REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1336 OF 2017

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

State through Central Bureau

of Investigation .... Appellant(s)

Versus

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

J U D G M E N T

R.K. Agrawal, J.

1) Leave granted.

2) This appeal is directed against the judgment and order

dated 21.11.2013 passed by learned single Judge of the High

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

whereby the High Court allowed the petition filed by the

respondent herein against the order dated 08.11.2012 passed

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

wherein charges have been framed against the respondent

herein.

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3)Brief facts:

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

Srivastava-respondent herein was posted as the

Commissioner, Central Excise, Delhi-1 Commissionerate. On

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

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

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

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

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

2012 A0001 against the respondent herein along with other

officials of the Central Excise Department, Delhi for obtaining

illegal gratification by corrupt and illegal means owing to their

alleged role in a raid in Delhi.

(b) The chargesheet dated 29.02.2012 was filed in the

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

framing of charges wherein it was alleged that on 28.12.2011,

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

Ojha, Superintendent, conducted an illegal raid at the

premises of Dilip Aggarwal and Anand Aggarwal at Najafgarh

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

that the respondent herein through one Hemant Gandhi

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

illegal gratification in lieu of not taking any action against

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

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

regular touch with the owners of the premises and received

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

security for the remaining amount from them. Further, the

private person was in regular touch with the officials of the

Excise Department as well and he actually negotiated with

them including the respondent herein for some concession in

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

private person worked as a middleman and conveyed the

illegal gratification fixed to the respondent herein.

(c)The investigation further revealed that as per the

intercepted conversation received from Special Unit, CBI,

Delhi, the respondent herein was in regular contact with

Hemant Gandhi through telephone and also through personal

meetings who used to organize illegal searches under the

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directions and protection of the respondent herein through

other officials of the Department.

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

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

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

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

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

(e)Aggrieved by the order framing charge dated

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

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

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

the High Court, vide judgment and order dated 21.11.2013,

quashed the order dated 08/17.11.2012 qua the respondent

herein.

(f)Aggrieved by the order dated 21.11.2013, the

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

special leave before this Court.

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

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

the respondent.

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Point for consideration:

5)The only point for consideration before this Court is

whether in the present facts and circumstances of the case,

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

order passed by the High Court?

Rival contentions:

6)Learned counsel for the appellant-State contended that

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

is limited to the extent of examining the prima facie case

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

framing of charge. Learned counsel further contended that

the Special Court rightly framed the charges against the

respondent-accused. He further contended that the order

passed by the High Court is based on assumption and

hypothesis which ignores the crucial evidence in the form of

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

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

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

considering that vide Call No. 51 final bribe amount was

conveyed to the respondent-accused.

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7)Learned counsel further contended that apart from prima

facie evidence, there were appropriate and sufficient evidence

against the respondent-accused and in all likelihood the

quashing of criminal proceeding qua the respondent-accused

would severally affect the ongoing trial against other accused.

He further contended that the High Court completely lost sight

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

with co-accused Hemant Gandhi who was updating him with

every development during and after the raid through Lallan

Ojha-Superintendent, which prima facie establishes his

involvement in the entire conspiracy. Learned counsel finally

contended that the evidence in the form of intercepted calls

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

deposition of prosecution witnesses, involvement of a private

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

cheque clearly prove the involvement of the

respondent-accused and the High Court erred in law while

quashing the charges against him. The power of quashing

criminal proceedings, particularly, pursuant to charges framed

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is to be exercised very sparingly and with great circumspection

and that too in rarest of rare case.

8)Per contra, learned senior counsel for the respondent

submitted that there is no illegality in quashing of chargesheet

against the respondent herein on the basis of examination of

grounds taken by him. The High Court did not exercise

revisional jurisdiction rather exercised powers under Section

482 of the Code while passing the order after considering the

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

accordance with settled legal position.

9)Learned senior counsel further submitted that the

statements under Section 164 of the Code do not implicate the

respondent herein in the present case and the witnesses have

resiled from the said statements that were obtained under

threat of arrest and false implication in the case.

