STATE OF RAJASTHANversusDR. RAJKUMAR AGARWAL & ANR.

                      [2012] 7 S.C.R. 319


                   STATE OF RAJASTHAN                                  A
                                 v.
             DR. RAJKUMAR AGARWAL & ANR.
             (Criminal Appeal No. 1222 of 2012)

                       AUGUST 17, 2012
                                                                       B
 [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

     CODE OF CRIMINAL PROCEDURE, 1973:

    s.482 - Exercise of power by High Court to quash criminal          c
proceedings - Explained.

     s.482 - High Court quashing the FIR registered against
the respondent, a Surgeon in Govt. Hospital for accepting
illegal gratification - Held: In the instant case, it cannot be said
that the allegations made in FIR and the evidence collected            0
do not disclose the commission of any offence and
continuance of proceedings would be abuse of the process
of court - This is certainly not a case where the FIR can be
quashed - High Court failed to appreciate that the wholesome
power vested in it uls 482 has to be exercised with                    E
circumspection and very sparingly - In the circumstances, the
impugned judgment and order is set aside.

     PRACTICE AND PROCEDURE:
                                                                       F
     Affidavits in criminal proceedings - Held: It would be risky
for the Courts to encourage the practice of filing affidavits by
the witnesses at the stage of investigation or during the court
proceedings in serious offences such as offences under the
PC Act because it is easy for an influential accused to                G
procure such affidavits and use them for quashing FIRs -
Prevention of Corruption Act, 1988.

   Respondent No. 1, who was working as Junior
Specialist (Surgery), in the State Government Hospital,
                               319                                     H
    320      SUPREME COURT REPORTS               [2012] 7 S.C.R.


A was stated to have been caught red handed accepting a
  bribe of Rs.1500/-, in a trap laid by the Anti Corruption
  Bureau on the complaint of one 'SL' that respondent no.
  1 had demanded Rs.5,000/- from him for the operation of
  his aunt, who had been operated upon by respondent no.
B 1 and was waiting for her discharge from the hospital. An
  FIR was registered u/ss 7 and 13(1 )(d)(2) of the Prevention
  of Corruption Act, 1988 against respondent 1 and
  sanction for his prosecution was obtained from the
  competent authority. Respondent f filed a petition u/s 482
c CrPC for quashing of the said FIR, which was allowed by
  the High Court.

          Allowing the appeal of the State, the Court

         HELD: 1.1. According to the prosecution, the trap
D was successful. The chemically treated currency notes for
   the purpose of trap were found with respondent 1 and the
   test of his hand was found positive. The patient and her
   husband have in their statements recorded u/s 161 CrPC
   partly supported the complainant. It is also pertinent to
E note that when the complaint was lodged, the patient was
 · still in the hospital. Further, the police claim that they have
   taped the conversation between the complainant and
   respondent 1 and the latter is said to have refused to give
   his voice sample for the purpose of investigation. How far
F the evidence collected by the investigating agency is
   credible can be decided only when the evidence is tested
   by cross examination during the trial. But, in view of the
   contents of the FIR and nature of evidence collected by
   the investigating agency, this is certainly not a case where
G the FIR can be quashed. It cannot be said that the
   allegations made in the FIR and the evidence collected in
   support of the same do not disclose the commission of
   any offence and continuance of proceedings would be
   abuse of the process of court. [para 8-9) [326-E-F, H; 327-
H A-D; 328-C)
     STATE OF RAJASTHAN v. DR. RAJKUMAR                 321
               AGARWAL & ANR.
    State of Haryana v. Bhajan Lal 1990 (3) Suppl. SCR 259      A
= 1992 Supp. (1) 335 - relied on.
    1.2 As has been held by this court in Shiji@ Pappu*,
plenitude of the power u/s 482 CrPC by itself makes it
obligatory for the High Court to exercise the same with
utmost care and caution. The width and the nature of the B
power itself demands that its exercise is sparing and only
in cases where the High Court is, for reasons to be
recorded, of the clear view that continuance of the
prosecution would be nothing but an abuse of the
process of law. In the instant case, the High Court failed C
to appreciate that the wholesome power vested in it u/s
482 of the Code has to be exercised with circumspection
and very sparingly. In the circumstances, the impugned
judgment and order is set aside. [para 9 and 11] [327-H;
328-A-C; 328-F]                                            D
   *Shiji alias Pappu & Ors. v. Radhika & Anr. 2011 (13)
SCR 135 = (2011) 10 SCC 705 - referred to
     2. Respondent 1 is relying on three affidavits, filed by
the patient, her husband and another patient. It is difficult   E
to quash the complaint on the basis of these affidavits. It
would be risky for the Courts to encourage the practice
of filing affidavits by the witnesses at the stage of
investigation or during the court proceedings in serious
offences such as offences under the PC Act because it
is easy for an influential accused to procure such              F
affidavits and use them for quashing FIRs. [para 8-9] [326-
C; 327-E-F]
                     Case Law Reference:
    1990 (3) Suppl. SCR 259 referred to           para 6        G
    2010 (11) SCR 788           held inapplicablepara 7
                                 0


    2011 (13) SCR 135           d istinguished    para 7

                                                                H
    322      SUPREME COURT REPORTS                   [2012) 7 S.C.R.


