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2001 DIGILAW 81 (JK)

Bashir Ahmad Wani v. State

2001-04-04

SYED BASHIR-UD-DIN

body2001
1. Despite all possible efforts the appellant-accused has conspicuously failed to appear and prosecute the appeal for last over 18 years. After the appellant or his counsel failed to appear, all efforts to serve appellant-accused have proved abortive. The accused-appellant despite opportunity(ies) has not appeared. The case cannot be allowed to pend any further when the age of this appeal is over 23 years, no matter accused has opted not to appear and avail the opportunity. 2. Heard. Perused. One Banti Devi was allotted vacant piece of evacuee land in Ward No. 5 of Samba Town on monthly rent under the orders of custodian back in January 1951. She had raised a Kacha house on the land. The Assistant Custodian Samba took objection to raising of this house. Complainant (PW1) Dev Raj S/o Said Banti Devi on learning about the matter attended the office of custodian, where he met accused appellant clerk of the evacuee department. Accused conveyed to complainant that either the rent would be enhance or the allotment would be cancelled but yet if PW1 or/and his mother was/were interested to have the land and at the same time continue to pay the rent at present rate, then they have to pay him illegal gratification of Rs. 100/-. Complainant reported the matter to Dy. S.P. (Anticorruption Organisation Jammu) and handed over a written report EXPF to the organisation. After registration of the case (FIR No. 7/76), PW5 one Amrik Chand Dy. S.P. arranged and laid a trap. In presence of prosecution witnesses 2 and 3, Rs. 10/- denomination currency notes were handed over to complainant PW1 by PW5 after the Dy. S.P. PW5 treated these notes with phenolplithalein powder and the notes were signed by the witnesses. The complainant was asked to contact and meet accused any pay the currency notes to him. Another witness PW4 was instructed to shadow him and the moment, amount was paid to accused to give signal to the party and the witnesses by rubbing his head. The accused in the vicinity of Charider Kumars shop was paid the bribe amount who kept the amount in his shirt pocket. On receiving the pre-determined signal from PW4, the raiding party standing at some distance appeared on the scene. On search of the accused notes were recovered from his upper pocket of the shirt. The accused in the vicinity of Charider Kumars shop was paid the bribe amount who kept the amount in his shirt pocket. On receiving the pre-determined signal from PW4, the raiding party standing at some distance appeared on the scene. On search of the accused notes were recovered from his upper pocket of the shirt. Witnesses PW2 and PW4 who had already noted down the numbers of notes tallied same and identified the notes. Accuseds hands were washed with Sodium Carbonate solution and the hand wash solution turned pink, indicating existence of tainted bribe money. After necessary sanction, accused was send up for trial. 3. Accused pleaded not guilty to charge u/s 5(2) r/w 5(1)(d), of the Prevention of Corruption Act, 2006. Prosecution examined six witnesses including investigating officer in support of its case. The seized notes EXP1 to EXP10 (vide EXPb) as also the evidence connected with phenolplithalein test and other circumstances including recovery of notes on recovery tallying with numbers on currency notes paid was tendered during trial. Accused pleaded not guilty and examined three witnesses in defence. Accuseds specific plea was that the currency notes EXP1 to EXP10 were not recovered from him but from one Chander Kumar shop Keeper to whom complainant had paid this amount. The three witnesses produced have broadly spoken those lines but Ghana Ram and Krishan Dev have admitted that the hands of the accused were washed in their presence and the colours of the hand-washed water did turn pink. Even the witnesses have on closer cross-examination spoken that the money was recovered from accused. The all important witnesses Chander Kumar shop keeper from whose shop, the amount is stated by accused to have been recovered has not been examined, though cited as defense witness. 4. The Special Judge And corruption Jammu on conclusion of the trial and on appreciations of evidence held accused guilty of having accepted illegal gratification from the complainant as reward for allowing him and his mother to continue to hold/occupy the land on the current initial rent fixed thereto as vacant land, instead of the built up land with house on it. Accused was convicted for commission of criminal misconduct as defined by Section 5(1)(d) of P.C. Act and punished for one year with fine of Rs. 200/- u/s 5 (2) of the Act. Accused was convicted for commission of criminal misconduct as defined by Section 5(1)(d) of P.C. Act and punished for one year with fine of Rs. 200/- u/s 5 (2) of the Act. This judgment of conviction and order of sentence recorded on 29-12-1977, is impugned in this appeal. 5. The sanction to prosecute the accused is stated to be bad as the total facts of the case were not before the sanctioning authority and that the accused is not a public servant. He cannot be tried under the provisions of Prevention and Corruption Act. Besides evidence is stated not to have been properly appreciated and the trap witnesses, interested as they are not reliable and the case had not been proved against accused beyond all reasonable doubt. 