Aakash Deep Chouhan v. CBI & Anr.

2.14. Aggrieved by the same, the petitioner filed the present petition.

3. The learned counsel for the petitioner submitted that the charges have been framed mechanically against the petitioner on the basis of unlawfully intercepted call recordings and conjectures, even though there is no material on record which casts grave suspicion against the petitioner.

4. He submitted the learned Trial Court has failed to appreciate that the petitioner was only an employee acting on instructions of his employer in a routine manner and he had no concern or idea about any alleged sub-contract of M/s. NBCC (India) Ltd.

5. He submitted that the transcripts of the intercepted calls are merely a corroborative piece of evidence and there is nothing on record to show that any influence was ever exercised or even attempted to be exercised on Mr. Anoop Kumar Mittal by the petitioner or any of the other accused persons.

6. He submitted that in one of calls relied upon by the learned Trial Court while framing charge against the petitioner, being call no.41, the petitioner has actually stated to the accused Rishabh Aggarwal that he is awaiting capital for the purchase of the motorcycle from the concerned person in his company. He submitted that there are multiple transcripts on record which show that the petitioner has informed the co-accused persons that the bike shall only be obtained after receiving the necessary official approvals. He submitted that the same belies any allegation of conspiracy as it is inconceivable that any person acting in conspiracy to attain any illegal objective will seek official approvals and it shows that the petitioner was not part of any conspiracy.

7. He further submitted that the learned Trial Court has failed to appreciate that the intercepted calls, which form the sole basis of the prosecution, were illegally and unlawfully intercepted disregarding the law laid down in the case of K.S. Puttaswamy v. Union of India: (2017) 10 SCC 1, in total violation of the fundamental rights guaranteed to the petitioner and other accused persons.

8. He submitted that as per Section 5(2) of the Indian Telegraph Act, 1885, an order for interception can be issued on either occurrence of any public emergency or in the interest of public safety. He relied upon the judgment in the case of People’s Union for Civil Liberties v. Union of India: (1997) 1 SCC 301, where it was held that unless a public emergency has occurred or the interest of public safety demands the same, there will be no basis to direct any interception of calls by exercising the powers under the section 5(2) of the Indian Telegraph Act, 1885.

9. He further submitted that the interception was illegal as there was no mention in the chargesheet to evidence that the interception orders were placed before the Review Committee as per Rule 419A of the Indian Telegraph Rules, 1951.

10. He further placed reliance on the cases of Vinit Kumar v. Central Bureau of Investigation: 2019 SCC Online Bom 3155, Jatinder Pal Singh v. Central Bureau of Investigation: 2022 SCC OnLine Del 135 and K.L.D. Nagasree v. Govt of India, Ministry of Home Affairs: 2006 SCC OnLine AP 1085.

11. He submitted that from a bare perusal of the orders of interception and their extension, it appears that no material was relied upon before passing the same and the said orders had been passed in a mechanical manner without considering the relevant law.

12. Per contra, the learned Special Public Prosecutor (‘SPP’) for CBI submitted that the calls were lawfully intercepted and the learned Special Judge has rightly framed the charges against the petitioner.

13. He submitted that the CDRS of the mobile phones and identification of voices via CFSL has established the role of the petitioner. He further submitted that the petitioner had full knowledge of the nature of the bribe and he has been rightly charged for the alleged offence. He submitted that several witnesses have stated incriminating facts against the petitioner, including Shiv Kumar (driver of the petitioner) who has stated that on 22.12.2017, the petitioner had driven the motorcycle and delivered the same to the accused Pradeep.

14. He submitted that the interceptions which incriminates the petitioner and his co-accused persons have been procured while in complete adherence of the procedure prescribed under Section 5(2) of the Indian Telegraph Act, 1885. He submitted that the decision for interception was also placed before the Review Board and there is prima facie material which warrants framing of charges against the accused petitioner. He submitted that it is well settled that offence of corruption endangers public safety as economic crimes ultimately affect economic stability of a country.

15. He submitted that the intercepted calls cannot be discarded at this stage and during the course of the trial, the concerned witness will be called for proving the orders of Ministry of Home Affairs.