A        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    ·No. 1222 of 2012.
        From the Judgment & Order dated 10.09.2009 of the High
    Court of Judicature for Rajasthan at Jodhpur in S.B. Criminal
    Misc. Petition No. 307 of 2009.
B
        Dr. Manish Singhvi, AAG, Pragati Neekhra for the
    Appellant.
          Pallav Shishodia, Mukul Kumar for the Respondents.
          The Judgment of the Court was delivered by
c
        (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave
    granted.
       2. This appeal, by special leave, filed by the State of
  Rajasthan is directed against judgment and order dated 10/9/
D 2009 delivered by the High Court of Rajasthan in Cri. Misc.
  Petition No.307 of 2009 filed by respondent 1 herein - Dr.
  Rajkumar Agarwal under Section 482 of the Code of Criminal
  Procedure, 1973 (for short, "the Code"). By the impugned
  judgment, a learned Single Judge of the High Court has
E quashed the complaint filed against respondent 1 by one
  Sohan Lal (the complainant) alleging that respondent 1
  demanded Rs.5,000/- as illegal gratification for performi11g the
  operation of Smt. Sita Devi, whom he treated as his aunt. The
  question before this court is whether the exercise of powers
F under Section 482 of the Code by the High Court to quash the
  complaint was warranted in the facts of this case.
          3. The facts, briefly stated, are as follows:
       Respondent 1 was working as Junior Specialist (Surgery),
  Government Hospital, Suratgarh, District Sriganganagar,
G Rajasthan. On 11/12/2007, the Complainant submitted a written
  complaint to the Police Station, Anti Corruption Bureau (for
  short, "the ACB") Chowki, Sriganganagar stating that on 7/12/
  2007, respondent 1 performed the operation of uterus of his
  aunt - Smt. Sita Devi w/o. Navranglal in a Government Hospital
H at Suratgarh. According to the complainant, respondent 1
    STATE OF RAJASTHAN v. DR. RAJKUMAR      323
 AGARWAL & ANR. [RANJANA PRAKASH DESAI, J.]

 demanded Rs.5,000/- as bribe for the operation and for better       A
 treatment. The complainant gave a sum of Rs.2,500/- at the time
 of operation. The complainant stated that his aunt was still in
 the hospital and respondent 1 was demanding the remaining
 sum of Rs.2,500/-. According to the complainant, he did not want
 to give the money but he apprehended that respondent 1 may          B
 cause harm to his aunt, if he does not pay the amount.

       4. It is the case of the petitioner that on the same day at
  about 11.00 a.m., a blank cassette "A" was inserted in a small
  tape-recorder and handed over to the complainant at the ACB        C
  Office. The complainant was explained about its functioning. Mr.
  Jagdish Rai, Ct.No.179 was sent along with the complainant
  to Suratgarh for verification of the demand of bribe. At 5.00
  p.m., both the complainant and Mr. Jagdish Rai returned to the
  ACB office. The tape-recorder was played and the demand was
  found corroborated. Its memo was prepared and the cassette         D
  was sealed and labelled. It is the case of the appellant that
  preparation for trap was made. Two independent witnesses i.e.
  Mr. Darshan Singh, Assistant Engineer and Mr. Kripal Singh,
  Assistant Project (Samanvayak) Office, Sarva Shiksha
  Abhiyan, Sriganganagar were introduced to the complainant.         E
  Currency notes of Rs.1,500/- produced by the complainant
  which were to be handed over to the appellant were smeared
  with phenolphthalein powder. The necessary procedure was
  followed. A new blank cassette was inserted in the tape
  recorder and it was handed over to the complainant. On 12/         F
  12/2007, the Additional Superintendent of Police along with the
  complainant, the two independent witnesses and others left for
  Suratgarh. The complainant was given necessary direction for
· contacting respondent 1. The trap party waited there. The
  complainant came out of the residence of respondent 1 and          G
  gave fixed signal to the Additional Superintendent of Police.
  The raiding party along with the independent witnesses went
  to the complainant, who stated that respondent 1 had kept the
  bribe money of the complainant in the drawer of his table. The
  conversation of respondent 1 and the complainant was heard         H
    324      SUPREME COURT REPORTS                  [2012] 7 S.C.R.