6. The defense plea of sanction to prosecute not being in accordance with the law was also raised before the trial court. The Special Judge on examination of record and on consideration has found that all the necessary facts were before the Government and a mention thereof is even made in the sanction order itself. The sanction is not vitiated and the sanctioning authority has been alive to the facts and circumstances of the case. The record fully supports conclusion arrived at by the trial Judge. The order of sanction (SRO 644 of 1976) shows that the competent authority had all the required facts and circumstances before it. All aspects of the case have been considered. The main events and necessary facts and circumstances constituting the offences in this case do figure in the sanction order. The authority while granting the sanction for the prosecution of the appellant-accused, has not infracted any provision of law, touching the sanction aspect of the case. 7. In Som Nath Vs. Union of India (AIR 1971 SC 1910) the Lordship observed: That for a sanction to be valid it must be established that the sanction was given in respect of the facts constituting the offence with which the accused is proposed to be charged. Though, it is desirable that the facts should be referred to in the sanction itself, nonetheless if they do not appear on the face of it, the prosecution must establish aliunde by evidence that these facts were placed before the sanctioning authorities.� 8. Admittedly appellant-accused was clerk at the relevant time in the office of Assistant Custodian Samba. Though, it is desirable that the facts should be referred to in the sanction itself, nonetheless if they do not appear on the face of it, the prosecution must establish aliunde by evidence that these facts were placed before the sanctioning authorities.� 8. Admittedly appellant-accused was clerk at the relevant time in the office of Assistant Custodian Samba. There is no doubt that in terms of section 6 (4A) of Evacuee (Administration Property) Act 2006 read with rules framed thereunder, the Govt. has over riding powers of appointments in evacuee department from lowest staff member to the Custodian General. The administration of evacuee property is carried on in the same manner as is the case with other departments of the Govt. Even Evacuee Act as well as rules framed thereunder, refer it as evacuee Department of the Govt. Not only so the evacuee administration body is creation of Evacuee Administration of property Act, 2006 passed by the State Legislature. Obviously appellant-accused answers the description of public servant within the meaning of Section 21 of the RPC read with clause (C) of section 2 of the Prevention of Corruption Act. Section 28 of Evacuee of Administration Property Act, 2006 further crystallizes the position by including within term public servant not only Custodian General but all other persons appointed to discharge duties imposed on them under the Evacuee Act or rules framed or orders passed thereunder. The defense plea raised as ground of appeal touching sanction to prosecute is without any basis. 9. In M.O. Shamshudin Vs. State of Kerala (1995 SCW 2717) the Supreme Court held:- Now coming to the nature of corroborating evidence that is required, it is well settled that the corroborating evidence be even by way of circumstantial evidence. No quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc.; and other general requirements necessary to sustain the conviction in that case. The Court should weigh the evidence and then see whether corroboration is necessary. Therefore, as a rule of law it cannot be laid down that the evidence of every complainant in a bribery case should be corroborate in all material particulars and otherwise it cannot be acted upon. The Court should weigh the evidence and then see whether corroboration is necessary. Therefore, as a rule of law it cannot be laid down that the evidence of every complainant in a bribery case should be corroborate in all material particulars and otherwise it cannot be acted upon. Whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of each case." 10. The Special Judge has taken pains to examine evidence of each witnesses. The Judge has scanned and analysed prosecution as also the defense evidence. The weight and trust-worthiness of the evidence has been as well considered. The defense plea evaluated. On analysis and evaluation the conclusions have been drawn. The whole evidence has been thoroughly gone into in detail and properly appreciated. The evidence of the complainant as also the evidence of two other trap witnesses Dr. P.N.Gupta (PW2) and Swaran Singh (PW3) has been thoroughly analysed and evaluated. The witnesses are not found interested. They are found more or less independent witnesses. Their evidence is also supported by the 4th witness Jagdish Singh and the investigating Officer Amrik Chand Gupta (PW6). The recovery of marked currency notes from the accused, the phenolplithalein test being positive, failure on the part of the accused to explain recovery of money from his person and the accused being in a position to influence the course of events in his capacity as a custodian clerk in custody of the relevant file of the complainant™s mother are all facts and circumstances which fully substantiate the prosecution story. Even in the face of scanning cross-examination the trap witnesses have not given anything to suggest that these witnesses are not independent. The evidence appears credible and confidence inspiring. This is so in the face of not so confidence inspiring defence putforth by the accused. The defence is an afterthought and an attempt to wriggle-out of predictment in which accused has landed himself. The defence cannot be believed. For the aforesaid reasons in my opinion no ground muchless sufficient ground exists to warrant interference with the trial court impugned judgment/order of conviction and sentence. The findings arrived at, conviction made and sentence awarded are confirmed and the appeal is dismissed. Inform court below of this order and send back the record.