16. He submitted that even otherwise, it is settled law that the test of admissibility of evidence is to be seen on the basis of its relevancy and a similar contention for expunging of alleged illegally intercepted phone call was rejected by the Hon’ble Apex Court in the case of State (NCT of Delhi) v. Navjot Singh Sandhu@Afsan Guru: 2005 11 SCC

600.

17. The learned standing counsel for Respondent No.2 seconded the submissions made by the learned SPP and submitted that the calls were legally intercepted in view of public safety in the interest of public order for preventing incitement to commission of such acts and the guidelines by the Hon’ble Supreme Court do not bar interception of any calls in relation to illegal acts.

ANALYSIS

18. At the outset, it is relevant to note that the scope of interference by High Courts while exercising revisional jurisdiction in a challenge to order framing charge is well settled. The power ought to be exercised sparingly, in the interest of justice, so as to not impede the trial unnecessarily. It is not open to the Court to misconstrue the revisional proceedings as an appeal and reappreciate the evidence unless any glaring perversity is brought to its notice.

19. In the case of Amit Kapoor v. Ramesh Chander: (2012) 9 SCC 460, the Hon’ble Apex Court had noted that while considering the point of charge, the Court is required to consider the record of the case and discern whether there are grounds to believe that the accused has committed the offence. It was noted that the Court has to satisfy itself as to the existence of elements of the alleged offence. The Hon’ble Apex Court, adverting to a catena of precedents, had also noted that the test for quashing an order on charge in exercise of revisional jurisdiction or inherent jurisdiction is limited to whether the allegations, as made from the record of the case, taken at their highest, are patently absurd and whether the basic ingredients of the offence, for which the charge is framed, are not made out. The relevant portion of the said judgment is reproduced hereunder:

judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code. xxx

27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist…” (emphasis supplied)

20. It is the case of the prosecution that the accused persons entered into a conspiracy for securing a sub-contract for steel work from M/s. Shapoorji Pallonji and Co. (P) Ltd. in favour of M/s. Capacite Structures Limited in the project awarded to it by M/s. NBCC (India) Ltd.. It is alleged that the accused Pradeep, a public servant, had demanded a new motorcycle as illegal gratification to exercise his influence with senior functionaries of M/s. NBCC (India) Ltd. The said demand was conveyed by the accused Rishabh, who acted as a middleman to facilitate the transaction, to the accused Sanjay, the MD of M/s. Capacite Structures Limited. It is alleged that the petitioner, who is an employee of the accused Sanjay, had purchased the motorcycle that was to be given as bribe and delivered the same to the accused Pradeep.

21. The petitioner has challenged the order on charge as well as the formal charge on essentially two grounds: a. The interceptions were unlawfully and illegally carried out by the investigating agency, in violation of the petitioner’s fundamental rights and statutory safeguards, due to which, the call recordings borne out of the interceptions were inadmissible as evidence, and b. The material brought forth by the prosecution after investigation, including the calls, did not make out a case of “grave suspicion” against the petitioner.

22. Before appraising the evidence and material on record to discern whether the same gives rise to grave suspicion against the petitioner, it is incumbent on this Court to first analyse the legality of the interception and if the intercepted calls can even be read against the petitioner.

23. This Court considers it apposite to note that it is cognizant that the issue of admissibility and reliability of evidence is not one that is to be probed or marshalled in a challenge against order framing charges. Yet, in the present case, it is pertinent to note that the petitioner has also sought for an additional relief of directions for expunging of the intercepted calls, which warrants attention of this Court on the issue of legality of the interceptions. Legality of the Interceptions

24. It is argued on behalf of the petitioner that the interceptions were unlawful as the same were carried out in flagrant breach of Section 5 of the Indian Telegraph Act, 1885 and the same ought to be destroyed in pursuance of Rule 419A of the Indian Telegraph Rules, 1951 as (a) the condition precedents under Section 5(2) of the Indian Telegraph Act, 1885 were not met; and (b) the procedure under Rule 419A of the Indian Telegraph Rules, 1951 was not followed as the interception orders passed by the Ministry of Home Affairs had not been reviewed by the Review Committee. It is further argued that the intercepted call recordings are inadmissible as the interceptions were in violation to the petitioner’s fundamental right to privacy.

