2025 INSC 280
SUPREME COURT OF INDIA
(HON’BLE
SUDHANSHU DHULIA, J. AND HON’BLE K. VINOD CHANDRAN, JJ.)
DILEEPBHAI NANUBHAI
SANGHANI
Petitioner
VERSUS
STATE OF GUJARAT
Respondent
Criminal
Appeal No.______________ OF 2025 (@S.L.P
(Crl.) No. of 2025 @ Diary No.46289 of 2024)-Decided on 27-02-2025
Criminal,
Corruption
Criminal Procedure
Code, 1973, Section 245 and 482 – Prevention of Corruption Act, 1988,
Sections 7, 8, 13(1)(a), 13(1)(d) and 13(2) –
Quashing of proceedings –
Corruption - Appellant was a
Minister in the Government of the State of Gujarat, who after his resignation
was proceeded with under the Act, 1988 - The allegation fishing
contracts in the reservoirs vested with the State were allotted without
following the policy of the Government; mandating tender proceedings – Held
that only charge is with respect to misuse of authority which does not come
under the provisions of the Prevention of Corruption Act and
none of the ingredients regarding demand or obtaining or acceptance of bribe or
any illegal gratification has come out - The investigation report speaks only
of an allegation of misuse of authority, without any allegation of demand and
acceptance of bribe as against the appellant - The presumption
under Section 20 of the Act is that, if there is a demand and
acceptance of bribe, then there is a presumption that it is to dishonestly
carry out some activity by a public servant, for which, first, proof will have
to be offered of the demand and acceptance - It is not otherwise that, if there
is a misuse of authority then there is always a presumption of a demand
and acceptance of bribe, resulting in a valid allegation of corruption - Statements
recorded, as coming out from the investigation report, which are only with
respect to such demands made by the Minister for State, the first accused and
not as against the second accused - Contention raised by the appellant accepted
that there is not even an iota of material available from the investigation
report, the pre-charge statements recorded from the complainant or the police
officers or even the statements of persons questioned by the investigation
team, as available in the report, to attract the ingredients of the provisions
under the Prevention of Corruption Act – Held that the discharge
application of the appellant ought to have been allowed by the Special Court
especially since there is not even an allegation of demand and acceptance of
bribe, by the second accused/appellant - Proceedings initiated against the
second accused liable to be dropped.
(Para
22 to 25)
JUDGMENT
K. Vinod Chandran, J.
:-Leave
granted.
2.
The appellant was a Minister in the Government of the State of Gujarat, who
after his resignation was proceeded with under the Prevention of
Corruption Act, 1988 [For brevity
‘the Act’]. The allegation fishing contracts in the reservoirs vested
with the State were allotted without following the policy of the Government;
mandating tender proceedings. The appellant is before us challenging the Order
of the High Court refusing to quash the criminal proceeding initiated against
him. The complainant, first respondent herein, inter-alia engaged in trading of
fish, was desirous of obtaining fishing contracts by participating in the
tender process, approached the High Court challenging the illegal grant by way
of allocation, without any tender process. The High Court cancelled the grants
and the State was directed to proceed to make such grants through a proper
tender process. The complainant asserted that the tender process culminated in
grants to successful bidders which clearly generated more consideration for the
State; indicating the attempt of accused Nos. 1 to 7 to obtain illegal
gratification by making such peremptory grants to those who promised them to
pay the demanded amounts from the proceeds received from the grants; resulting
in huge loss to the State. The appellant herein who was arraigned as
accused No.2 asserted that the grants were made to help the tribal community
and the beneficial distribution of largesse of the State, to the marginalised
sections of society was not with any intent of receiving or obtaining illegal
gratification.
3.
The Additional Sessions Judge (Anti- Corruption Bureau) [“Special Court”] rejected the discharge application which was
sought to be challenged under Section 482 of the Code of Criminal
Procedure[For brevity “Cr.P.C.”]
before the High Court; unsuccessfully.
4.
Shri Mukul Rohatgi, learned Senior Counsel appearing for the appellant pointed
out that the records indicated that there is not an iota of material to allege
corruption by the appellant, who is the second accused. The complainant had
approached the High Court in the year 2008, with a writ petition to cancel the
grants and the first complaint alleging corruption was made far later, in the
year 2012; that too only against the Minister of State, who is the first accused.
