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2002 DIGILAW 38 (AP)

S. Janardhana Rao v. State Of A. P.

2002-01-09

L.NARASIMHA REDDY

body2002
L. NARASIMHA REDDY, J. ( 1 ) THESE two Criminal Appeals arise out of common judgment in C. C. No. 16 of 1998 on the file of the Principal Subordinate judge for SPE and ACB Cases, Hyderabad, dated 29-2-2000. The trial Court convicted a-1 of the offences under Sections 7 and 13 (1) (d) read with Section 13 (2) of the prevention of Corruption Act (for short the act ) and sentenced him to undergo Rigorous imprisonment for three years and to pay a fine of Rs. 3,000/-, in default to suffer simple imprisonment for 2 months. A-2 had turned as an approver and was examined as p. W. 21. He was granted pardon. A-3 and a-4 were acquitted of the offences under section 12 of the Act read with Section 34 IPC alleged against them. A-1 preferred Crl. A. No. 272 of 2000 assailing the conviction and sentence against him, whereas Crl. A. No. 807 of 2000 is filed by the State against the acquittal of A-3 and A-4. ( 2 ) THE brief facts as presented before the trial court may be stated as under:- a-1 functioned as the III Metropolitan sessions Judge, Hyderabad, from May 1995 to 4-9-1996. One of the cases being tried by him was S. C. No. 186 of 1989. P. W. 1 herein figured as Accused No. 1 in that case and was being tried for offences under Sees. 120-B and 303 IPC, 3 (3) and 4 (3) of TADA Act and section 27 of the Indian Arms Act read with sections 5 and 6 of TADA Act, along with several other accused. P. W. 21 was a constable in decoity wing of CCS of Police Control room, Hyderabad, who was entrusted with the work of attending that Court. ( 3 ) P. W. 21 is alleged to have been called by A-1 some time in June 1996 to his chambers where two other persons were present. He was asked to secure a driving license for one of them. P. W. 21 complied with the instructions and afterwards A-1 asked him to come to his residential flat at padma Rao Nagar, at Hyderabad. He was asked to secure a driving license for one of them. P. W. 21 complied with the instructions and afterwards A-1 asked him to come to his residential flat at padma Rao Nagar, at Hyderabad. Their A-1 informed him that there is a case pertaining to one Sardarji (P. W. 1) where the chances of acquittal and conviction are equal, P. W. 21 said that the case relates to the murder of a team of CCS and does not concern his wing. Still A-1 asked him to contact P. W. 1 duly giving his descriptive particulars and to tell him that if he pays an amount of rs. 6,00,000/-, through another person, the work will be done. ( 4 ) SINCE P. W. 21 was afraid of approaching p. W. 1, after obtaining permission of A-1, he approached P. W. 2, who was another accused in S. C. No. 186/89, P. W. 2, who was another accused in S. C. No. 186/89. P. W. 2, in turn, had directed him to approach P. W. 1 on the ground that the latter was looking after the case. P. W. 21 met P. W. 1 and conveyed the message of A-1. P. W. 1 expressed his inability to pay such a huge amount. On the same day, p. W. 1 approached the ACB officials. However, since the Director of ACB was busy and did not give any appointment to him, he went to the Court. Subsequently, p. W. 21 approached P. W. 1 stating that at least an amount of Rs. 3,00,000/- together with 50,000/- to be shared equally by himself (P. W. 21) and another mediator be paid. ( 5 ) P. W. 1 kept himself in touch with the officials of the ACB. Since the ACB officials informed him that they cannot proceed in the matter against A-1, who is a Judicial officer, without the permission of the High court. P. W. 1 met the Chief Justice of High court on 3-9-1996 and submitted a complaint (Ex. P-1 ). P. W. 1 wanted to know from p. W. 21 the modalities of payment. P. W. 21 has informed P. W. 1 that on 4-9-1996, on which date the case was posted, A-1 will utter a code word, viz. P. W. 1 met the Chief Justice of High court on 3-9-1996 and submitted a complaint (Ex. P-1 ). P. W. 1 wanted to know from p. W. 21 the modalities of payment. P. W. 21 has informed P. W. 1 that on 4-9-1996, on which date the case was posted, A-1 will utter a code word, viz. , "petitions will be posted to 6-9-1996 in the Court and hearing the same both of them should go to hanamkonda, Warangal district, to the residence of A-1, where his wife A-3 and his son A-4 are residing at the first floor and pay the amount there. ( 6 ) AFTER meeting with the Chief Justice once again in the morning of 4-9-1996. P. W. 1 proceeded to the office of the Director of ACB and submitted a complaint (Ex. P-2), FIR was registered, the currency of rs. 3,00,000/- brought by him was treated with phenolphthalein powder in the presence of Panchas and along with the amount, he proceeded with the Court. At about 3. 