25. Section 5(2) of the Indian Telegraph Act, 1885 reads as under:

26. Although every person has a fundamental right to privacy, the said right is not absolute and it can be curtailed by procedure established by law. The aforesaid provision empowers the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government to legally carry out interception or surveillance in the event of any public emergency or in the interest of public safety. In the case of People's Union for Civil Liberties (PUCL) v. Union of India: (1997) 1 SCC 301, while considering the vires of Section 5(2) of the Indian Telegraph Act, 1885, the Hon’ble Apex Court had expounded upon what comes under public emergency or public safety. The relevant portion of the judgment is as under: “28. Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the said section. “Occurrence of any public emergency” or “in the interest of public safety” are the sine qua non for the application of the provisions of Section 5(2) of the Act. Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said section. Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression “public safety” means the state or condition of freedom from danger or risk for the people at large. When either of these two conditions are not in existence, the Central Government or a State Government or the authorised officer cannot resort to telephonetapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone-tapping unless a public emergency has occurred or the interest of public safety or the existence of the interest of public safety requires. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.”

27. It is argued on behalf of CBI that destruction of the intercepted calls is not warranted and the condition precedent of public safety, as prescribed under Section 5(2) of the Indian Telegraph Act, 1885, is met in the present case as the allegations pertain to corruption which poses a risk on the economic well being of the country and its people.

28. This Court finds merit in the said argument. The threat posed by corruption cannot be understated. Corruption has a pervasive impact on a nation’s economy and the same can impact anything from infrastructural development to resource allocation. Corruption by a public servant has far reaching consequences as it serves to not only erode public trust and cast aspersions on the integrity of public institutions, but also renders the public at large susceptible and vulnerable by threatening the economic safety of the country. The pervasive nature of corruption has been recognised by many Courts and it has been noted that the same undermines the core values of Indian Preambular vision [Ref. Subramanian Swamy v. Manmohan Singh: (2012) 3 SCC 64]. In the case of Sanjay Bhandari v. Ministry of Home Affairs: 2020 SCC OnLine Mad 28021, the Hon’ble High Court of Madras had dismissed the writ petitions that were filed challenging the order directing interception of certain mobile number. The Hon’ble High Court had elaborated upon the scope of “public safety” as expounded by the Hon’ble Apex Court in People's Union for Civil Liberties (PUCL) v. Union of India (supra) in view of the new technology and observed as under:

it is becoming increasingly difficult to prevent and detect crime. Restricting the concept of public safety to the mere “situations that would be apparent to the reasonable persons” will exclude most of the actual threats which present the most grave circumstances like terrorist attacks, corruption at high places, economic and organized crimes, most of which are hatched in the most secretive of manners. In most of the circumstances, threat to public safety is from hidden factor which are neither apparent nor obvious to the general public and members of the law enforcement community and the information about these circumstances and factors cannot be connected by any other reasonable means. In addition, most of such information, is sensitive in nature, which may not be circulated in the public domain. Therefore, the first respondent passed the order to intercept phone messages of the petitioners herein.”

29. Relying upon the dictum in the case of Sanjay Bhandari v. Ministry of Home Affairs (supra), a Coordinate Bench of this Court in Santosh Kumar v. Union of India: (2022) 4 HCC (Del) 697 had dismissed writ petitions challenging orders of Ministry of Home Affairs which permitted interception of telephonic calls of the petitioner therein. It was noted that disclosure of elaborate reasons in interception orders would be against the modified disclosure requirements. The relevant portion of the said judgment is as under:

Bhandari v. Govt. of India, Ministry of Home Affairs, 2020 SCC OnLine Mad 28021] the same was held to be a matter which endangers public safety since economic crimes ultimately affect the economic stability and safety of the country and its citizens.”

30. In the present case, the allegations relate to the accused persons seeking to secure a sub-contract, by way of corruption, from a company that was awarded the task of redevelopment of ITPO Complex into Integrated Exhibition-Cum-Convention Centre on the basis of personal influence rather than merit of the bid. The allegations are grave in nature and, if proven, would render dubious the entire process of awarding of tenders and bids on the basis of personal influence with senior officers rather than benefit of the public at large. Although it cannot be generalized that all allegations in relation to corruption would have the capacity of influencing the public at large, the allegations herein don’t relate to a trivial project but one that was awarded for ₹2149.93 crores where the work sought by way of influence would have been of a substantial sum as well. The economic scale of the offence, in the opinion of this Court, satisfies the threshold of “public safety”.

