IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

APPELLATE SIDE

CRR 3841 OF 2017

Sandip Kumar Roy

Vs.

The State of West Bengal & Anr.

Before: The Hon’ble Justice Apurba Sinha Ray

For the petitioner : Mr. Pradip Kumar Roy, Sr. Adv.

Ms. Sumedha Mukhopadhya, Adv.

Mr. S. Ganguly, Adv.

For the State

: Mr. Rudradipta Nandy, Ld. APP

Mr. Karan Bapuli, Adv.

Reserved on : 22.02.2026

Judgment on : 17.03.2026

Apurba Sinha Ray, J.:-

1. This instant Revisional Application has been filed by the petitioner

praying for quashing of the criminal proceeding of Special Case No.

11/16 arising out of ACB P.S. Case No. 11/2016 dated 26.11.2016

under Section 7, 13(2) read with 13(1)(d) of the Prevention of

Corruption Act, 1988 pending before the Court of Additional District

and Sessions Judge, Bench-II, Calcutta, under Section 482 of the

Page 2 of 26

Code of Criminal Procedure, 1973. The brief fact of the case is

encapsulated as hereinunder.

2. The petitioner is a member of the West Bengal Civil Services (Executive),

having qualified in the 2011 examination. He was appointed on

31.01.2014 as Deputy Excise Collector under the Excise Department,

Government of West Bengal. After completing his field training at

Malda, he was posted at Cannin g Range, South 24-Parganas by

notification dated 30.06.2015. According to him, during his tenure he

discharged his duties sincerely and there were no adverse remarks

against him.

3. On 05.10.2016, he was directed to undergo training at Swami

Vivekananda State Police Academy, Barrackpore along with newly

recruited officers. He sought exemption on medical grounds, enclosing

medical reports and recommendations from the Collector of Excise and

Joint Commissioner (Training). His prayer was rejected. He joined the

training on 01.11.2016 but during the course of physical drill he

suffered severe spinal pain and was advised rest by doctors of Calcutta

Medical College and P.G. Hospital.

4. On 26.11.2016 at about 10:10 p.m., he was arrested by the Anti -

Corruption Branch (ACB), West Bengal, on the basis of a written

complaint alleging demand of Rs.1,00,000/- as illegal gratification for

facilitating a bar-cum-restaurant licence at Diamond Plaza, Jessore

Road, which falls outside his territorial jurisdiction. A case was

registered under Sections 7, 13(2) read with 13(1)(d) of the Prevention of

Corruption Act, 1988. Charge sheet was submitted on 24.01.2017.

Page 3 of 26

5. The petitioner contends that no preliminary enquiry was conducted; the

alleged tainted money was not recovered from his possession; and the

investigation was conducted contrary to the Government Notifications

governing the functioning of the ACB. He further relies on RTI replies

from the office of the Joint Commissioner of Police and PWD authorities

stating that on 26.11.2016 (fourth Saturday) the New Secretariat

Building was closed and that the complainant did not enter the building

on the alleged dates. Applications for discharge under Section 227

Cr.P.C. and for dropping of proceedings were rejected by the Learned

Additional District & Sessions Judge, Bench -II, Kolkata. Being

aggrieved, the petitioner has filed the present revisional application

under Section 482 of the Code of Criminal Procedure, 1973 seeking

quashing of the criminal proceeding.

6. The petitioner challenges the proceeding primarily on the ground that

the sanction for prosecution was granted mechanically without proper

application of mind and without examining the materials, rendering the

cognizance bad in law.

7. It is further contended that the ACB had no authority to register and

investigate the complaint in absence of assignment by the P & AR

Department as required under the relevant Government Notifications,

and that no preliminary enquiry was conducted before registration of

the FIR against a public servant.

8. The petitioner asserts that there is no proof of demand or acceptance of

bribe, that the alleged tainted money was not recovered from his

person, and that there was no audio or video evidence to substantiate

Page 4 of 26

the prosecution case. He also contends that the alleged place of licence

falls outside his jurisdiction and that there was no pending application

before him.

9. Reliance is placed on RTI documents to contend that the ACB office was

closed on the relevant date and that the complainant did not enter the

New Secretariat Building, thereby casting serious doubt on the genesis

of the complaint.