A   on the tape recorder. Thereafter, the raiding party, two
    independent witnesses and the complainant went inside the
    house of respondent 1. Upon being questioned, respondent 1
    stated that he had kept the money in the drawer of his table.
    The money was recovered and hand wash of respondent 1 was
B   taken which turned pink. After following the necessary
    formalities, FIR came to be registered under Sections 7 and
    13(1 )(d)(2) of the Prevention of Corruption Act, 1988 (for short,
    "the PC Act") at Police Station, ACB Chowki, Sriganganagar,
    against respondent 1. Sanction for prosecution was obtained
c   from the competeA-t authority on 23/6/2009.

         5. As stated above, respondent 1 filed petition under
    Section 482 of the Code for quashing of the said FIR. The High
    Court has quashed the said FIR. The State of Rajasthan is in
    appeal before us.
D
         6. Mr. Manish Singhvi, Addi. Advocate General for the
    appellant submitted that the High Court has fallen into a grave
    error in quashing the FlR. Counsel submitted that the High Court
    misinterpreted the ratio of the judgment of this court in State of
E   Haryana v. Bhajan Lal, 1992 Supp. (1) 335. Counsel
    submitted that the FIR and the other material collected by the
    prosecution prima facie make out a strong case against
    respondent 1.

         7. Mr. Pallav Shishodia, learned senior advocate for
F   respondent 1, on the other hand, submitted that the High Court
    has rightly quashed the complaint. He pointed out that Smt. Sita
    Devi was not related to the complainant. Therefore, the
    complainant's case that he went to respondent 1 in connection
    with the uterus operation of Smt. Sita Devi and the amount was
G   demanded by respondent 1 from him is inherently improbable.
    Counsel submitted that the complainant owns a Chemist shop
    near the hospital in which respondent 1 is working. The
    complainant does not have the necessary licence to run the
    Chemist shop. The illegalities committed by the complainant
H   were known to respondent 1 and, therefore, the complainant
   STATE OF RAJASTHAN v. DR. RAJKUMAR      325
AGARWAL & ANR. [RANJANA PRAKASH DESAI, J.]
has falsely implicated respondent 1 in this case. Counsel           A
pointed out that in their statements recorded under Section 161
of the Code, Smt. Sita Devi as well as her husband have
stated that they were not aware whether the appellant
demanded any money from respondent 1. In fact, Smt. Sita Devi
and her husband have filed affidavits stating that respondent 1     B
never asked for money and his behaviour towards Smt. Sita
Devi was good and the allegations made by the complainant
are false. In support of his submission, counsel relied on the
judgments of this court in V.P. Shrivastava v. Indian
Explosives Limited & Ors. (2010) 10 SCC 361 and Shiji alias         c
Pappu & Ors. V. Radhika & Anr. (2011) 10 SCC 705. Counsel
submitted that since Smt. Sita Devi and her husband have not
supported the prosecution case, the prosecution has become
a lame prosecution and in all probaQllity the case will end in
acquittal. Therefore, the High Court_has rightly quashed the
                                                                    D
complaint because if the proceedings- are allowed to continue,
that will be an abuse of the process ofcourt. Counsel submitted
that in any case, even if this court comes to a conclusion that
the complaint discloses a prima facie cognizable offence,
considering the fact that the offence is of the year 2007; that
respondent 1 is on the verge of retirement and that he has          E
suffered the agony of investigation and possibility of a criminal
trial from 2007 onwards till today, this court may take a kindly
view of the matter. Counsel submitted that in the facts of this
case, ends of justice would be met if the High Court's order is
confirmed.                                                          F

      8. We find no substance in Mr. Shishodia's submissions.
It is true that the complainant is not related to Smt. Sita Devi
but nothing has been brought on record to even prima facie
establish that the complainant holds any grudge against             G
respondent 1 because respondent 1 had knowledge about the
alleged irregularities in respect of his Chemist shop. Since Mr
Shishodia has referred to statements of Smt. Sita Devi and
Navrang Lal recorded under Section 161 of the Code, we have
perused them. In these statements, Smt. Sita Devi and Navrang       H
    326      SUPREME COURT REPORTS                    [2012] 7 S.C.R.