31. Insofar as violation of due procedure is concerned, the written submission placed on record by CBI clarifies the same and mentions that the Review Committee in its meeting dated 11.01.2018 and 23.03.2018 had reviewed the interception orders issued by Ministry of Home Affairs for the period from 01.08.2017 to 31.10.2017 and 01.11.2017 to 31.01.2018 respectively. It is mentioned that as per the minutes, the committee concluded that the interception orders issued by Ministry of Home Affairs in respect of the above-mentioned period were in accordance with the provisions of Section 5(2) of the Indian Telegraph Act, 1885 and did not merit any intervention of the Committee.

32. A bare perusal of the interception orders passed by the Ministry of Home Affairs shows that the same have been passed “for the reason of public safety” in the interest of public order to prevent incitement to commission of an offence. As noted in Santosh Kumar v. Union of India (supra), the disclosure of elaborate reasons would defeat the purpose of secrecy as provided for under Rule 419A of the Indian Telegraph Rules, 1951 and would be against the modified disclosure requirements.

33. The petitioner has placed reliance on a number of judgments, however, the cases are distinguishable on facts. The judgment in the case of Jatinder Pal Singh v. Central Bureau of Investigation (supra) is of no benefit to the petitioner as in the said case, the Court had observed that there was no material on record to show that any review of the interception orders was conducted by the Review Committee, which led to the finding that the mandatory requirements laid down by law for placing reliance on the intercepted conversations was not met.

34. Unlike the present case, in the case of K.L.D. Nagasree v. Govt of India, Ministry of Home Affairs (supra) as well, while the interception orders were placed before the Review Committee, however, the Committee had decided to hold another meeting and there was no material to show that the Review Committee had met. The Hon’ble Andhra Pradesh High Court was also weighed to direct destruction of messages by the fact that the interception orders only repeated the conditions mentioned in Section 5(2) of the Indian Telegraph Act, 1885 verbatim without any specific reason.

35. It is important to note that the judgment in the cases of Jatinder Pal Singh v. Central Bureau of Investigation (supra) and K.L.D. Nagasree v. Govt of India, Ministry of Home Affairs (supra) were also considered and distinguished in the case of Santosh Kumar v. Union of India (supra).

36. The petitioner has further sought to place reliance on the case of Vinit Kumar v. Central Bureau of Investigation: 2019 SCC Online Bom 3155. As pointed out by the learned counsel for the respondents, the Hon’ble Apex Court has stayed the aforesaid decision. It is argued by the learned counsel for the petitioner that mere stay of a decision does not restrict its operation. While the said decision may have some persuasive value, in the said case, the Hon’ble Bombay High Court was of the view that the facts of the case did not justify any ingredients of the risk it posed to the public and it was found that the action of issuing successive review orders, without reference to the review committee, was in clear breach of the relevant rules, statute and Constitution of India. In the present case, as discussed above, this Court has expressed its inclination to endorse the view taken by the Coordinate Bench in Santosh Kumar v. Union of India (supra) and taken the view that the interception was within the ambit of Section 5(2) of the Indian Telegraph Act, 1885 as the allegations pertain to economic crime of corruption for securing a bid of high value, which ultimately affects the economic stability of the country. As noted above, the interception orders were also duly placed before the Review Committee and the allowed by the same.

37. In view of the above, this Court is of the opinion that the interception was carried out in accordance with law, and therefore, no case is made out for destruction of the transcripts. Admissibility and Reliability of the interceptions

38. Even otherwise, if the case of the petitioner is taken at the highest and it is considered that the interceptions were unlawful, it is relevant to note that the destruction of the recordings is sought as it has prejudiced the petitioner in the present case and it is contended that the unlawfully obtained call recordings cannot be used to incriminate the petitioner. A bare perusal of the conversations on record clearly suggest discussions in relation to demand and delivery of illegal gratification. The same are clearly relevant to the case. As held by the Hon’ble Apex Court in the case of State (NCT of Delhi) v. Navjot Sandhu: (2005) 11 SCC 600, the admissibility of the material is not affected by the noncompliance of the procedural safeguards. The relevant portion is as under: “Interception of phone calls