It was later that the Special Court issued summons to the accused Nos.2 to 7
alleging offences under Sections
7, 8, 13(1)(a), 13(1)(d) and 13(2) of the Act;
based on an investigation report which clearly found that there was no case
made out, of corruption, against the second accused. There is not even an
allegation that the appellant demanded or accepted bribe, for the purpose of
issuing the grants, in the investigation report or in the statements recorded
from the persons questioned by the investigating team. The grants made on
pre-fixed upset price was to benefit the Padhar Adivasi Community which is made
possible by the Policy framed by the Fisheries Department approved by the
Cabinet and the Chief Minister as found in the investigation report itself
(page 109 to 113 of the memorandum of SLP).
5.
According to the learned Senior Counsel the High Court erred also on two
counts, one, insofar as the finding that the earlier judgment in a similar
application filed before the High Court, had pulled the shutters down on a
subsequent challenge on the same ground. It is pointed out from the earlier
order that the learned Single Judge of the High Court had specifically
left liberty to the petitioner to file an appropriate application for
discharge, after pre-charge evidence is recorded, while also holding that there
was no good ground to interfere at that stage. The second error committed by
the High Court is, insofar as peremptorily coming to a finding of corruption,
without looking at the material collected by the investigating agency and
without examining the records properly; specifically, the pre-charge evidence
recorded which clearly indicated that there was no corruption in the grants
made by the department of the Government, which was also only to ensure
distribution of State largesse to the marginalised sections of society;
specifically the tribal groups. The allegation of violation of policy or a mere
peremptory grant made, without following the tender process cannot lead to an
allegation of corruption under the Act as has been held in Neeraj Dutta v.
State (NCT of Delhi) [(2023) 4 SCC 731],
by a Constitution Bench of five Judges. It is also argued that the
suspicion, which restrains the Court from discharging an accused without a
trial, should be premised on some material which commends itself to the Court
as sufficient to entertain a prima-facie view that the offence is committed, as
held in Dipakbhai Jagdishchandra Patel v. State of Gujarat [(2019) 16 SCC 547] . Reliance is
also placed on Sajjan Kumar v. CBI[(2010)
9 SCC 368] to contend that a prima-facie opinion cannot be formed on a
mere suspicion as distinguished from a grave suspicion.
6.
Shri Iqbal Syed, learned Senior Counsel appearing for the
complainant/respondent at the outset referred to Section 20 of the
Act to point out that there is a statutory presumption against the accused and
in the present case there is a demand of bribe made by the Minister of State as
evident from the statements recorded in the investigation report. Neeraj Dutta
was quoted to urge that in the absence of direct oral or documentary evidence,
the Court could draw inference from the evidence available, including
circumstantial, to bring home the guilt of the accused. The policy deviation is
a clear pointer to the avaricious intent of the accused; to illegally profit,
at the expense of the State which demonstrably suffered huge losses. The
learned Senior Counsel would take us to the statements recorded by the
investigation team as available in the voluminous report to argue that there
has been allegation of demands made and at this stage there cannot be an abrupt
closure of the case under Section 482 of the Cr.P.C.
7.
The findings of the High Court at the earlier instance, that there is a
prima-facie case against the accused still has relevance and cannot be easily
upset. The Sessions Court and the High Court have clearly found that there is
prima-facie case against the accused from the available materials in the
investigation report. The complainant was examined and also the three police
officers of the investigation team. It was looking at the investigation report
that the court has entered on the prima-facie finding to reject the prayer for
discharge. Reliance is also placed on the order of the High Court, in a Writ
Petition moved by the complainant, where the illegal grants were cancelled and
the State was directed to proceed in a proper tendering process. The clear
policy of the Government mandated tendering insofar as distribution of State
projects which could not have been deviated from by the Minister or the
department. It was under the Minister’s order that the department proceeded to
make the grants without resorting to a tender process. Invocation of Section
482 at this stage would send a wrong message to the society, concludes the
learned Senior Counsel.
8.