10. It is urged that the investigation was conducted without

jurisdiction and in violation of the statutory mandate, and therefore the

entire proceeding is liable to be quashed.

11. Mr. Roy, appearing for the petitioner, has submitted several case

laws in support of his contention. In Ashoo Surendranath Tewari vs.

The Deputy Superintendent of Police, EOW, CBI reported in (2020) 9

SCC 636, the Hon’ble Supreme Court has been pleased to observe that

the yardstick would be to judge as to whether the allegation in the

adjudication proceedings as well as the proceedings for prosecution is

identical and the exoneration of the person concerned in the

adjudication proceeding is on merits. In case it is found on merit there

is no contravention of the provisions of the Act in the adjudication

proceedings the trial of the person concerned shall be an abuse of

process of Court.

12. The learned Counsel Mr. Roy has also relied upon the decision

of Maqbool Hussain vs. The State of Bombay reported in (1953) 1

SCC 736.

Page 5 of 26

13. The Learned Counsel Mr. Roy has also drawn the attention of

this Court to the facts that the instant revisional application has been

filed by the petitioner in the year 2017 seeking quashing of the

criminal proceeding arising out of ACB PS Case No. 11 of 2016 under

Section 7, read with Section 13(1)(d) of the Prevention of Corruption

Act, 1988 including the order of rejection of the application under

Section 227 of the Cr.P.C. After filing of the said revisional application

there are certain developments. The petitioner came to know that on

the basis of a request of the Legal Remembrances of the State of West

Bengal the Special Public Prosecutor who was in-charge of the case

was directed to submit detailed and specific reports, so as to consider

the merits for withdrawal of both the ACB P.S. Case No. 11 of 2016 of

the Prevention of Corruption Act read under Section 13(1)(d) and 120

B IPC against the present petitioner. Pursuant to the said requisition

the Special Public Prosecutor in-charge of the case by letter dated

21.11.2017 gave his detailed opinion in respect of withdrawal of both

the aforesaid cases. After receipt of the said report the Legal

Remembrancer asked the Senior Public Prosecutor to give his specific

opinion about the withdrawal of criminal cases and the Special Public

Prosecutor by letter dated 11.12.2017 submitted his specific report to

the legal remembrancer in affirmative. Copies of those reports were

also sent to the DIG ACB of West Bengal by letter dated 16.09.2022

for necessary action from his end. The petitioner obtained the copy of

the said reports on the basis of RTI application. From the said

documents it will appear that the complaint which was lodged by the

Page 6 of 26

Inspector of the ACB P.S. Case No. 11 of 2016 was ended in FRT

(Mistake Of Fact) as the said complainant failed to substantiate the

allegation made thereunder and by an order dated 17.03.2018 the

Trial Judge accepted the said FRT and dispose the Special case No. 02

of 2017. From the Government orders dated 24.08.2012 and

30.11.2012, it is found that ACB P.S. investigates those cases only

which are assigned to them by the Government in the P & AR

Department to ensure protection of a public servant from frivolous

and vexatious complaints.

14. It is also contended that in the same year i.e. 2017 the

petitioner challenged the Departmental Proceedings initiated against

him by the Excise Department on the self-same, cause of action being

case No. OA 450 of 2017 which was decided ultimately by an order

dated 04.09.2025 by Hon’ble State Administrative Tribunal setting

aside the Departmental Proceedings entirely.

15. Mr. Nandy, appearing for the State, has argued that the present

case was registered on the basis of a complaint lodged before the

Superintendent of Police, Anti-Corruption Branch by one Swastik Nag.

In the said complaint it was alleged that the petitioner had demanded

a sum of ₹16 lakhs as illegal gratification for facilitating the grant of

an excise licence at Dumdum, North 24 Parganas, out of which ₹1

lakh was to be paid as the first installment.

16. It is further argued that on 25.11.2016 the petitioner called the

complainant and demanded payment of the said first installment .

Page 7 of 26

Thereafter, on 26.11.2016, the complainant was asked to meet the

petitioner at his residence. There are materials in the case diary to

substantiate such allegations.