A    Lal have stated that the complainant was treating Smt. Sita Devi
     as his aunt and he had admitted her to the hospital. Navrang
     Lal has stated that because of his work "he had to leave
     Suratgarh and therefore, the complainant admitted Smt. Sita
     Devi in the hospital. So far as the alleged demand for money
B   made by respondent 1 is concerned, they have stated that
     respondent 1 did not demand any money from them and they
    were not aware whether respondent 1 demanded any money
    from the complainant. Thus, these statements support the
    complainant's case that he was treating Smt. Sita Devi as his
c   aunt; that he had admitted her to the hospital and that he had
    dealt with respondent 1. Respondent 1 is relying on three
    affidavits. Affidavits have been filed by Smt. Sita Devi, Navrang
     Lal and another patient by name Devcharan Bhagat.
    Surprisingly, in these affidavits, Smt. Sita Devi and Navrang Lal
D   have given a totally contrary version. They have gone on to say
    that the complainant has lodged a false complaint against
    respondent 1. In his affidavit Devharan Bhagat, another patient
    of respondent 1, has given a certificate to respondent 1 that
    he is an expert doctor and he had never taken any money from
    him for treatment. At this stage, we do not want to give any final
E   opinion on these affidavits but we find it difficult to quash the
    complaint on the basis of these affidavits. As we have already
    noted, Smt. Sita Devi and her husband have in their statements
    recorded under Section 161 of the Code partly supported the
    complainant. Apart from these statements there is another
F   prima facie clinching circumstance against the appellant. The
    police claim that they have taped the conversation between
    respondent 1 and the complainant. We have read the transcript
    of this tape recorded conversation. It is not possible for us to
    agree with the High Court that the transcription does not
G   corroborate the FIR. Prima facie, we feel that if it is read against
    the background of the other facts, it is apparent that it relates
    to the operation of Smt. Sita Devi and the demand pertains to
    the said operation. Besides, according to the prosecution, the
    trap was successful. Money smeared with phenolphthalein
H   powder was found with respondent 1. The notes recovered from
   STATE OF RAJASTHAN v. DR. RAJKUMAR      327
AGARWAL & ANR. [RANJANA PRAKASH DESAI, J.]
the respondent 1 tallied with the notes given by the complainant A
to the police for the purpose of trap and respondent 1's hand
wash turned pink. It is also pertinent to note that when the
complaint was lodged, Smt. Sita Devi was still in hospital,
probably because after the money was handed over, she was
to be discharged, and in fact, her discharge card was found B
on the table of respondent 1. It is also the case of the appellant
that respondent 1 refused to give his voice sample for the
purpose of investigation. How far the evidence collected by the
investigating agency is credible can be decided only when the
evidence is tested by cross examination during the trial. But,   c
in our opinion, in view of the contents of the FIR and nature of
evidence collected by the investigating agency, this is certainly
not a case where the FIR can be quashed. If we examine the
instant FIR in light of the principles laid down by this Court in
Bhajan Lal it is not possible to concur with the High Court that D
the allegations made in the FIR and the evidence collected in
support of the same do not disclose the commission of any
offence.

     9. There is yet another and a very sound reason why we
are unable to quash the instant FIR. It is risky to encourage the E
practice of filing affidavits by the witnesses at the stage of
investigation or during the court proceedings in serious offences
such as offences under the PC Act. If such practice is
sanctioned by this Court, it would be easy for any influential
accused to procure affidavits of witnesses during investigation F
or during court proceedings and get the FIR and the
proceedings quashed. Such a practice would lead to frustrating
prosecution of serious cases. We are therefore, wary of relying
on such affidavits. So far as the judgment cited by Mr.
Shishodia in V.P. Shrivastava is concerned, it is purely on G
facts and can have no application to this case. Shiji @ Pappu
also does not help respondent 1. That case involved a civil
dispute. Parties had settled their civil dispute and therefore, the
complainant was not ready to proceed with the proceedings. It
is against this background that in Shiji @ Pappu, this Court H
     328        SUPREME COURT REPORTS                [2012] 7 S.C.R.


A held that exercise of power under Section 482 of the Code was
  justifiable. However, this court added that the plentitude of the
  power under Section 482 of the Code by itself makes it
  obligatory for the High Court to exercise the same with utmost
  care and caution. The width and the nature of the power itself
B demands that its exercise is sparing and only in cases where
  the High Court is, for reasons to be recorded, of the clear view
  that continuance of the prosecution would be nothing but an
  abuse of the process of law. We feel that in the instant case,
  the High Court failed to appreciate that the wholesome power
c vested in it under Section 482 of the Code has to be exercised
  with circumspection and very sparingly. It is not possible for us,
  on the facts of this case, to come to a conclusion that no offence
  is made out at all against respondent 1 and continuance of
  proceedings would be abuse of the process of court.
D         10. Mr. Shishodia submitted that respondent 1 is on the
     verge of retirement. He has suffered the agony of investigation
     since 2007 and therefore, this court may take a kindly view of
     the matter. Rampant corruption is seen in every walk of our life.
     People, particularly those holding high office, are frequently
,E   seen accepting illegal gratification. In such serious cases
     showing mercy at this stage may send wrong signals. We are,
     therefore, unable to accede to Mr. Shishodia's request.

            11. In the circumstances, we set aside the impugned
F    judgment and order. It is not necessary for us to say the obvious
     that all observations made by us are prima facie observations
     and the court which may be seized of this matter shall deal with
     it strictly on merits and in accordance with law.
            12. The appeal is disposed of in the afore-stated terms.
G
     R.P.                                          Appeal allowed.