30 p. m. , a-1 uttered the code word. P. W. 21 was waiting outside. P. W. 1 came out and asked p. W. 21 to go to his car parked outside. Both of them proceeded to Hanamkonda and reached there at about 7. 00 p. m. They went to the house of A-1, On their entry into the house, P. W. 3 verified as to their identity and revealed that she has received information from A-1 as regards payment. P. Ws. 1 and 21 handed over the amount of Rs. 3,00,000/- in a plastic cover. In their presence, A-3, gave it to A-4 and asked him to put in the Almarah in the drawing room. In their presence, A-3 tried to contact A-1, but the phone was busy. ( 7 ) BOTH of them came down and went to the car. When P. W. 1 took his kerchief and started wiping his face, ACB officials waiting nearby came and caught hold of P. W. 21. They took him to the residence of A-1 and enquired with P. W. 3 as to whether any one had come and paid the amount. A-3 told them that P. Ws. 1 and 21 had come to their bouse, asked for water and after taking the same, they left the house. She denied of receiving any amount. They took him to the residence of A-1 and enquired with P. W. 3 as to whether any one had come and paid the amount. A-3 told them that P. Ws. 1 and 21 had come to their bouse, asked for water and after taking the same, they left the house. She denied of receiving any amount. The ACB officials washed her hands with Sodium Carbonate solution and it remained neutral. They did not find any thing nearby. In the meanwhile, a-4 had led the party to the bath room attached to the bed room and they recovered a cover comprising of currency from the flush tank. The currency was partly drenched in water. The notes were dried in the house. The hands of A-4 were washed with Sodium carbonate (SC) solution. There was no change in colour. The hands of P. W. 21 were also washed with SC solution and the same turned out to be pink. The house was searched. No incriminating material was recovered. ( 8 ) P. WS. 1 and 21 started for Hyderabad, p. W. 23, Joint Director of ACB, who participated in the raid, had accompanied them. At 11. 30 p. m, they reached Uppal, in the outskirts of Hyderabad. They went to the house of P. W. 7, a friend of P. W. 23. They sought the permission of P. W. 7 to use his telephone. P. W. 1 has connected electronic recording equipment to the phone. Thereafter, P. W. 21 has rang up A-1 at his flat atpadmaraonagar, Hyderabad. His daughter lifted the phone and gave it to A-1. P. W. 21 sought the permission of A-1 to bring P. W. 1 to his house. Initially, A-1 refused to meet p. W. 1 at the last hour and thereafter on persuation, agreed to meet P. W. 1. P. Ws. 1, 21 and 22 had their dinner in a hotel on their way to the house of A-1 and reached the flat of A-1 at about 1. 00 a. m. on 5-9-1996. By the time they reached, a team of ACB officials was there. P. W. 21 first entered the house of a-1 and informed him of P. W. 1 being there. Thereafter P. W. 1 was sent inside and p. W. 21 came out. At that stage, ACB team had entered the house and conducted search. 00 a. m. on 5-9-1996. By the time they reached, a team of ACB officials was there. P. W. 21 first entered the house of a-1 and informed him of P. W. 1 being there. Thereafter P. W. 1 was sent inside and p. W. 21 came out. At that stage, ACB team had entered the house and conducted search. No incriminating material was recovered from the house of A-1. ( 9 ) WITH this factual matrix, the prosecution has charged A-1 of committing offences under Sections 7 and 13 (1) (d) read with section 13 (2) of the Act. Initially, no charges were framed against A-3 and A-4. At a later stage, a memo was filed explaining the omission and they too were charged. ( 10 ) AFTER commencement of the trial and after P. W. 1 was examined in chief, A-2 submitted an application seeking permission to become Approver. Permission was accorded by the trial court and his statement was directed to be recorded under Sec. 161 of cr. P. C. The prosecution carried the matter in revision to this Court. The revision was disposed of directing recording of statement under Section 164 Cr. P. C. and thereafter the trial Court granted pardon on 15-12-1996. ( 11 ) THE prosecution