17. He further submits that during the hearing, the petitioner

raised five objections, namely:

(i) That the Anti-Corruption Branch office was closed on Saturday

(26.11.2016),

(ii) That no preliminary enquiry was conducted,

(iii) That the formation and functioning of ACB under the notification

dated 22.11.2012 were questionable,

(iv) That the petitioner was posted in Canning Range, South 24

Parganas whereas the alleged licence related to North 24 Parganas,

and

(v) That the tainted money was not recovered from his personal

possession but from a sofa.

18. In reply to the first objection, the State submits that the ACB

was functioning on the said date. By an order dated 23.11.2016

passed by the learned Additional District and Sessions Judge, Bench-

II, Bichar Bhavan, in connection with ACB P.S. Case No. 10 of 2016,

one accused, namely Subhasish Chakraborty, was remanded to police

custody and remained in the custody of the ACB during the relevant

period. Consequently, the ACB office was functioning on 26.11.2016.

The RTI replies obtained from PWD and Kolkata Police cannot

determine the functioning of the ACB.

19. In response to the second objection, the State submits that in

trap cases a preliminary enquiry is not mandatory where a cognizable

offence is disclosed. The pre-trap and post-trap memoranda prepared

by the investigating agency demonstrate that the necessary

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procedures were followed before and during the trap, and the same

from part of the case diary.

20. With regard to the third objection concerning the formation

and guidelines of the ACB under the notification dated 22.11.2012,

the State submits that apart from the said notification there was

another notification being No. 2208 P.S. Cell dated 14.11.2012, by

which the ACB Police Station was empowered to register and

investigate offences under the Prevention of Corruption Act,

1988 throughout the State of West Bengal.

21. In response to the fourth objection, the State relies upon

Section 7 of the Prevention of Corruption Act, 1988 , which

penalises acceptance of illegal gratification by a public servant for

rendering any service in relation to official functions. Therefore, the

fact that the petitioner was posted in Canning Range, South 24

Parganas does not negate the allegation that he demanded money for

facilitating a licence relating to Dumdum, North 24 Parganas.

22. The State further refers to the post-trap memorandum and the

statement of the shadow witness, which indicate that the petitioner

had also offered to facilitate a bar-cum-restaurant licence in exchange

for money, thereby showing his knowledge and involvement in such

matters.

23. In response to the fifth objection that the alleged bribe money

was not recovered from the petitioner’s personal possession but from a

sofa, the State submits that, as reflected from the pre -trap

memorandum, the complainant produced Government currency notes

Page 9 of 26

amounting to ₹1 lakh consisting of ₹2000 (14 pieces), ₹500 (101

pieces) and ₹100 (215 pieces). The said notes were treated with

phenolphthalein powder and the serial numbers were duly recorded.

24. During the post-trap proceedings, the left and right hand wash

of the petitioner were collected in bottles marked Ext. A and Ext. B

and sent to the Forensic Science Laboratory. The report dated

23.12.2016 confirmed the presence of phenolphthalein and sodium

carbonate in both samples, indicating that the petitioner had handled

the tainted currency notes. The seizure list appears at pages 5–6 of

the case diary, the forwarding letter and FSL form at pages 116–121,

and the FSL report at page 363.

25. The complaint also records that the petitioner contacted the

complainant on 25.11.2016 and 26.11.2016. This is corroborated by

the statements of the Nodal Officers of Bharti Airtel Limited (page 349

of the case diary) and Vodafone Services (page 371 of the case diary).

26. In response to the query regarding ₹2000 notes, it is submitted

that by notification dated 08 .11.2016 the Reserve Bank of

India withdrew the old ₹500 and ₹1000 notes and introduced new

₹500 and ₹2000 notes. The complainant has also stated that part of

the payment was agreed to be made in old currency which he had

converted.

27. On the basis of the trap proceedings, forensic report and other

materials in the case diary, the State submits that a prima facie

offence under Section 7 of the Prevention of Corruption Act, 1988 is

Page 10 of 26

made out. Accordingly, the State prays that the revisional application

be dismissed.