10)Learned senior counsel further submitted that Call No.

48 between Hemant Gandhi and Mahendra Kapoor completely

belies the prosecution story about the alleged involvement of

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

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

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that respondent herein had agreed to demand the illegal

gratification and there is no direct talk between respondent

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

the alleged raiding team. Learned senior counsel finally

contended that the judgment passed by the High Court was

well within the parameters in terms of settled legal position for

considering the matter at the stage of framing of charge or

discharge of the accused and no interference is called for by

this Court in this regard.

Discussion:

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

House in the FIR being No. RCAC 2012 A0001 dated

29.02.2012 alleging that on 28.12.2011, the respondent

herein, who was at the relevant time posted as the

Commissioner, Central Excise, Delhi-I Commissionerate, along

with other persons of the Department and with one Hemant

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

Mr. Dilip Aggarwal and Anand Aggarwal at Najafgarh Road,

New Delhi in order to obtain illegal gratification by illegal and

corrupt means through Hemant Gandhi.

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

team of officials of the Central Excise Department led by

Lallan Ojha, Superintendent, conducted an illegal raid at the

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

First Floor, Najafgarh Road Industrial Area, New Delhi.

Further, Lallan Ojha, in conspiracy with respondent herein

and Hemant Gandhi and others negotiated with the owners of

the premises for illegal gratification in lieu of not taking any

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

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

factum of the said raid was telephonically conveyed by Lallan

Ojha to the respondent herein through Hemant Gandhi.

Hemant Gandhi was in regular touch with the owners of the

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

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

lakhs as security for the remaining amount of illegal

gratification. Hemant Gandhi also spoke to Lallan Ojha and

the respondent herein for some concession in the amount.

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13)The investigation further revealed that as per the

intercepted conversations received from Special Unit, CBI,

Delhi, the respondent herein was in regular touch with

Hemant Gandhi over phone and also through personal

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

arranged illegal searches under the directions and protection

of the respondent herein in order to collect illegal gratification

from the parties so raided. The entire conversation shows that

search was conducted with the sole motive of obtaining illegal

gratification and the owner of the premises were pressurized to

obtain illegal gratification and final settlement was arrived at

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

revealed that Hemant Gandhi was acting as the middleman of

the respondent herein for collection of illegal gratification by

scouting for his known businessmen who could be raided and

illegal gratification could be extracted from them. The

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

collection of illegal gratification is said to be established

through intercepted conversations of Hemant Gandhi, Lallan

Ojha and the respondent herein. The private person-Hemant

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Gandhi is said to have informed telephonically about the

recoveries during the search, success of the mission and the

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

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

acknowledged by the respondent herein by saying “ok”.

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

case of the CBI that the case solely rests upon 96

conversations recorded between 23.12.2011 to 02.01.2012 by

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

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

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

mention here the details of above said calls which is as

under:-

Call No. 48

Call No. 48 dated 28.12.2011, Time at 13:33:08, Duration 205

Sec., file format 1.47 MB, Conversation between Mahender Kapoor

(1123379010) and Hemant Gandhi (11-25225641)

HG Hello

Kapoor Hello

HG Yes brother

Kapoor Yes

HG Mission Successful

Kapoor Mission

HG Successful

Kapoor Very Good, Very Good

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HG Lallu is very fast, (Abusive Language)

Kapoor He is fast

HG Yes, Yes

Kapoor He is not a fool.

HG Yes, I call him by the name of Lallu.

Kapoor Then, at which time they went there

HG They reached there at 7.30, (Abusive

Language)

KapoorThey reached at 7.30 and when they entered

HG … at Sharp 10.30

Kapoor Ok, they are telling huge recovery.

HG They have recovered the material of about

four crore from inside

Kapoor Now the work is fit.

HG Yes, but it was not deserving, deal has been

made for six zeroes, this is the figure. Don’t

tell it to Bhai Sahab also, don’t tell this to

anyone.