examined P. Ws. 1 to 23. P. W. 1 is De facto Complainant and A-1 in sc. No. 186/89. He deposed, almost to the entire case of the prosecution. P. W. 2 another accused in SC No. 186/89 and deposed that p. W. 21 approached him 5 or 6 months prior to the trial and few days before the trap. P. Ws. 3,4 and 18 are Panch Witnesses and mediators at various stages. P. W. 5 claims to have given his car to P. W. 1 on 4-9-19%. P. W. 6 is Watchman of Residential Complex at padmarao nagar in which the flat of A-1 is situated. P. W. 7 is friend of P. W. 22, Joint director of ACB, from whose house P. W. 21 is said to have contacted A-1. P. W. 8 is the public Prosecutor who was conducting the case SC No. 186/89 and P. W. 9 is the Counsel of A-1 (P. W. 1) in SC 186/89. P. W. 7 is friend of P. W. 22, Joint director of ACB, from whose house P. W. 21 is said to have contacted A-1. P. W. 8 is the public Prosecutor who was conducting the case SC No. 186/89 and P. W. 9 is the Counsel of A-1 (P. W. 1) in SC 186/89. P. W. 11 who is the Bench Clerk who functioned as bench clerk on 4-9-1996 and dealt with SC 186/89 in view of absence of P. W. 10 and P. W. 12 who is the Inspector of ACB, were examined in relation to pronouncement of the code word by A-1 on4-9-1996. P. W. 14 is the Inspector of police, CCS, under whom P. W. 21 was working. P. W. 15 is the PS to Hon ble Chief justice and he spoke to the factum of receiving phone call from P. W. 1 seeking an appointment with the Hon ble Chief Justice, receiving complaint Ex. P-1 and making endorsement-Ex. P-1 (a) on 3-9-19%. P. Ws. 16, 17 and 18 are Government Officials and who were examined in relation to sanctions accorded to prosecute A-1, A-2 and A-3. P. W. 20 is the then Registrar (Vigilance) of the High Court of A. P. P. W. 22 is the Joint director of ACB, proceeded from Hyderabad to Hanamkonda and thereafter accompanied p. W. 1 and P. W. 21 to Hyderabad. P. W. 23 is the Deputy Superintendent of Police, ACB, at the relevant point of time. The prosecution has also marked documents Exs. P-1 to P-14 and Material Objects as M. Os. 1 to 8. For the defence, documents Exs. D-1, D-2 and D-2 (a) and XI to X2 (c) were marked. ( 12 ) ON a consideration of oral and documentary evidence before it, the trial court found A-1 guilty of the offences charged against him and imposed the punishment as mentioned above. A-3 and a-4 were, however, acquitted. ( 13 ) SRI C. Padmanabha Reddy, learned senior Counsel for the appellant, in Crl. A. No. 272 of 2000 submits that even the basic ingredients for the offence under Sections 7 and 13 of the Act did not exist to convict the appellant. A-3 and a-4 were, however, acquitted. ( 13 ) SRI C. Padmanabha Reddy, learned senior Counsel for the appellant, in Crl. A. No. 272 of 2000 submits that even the basic ingredients for the offence under Sections 7 and 13 of the Act did not exist to convict the appellant. It is his case that admittedly there was no demand by A-1 and the entire case of the prosecution rested upon the evidence of p. W. 1, who is accused of grave offence in s. No. 186/89 and P. W. 21. The learned senior counsel submits that though the Hon ble supreme Court took exception to the Judicial officers being proceeded against by Police and ACB officials and framed guidelines and the so-called raid was conducted even without obtaining prior permission of the high Court. According to him, the trap is only an invention. It is also his case that as a desperate attempt to connect A-1 with a nonexistent demand or recovery, the prosecution has invented the theory of code word and a phone call having been made by P. W. 21 from the house of P. W. 7, it is his case that the evidence on record does not establish these two aspects and once they are omitted, no material exists to find A-1 guilty of the offence alleged against him. The learned counsel submits that there was non-application of mind in graning permission to prosecute a-1, A-3 and A-4. He relies upon several judgments of the Supreme Court in support of his contentions. He submits that the acquittal of A-3 and A-4 does not call for interference. ( 14 ) SRI G. Pedda Babu, the learned standing Counsel for ACB submits that though there did not exist any direct demand from A-1, the series of events as narrated by p. Ws. 1 and 21 coupled with the statement of p. W. 2 demonstrates that there was a demand from A-1. He submits that there was, ample evidence before the trial Court to conclude that P. W. 21 acted only on the directions of a-1. He