the complaint on the  

basis of these affidavits.  As we have already noted, Smt. Sita  

Devi and her husband have in their statements recorded  

under Section 161 of the Code partly supported the  

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complainant.  Apart from these statements there is another  

prima facie clinching circumstance against the appellant.  The  

police claim that they have taped the conversation between  

respondent 1 and the complainant. We have read the  

transcript of this tape recorded conversation. It is not possible  

for us to agree with the High Court that the transcription does  

not corroborate the FIR.  Prima facie, we feel that if it is read  

against the background of the other facts, it is apparent that it  

relates to the operation of Smt. Sita Devi and the demand  

pertains to the said operation.  Besides, according to the  

prosecution, the trap was successful.  Money smeared with  

phenolphthalein powder was found with respondent 1.  The  

notes recovered from the respondent 1 tallied with the notes  

given by the complainant to the police for the purpose of trap  

and respondent 1’s hand wash turned pink.  It is also  

pertinent to note that when the complaint was lodged, Smt.  

Sita Devi was still in hospital, probably because after the  

money was handed over, she was to be discharged, and in  

fact, her discharge card was found on the table of respondent  

1.  It is also the case of the appellant that respondent 1  

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refused to give his voice sample for the purpose of  

investigation. How far the evidence collected by the  

investigating agency is credible can be decided only when the  

evidence is tested by cross examination during the trial.  But,  

in our opinion, in view of the contents of the FIR and nature of  

evidence collected by the investigating agency, this is certainly  

not a case where the FIR can be quashed. If we examine the  

instant FIR in light of the principles laid down by this Court in  

Bhajan Lal it is not possible to concur with the High Court  

that the allegations made in the FIR and the evidence collected  

in support of the same do not disclose the commission of any  

offence.  

9.  There is yet another and a very sound reason why we  

are unable to quash the instant FIR. It is risky to encourage  

the practice of filing affidavits by the witnesses at the stage of  

investigation or during the court proceedings in serious  

offences such as offences under the PC Act. If such practice is  

sanctioned by this Court, it would be easy for any influential  

accused to procure affidavits of witnesses during investigation  

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or during court proceedings and get the FIR and the  

proceedings quashed. Such a practice would lead to  

frustrating prosecution of serious cases. We are therefore,  

wary of relying on such affidavits. So far as the judgment cited  

by Mr. Shishodia in V.P. Shrivastava is concerned, it is  

purely on facts and can have no application to this case. Shiji  

@ Pappu also does not help respondent 1. That case involved  

a civil dispute. Parties had settled their civil dispute and  

therefore, the complainant was not ready to proceed with the  

proceedings. It is against this background that in Shiji @  

Pappu, this Court held that exercise of power under Section  

482 of the Code was justifiable.  However, this court added  

that the plentitude of the power under Section 482 of the Code  

by itself makes it obligatory for the High Court to exercise the  

same with utmost care and caution.  The width and the nature  

of the power itself demands that its exercise is sparing and  

only in cases where the High Court is, for reasons to be  

recorded, of the clear view that continuance of the prosecution  

would be nothing but an abuse of the process of law.  We feel  

that in the instant case, the High Court failed to appreciate  

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that the wholesome power vested in it under Section 482 of  

the Code has to be exercised with circumspection and very  

sparingly.  It is not possible for us, on the facts of this case, to  

come to a conclusion that no offence is made out at all against  

respondent 1 and continuance of proceedings would be abuse  

of the process of court.   

10. Mr. Shishodia submitted that respondent 1 is on the  

verge of retirement.  He has suffered the agony of investigation  

since 2007 and therefore, this court may take a kindly view of  

the matter.  Rampant corruption is seen in every walk of our  

life.  People, particularly those holding high office, are  

frequently seen accepting illegal gratification.  In such serious  

cases showing mercy at this stage may send wrong signals.  

We are, therefore, unable to accede to Mr. Shishodia’s request.

11.  In the circumstances, we set aside the impugned  

judgment and order.   It is not necessary for us to say the  

obvious that all observations made by us are prima facie  

observations and the court which may be seized of this matter  

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shall deal with it strictly on merits and in accordance with  

law.  

12. The appeal is disposed of in the afore-stated terms.  

……………………………………………..J. (AFTAB ALAM)

……………………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI, AUGUST 17, 2012.

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