KapoorOk

HG No one should learn about this because only I

know this figure and Lallu knows. Even that

Muchhad (man with moustache) does not

know.

KapoorNo, no we will not talk with them in this

regard.

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

figure.

KapoorYes

HG If it comes out immediately, deal has been

made for sixty, will given tomorrow.

KapoorOk, Ok, Ok.

HG Then take…. I did not come in picture

anywhere.

KapoorYes.

HG I did not come in picture

KapoorVery good, very good.

HG They have made direct all the post deal.

KapoorYes, it is good.

HG He was talking with me continuously. I said

you should do there.

KapoorYes, yes

HG He was asking about guarantee, I said he will

not annoy you dear.

KapoorYes, yes

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

saying that wil given tomorrow.

KapoorYes, yes

HG Should do, I said you can see.

KapoorYes, then how it will be done.

HG Yes, now how they will do. He was asking me

that how it will be done. I said you should

not worry.

KapoorYes, Yes

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

not know whom he is calling now, (Abusive

Language).

KapoorOk, Ok, no he was calling thereafter.

HG In the morning when it was talked.

KapoorOk.

HG When it was under process.

KapoorOk, Ok, Ok.

HG I said……… I am busy in your work

KapoorYes, yes.

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

KapoorIt is alright, there is no harm in meeting.

HG I do not know brother, now I fear in meeting

with him.

KapoorOk, then refuse him for today.

HG Yes

KapoorYes, ask him that I am busy somewhere.

HG Yes

KapoorYou may ask him that you are going

somewhere for work.

HG It is okay.

KapoorIt is Okay.

Call No. 51

Call No. 51 dated 2 dated 28.12.2011, Time at 16:12:06. Duration 68 Sec., file

format 518 KB, Conversation 1.47 MB, Conversation between Mahender Kapoor

(1123379010) and Hemant Gandhi (11-25225641)

HG Hello

Kapoo

r

Hello

HG Yes Please

PA to

AKS

A… Sir, Hemant Gandhi Ji is there.

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HG Yes, Yes.

PA to

AKS

Sir, Commissioner sahib will talk.

Anoop Yes, Hemant.

HG Sir, the mission is successful

Anoop Yes, will you come to me.

HG Sir, actually I had to take my father to a doctor,

I was trying to tell this to you in the morning

also, but you had disconnected.

Anoop Ok, when will you come home.

HG I will come tomorrow.

Anoop At which time.

HG Tomorrow in the afternoon at about 11-12

noon.

Anoop Ok then come.

HG And Sir, that eight and fifteen.

Anoop Yes, Ok.

HG And they said that it was received.

Anoop No, still did not meet

HG A…… Six

Anoop Chairman had come.

HG Six Zero, is it ok.

Anoop Ok

HG Yes Sir.

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

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

from the call that Mahender Kapoor-Superintendent also had

the knowledge of the alleged raid and Hemant Gandhi

informed him that the raid was successful and that they have

recovered a lot of goods worth about four crores from inside

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

Mahender Kapoor that this figure should not be disclosed to

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

Even Hemant Gandhi asked Mahender Kapoor to not to inform

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

Mahender Kapoor replied in affirmative and maintained that

this should not even be shared with anyone. Hemant Gandhi

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

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

picture. He further admits that this information about the

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

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

have been used in this call between the Mahender Kapoor and

Hemant Gandhi.

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

Mahender Kapoor was actually the man behind the raid who

was guiding Hemant Gandhi about the manner in which

Lallan Ojha should proceed for ensuring the payment of the

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

also clear from the above that after the raid Hemant Gandhi

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

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

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

settlement of illegal gratification in lieu of not taking action

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

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

Mahender Kapoor and Hemant Gandhi apart from Lallan Ojha

and Ashok Aggarwal wherein Hemant Gandhi is requesting

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

illegal gratification amount which shows that it was Mahender

Kapoor who was receiving the alleged illegal gratification

amount and distributing the same. In our considered opinion,

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

commission of offence.