submits that the trap arranged by acb was successful. It is his case that the prosecution also proved the two connecting factors, viz. , the utterance of code word in the Court and the conversation of P. W. 21 with A-1 after the trap. He submits that the trap arranged by acb was successful. It is his case that the prosecution also proved the two connecting factors, viz. , the utterance of code word in the Court and the conversation of P. W. 21 with A-1 after the trap. It is also his case that there was ample evidence before the trial court to convict A-3 and A-4, particularly, when the trial Court believed the factum of acceptance of the amount by A-3 and A-4 and recovery of the amount from the house of A-1 of Hanamkonda. ( 15 ) SECTION 7 of the Act is couched in very wide terms. A public servant can be said to have committed the offence under that section if he accepts or agrees to accept or attempts to obtain any gratification from any person other than legal remuneration as a motive or reward for doing or forbearing to do any official act etc. To constitute an offeree under this Section, the prosecution has to establish the existence of a demand by the public servant as well as the element of acceptance. Demand may be direct by the public servant or may be direct through another agency. Similarly acceptance need not be by himself and depending on the circumstances, acceptance of the gratification on behalf of the public servant can be treated as acceptance by himself. Where the demand and acceptance are not by the public servant, necessary evidence has to be adduced by the prosecution to establish those aspects. ( 16 ) IN this case, admittedly, there was no direct demand by A-1, nor any payment was made to him. However, despite the same, the charge against A-1 can be held proved, if it is established that he made the demand from p. W. 1 through P. W. 21, A-3 and A-4 have received the amount, and such receipt was on the instructions and for the benefit of a-1. For the purpose of adjudicating the case, from that angle, the case can be compartmentalised into the following aspects: (A) The demand on behalf of A-1; Into this aspect can be roped in. (i) what has transpired between a-1, P. W. 21, P. W. 2 and P. W. 1; and (ii) submission of complaint by p. W. 1 to the Chief Justice, on one hand, and the ACB officials, on the other. (i) what has transpired between a-1, P. W. 21, P. W. 2 and P. W. 1; and (ii) submission of complaint by p. W. 1 to the Chief Justice, on one hand, and the ACB officials, on the other. (B) The utterance of the code word; (C) The trap at Hanamkonda; and (D) The communication by P. W. 21 with a-1 from the houseof P. W. 7 as regards the successful payment of the amount to A-3 and A-4 of Hanamkonda. ( 17 ) S. C No. 186/89 was pending before the III Metropolitan Sessions Judge, secunderabad from 1989, as the number of case itself suggests. P. Ws. 1 and 2 were some of the accused in that case. It has come on record that it was only after A-1 assumed the office, that the trial of the case was taken up and as many as 45 witnesses were examined. P. W. 21, a Constable from CCS of Police control Room, claims to have been attending to that Court in relation to certain cases. He is said to have been called by A-1 to his chamber in the month of June 1996. A man and a woman were said to have been present in the chamber and A-1 is said to have asked p. W. 21 to secure a permanent driving licence to one of them. P. W. 21 stated that he got the permanent driving license and it is thereafter a-1 asked him to come to his flat at Padmarao nagar. The exact date on which P. W. 21 had gone to the house of A-1 is not spoken to. Be that as it may, from the evidence of P. W. 1, it is evident that A-1 informed that a case pertaining to one Sardarji is pending before him in which chances of conviction and acquittal are equal. P. W. 21 is said to have informed A-1 that the case belongs to murder team of CCS; obviously conveying that he is not dealing with the case. Still, A-1 asked him to contact P. W. 1. P. W. 21, in turn, had stated that he is known to another person. A-1 is said to have informed P. W. 21 to tell p. W. 1 to pay Rs. 6,00,000/-to another person known to them (and his work will be done. Still, A-1 asked him to contact P. W. 1. P. W. 21, in turn, had stated that he is known to another person. A-1 is said to have informed P. W. 21 to tell p. W. 1 to pay Rs. 6,00,000/-to another person known to them (and his work will be done. ( 