Ms. Swati Ghildiyal, learned Counsel appearing for the State refuses to take
sides and points out that while there is nothing found clearly as to the
acceptance of bribe, by the investigation team, there is a statement recorded
of a demand made by the 1st accused. The investigation report discloses that
there was a meeting convened, of the Zonal Officers of the Fisheries Department
in the Chambers of the 1st accused, in which the decision was taken to allocate
water bodies, which decision was approved by the 2nd accused.
9.
The entire controversy arose by reason of the grant of fishing rights in the
reservoirs owned by the State. The second accused at that time was the
Minister of Fisheries in the Government of Gujarat, when the grant was made.
The complainant filed a Special Civil Application No. 9958 of 2009 in which the
High Court quashed the fishing grants enabling fishing rights in the individual
reservoirs and directed a tender process to be followed. Pursuant to the orders
of the High Court of Gujarat a tender process was initiated and the complainant
had also specifically pointed out the vast difference in the bids made pursuant
to the tender process, which was, far more than that for which the grants were made
illegally by the Minister and the departmental officers. According to the
respondent/complainant, this raises a presumption that there was an attempt to
obtain undue advantage as a motive or reward under Section 7, for
performing a public duty improperly and dishonestly.
10.
The learned Senior Counsel appearing for the appellant had clearly pointed out
that at this stage no presumption can be raised under Section
20 especially when the provision speaks of proof offered at a trial;
that the public servant accused of an offence, has demanded, accepted or
obtained or attempted to obtain for himself or for any other person any undue
advantage from any person. Only on such proof offered, the presumption can be
raised that the demand or receipt of illegal gratification was as a motive or
reward such as is mentioned in Section 7; without consideration or
inadequate consideration. In the present case from the materials produced
before the Special Court there is nothing indicating even an allegation of demand
of bribe by the second accused which would clearly indicate that there is no
question of any proof being offered, on that aspect, at the trial. In this
context, we have to look at the Constitution Bench decision in Neeraj Dutta4.
11.
Neeraj Dutta3 held so, in paragraph 88 :
“88. What emerges from
the aforesaid discussion is summarised as under:
88.1. (a) Proof of
demand and acceptance of illegal gratification by a public servant as a fact in
issue by the prosecution is a sine qua non in order to establish the guilt of
the accused public servant under Sections
7 and 13(1)(d)(i) and (ii) of the Act. 88.2. (b) In order to
bring home the guilt of the accused, the prosecution has to first prove the
demand of illegal gratification and the subsequent acceptance as a matter of
fact. This fact in issue can be proved either by direct evidence which can be
in the nature of oral evidence or documentary evidence.
88.3. (c) Further, the
fact in issue, namely, the proof of demand and acceptance of illegal
gratification can also be proved by circumstantial evidence in the absence of
direct oral and documentary evidence.
88.4. (d) In order to
prove the fact in issue, namely, the demand and acceptance of illegal
gratification by the public servant, the following aspects have to be borne in
mind:
(i) if there is an
offer to pay by the bribe-giver without there being any demand from the public
servant and the latter simply accepts the offer and receives the illegal
gratification, it is a case of acceptance as per Section 7 of
the Act. In such a case, there need not be a prior demand by the public
servant.
(ii) On the other hand,
if the public servant makes a demand and the bribe-giver accepts the demand and
tenders the demanded gratification which in turn is received by the public
servant, it is a case of obtainment. In the case of obtainment, the prior
demand for illegal gratification emanates from the public servant. This is an
offence under Sections 13(1)
(d)(i) and (ii) of the
Act.
(iii) In both cases of
(i) and (ii) above, the offer by the bribe-giver and the demand by the public
servant respectively have to be proved by the prosecution as a fact in issue.
In other words, mere acceptance or receipt of an illegal gratification without
anything more would not make it an offence under Section
7 or Sections 13(1)(d)(i) and (ii), respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring home the
offence, there must be an offer which emanates from the bribe-giver which is
accepted by the public servant which would make it an offence.
Similarly, a prior
demand by the public servant when accepted by the bribe- giver and in turn
there is a payment made which is received by the public servant, would be
an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the
Act.