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

respondent herein on 28.12.2011 wherein Hemant Gandhi

informed the respondent herein that the mission was

successful. It is the case of the prosecution that Hemant

Gandhi informed about the alleged raid to the respondent

herein that it was successful which fully implicates him in the

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

inferred that the respondent herein had agreed to demand the

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illegal gratification and also there was no direct talk between

Lallan Ojha and the respondent herein who was supposed to

inform his senior officer on whose direction he was leading the

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

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

has wrongly connected the words “mission successful’ in call

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

much clear that Mahender Kapoor and Hemant Gandhi were

talking about the alleged raid and Hemant Gandhi himself

accepted that he provided the information for the same. When

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

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

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

the members of the raiding team informed about the same to

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

it has also been noticed that Hemant Gandhi has used three

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

conversation ambiguous and beyond any comprehension and

it does not make out any logical understanding of the actual

conversation between the parties making it. Hence, no adverse

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inference can be drawn against the respondent herein with

regard to the same.

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

not implicate the respondent herein in the present case as the

witnesses have retracted from their statements. Further, on

the contrary, the said witnesses have deposed that the

aforesaid statements under Sections 161 and 164 were

obtained under threat of arrest and false implication in the

case and therefore are not voluntary. Admittedly, the

statements of Lallan Ojha as well as the respondent herein are

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

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

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

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

the respondent herein but in her deposition she clearly

mentioned that earlier he used to call on the landline number

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

respondent herein personally in his office. Though the said

deposition proves the nearness of that particular private

person with the respondent herein but it cannot be inferred

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that the private person was in constant touch with the

respondent and was apprising him about every development

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

nearness to the respondent herein is baseless as he was

working as the informer to the evasion wing and the alleged

phone calls made by him to the respondent herein or meetings

with the respondent herein cannot and will not be sufficient to

implicate the respondent herein.

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

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

record and documents placed therewith before the court.

Taking cognizance of an offence has been stated to necessitate

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

major event where the court considers the possibility of

discharging the accused of the offence with which he is

charged or requiring the accused to face trial. There are

different categories of cases where the court may not proceed

with the trial and may discharge the accused or pass such

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

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

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case and documents submitted before it, the court finds that

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

prosecution under the provisions of the Code or any other law

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

proceed against the accused, the court may discharge the

accused. There can be cases where such record reveals the

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

leaves any scope for an element of criminality nor does it

satisfy the ingredients of a criminal offence with which the

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

him or quash the proceedings in exercise of its powers under

the provisions.

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

conspiracy is an agreement between two or more persons to do

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

The object behind the conspiracy is to achieve the ultimate

aim of conspiracy. For a charge of conspiracy means

knowledge about indulgence in either an illegal act or a legal

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

unlawful use being made of the goods or services in question

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

prosecution has not to establish that a particular unlawful use

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

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

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

necessary for the prosecution to establish, to bring home the

charge of conspiracy, that each of the conspirators had the

knowledge of what the collaborator would do.

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

of this Court in Central Bureau of Investigation,

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

it was held as under:-

“24. The ingredients of the offence of criminal

conspiracy are that there should be an agreement

between the persons who are alleged to conspire and

the said agreement should be for doing of an illegal act

or for doing, by illegal means, an act which by itself

may not be illegal. In other words, the essence of

criminal conspiracy is an agreement to do an illegal

act and such an agreement can be proved either by

direct evidence or by circumstantial evidence or by

both and in a matter of common experience that direct

evidence to prove conspiracy is rarely available.

Accordingly, the circumstances proved before and after

the occurrence have to be considered to decide about

the complicity of the accused. Even if some acts are

proved to have been committed, it must be clear that

they were so committed in pursuance of an agreement

made between the accused persons who were parties

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to the alleged conspiracy. Inferences from such proved

circumstances regarding the guilt may be drawn only

when such circumstances are incapable of any other

reasonable explanation. In other words, an offence of

conspiracy cannot be deemed to have been established

on mere suspicion and surmises or inference which

are not supported by cogent and acceptable evidence.”