18 ) P. W. 21 claims to have made some attempt to meet P. W. 1 but could not meet him in view of presence of other accused in the Court. Thereafter, P. W. 21 is said to have been asked by A-1 to come to his house to discuss about the matter. It is then that p. W. 21 claims to have obtained the permission of A-1 to meet another Sardarji. The relevant portion of the deposition reads as under:"it told him A. O. 1 (A-1) that due to fear I could not meet P. W. 1 and discuss this matter with him. Further I informed a. O. 1 that there is another Sardarjee in the case along with P. W. 1 who is the proprietor of Hind Motor Driving School, nampally, Hyderabad and sought permission of A. O. 1 to discuss this matter with him Then A. O. 1 asked me to contact the other Sardarjee by name Rajender singh, P. W. 2 and also warned me to be very cautious while discussing the matter with him. "p. W. 21 deposed that he met P. W. 2 on 20-8-1996, discussed with him and conveyed to him what was instructed by A-1. P. W. 1 replied that P. W. 1 was looking after the matter and any discussion should be only with him. When P. W. 21 expressed fear to speak to P. W. 1, P. W. 2 assured him not to be afraid and gave residential address as well as telephone number of P. W. 1. P. W. 21 claims to have met P. W. 1 on 24-8-1996 at 8. 00 a. m. After expressing his fear to talk to him and after having been assured by P. W. 1, he conveyed the instructions given to him by a-1. It is his case that he came in contact with p. W. 1 on phone some times before going personally to meet P. W. 1. 00 a. m. After expressing his fear to talk to him and after having been assured by P. W. 1, he conveyed the instructions given to him by a-1. It is his case that he came in contact with p. W. 1 on phone some times before going personally to meet P. W. 1. 4 or 5 days after, i. e. , some time around 29th and 30th August 1996, P. W. 1 met P. W. 21 in the Court premises and informed that the other accused are not willing to pay the bribe as demanded and since he alone had to pay the amount, he can arrange Rs. 3,00,000/ -. This information, in turn, was said to have been conveyed to A-1 and the deal was said to have been finalised at Rs. 3,00,000/- to A-1, Rs. 25,000/- to P. W. 21 and Rs. 25,000/- to another 3rd person. So much so, even the domination in which it was to be paid has been informed to P. W. 21. It was further stated that the amount should be kept ready by 2-9/3-9, 1996 and this was conveyed by P. W. 21 to P. W. 1 on 1-9-1996. ( 19 ) THIS version of P. W. 21 needs to be crow checked with what happened at his meetings with P. W. 2 and P. W. 1. If needs to be borne in mind that A-1 is said to have mooted this issue with P. W. 21 after he met a-1 in June 1996. The proposal was not mooted at the first meeting. It was only after p. W. 21 secured the permanent license to one of the relative of A-1 that P. W. 21 was asked to come to the residence of A-1. Though no dates are mentioned in the evidence of p. W. 21 or at any other place, for the sake of testing the veracity of the evidence that may be assumed to have taken place some time during June itself. The trap took place in the 1st week of September and the gap between the first meeting of P. W. 21 with A-1 and the trap was 1 to 2 1/2 months. Even according to p. W. 21, the first person, whom he met with the alleged demand of A-1 was P. W. 2. The trap took place in the 1st week of September and the gap between the first meeting of P. W. 21 with A-1 and the trap was 1 to 2 1/2 months. Even according to p. W. 21, the first person, whom he met with the alleged demand of A-1 was P. W. 2. ( 20 ) P. W. 2 in his evidence stated about his meeting with P. W. 21 as under:- "5 or 6 months prior to the trap, Mohd. Omer Moin (P. W. 21) approached me and enquired about my business and enquired about my case pending in the court. On one Saturday, about a week or 10 days prior to the trap, Omer Main came to my office i. e. , Hind Motor training School and enquired about my case and informed me that he will see that the case ended in acquittal as he knew the Presiding Officer (A-1 ). " p. W. 2 further stated that when P. W. 21 raised the topic, he said that it is only P. W. 1, who was dealing with the matter. He also claims to have informed P. W. 1 about the proposal and P. W. 1 in turn had informed him that P. W. 21 can approach him. ( 21 ) IT was the specific case of P. W. 21 that hemetp. W. 1 on24-8-1996. However, it is the case of P. W. 1 that P. W. 21 met him for the first time on 29-8-1996. The following extract of his deposition would reveal the same:"then I told Rajender Singh (P. W. 2) that if A-2 (P. W. 21) approaches him, he may direct A-2 to contact me. For two or three days A-2 did not approach any one of us. On 29-8-1996 A-2 came to my house at about 8 a. m. in the morning. He told me that he was feared to talk with me, then i told him that he need not have any fear and he can talk with me freely. "contrast this, with the deposition of P. W. 21:-"on 24th August, 1996 at about 8. 