Court’s view:-

28. After considering the submission and counter-submission of the

parties and also taking into consideration the judgments cited from

the side of the petitioner, it appears that the State has made a case

under Prevention of Corruption Act on trap evidence. So far as regards

the allegation that the relevant formalities or preliminary enquiries

were not properly done by the Investigating Agency, I find that the

State has produced materials showing that on 25.11.2016 and

26.11.2016, phone calls were exchanged between the petitioner and

the complainant. It is also found from the investigation that the

petitioner handled the tainted money which was treated with

Phenolphthalein powder and the petitioner was requested to wash his

right hand in the relevant solution. After such a wash, the water

turned pink. The said pink coloured solution, which was the right

hand wash of Sandip Kumar Roy, was seized, sealed and labelled at

the spot and all the team members put their signatures on the label of

the bottle.

29. The statement of the shadow witness clearly indicated that

there was a demand of illegal gratification from the side of the

petitioner and on demand the complainant produced the tainted

money before him.

Page 11 of 26

30. Needless to mention the trial of the case does not begin and this

Court is called upon to consider whether there is prima facie material

against the present petitioner for framing charges under the

provisions of Prevention of Corruption Act or not. It appears that the

shadow witness and other witnesses, who derived knowledge from the

said shadow witness, narrated how the demand of illegal gratification

came from the side of the petitioner. It is trite law that in trap laying

cases the issue of demand of illegal gratification is of vital importance.

31. In this regard, the Hon'ble Supreme Court in various decisions

has discussed the issue of demand of illegal gratification under

Prevention of Corruption Act. Section 7 of Prevention of Corruption

Act has laid down the following provisions.

“7. Offence relating to public servant being

bribed

- Any public servant who,-

(a) obtains or accepts or attempts to obtain from

any person, an undue advantage, with the

intention to perform or cause performance of

public duty improperly or dishonestly or to

forbear or cause forbearance to perform such

duty either by himself or by another public

servant; or

(b) obtains or accepts or attempts to obtain, an

undue advantage from any person as a reward

for the improper or dishonest performance of a

public duty or for forbearing to perform such

duty either by himself or another public servant;

or

(c) performs or induces another public servant to

perform improperly or dishonestly a public duty

or to forbear performance of such duty in

anticipation of or in consequence of accepting an

undue advantage from any person. shall be

punishable with imprisonment for a term which

shall not be less than three years but which

Page 12 of 26

may extend to seven years and shall also be

liable to fine.”.

32. From the above it appears that the ingredients of the offence

under Section 7 of the Prevention of Corruption Act are ;

a) That the person accepting the gratification should be a public

servant;

b) That he should accept the gratification for himself and the

gratification should be as a motive or reward for doing or forbearing to

do any official act etc.

33. In C. Sukumaran vs. State of Kerala reported in (2015) 11

SCC 314, the Hon’ble Supreme Court has been pleased to hold that

demand of illegal gratification is sine qua non for constituting an

offence under Section 7 and 13 (1)(d) of the Prevention of Corruption

Act. If the demand of bribe and acceptance thereof is not established,

conviction under Section 13(2) of the Act is not sustainable.

34. In P. Satyanarayana Murthy vs. State of A.P. reported in

(2015) 10 SCC 152 the Hon’ble Apex Court has been pleased to

observe as hereunder :

“23. The proof of demand of illegal gratification, thus, is

the gravamen of the offence under Sections 7 and 13(1)

(d)(i)&(ii) of the Act and in absence thereof, unmistakably

the charge therefore, 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

Page 13 of 26

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 Sections 7 or 13 of

the Act would not entail his conviction thereunder.”

35. In K. Shanthamma vs. State of Telangana reported in (2022)

4 SCC 574, the Hon’ble Supreme Court has reiterated that proof of

demand of bribes by public servants and its acceptance by them is

sine qua non for establishing offence under Section 7 of Prevention of

Corruption Act. In the said case demand which is sine qua non for

establishing offence under Section 7 of the Act was not established

and as a result the impugned judgment passed by the Hon’ble High

Court was set aside and the appellant was acquitted.

36. In Mir Mustafa Ali Hasmi reported in (2024) 10 SCC 489, the

Hon’ble Apex Court was pleased to observe that the prosecution must

prove both the demand and acceptance of bribe beyond reasonable

doubt for a conviction under the Prevention of Corruption Act.

37. In the said decision the Hon’ble Apex Court has discussed the

observation of the Hon’ble Apex Court in Neeraj Dutta – versus –

State (Government of NCT of Delhi) reported in (2023) 4 SCC 731.

