TMI Blog2017 (1) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in various occasions expressed its view that Rules under Vigilance Manual are only administrative and on non-observance of the same, there is no mandatory violation, which would affect the validity of the prosecution. Once it is decided that the compliance of the rules of the DVAC Manual is not mandatory, if at all any officials violating the rules of manual the court should recommend for taking departmental action against the officials concerned, which will not go to the root of the case. As already stated, that this Court finds there are specific allegations made against this petitioner in the FIR, charge sheet and also in the statement given by the official witnesses recorded during the investigation under Section 161 Cr.PC, there are prima facie allegations made out against this petitioner. Merely because the tainted money has not been recovered from the petitioner/A1 directly, it is not a ground for quashing the proceedings. Further, it is settled proposition that latches on the part of prosecution will not vitiate the case. At this stage, this Court cannot interfere with the power of the trial Court by invoking the provisions contemplated under Section 482 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and A2 under Section 7, 13(2) r/w.13(1) (d) of Prevention of Corruption Act, 1988. 3. The main grounds raised by the petitioner is that the respondent police without any evidence implicated the petitioner/A1. The sanctioning authority who accorded sanction against the petitioner has not verified the basic aspects and fundamental principals, mechanically granted sanction against the petitioner. The petitioner has become scapegoat and victim to the circumstances and therefore, the trial against this petitioner is unwarranted in the absence of demand, acceptance and recovery from the petitioner. The trial Court ought not to have framed charge against A1 and further the cognizance taken by the trial Court against A1 is bad in law. While attending the complainant grievance of issuing assessment order, in any manner the petitioner has no role to play either directly or indirectly, even in the preparation of assessment order, A2 is having separate clerk to carryout his work. In the final report filed by the respondent police does not disclose foundational aspects of demand, acceptance and recovery and the materials collected by the respondent police are not sterling quality and the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s directed by A2 and requested him to hand over the assessment orders for 2008-2009 and 2009-2010 and further requested to receive the sale tax arrears due for four months. While he met A1, A1 also demanded an amount of ₹ 15,000/- as illegal gratification for himself and also for A2 to close the file, failing which a notice would be issued to take further action. The defacto complainant again met A1 in his office on 06.06.2011 at about 3.00pm and A1 again demanded ₹ 15,000/- to do the work. When the complainant expressed his inability to pay the amount and requested A1 two days time to make arrangement for the bribe amount. On 09.06.2011 in pursuance of the above said demand made by A1 and A2 earlier, at about 18.30hrs in the office of accused A1 and A2 earlier, at about 18.30hrs in the office of accused A1 and A2, the defacto complaint along with an official witness by name Tr.Ahilan met A1. The defacto complainant, official witness Tr.Ahilan and A1 went inside the room of A2. In the presence of A1, A2 reiterated their earlier demand of ₹ 15,000/- and demanded the complainant to give the bribe amount of ₹ 15,000/- to A1. Then the complainant, official witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mannady East Assessment Circle, Wavoo complex, No.191, N.S.C.Bose Road, Chennai 1 at 3.00 P.M. and insisted A-2 to issue the Assessment Orders for the years 2008-09 and 2009-10. A2 demanded ₹ 15000/- from the complainant as bribe and directed the complainant to approach A-1 by stating that you have come late. Accordingly the complainant approached A-1 as directed by A-2 and requested him to hand over the Assessment Orders for 2008-09, 2009-10 and further requested him to hand over the Assessment Orders for 2008-09, 20096-10 and further requested to receive the Sales Tax arrears that was due for 4 months. The accused A-1 noted in the margin demanded an amount of ₹ 15,000/- as illegal gratification for himself and for A-2 to close the file and added further that otherwise a notice will be issued to take further action. The complainant again met A1 in the office of the accused on 06.06.2011 at about 3.00 PM and A.1 again demanded ₹ 15,000/- from the complainant to do the work. The complainant expressed his inability to pay the amount and requested A1 to give two days time to arrange for the money demanded for which A1 agreed. In pursuance of the above said de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant, no amount was recovered from the petitioner, the money was recovered only from the A2. Before, during and after the trapping proceedings, the respondent have violated the Rules 42, 43, 45, 47(2), 49, 51 and 54 of the Manual of Directorate of Vigilance and Anti-corruption, prima facie there is no materials available against the petitioner to proceed further and the prosecution will not be in a position to establish their case against the petitioner from the available