153. The legality and admissibility of intercepted telephone calls arises in the context of telephone conversation between Shaukat and his wife Afsan Guru on 14th December at 2009 hrs and the conversation between Gilani and his brother Shah Faizal on the same day at 1222 hrs. …It is contended by the learned Senior Counsel appearing for the two accused Shaukat and Gilani, that even Rule 419-A, has not been complied with in the instant case, and, therefore, the tape-recorded conversation obtained by such interception cannot be utilised by the prosecution to incriminate the said accused. It is the contention of the learned counsel for the State Mr Gopal Subramanium, that there was substantial compliance with Rule 419-A and, in any case, even if the interception did not take place in strict conformity with the Rule, that does not affect the admissibility of the communications so recorded. In other words, his submission is that the illegality or irregularity in the interception does not affect its admissibility in evidence there being no specific embargo against the admissibility in the Telegraph Act or in the Rules. Irrespective of the merit in the first contention of Mr Gopal Subramanium, we find force in the alternative contention advanced by him.

154. In regard to the first aspect, two infirmities are pointed out in the relevant orders authorising and confirming the interception in respect of specified telephone numbers. It is not shown by the prosecution that the Joint Director, Intelligence Bureau who authorised the interception, holds the rank of Joint Secretary to the Government of India. Secondly, the confirmation orders passed by the Home Secretary (contained in Vol. 7 of the lower court record, p. 447, etc.) would indicate that the confirmation was prospective. We are distressed to note that the confirmation orders should be passed by a senior officer of the Government of India in such a careless manner, that too, in an important case of this nature. However, these deficiencies or inadequacies do not, in our view, preclude the admission of intercepted telephonic communication in evidence. It is to be noted that unlike the proviso to Section 45 of POTA, Section 5(2) of the Telegraph Act or Rule 419-A does not deal with any rule of evidence. The non-compliance or inadequate compliance with the provisions of the Telegraph Act does not per se affect the admissibility. The legal position regarding the question of admissibility of the tape-recorded conversation illegally collected or obtained is no longer res integra in view of the decision of this Court in R.M. Malkani v. State of Maharashtra [(1973) 1 SCC 471: 1973 SCC (Cri) 399]. In that case, the Court clarified that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestae under Section 7 of the Evidence Act. Adverting to the argument that Section 25 of the Telegraph Act, 1885 was contravened the learned Judges held that there was no violation. At the same time, the question of admissibility of evidence illegally obtained was discussed. The law was laid down as follows: (SCC p. 477, para 24) ‘There is warrant for the proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones v. Owens [(1870) 34 JP 759]. The Judicial Committee in Kuruma v. R. [(1955) 1 All ER 236: 1955 AC 197: (1955) 2 WLR 223 (PC)] dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence.’ ”

39. The admissibility of any piece of evidence rests on its reliability, instead of how that evidence came to be procured. That is not to say that such evidence cannot be disallowed if the evidence is colored by breach of the privacy of the accused, however, even then, the judicial discretion will need to be exercised at the time of stage of adjudication rather than at the time of admitting the evidence on record.

40. Having observed that the interceptions were lawful, the same are reliable and admissible.

41. In the opinion of this Court, the transcripts cannot be discarded and the learned Trial Court rightly perused the same before forming its opinion on whether charges ought to be framed against the petitioner and other accused persons. Grave Suspicion against the petitioner

42. It will be apposite to succinctly discuss the statutory law with respect to discharge and framing of charge as provided under Sections 227 and 228 of the CrPC. The same is set out below:

43. It is trite law that the learned Trial Court while framing charges is not required to conduct a mini-trial and has to merely weigh the material on record to ascertain whether the ingredients constituting the alleged offence are prima facie made out against the accused persons. The Hon’ble Apex Court, in the case of Sajjan Kumar v. CBI: (2010) 9 SCC 368, has culled out the following principles in regards to the scope of Sections 227 and 228 of the CrPC:

broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.”

44. In a recent decision in State of Gujarat v. Dilipsinh Kishorsinh Rao: 2023 SCC OnLine SC 1294, the Hon’ble Apex Court has discussed the parameters that would be appropriate to keep in mind at the stage of framing of charge/discharge, as under:

opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.”