88.5. (e) The
presumption of fact with regard to the demand and acceptance or obtainment of
an illegal gratification may be made by a court of law by way of an inference
only when the foundational facts have been proved by relevant oral and
documentary evidence and not in the absence thereof. On the basis of the
material on record, the court has the discretion to raise a presumption of fact
while considering whether the fact of demand has been proved by the prosecution
or not. Of course, a presumption of fact is subject to rebuttal by the accused
and in the absence of rebuttal presumption stands.
88.6. (f) In the event
the complainant turns “hostile”, or has died or is unavailable to let in his
evidence during trial, demand of illegal gratification can be proved by letting
in the evidence of any other witness who can again let in evidence, either
orally or by documentary evidence or the prosecution can prove the case by
circumstantial evidence. The trial does not abate nor does it result in an
order of acquittal of the accused public servant.
88.7. (g) Insofar as Section 7 of
the Act is concerned, on the proof of the facts in issue, Section
20 mandates the court to raise a presumption that the illegal
gratification was for the purpose of a motive or reward as mentioned in the
said Section. The said presumption has to be raised by the court as a legal
presumption or a presumption in law. Of course, the said presumption is also
subject to rebuttal. Section 20 does not apply to Sections
13(1)(d)(i) and (ii) of the Act.
88.8. (h) We clarify
that the presumption in law under Section 20 of the Act is distinct
from presumption of fact referred to above in sub-para 88.5(e),
above, as the former is a mandatory presumption while the latter is
discretionary in nature.”
12.
It has been categorically held by the Constitution Bench that the proof of demand
(or an offer) and acceptance of illegal gratification by a public servant is a
fact in issue in the criminal proceeding and is a sine qua non to establish the
guilt of the accused public servant under Sections
7 and 13 of the Act. Unless proof is offered to the satisfaction
of the Court that there is a demand and acceptance of illegal gratification,
the presumption would not arise. The presumption under Section
20 of the Act cannot arise on the mere allegation of a demand and
acceptance of illegal gratification as rightly pointed out by the appellant.
The question of presumption does not arise in the present case where the
Special Court had merely examined the complainant and also summoned three
witnesses, the officers of the investigation team, under Section
311 of the Cr.P.C. for the purpose of recording their statements. This is
pre-charge evidence based on which summons have been issued to the accused
Nos.2 to 7. However, even a prima-facie finding has to be on the basis of
allegations containing the definite ingredients for which proof could be
offered at the trial, giving rise to the presumption under Section
20 of the Act, which presumption is also rebuttable.
13.
Immediately, we come to the judgment of the High Court which specifically
looked at the earlier judgment in the Special Criminal Application filed by the
very same appellant. It is clearly indicated from paragraph 68 of the
earlier judgment, which is extracted in the presently impugned judgment,
that the learned Single Judge while finding no ground to interfere with the
rejection of the discharge application at that stage, noticed that the
pre-charge evidence is being recorded by the Special Judge; at which stage also
the accused will be entitled to cross examine the witnesses and on conclusion
of such recording of evidence, if the writ applicant so desires or is of the
opinion that no case is made out, he could prefer an appropriate application
for discharge under the provisions of Section 245 of the Cr.P.C. This
clearly left liberty to the appellant to once again seek discharge if there is
no material found from the evidence recorded. Hence, we do not think that the
opinion expressed by the learned Single Judge; at this stage, that the
petitions are required to be dismissed since at the earlier point of time the
High Court had found a prima facie case made out against the accused, is
correct. Earlier, there was the allegation coupled with the fact of the grants
having been made, without a tender process, which also stood cancelled by the High
Court and there was no worthwhile investigation carried out. At this stage a
detailed report on investigation is placed before Court and the Officers who
conducted the investigation, examined too. This gives rise to a fresh cause for
examination of the evidence garnered at the investigation, so as to satisfy the
Court about the grave suspicion as arising from the material collated and enter
upon a finding of prima-facie case.
14.
As pointed out by the learned Senior Counsel for the complainant, we see that
the High Court after making such observation has proceeded to consider the
matter on merits based on decisions of this Court, delineating the scope for
discharge, prior to a full-fledged trial. It was also pointed out that the High
Court has agreed with the observations made by the Special Court to proceed
with the trial and hence we have to necessarily consider the issue on merits.
