Amreshwar Sahay, J.

1. Heard Mr. Shailesh, learned counsel appearing for the petitioner and Mr. D.K. Bharati, learned counsel appearing for the CBI.

2. In the present revision application the petitioner has challenged the order dated 24/12/2003 passed by the Special Judge, CBI, Dhanbad whereby the learned Special Judge has rejected the prayer of the petitioner for his discharge.

3. The facts in short are that one Narayan Mahto lodged a complaint before the Superintendent of Police, CBI, Dhanbad alleging therein that the petitioner a clerk in Keshalpur Colliery Area-IV, BCCL, Dhanbad and one Debu Lal Das also a clerk in the said Colliery were demanding illegal gratification for giving no dues certificate/ clearance which was required for payment of the gratuity as he had retired on 1.3.2001. On the basis of the said complaint a case was registered by the CBI under Section 7 of the Prevention of Corruption Act, 1988. Thereafter, on fulfilling the required formalities a trap was laid on 30.1.2001 by the CBI and the accused Debu Lal Das, Bill Clerk, was caught red handed while demanding and accepting illegal gratification of Rs. 100/- in his office room. It is said that the petitioner, Personnel Clerk, Keshalpur Colliery had also taken illegal gratification of Rs. 100/- from the said complainant on 30.10.2001 for giving no dues certificate/clearance to him and the transaction of illegal gratification was seen and heard by the independent witness B.K. Sinha. It is further said that as soon as Sri B.K. Sinha the independent witness informed the CBI team about the illegal gratification taken by the accused P.N. Sahu @ P.N. Saw, the CBI team rushed to the office of the petitioner to nab him but it is said that the petitioner escaped from his office. The CBI requested the Officer. Incharge of the concerned Police Station to arrest the accused P.N. Saw as he had taken illegal gratification but he could not be arrested. The petitioner, who managed to escaped from his office on 30.10.2001, subsequently, remained absent on 31.10.2001 and 1.11.2001 also and ultimately he surrendered before the Special Judge, CBI, on 8.1.2002. After the investigation, the CBI submitted charge-sheet Section 7 and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 against the petitioner as well as the other co-accused Debu Lal Das.

4. Mr. Shailesh, learned counsel appearing for the petitioner has mainly argued that admittedly the petitioner was not caught/apprehended on the spot nor any tainted money was recovered either from his office or from his residence or from his personal possession and, as such, there was no material at all what to speak of sufficient materials, for framing of charge against him for the offence under Section 7 of the Prevention of Corruption Act. Admittedly, there was no recovery of the money, which was said to have been paid by way of illegal gratification, and as such, if the money was not recovered, then no charge for the said offence can be framed.

5. From the impugned order it appears that the Special Judge, after perusal of the case records and the case diary, found that the independent witness Basant Kumar Sinha and the complainant N. Mahto stated that P.N. Sahu (this petitioner) had taken illegal gratification of Rs. 100/- from the complainant. The materials further revealed that when the CBI team tried to nab the petitioner in his office room, he managed to escape from the office and immediately thereafter the Officer Incharge of the concerned Police Station was requested to arrest the accused, who had escaped after taking illegal gratification from the complainant.

6. Mr. Bharati, learned counsel appearing for the CBI by referring Section 7 of the Prevention of Corruption Act submitted that if a public servant even attempts to obtain illegal gratification the charge under Section 7 of the Prevention of Corruption Act can be framed against him and on the basis he can be convicted also, therefore, recovery of