45. In view of the above, it is clear that this Court, at this stage, is not required to revaluate the evidence or hold a mini trial as the same would tantamount to this Court assuming appellate jurisdiction. Thus, all that has to be seen is whether the learned Trial Court has adequately appreciated the material on record and whether the Court could form an opinion on the basis of the material on record that there is grave suspicion against the accused which is not properly explained.

46. In the present case, the learned Trial Court has framed charges against the petitioner for the offence under Section 120B of the IPC read with Section 9 of the PC Act.

47. Section 9 pertains to the offence relating to bribing a public servant by commercial organization intending to obtain or retain business for such commercial organization or to obtain or retain an advantage in the conduct of business for such commercial organization.

48. The learned Trial Court observed that although it had been argued that Section 9 of the PC Act was nor made out, however, the conversation between the accused persons shows that the accused Rishabh had contacted the accused Pradeep to influence higher officials of M/s. NBCC (India) Ltd. to pressurize M/s. Shapoorji Pallonji and Co. (P) Ltd. to award the contract to M/s. Capacite Structures Ltd. It is argued that there is no evidence that Mr. Anoop Kumar Mittal was ever influenced. As rightly noted by the learned Trial Court, for the purpose of constituting the offence under Section 9 of the PC Act, it is not necessary that the accused who obtains illegal gratification actually succeeds in their attempt to induce the public servant by exercising personal influence. In the present case, there is categorical evidence on record, including recovery of bike bought by the petitioner from the accused Pradeep and the statement of the petitioner’s driver (CSW8– Shiv Kumar) who saw the delivery of bike, which shows the transfer of the gratification as bribe. As also noted by the learned Trial Court, it is clear from the record that the accused Pradeep was known to the Chairman of M/s. NBCC (India) Ltd. and the recorded conversations between the accused Pradeep and the accused Rishabh show that the accused Pradeep had assured that he would be able to influence the said official for grant of the sub-contract.

49. It is argued that the petitioner cannot be persecuted merely on the basis of calls as they are corroborative in nature. The learned Trial Court has rightly appreciated that the electronic media corroborates the case of the prosecution by filling the missing gaps as are created by factors like the delivery of motorcycle.

50. It is further argued that the petitioner was merely an employee and he was acting on instructions. It is argued that the calls also show that the accused was waiting for financial approval. A bare perusal of the transcripts of the calls show that while the petitioner did mention financial approvals, however, at this stage, some portions of the call suggest that the petitioner was aware of the reason for giving the bike.

51. As noted by the learned Trial Court, Call Nos. 31, 33, 34, 41, 44 and other calls show that the petitioner was aware of the matter regarding the sub-contract and that the motorcycle was being given to the accused Pradeep, who was the Assistant Director in IB and who was to exercise his influence on higher officials of M/s. NBCC (India) Ltd. The Court is in agreement with the observations of the learned Trial Court in this regard. In particular, reference has been made to call NO. 34 where co-accused Rishabh is saying that “kaam khatam”, that is, work is done, and that the accused Pradeep had confirmed that black color of bike is fine with him. The said conversation prima facie shows that the petitioner was aware that some work was being done by the accused Pradeep, for which, he was receiving the motorcycle. In call no. 31 between the accused Rishabh and the petitioner, there are even specific mentions to the engagement of the accused Pradeep in IB and the nexus of the accused Pradeep with Mr. Anoop Kumar Mittal, CMD, M/s. NBCC (India) Ltd. The nature of the conversation prima facie seems to be suggestive of the fact that the bike is being given as a bribe.

52. In a nutshell, at this stage, prima facie, the material on record including the calls cast grave suspicion against the petitioner which shows that even though he may not be the ultimate beneficiary to the offence, he was participating in the transfer of bribe despite knowing about the nature of the transaction. While the guilt of the petitioner would be ascertained in trial, at this stage, the conversations and the statement of the petitioner’s driver cast grave suspicion against him.

53. It is also pertinent to note that the present case has been pending before this Court since the year 2020 and the trial has since proceeded. Needless to say, it is open to the petitioner to raise all arguments before the learned Trial Court.

54. In view of the aforesaid discussion, this Court finds no reason to interfere with the impugned order or to order destruction of the intercepted call recordings.

55. The present petition is dismissed in the aforesaid terms. AMIT MAHAJAN, J JUNE 26, 2025