records. Further, the respondents have violated the mandatory procedure as contemplated under Manual of Directorate of Vigilance and Anti-corruption and it is utter violation of the principles laid down by the Hon'ble Apex Court in various decisions. After the trapping, the trap laying officer has not given any opportunity to the petitioner to offer his explanation, if the explanation is found satisfactory by the investigating officer or the trap laying officer, the alleged accused would be relieved of the agony of facing further proceedings. The failure to give an opportunity to submit his explanation, immediately after the trap will amount to unfair and unjust procedure and is in violation of Article 21 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence of one such statement, it has to be necessarily observed that the benefit of doubt has arisen and the same should be taken in favour of the accused. 12. Further, the Hon'ble Supreme Court has time and again in bribe cases, the prosecution has to prove the demand, acceptance and recovery of the bribe money. Admittedly, from the evidence of the official witness recorded under section 161 Cr.PC clearly proves that no amount was recovered from this petitioner during trap proceedings. This aspect goes to the root of the trial in the absence of one such recovery from the petitioner, the prosecution cannot prove the case before the trial Court. On this score alone, the prosecution will not succeed in this case, under such circumstances, the petitioner need not undergo trial unnecessarily. Therefore, the charge sheet against the petitioner is liable to be quashed. 13. The learned counsel for the petitioner in support of his contention submitted the following authorities :- 1. (2013) 3 SCC 594 - State rep by Inspector of Police, Chennai V. N.S.Gnaneswaran 2. Unreported judgment of the Division Bench in WA.No.1238 of 2012 dated 03.01.2013 - http://indiankanoon.org/doc/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . During the pendency of this criminal original petition, the petitioner withdrawn the discharge petition in Crl.MP.No.511 of 2013 on 09.05.2014. Subsequently, the petitioner filed another petition for discharge before the Special Court on 23.02.2015 in Crl.MP.No.225 of 2015 and the same is still pending, the petitioner is evading the Court proceedings in framing charges stating that this Crl.OP is pending. If there is no alternative or efficacious remedy is available, the petitioner can seek remedy before this Court under Section 482 Cr.PC, but in this case, in order to avoid framing of charges against the petitioner, the petitioner is dragging on the proceedings by filing petition after petition before the Courts, the petitioner has not made out any valid ground for quashing the CC.No.6 of 2013, as per the guidelines enumerated by the Apex Court in its earlier decisions. 16. In support of his contention, the learned Additional Public Prosecutor cited the judgment as follows :- Unreported judgment of the Division Bench in WA.No.1238 of 2012 dated 03.01.2013 - Duraimurugan V. State rep by Deputy Superintendent of Police, Vigilance and Anti Corruption, Vellore. 17. On perus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Before, during and after the trap proceedings, the prosecution has not followed the mandatory rules prescribed under the Manual of Directorate of Vigilance and Anti-corruption. Time and again, the Hon'ble Apex Court and this Court on various occasions have held that the trap laying officer has to follow the procedures contemplated under the DVAC Manual rules, the violation of rules will be viewed seriously. But, in this case, the trap laying officers has not followed the procedures as contemplated the rules in the Manual. Immediately after the trap proceedings the trap laying officer has not given any opportunity to submit his explanation, the violation of the proceedings vitiate that no charge will stand against the petitioner, if any charges are framed by the prosecution. In the said circumstances, facing of trial by the petitioner before the Courts is futile exercise, no purpose will be served. The violation of Manual rules and denying opportunity is violation of Article under 21 of the Constitution of India. 19. The contention of the respondent is that from the evidence of official witnesses those who participated in the trap proceedings have clearly stated that as d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat rules under Manual of Directorate of Vigilance and Anti Corruption are directive and not mandatory and violation of Rules will not vitiate the proceedings. Therefore, there is no need to refer the same before the Division Bench. 22. Considering the submissions made on both sides and on perusal of the records and citations referred on behalf of the counsel for both parties, the contention raised by the learned counsel for the petitioner is not acceptable, the Division Bench has held otherwise and followed the directions of the Apex Court. Reliance was also placed upon the decision of the Hon'ble Supreme Court in Vineet Narain V. Union of India (1996) 1 SCC 226 - The CBI manual based on statutory provisions of the Cr.PC provides essential guidelines for the CBI's functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned . Subsequently, this Court in various occasions expressed its view that Rules under Vigilance Man ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