00a. On 29-8-1996 A-2 came to my house at about 8 a. m. in the morning. He told me that he was feared to talk with me, then i told him that he need not have any fear and he can talk with me freely. "contrast this, with the deposition of P. W. 21:-"on 24th August, 1996 at about 8. 00a. m. , i met P. W. 1 at his residence at goshamahal on the instructions of A. O. I. When I expressed that I am fearing to talk with him, then P. W. 1 assured that I need not fear about him and wanted me to express freely. "there is absolutely no doubt that P. Ws. 1 and 21 were referring to the same meeting in the portions of evidence referred to above. The dates, however, substantially differ. Added to this, is the version of P. W. 2 when he says that he verified with P. W. 1 on 29-8-19% about his meeting with P. W. 21 and the same was confirmed. The discrepancy as to the dates of meeting between P. W. 21 and p. W. 2, on one hand, and P. W. 21 and P. W. 1, on the other, remained unexplained. ( 22 ) P. W. 21 was consistent in his version that A-1 is alleged to have told him that the amount needs to be paid through another person who is known to himself and A-1. The relevant portion of the evidence is as under:-" A-1 informed me to tell that one person who is known to me is close to A. O. 1 and if P. W. 1 pays on amount of Rs. 6,00,000/- through that person then his work will be done. "neither P. W. 1 nor any other witness has spoken to about the said person nor furnished the particulars. P. W. 21 and the said person were supposed to share Rs. 50,000/- and that p. W. 1 has agreed about the same. Not a word is spoken to about the so-called person nor payment of any amount to P. W. 21 or the other person. P. W. 1 further said:"the D. G. , A. C. B. , directed me toproceed ahead and to converse with A-2 and record the conversation in a cassette. Not a word is spoken to about the so-called person nor payment of any amount to P. W. 21 or the other person. P. W. 1 further said:"the D. G. , A. C. B. , directed me toproceed ahead and to converse with A-2 and record the conversation in a cassette. As and when A-2 spoke with me I recorded our conversation in a cassette i. e. , our telephonic conversation. "neither the cassette is placed before the Court, nor the Director General was examined. A presumption, as provided for in Sec. 114 (g) of the EVIDENCE ACT, 1872 deserves to be drawn. So much, for the demand aspect of it. ( 23 ) P. W. 1 deposed that soon after he received a phone call from P. W. 2 that there was a demand by A-1, he went to the office of the Director of ACB on the same day. Since he could not meet them, he went to the Court from there. When it was suggested to him that it happened to be a Saturday and the courts do not function, he explained it by saying that he went to procure some copies of depositions. He claims to have gone to the acb officials subsequently also and when they expressed their inability to proceed in the matter, in view of the fact that A-1 is a judicial Officer, he thought of contacting the chief Justice. The version as presented by p. W. 1 as regards his approaching the Chief justice and the various events that have taken place thereafter would certainly throw light on the trustworthiness of his evidence. As regards his attempts to meet the Chief Justice, he deposed as under:-"at about 6-00 p. m. on 3-9-1996, I rang up the Hon ble Chief Justice of A. P. High court, one of the Personal Secretaries at the residence of Hon ble Chief Justice talked over phone with me. He advised me to come to the bungalow of the Chief justice on the same day by 7 p. m. with a written representation. Then I prepared a written representation got it typed and took the same to the bungalow of the hon ble Chief Justice. At 7-45 p. m. I met private Secretary of Hon ble Chief Justice and sent my application in a sealed cover. After some time the Hon ble Chief Justice called me inside. Then I prepared a written representation