For the purpose of understanding the issue in hand, I wis h to

recapitulate what the Hon’ble Apex Court has laid down in paragraphs

28 and 29 of the said decision:

Page 14 of 26

“28. A Constitution Bench of this Court in the

case of Neeraj Dutta v State(Government of NCT

of Delhi), (2023) 4 SCC 731 was called upon to

answer a reference on the question as to

whether the circumstantial evidence can be

relied upon to prove the demand of illegal

gratification and whether in the absence of

evidence of the complainant direct/primary, oral

or documentary, would it be permissible to draw

an inferential deduction of culpability/guilt of a

public servant under Sections 7 and 13(1)(d)

read with Section 13(2) of the Act based on other

evidence adduced by the prosecution. This

Constitution Bench traversed the entire history

of the judicial pronouncements on the issue and

held as below:-

“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.

Page 15 of 26

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 bribegiver

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

Page 16 of 26

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.

Page 17 of 26

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."

29. Thus, in addition to answering the primary

issue raised in the matter, the Constitution

Bench also went on to hold that in order to bring

home the guilt of the accused, the prosecution

has to prove the demand of illegal gratification

and the subsequent acceptance, by either direct

or circumstantial evidence.”

38. In P. Somaraju vs. State of Andhra Pradesh reported in

(2025) SCC Online SC 2291, the Hon’ble Apex Court has also laid

down that statutory presumption under Section 20 of Prevention of

Corruption Act is not automatic and it arises only once foundational

facts of demand and acceptance are proved. In the said case, the sole

basis of prosecution to prove demand and acceptance is narration of

Page 18 of 26

the complainant which reveals serious infirmities. The complainant

has no proof other than his own oral statement that he visited the

accused, wherein the accused allegedly made his first demand for a

bribe. The defence has consistently maintained that alleged demand

and acceptance of bribes never took place. The Hon’ble Apex Court

observes that unless DWs’ evidence is shown to be inherently

improbable or contradicted by record, it cannot be discarded solely

because they were professionals who had cause to interact with the

appellant's office.

39. In view of the above judicial decisions it transpires that the

prosecution is under a heavy duty to show that there is a demand

from accused and in pursuance of such demand, the tainted money

mixed with Phenolphthalein powder are handed over to the accused. It

appears in this case, the prosecution has been able to show that

during investigation the witnesses including shadow witness have

stated that there was a demand for illegal gratification from the side of

the petitioner and the petitioner had handled such tainted money.

Therefore, so far as the stage of the proceedings is concerned, it

cannot be said at this moment that ingredients of offences punishable

under Section 7, 13(2) read with 13(1)(d) of the Prevention of

Corruption Act, 1988 are not attracted.

40. It is true that the petitioner has raised the objection that on the

relevant date i.e. 26.11.2016 was Saturday and therefore, the

Page 19 of 26

complainant cannot use the premises of ACB unit to lodge the

complaint against the petitioner. The notification dated November 22,

2012 published in Kolkata Gazette by Principal Secretary to the

Government of West Bengal is reproduced hereinbelow:-

“GOVERNMENT OF WEST BENGAL

Home (Police) Department

NOTIFICATION

No. 2208 P.S. Cell dt. November 14, 2012.- In

exercise of the power conferred by clause (S) of

section 2 of the Code of Criminal Procedure,

1973(2 of 1974), the Governor is pleased hereby

to specially declare the office at 9th Floor, 'A'

Wing, New Secretariat Buildings, No. 1, Kiran

Sankar Roy Road, Kolkata - 700001 to be a

Police Station named as Anti-Corruption Branch

Police Station within the meaning of the said Act

with jurisdiction throughout the State of West

Bengal only for the purposes of registration and

investigation of the offences relating to

Prevention of Corruption Act, 1988 (49 of 1988).

By order of the Governor,

Sd/-

Principal Secretary to the Government of West

Bengal”

41. From the above it is found that the office at 9th Floor, 'A' Wing,

New Secretariat Buildings, No. 1, Kiran Sankar Roy Road, Kolkata –

700001 was declared as Police Station namely Anti -Corruption

Branch Police Station within the meaning of Code of Criminal

Procedure, 1973 with the jurisdiction throughout the State of West

Bengal for the purpose of registration and investigation of the offence

Page 20 of 26

relating to Prevention of Corruption Act, 1988. As we all know no

Police Station is closed during Saturday and Sunday or on any

holiday, the objection of the petitioner in this regard is not tenable.