21)Further, what constitutes illegal gratification is a

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

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

regarding the demand and acceptance of a bribe leaves room

for doubt and does not displace wholly, the presumption of

innocence, the charge cannot be said to have been

established.

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

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

as under:-

22. In a recent enunciation by this Court to discern the

imperative prerequisites of Sections 7 and 13 of the Act, it

has been underlined in B. Jayaraj in unequivocal terms, that

mere possession and recovery of currency notes from an

accused without proof of demand would not establish an

offence under Section 7 as well as Sections 13(1)(d)(i) and (ii)

of the Act. It has been propounded that in the absence of

any proof of demand for illegal gratification, the use of

corrupt or illegal means or abuse of position as a public

servant to obtain any valuable thing or pecuniary advantage

cannot be held to be proved. The proof of demand, thus, has

been held to be an indispensable essentiality and of

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permeating mandate for an offence under Sections 7 and 13

of the Act. Qua Section 20 of the Act, which permits a

presumption as envisaged therein, it has been held that

while it is extendable only to an offence under Section 7 and

not to those under Sections 13(1)(d)(i) and (ii) of the Act, it is

contingent as well on the proof of acceptance of illegal

gratification for doing or forbearing to do any official act.

Such proof of acceptance of illegal gratification, it was

emphasised, could follow only if there was proof of demand.

Axiomatically, it was held that in absence of proof of

demand, such legal presumption under Section 20 of the Act

would also not arise.

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

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

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

charge therefor, would fail. Mere acceptance of any amount

allegedly by way of illegal gratification or recovery thereof,

dehors the proof of demand, ipso facto, would thus not be

sufficient to bring home the charge under these two sections

of the Act. As a corollary, failure of the prosecution to prove

the demand for illegal gratification would be fatal and mere

recovery of the amount from the person accused of the

offence under Section 7 or 13 of the Act would not entail his

conviction thereunder.

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

indispensable essentiality and of permeating mandate for an

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

in the case at hand.

23)It was contended by learned counsel for the

appellant-State that the High Court exceeded its jurisdiction

while quashing the order of charge passed by the Special

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

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

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assess in detail the materials placed on record by the

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

the materials to establish the offence alleged against the

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

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

prima facie case of commission of offence alleged has been

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

that when the petition is filed by the accused under Section

482 of the Code seeking for the quashing of charge framed

against him the court should not interfere with the order

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

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

framed against the accused needs to be quashed. Such an

order can be passed only in exceptional cases and on rare

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

case” and documents submitted therewith and, after hearing

the parties, may either discharge the accused or where it

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

presuming that the accused has committed an offence, it shall

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

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

is ground to proceed against the accused and frame the charge

accordingly. This presumption is not a presumption of law as

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

of constituents of an offence and the facts leading to that

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

may even be weaker than a prima facie case.

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

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

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

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

certain other cryptic codes as mentioned above which makes

the Call highly improbable for connecting the respondent

herein in commissioning of the offence. Even otherwise, in

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

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

understanding of the actual conversation can be drawn.

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

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

categorically brings out that the respondent herein did not

25

have any knowledge of the alleged criminal conspiracy and

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

accused in the crime because of its out of the context

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

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

prosecution, lack object and purpose to prove the complicity of

the respondent herein in the crime.

Conclusion:

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

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

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

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

the charge of conspiracy against the respondent. There is no

direct or circumstantial evidence to prove that the respondent

has demanded any illegal gratification and has accepted or

obtained any such illegal gratification. Further, the premises

that was alleged to be raided was neither a manufacturing

unit nor packing or repacking activity was carried out there

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

which could grant any jurisdiction to the respondent to do

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some favour or disfavor in the discharge of his official

functions. The High Court was well within its powers while

quashing the order framing charge as there was no material

on record to connect the respondent with the offence in

question.

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

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

However, it is made clear that the present conclusion is

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

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

accused persons.

...…………….………………………J.

(A.K. SIKRI)

.…....…………………………………J.

(R.K. AGRAWAL)

NEW DELHI;

AUGUST 4, 2017.

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