got it typed and took the same to the bungalow of the hon ble Chief Justice. At 7-45 p. m. I met private Secretary of Hon ble Chief Justice and sent my application in a sealed cover. After some time the Hon ble Chief Justice called me inside. " ( 24 ) THE prosecution has examined the personal Secretary of the Chief Justice (P. W. 15 ). His evidence is to the following effect:"on 3-9-96, at about 8-00 p. m. one person by name Santh Eswar Singh (P. W. 1) telephoned to the residence of the hon ble Chief Justice, of High Court of a. P. and wanted an appointment with the Hon ble Chief Justice. I told him his lordship is busy and no personal appointment is possible on that day. If he wants to make any representation he can given in writing. But he was insisting to see the Hon ble Chief Justice in person, saying that it is a very confidential and serious matter which cannot be disclosed to any one except the Hon ble Chief justice and also insisted that at least his request should be conveyed to the hon ble Chief Justice and if permitted he will come and meet His Lordship. Then i informed the Hon ble Chief Justice that one person by name Eswar Singh wanted to have personal appointment with the hon ble Chief Justice. His Lordship considered for a minute or so and then asked me to call that person. "there does not exist any consistency between these two versions. Ex. P-1 is the complaint given by P. W. 1 to the Hon ble Chief Justice. After narrating the various aspects of the matter, he summed up as under:"sir, Now the transaction for the money is fixed for tomorrow, Sir, you should suggest how should we move. I just phoned your lordship the PA asked me to come by morning but as it was urgent i wanted to meet you personally. I am waiting out side Sir. "this paragraph indicates that the representation was prepared after P. W. 1 phoned P. W. 15, who in turn, asked him to come by morning. By the time Ex. P-1 was typed, his appointment with the Chief Justice was yet to be fixed and he was waiting outside. I am waiting out side Sir. "this paragraph indicates that the representation was prepared after P. W. 1 phoned P. W. 15, who in turn, asked him to come by morning. By the time Ex. P-1 was typed, his appointment with the Chief Justice was yet to be fixed and he was waiting outside. This circumstance does not fit into the deposition of P. W. 1, which is extracted above. While P. W. 1 say she phoned at 6-00 p. m. , p. W. 15 says he received the call only at 8-00 p. m. P. W. 1 claims that the PS gave the appointment at 7-00 p. m. on the same day, whereas P. W. 15 narrates the circumstances under which he was permitted to meet the chief Justice subsequent to 8-00 p. m. ( 25 ) WHAT happened subsequent to the submission of Ex. P-1 is another issue. After having been permitted to see the Chief Justice, p. W. 1 handed over the representation. According to the evidence of P. W. 15, he is not aware as to what transpired between the chief Justice and P. W. 1, but after 10 or 15 minutes, he was called by the Chief Justice and was given the petition submitted by p. W. 1. P. W. 15 has endorsed on the petition, put the seal as also the time when it was received. It reads as under:"received the petition submitted to the chief Justice in person at 8-15 p. m. on 3-9-1996, at his Lordship s residence by sri Sant Eswar Singh. "what happened subsequent to the submission of Ex. P-1 by P. W. 1 is somewhat significant. P. W. 15 has stated that Ex. P-1 (a) is only the endorsement made by him and ex. P-1 was retained by the Hon ble Chief justice. There is absolutely nothing to disbelieve this version, which is in the normal course of events. ( 26 ) P. W. 20 is the then Registrar (Vigilance) of the High Court. According to him, he received Ex. P-1 at 9-45 a. m. on 4-9- 1996. His deposition in the cross-examination is as under:"on 4-9-1996, I received Ex. P-1 in office at about 9-45 a. m. though office hours are from 10-30 to 5-00 p. m. P. W. 15 Sri pasha personally handed over Ex. P-1 to me in the office. According to him, he received Ex. P-1 at 9-45 a. m. on 4-9- 1996. His deposition in the cross-examination is as under:"on 4-9-1996, I received Ex. P-1 in office at about 9-45 a. m. though office hours are from 10-30 to 5-00 p. m. P. W. 15 Sri pasha personally handed over Ex. P-1 to me in the office. "as regards his acquaintance with P. W. 1, p. W. 20 stated as under:-"i did not record any statement of P. W. 1 eswar Singh, but he came to me on 4-9-1996, while I was in