42. Although the aforesaid objection of the petitioner is not

sustainable, he has rightly pointed out that the Anti-Corruption

Branch can register and investigate only those ca ses which are

assigned to them by the P & AR Department, Government of West

Bengal. Although the learned State Counsel has contradicted such

objection contending that in trap cases a preliminary enquiry is not

mandatory where a cognizable offence is disclosed, but the relevant

notification dated 22

nd

November, 2012 of the Personnel &

Administrative Reforms Department, Government of West Bengal

issued by the Chief Secretary, Government of West Bengal shows

otherwise. The aforesaid order is reproduced hereinbelow.

“ PART-VI

Govt. & Other Departmental Orders.

Government of West Bengal

Personnel & Administrative Reforms

Department

Writers’ Buildings, Kolkata- 700 001

No. Vig.- 283 (SPAR)/2012 Date : November

22, 2012

ORDER

WHEREAS the Governor has been pleased to

establish a Police Station namely Anti -

Corruption Branch Police Station vide Home

Department Notification No. 2208 PS Cell, dated

November 14, 2012 (hereinafter referred to as

said Notification);

Page 21 of 26

AND WHEREAS the Governor has also been

pleased to extend the jurisdiction of the said

Police Station throughout the State of West

Bengal;

NOW, THEREFORE, the Governor is pleased to

state that

(1) It is stipulated that the said Police Station

will carry out investigation of those cases only

which is to be assigned to them by the State

Government in P & AR Department;

(2) A Preliminary Enquiry shall be undertaken

by the said Police Station of the assigned cases;

(3) On completion of Preliminary Enquiry by the

said Police Station, a comprehensive report of

the Preliminary Enquiry undertaken, together

with documents substantiating the Preliminary

Enquiry report, shall mandatorily be sent to the

State Government in the P & AR Department for

further scrutiny;

(4) P & AR Department would send the

Preliminary Enquiry Report with documents to

the concerned department for obtaining their

views, if any. The department concerned must

send their views within one month of receipt of

the report, otherwise it would be presumed that

they have no comment thereon;

(5) The State Government, if satisfied that there

is a prima facie case of criminal misconduct

found against the alleged accused persons, may

issue necessary directions, to initiate action as

per law;

(6) During the course of Preliminary Enquiry,

pertaining to the abuse of official position by a

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public servant in the matter of

business/commercial decision, the important

difference between a business risk and a

malafide conduct should be kept in mind with a

view to ensuring that while corrupt public

servants are suitably dealt with, bonafide

business and/or commercial decisions taken by

public servants in discharge of their official

duties, are not questioned;

(7) The above provision shall also be applicable

to a retried public servant subject to provision of

any other law in force for the time being.

Note : In cases where the State Vigilance

Commission recommends lodging of Criminal

cases, the State Government may refer such

cases to the Anti Corruption Police Station after

examination.

Sd/-

Chief Secretary to the Government of West

Bengal”

43. The said notification has delineated the periphery and function

of Anti-Corruption Branch Police Station to the effect that such Police

Station will carry out investigation of those cases only which are

assigned to them by the State Government in P&AR Depa rtment. It is

further stipulated that a preliminary enquiry shall be undertaken by

the said Police Station of the assigned cases and after completion of

preliminary enquiry a comprehensive report alongwith documents

shall compulsorily be sent to the State Government in P & AR

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Department for further scrutiny. The said Government order has

further mentioned that necessary steps are to be taken against the

delinquent Officer, if there is a prima facie case of criminal

misconduct. In this regard, although the complaint was lodged by a

private party on 26.11.2016 the same was not considered in the light

of the Government order dated 22.11.2012 and as soon as the said

complaint was received, the Investigating Officer started laying down

of trap evidence, without following the mandatory requirement as

mentioned in the aforesaid order. No preliminary enquiry took place at

the instance of the Investigating Officer nor the complaint was sent to

the P & AR Department for receiving further instruction.

44. Now, the question whether a preliminary enquiry is mandatory

in trap cases has been a subject of significant judicial discussion in

India. The general rule is found in the judgment of Lalita Kumari vs.