15.
We see from the impugned judgment of the High Court that the learned Single
Judge after referring to the decisions of this Court in State of T.N.
v. N. Suresh Rajan[(2014) 11 SCC 709] , State
of Rajasthan v. Ashok Kumar Kashyap[(2021)
11 SCC 191] , State of Karnataka v. M.R. Hiremath[(2019) 7 SCC 515] and State of T.N. v. R. Soundirarasu[(2023) 6 SCC 768] extracted the
operative portion of the order of the Special Court to reject the application
of the appellant. As has been found by the Special Court; at the initial stage
considering the discharge application, the Court has to only prima facie,
consider the material on record and if a strong suspicion arises from the
materials produced; that the accused has committed an offence, then there can
be no sufficient ground for discharge. Immediately, we have to notice that this
is not the presumption under Section 20 of the Act, but only the
prima facie satisfaction, based on the materials available with the Court at
the initial stage so as to not appropriately discharge the accused, but proceed
to examine the evidence in a full-fledged trial. We have no quarrel with the
above proposition, but we are unable to find any such material having been
specified by the Special Court, in the present case, in its order, especially
regarding even an accusation against the appellant herein, as to the demand of
bribe for the purpose of making the grant of fishing rights. The learned Single
Judge also in the impugned order merely extracts the operative portion of the
order of the Special Court, to give its imprimatur.
16.
In this context, we have to specifically notice that the allegation initially
was only against the first accused who was the Minister of State in the
Government of Gujarat. There was an allegation that the complainant had delayed
the initiation of prosecution, which we find to be not valid especially since
the complainant after approaching the High Court, against the peremptory grants
made of fishing rights, also had approached the State Government for sanction
to prosecute the Minister of State. The State once rejected the application and
the petitioner moved a Writ Petition and it was in compliance of the order
passed therein that a sanction was granted to prosecute the Minister of State.
The complainant at no point of time had any allegation against the
Minister, the appellant herein, nor does the statement recorded at the
pre-evidence stage before the Special Judge raise such an allegation. The
allegation was only that the Minister of State had granted the rights on an
upset price, without following the Government Policy of 2004, thus causing loss
to the State exchequer, running to crores of rupees.
17.
The Special Judge refused to look at the statements recorded and jumped to the
conclusion of a prima facie case made out. The Special Judge refused to discuss
the evidence placed before it by way of the statements and the investigation
report finding that there need not be any detailed evaluation of material on
record, regarding the guilt of the applicants for considering an application
for discharge. The Special Judge referred to the voluminous enquiry report
filed along with the documentary evidence and opined that the grants were made
on an upset price without following the policy of 2004 and without calling any
tender and ultimately the same were cancelled as per the order of Hon’ble High
Court of Gujarat (sic); which we have to pertinently observe is not an
allegation either under Section 7 or Section 13 of the Act.
18.
The Special Judge then went on to look at the complaint, wherein accused no. 1
alone was blamed as responsible for making the illegal grants of reservoirs
without calling tenders, after demanding illegal gratification to be paid
during the period of the grant, which resulted in an abuse and misuse of the
public office held by the Minister of State. It was again brazenly found,
without anything further, based only on the statements recorded, that the
enquiry report establishes a prima facie case against the accused and that none
of the parties thought it fit to cross examine the complainant on this material
point. It was also found that the Court had issued summons under Section 311
against the three officers constituting the investigation team considering the
evidence of the complainant which remained unshaken. According to us, the
refusal to avail the opportunity to cross-examine cannot be put against
the accused, if actually there is no case coming out against them.
19.
We cannot but notice that even in the order of the Special Court there is no
reference to any allegation made by the complainant as against accused no. 2;
the appellant herein. We cannot but observe, as seen from the records produced
before us, that the complainant had once sought for withdrawal of the complaint
by way of an application; which application itself was later withdrawn. The
investigation at the first stage was carried out by the Superintendent of
Police, Gandhi Nagar, who was relieved from the case and the Special Judge
himself had directed the Anti- Corruption Bureau, Gujarat State to take over
the investigation. It was the Anti-Corruption Bureau, Gujarat who filed the
enquiry report which is produced as Annexure P-3 along with the memorandum.
