Case Note & Summary
The applicant, Ratan Dashrath Kiratkar, a police constable, was an accused in Special Case No.6/2005 pending before the Ad hoc Additional Sessions Judge, Akot, District Akola, for offences under the Prevention of Corruption Act, 1988. The FIR lodged by the complainant alleged that respondent No.2, Pralhad Pundlik Pethe, an Assistant Sub-Inspector of Police, had demanded a bribe of Rs.200/- on more than one occasion from the complainant. However, the prosecution case was that it was the applicant constable who actually accepted the amount. The applicant filed an application (Exh.61) before the Special Court seeking issuance of accused summons to respondent No.2, contending that the demand itself constituted an offence under Section 7 of the Prevention of Corruption Act, 1988. The Special Court rejected that application by order dated 17.10.2007. Aggrieved, the applicant filed the present criminal application before the High Court. The applicant's counsel argued that the FIR clearly alleged demand by respondent No.2, and since demand alone is an offence under Section 7, the court was obliged to issue summons. He relied on Supreme Court decisions in Kishun Singh v. State of Bihar (1993 (2) SCC 16), Nisar v. State of U.P. (1995 (2) SCC 23), and Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397) to assert that the Sessions Court has power to summon additional accused even before trial. The non-applicants opposed the application. The High Court, after hearing all parties, allowed the application. It held that the Special Court has the power to issue accused summons to a person not named in the charge-sheet, relying on the cited precedents. The court further held that the demand of gratification itself is an offence under Section 7 of the Prevention of Corruption Act, 1988, and since the FIR contained clear allegations of demand against respondent No.2, the Special Court ought to have issued summons. The impugned order was set aside, and the Special Court was directed to issue accused summons to respondent No.2.
Headnote
A) Criminal Procedure Code - Power of Sessions Court to summon additional accused - Section 319 Cr.P.C. - Even before trial, the Special Court has power to issue summons to a person not named in charge-sheet if there is material against him - The court relied on Kishun Singh v. State of Bihar, Nisar v. State of U.P., and Rashmi Kumar v. Mahesh Kumar Bhada to hold that the power under Section 319 can be exercised at any stage after committal and before judgment (Paras 2-5).
B) Prevention of Corruption Act - Demand of gratification - Section 7 - Demand itself is an offence - The FIR contained clear allegations that respondent No.2 demanded Rs.200/- on more than one occasion - The court held that making a demand itself constitutes an offence under Section 7, irrespective of whether the gratification was accepted (Paras 2-4).
Issue of Consideration
Whether the Special Court was justified in rejecting the application for issuing accused summons to respondent No.2 (police officer) when the FIR contained allegations of demand of gratification against him.
Final Decision
The High Court allowed the criminal application, set aside the impugned order dated 17.10.2007, and directed the Special Court to issue accused summons to respondent No.2 (Pralhad Pundlik Pethe) for the offence under Section 7 of the Prevention of Corruption Act, 1988.
Law Points
- Demand of gratification itself is an offence under Section 7 of Prevention of Corruption Act
- 1988
- Sessions Court/Special Court has power to issue accused summons to a person not named in the charge-sheet before trial stage
Case Details
2010 LawText (BOM) (03) 161
Criminal Application No.3382/2007
Shri S.V. Sirpurkar for applicant, Shri D.B. Patel APP for non-applicant No.1, Shri S.P. Palshikar for non-applicant No.2
Ratan s/o Dashrath Kiratkar
State of Maharashtra and Pralhad Pundlik Pethe
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Nature of Litigation
Criminal application challenging rejection of application for issuing accused summons to a police officer in a corruption case.
Remedy Sought
The applicant/accused sought issuance of accused summons to respondent No.2 (police officer) for offence under Section 7 of Prevention of Corruption Act, 1988.
Filing Reason
The Special Court rejected the applicant's application (Exh.61) for issuing accused summons to respondent No.2 despite FIR allegations of demand of gratification.
Previous Decisions
The Ad hoc Additional Sessions Judge, Akot, by order dated 17.10.2007, rejected the application (Exh.61) in Special Case No.6/2005.
Issues
Whether the Special Court has power to issue accused summons to a person not named in the charge-sheet before the stage of trial?
Whether demand of gratification alone constitutes an offence under Section 7 of the Prevention of Corruption Act, 1988?
Submissions/Arguments
Applicant's counsel argued that FIR contains clear allegation of demand of Rs.200/- by respondent No.2, and demand itself is an offence under Section 7 of Prevention of Corruption Act, 1988, so court was obliged to issue summons.
Applicant's counsel relied on Kishun Singh v. State of Bihar, Nisar v. State of U.P., and Rashmi Kumar v. Mahesh Kumar Bhada to submit that Sessions Court has power to summon additional accused even before trial.
Non-applicants opposed the application.
Ratio Decidendi
The Special Court has the power under Section 319 Cr.P.C. to issue accused summons to a person not named in the charge-sheet even before the stage of trial, as held by the Supreme Court in Kishun Singh, Nisar, and Rashmi Kumar. Further, demand of gratification itself constitutes an offence under Section 7 of the Prevention of Corruption Act, 1988, irrespective of acceptance. Since the FIR contained clear allegations of demand against respondent No.2, the Special Court ought to have issued summons.
Judgment Excerpts
Being aggrieved by the order dated 17.10.2007, passed by the Ad hoc Additional Sessions Judge, Akot, Distict : Akola, rejecting the application (Exh.61) in Special Case No.6/2005, filed by the applicant/accused for issuing accused summons to respondent No.2, the present application was filed.
In support of the application, learned Counsel for the applicant vehemently argued pointing out my attention to F.I.R. that there is clear allegation in the F.I.R. by the complainant against respondent No.2 that he had demanded gratification of Rs.200/- on more than one occasion from the complainant.
He then submitted relying on the decisions of the Supreme Court in the case of Kishun Singh and others...Versus...State of Bihar, reported in 1993 (2) Supreme Court Cases 16, Nisar and another...Versus...State of U.P. reported in 1995 (2) Supreme Court Cases 23 and Rashmi Kumar (Smt)...Versus...Mahesh Kumar Bhada, reported in 1997 (2) Supreme Court Cases 397 that after committal of a case to the Sessions Court even before the stage of trial reaches, such Sessions Court/Special Court has a power to issue accused summons to a person not named in the charge-sheet.
In my opinion, the Special Court has such a power and the learned Judge was not right in rejecting the application.
In the result, the criminal application is allowed. The impugned order is set aside. The Special Court is directed to issue accused summons to respondent No.2 for the offence under Section 7 of the Prevention of Corruption Act, 1988.
Procedural History
The applicant/accused filed an application (Exh.61) in Special Case No.6/2005 before the Ad hoc Additional Sessions Judge, Akot, seeking issuance of accused summons to respondent No.2. The Special Court rejected that application on 17.10.2007. The applicant then filed the present criminal application before the High Court of Judicature at Bombay, Nagpur Bench, challenging the rejection. The High Court heard the matter and delivered judgment on 19.03.2010, allowing the application and directing issuance of summons.
Acts & Sections
- Prevention of Corruption Act, 1988: Section 7
- Code of Criminal Procedure, 1973 (Cr.P.C.): Section 319