Government of Uttar Pradesh and Ors. reported (2014) 2 SCC 1

wherein the Supreme Court held that registration of an F.I.R is

mandatory under Section 154 of the Cr.P.C if the information

discloses a cognizable offence. However, the Court curbed out certain

categories where a preliminary enquiry may be conducted before

registering an F.I.R., including matters of corruption, medical

negligence cases, matrimonial disputes and commercial offences.

While Corruption is listed as a category for preliminary enquiry, the

Courts have clarified that trap cases are an exception to this

exception. In a trap case, “the information” received by the Police or

Anti Corruption Bureau is usually specific, actionable and involves an

Page 24 of 26

immediate criminal act. Therefore, a formal preliminary enquiry to

verify the truthfulness of the information is generally not necessary

before proceeding with the trap. The reasons are manifold. Firstly, the

nature of a trap requires secrecy and speed. Conducting the lengthy

preliminary enquiry would likely tip off the accused and result in the

destruction of evidence. Secondly, in a trap the primary evidence is

the actual recovery of the tainted money and the chemical tests

conducted at the spot. Thirdly, Courts have repeatedly held that if the

information discloses a clear cognizable offence of a demand for a

bribe, the police can proceed directly to trap and subsequently register

the F.I.R . Therefore, in the context of trap cases, a preliminary

enquiry is not a legal necessity. The objective of a preliminary enquiry

is to ensure that innocent persons are not subjected to frivolous

prosecution. However, in a trap, the verification of the document is

usually done through a pre -trap memo and the presence of

independent witnesses, which serves as a safeguard similar to a

preliminary enquiry but in a much more compressed ti me frame. In

this regard, the Hon’ble Supreme Court in two decisions such as

State of Karnataka vs. T.N. Sudhakar Reddy reported in 2025

SCC Online SC 382 and State of Karnataka vs. Channakeshava

H.D. reported in 2025 SCC Online SC 753 has been pleased to

observe that the accused does not have a vested right to demand

preliminary enquiry.

45. It is also not convincing at this stage that when the petitioner

was in-charge of Canning range he could not claim illegal gratification

Page 25 of 26

for facilitating the opening of a liquor shop in Dumdum range. The

manner and mode of corruption cannot be defined in a straitjacket

formula. The corrupt officials know many tricks to manifest that they

have the ability to facilitate the opening of liquor shops even outside

their jurisdiction.

46. The case law of Ashoo Surendranath Tewari (supra) records

that when adjudication proceedings (disciplinary proceedings) are

decided on merits against the same set of facts, such decision may

have certain bearings on criminal cases. But in this case the

disciplinary proceeding was not decided on merits. The State

Administrative Tribunal has quashed the departmental proceedings

on the grounds, inter alia, that the disciplinary proceeding was a long

pending issue and further, there was no proof of demand of illegal

gratification from the side of the petitioner etc. This Court has already

discussed that there are sufficient materials to show that there was

demand for illegal gratification and accordingly, the same should be

tested in trial. A fact can be said to be proved when there is a full trial

or the parties are given opportunity to adduce evidence in disciplinary

proceedings. Without giving such an opportunity, the Tribunal has

held that the allegation was not proved by the complainant.

47. The case law of Maqbool Hussain (supra) is also not applicable

in this case, since the departmental proceeding was not allowed to

continue on merits. No evidence was allowed to be considered in such

proceedings. The said proceeding was terminated during its pendency

by the Tribunal.

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48. Hence, I do not find sufficient material to allow the prayer for

quashing the criminal proceeding of Special Case No. 11/16 arising

out of ACB P.S. Case No. 11/2016 dated 26.11.2016 under Section 7,

13(2) read with 13(1) (d) of the Prevention of Corruption Act, 1988

pending before the learned Court of Additional District and Sessions

Judge, Bench-II, Calcutta, under Section 482 of the Code of Criminal

Procedure, 1973 at this stage.

49. Accordingly, CRR 3841 of 2017 is dismissed on contest.

50. Let the duplicate case diary be handed over to the learned

Public Prosecutor.

51. Urgent Photostat certified copy of this judgment, if applied for,

be supplied to the parties upon compliance of usual formalities.

(APURBA SINHA RAY, J.)