20.
We have to immediately notice the conclusion of the report as available from
the records which is extracted herein below.
“According to
section-13(1)d, and 13(2) of Prevention of Corruption Act-1988 and
section-107 and 116 of I.P.C in such a way that the accused has used
water bodies owned by the Government.
Regarding giving on
lease, 12- reservoirs on 30/06/2008 and 38- reservoirs on 30/07/2008 total-50
reservoirs have been authorised by tender method to allocate at upset price.
Government of Gujarat Ports and Fisheries Department Resolution No:
FDX-112003-1648-8,
Tenancy policy resolution dated 25.02/2004 has been approved by Honorable Chief
Minister Shree. As per Clause No-3(b)(3) of the provisions all water bodies
above 200 hectares in non-tribal areas. Provision is made to award it to the highest
bidder through tender method. As well as copyright. In accordance with the
provisions of Clause No. 25 (6) and (7) of the Resolution, the power to grant
relaxation of monopoly in special cases. The State Government (Honorable Chief
Minister) is ne. Gujarat Government Rules of Procedure, Schedule-2 of 1990 (see
Rule-9 of Schedule-1) points No. 14 (Proposals involving any important change
of policy or practice), 75 (Proposals to vary or reverse a decision previously
taken by the council) /cabinet) Although the accused did not have the authority
to change the resolution of Bhu45 Tenancy Policy, he misused his authority to
work on the applications of the petitioners in his office on 30/06/2008
and 38- reservoirs on 30/07/2008.- 50 reservoirs, apart from authorizing the
tender method, they themselves put notes on the files to allocate at the upset
price. And the then Minister Shree Dilipbhai Sanghani, the then Secretary Shree
Arun Kumar S. Sutaria, the then Deputy Secretary Shree V.T. Kharadi, with the
help of the then Deputy Secretary Shree K. L. Tabiyar, Section Officer Mrs.
Chandrikaben and Deputy Section Officer Shree PC Bhatt , on 05/07/2008, it was
decided to allocate 12 reservoirs to the lessees at the upset price for five
years. And on 04/08/2008 it was decided to allocate 38 reservoirs to the
lessees for five years at the upset price.
That. 38 In the file
with reservoir, the Deputy Secretary of the Department, Mr. V. T. Kharadi,
dated 01/08/2008, as per the instruction of the above note of the section page
no. In the above note from N to 8/N, in the note dated 01/08/2008, according to
the provisions of Clause No. 25(6) and (7) of the Monopoly Policy Resolution,
the State Government (Honorable Chief Minister) has the authority to grant
exemptions in the monopoly policy in special cases. So that before the orders
regarding the lease of the reservoirs, respect the matter. There was a clear
mention of bringing it to the attention of the Chief Minister.” Deputy
Secretary of that file department K.L. On going to Tabiyar, the accused
misused his authority by instructing his personal assistant Mr. Virendra
Maniyar and the then secretary Mr. Arun S. Sutaria to make the lease orders of
the reservoir today (on 01/08/2008) and forced Deputy Secretary K.L. Tabiyar was
forced through Mr. Maniyar and Secretary Arun S. Sutaria and ordered to give
the lease of the reservoirs at the upset price. But Name. According to the
order dated 29/09/2008 of Gujarat High Court, all the leases were cancelled
from 02/12/08 and leases of reservoirs were given through tender system. Thus
the total amount of one year lease to the government was Rs. 26,36,835/- was
earned. And giving leases of reservoirs through tender process for one year
lease amount of Rs. 4,47,29,738/- was earned i.e. in a period of one year Rs.
4,20,92,903/- appears to be the difference (excess income). The leases of the
above reservoirs were granted for a period of five years. Therefore, a
difference (additional income) of Rs. 21,04,64,515/- is seen for a period of
five years. In this work, leases of 12 reservoirs on 05/07/2008 and 38
reservoirs on 04/08/2008 were given at upset price. Which was cancelled from
02/12/08. So, considering the time difference, the annual difference of 12
reservoirs is Rs. 3,25,92,681/-. The difference of five months is Rs. 1,35,80,283/-.
Also, the annual difference of 38 reservoirs is Rs. 95,00,222/-. Four of which
the month difference is found to be Rs. 32,06,740/-. That is, the total
difference (additional income) is Rs. 1,67,87,023/- to the tune of Rs, seems
that is, the lessees benefited and the government suffered a loss. Thus the
accused, Minister Shree Dilipbhai Sanghani, the then Secretary. Shree Arun
Kumar S. Sutaria the then Deputy Secretary Shree. V. T. Kharadi, the then
Deputy Secretary K. L. Tabiyar, Section Officer Mrs. Chandrikaben and Deputy
Section Officer. Shree P.C. Bhatt Misused his authority by misusing his
authority and paying Rs. 21,04,64,515/- to the Government for five years. 1,67,87,023/-)
for committing crimes by causing loss.”
(underlining
by us for emphasis)
21.
We have looked at the Policy of 2004 which, as pointed out by the learned
Senior Counsel for the appellant, is extracted in the report (available in page
109 to 113 of the memorandum of SLP). The said policy framed by the Fisheries
Department is approved by the Cabinet and the Chief Minister of the State. The
policy speaks of beneficial allotments of reservoirs in tribal areas; upto
20 hectares to local tribal individuals, after providing wide advertisement, at
an upset price. Those having area between 21 to 200 hectares to local tribal
societies and in its absence to individuals, which applies even to reservoirs
with area between 200 to 10000 hectares but alternate measure entitling the
grant only to societies under the sub plan in case of absence of a willing
local society. Even those reservoirs in excess of 1000 hectares within tribal
area can be allotted on an upset price. The tendering process is a mandate only
in reservoirs outside the tribal areas, with provision for reservations and
relaxation in so far as tribals and societies. We do not find any enquiry
having been carried out as to the location or area of the various reservoirs
for which the grant is made. Be that as it may, even if the grants have been
made, all in non-tribal areas, even then the ingredients of the offences
alleged under the Prevention of Corruption Act is absent.
22.
The only charge is with respect to misuse of authority which does not come
under the provisions of the Prevention of Corruption Act and
none of the ingredients regarding demand or obtaining or acceptance of bribe or
any illegal gratification has come out. The accusation was only that the policy
of the State required a tender process to be adopted but the Minister had
sanctioned the grant of fishing rights on an upset price, which is alleged to
be misuse of authority especially since the Policy can be deviated from, only
on orders of the Chief Minister or the Cabinet as per the policy document and
the Rules of Business framed. The investigation report, as we observed, speaks
only of an allegation of misuse of authority, without any allegation of demand
and acceptance of bribe as against the appellant. The presumption
under Section 20 of the Act is that, if there is a demand and
acceptance of bribe, then there is a presumption that it is to dishonestly
carry out some activity by a public servant, for which, first, proof will have
to be offered of the demand and acceptance. It is not otherwise that, if there
is a misuse of authority then there is always a presumption of a demand
and acceptance of bribe, resulting in a valid allegation of corruption.
23.
The learned Counsel for the respondent also led us to the statements recorded,
as coming out from the investigation report, which are only with respect to
such demands made by the Minister for State, the first accused and not as
against the second accused. We accept the contention raised by the appellant
that there is not even an iota of material available from the investigation
report, the pre-charge statements recorded from the complainant or the police
officers or even the statements of persons questioned by the investigation
team, as available in the report, to attract the ingredients of the provisions
under the Prevention of Corruption Act. We are of the opinion that the
discharge application of the appellant ought to have been allowed by the
Special Court especially since there is not even an allegation of demand and
acceptance of bribe, by the second accused/appellant.
24. We make it clear that the observations
made by us with respect to the first accused, insofar as the allegations having
been raised, is only to emphasise that even such an accusation is not available
as against the appellant herein. We merely spoke of the statements without
looking at its veracity and our reference to such allegation should not govern
the trial against the first accused, if it is proceeded with.
25.
We allow the appeal and direct that the proceedings initiated against the second
accused be dropped.
26.
The appeal, thus, stands allowed.
27.
Pending applications, if any, shall stand disposed of.
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