the office. In the morning hours, after I receive Ex. P-1, that was the first time and last time, I have seen P. W. 1, Eswar Singh. ( 27 ) ACCORDING to P. W. 20, he received ex. P-1 for the first time at 9-45 a. m. on 4-9-1996 and he has seen P. W. 1 for the first time and also last time after he received ex. P-1. However, this is what P. W. 1 had to say in this context. Continuing his version after he entered the bungalow of the Chief justice, he stated as under:"then I prepared a written representation, got it typed and took the same to the bungalow of the Hon ble chief Justice. At 7-45 p. m. I met Private secretary of Hon ble Chief Justice and sent my application in a sealed cover. After some time the Hon ble Chief Justice called me inside. He questioned me whether the contents of the application were true and I told him that what all stated in the written representation as true. Then Sri Patrudu (P. W. 20), the registrar of Hon ble High Court was called to the residence of the Hon ble chief Justice. The Private Secretary had also made an endorsement on the copy of the representation submitted by me dated 3-9-1996. "not only this, P. W. 1 has further deposed that he was called to the residence of Hon ble chief Justice next day morning and that p. W. 20 along with others was present there. This is what he has stated in this context:"then the Hon ble Chief Justice directed me to meet him on the next day morning. Accordingly, I went to the residence of the Hon ble Chief Justice at about 7. 30 a. m. on 4-9-1996. This is what he has stated in this context:"then the Hon ble Chief Justice directed me to meet him on the next day morning. Accordingly, I went to the residence of the Hon ble Chief Justice at about 7. 30 a. m. on 4-9-1996. By the time I went to the residence of Hon ble Chief Justice the Director General, ACS Mr. Rajan and mr. Satyanarayana, Jt. Director ACB, mr. Surya Narayana, DSP ACB (P. W. 23), mr. Patrudu, Registrar (Vigilance) A. P. High Court were already there talking with Hon ble Chief Justice. They called me inside. "since P. W. 20 claimed that he has seen P. W. 1 for the first time in the morning of 4-9-1996, on behalf of the Accused, Ex. D-1 was placed before the trial Court. P. W. 20 functioned in 1989 as the I Addl. Metropolitan Sessions judge where SC No. 186/89 was pending. He granted bail to P. W. 1, in Crl. M. P. No. 1146/89. On several earlier occasions, the bail applications filed by P. W. 1 was rejected. After discussing the matter at length, p. W. 20 granted conditional bail to P. W. 1. One of the conditions was that P. W. 1 shall appear before him every day between 12-00 noon and 1-00 p. m. and that he should not leave the Municipal Corporation limits without the permission of the Court. Therefore, It is rather impossible to believe that P. W. 20 has seen P. W. 1 for the first and last time in the morning of 4-9-1996. ( 28 ) IT has come on record that ACB officials, refused to initiate proceedings against A-1 unless the High Court gives clearance. P. W. 23, the Investigating Officer, has registered the case at 10-45 a. m. He stated that he did not receive any complaint from p. W. 1, but the same was forwarded to him by the Director of ACB. Ex. P-1 is the complaint received by him. It was elicited through P. W. 23 that no permission was granted to them by the High Court by the time the case was registered. He did not say a word about his having been to the residence of Chief Justice on the morning of 4-9-1996, as alleged by P. W. 1. Ex. P-1 is the complaint received by him. It was elicited through P. W. 23 that no permission was granted to them by the High Court by the time the case was registered. He did not say a word about his having been to the residence of Chief Justice on the morning of 4-9-1996, as alleged by P. W. 1. ( 29 ) PLACING reliance upon the order passed by the Hon ble Supreme Court in UP Judicial officials Association v. U. O. I. , a strong objection was raised by the learned counsel for the appellant that the very initiation of the proceedings against the appellant without prior permission of the High Court was incompetent. Neither P. W. 20 nor any other witness has deposed that any permission was accorded to the ACB to proceed with the trap against A-1, nor any proceedings, as such, were marked through any witness. During the course of arguments before the trial Court, the prosecution has come forward with two letters dated 4-9-1996 said to have been addressed to the Director of ACB. P. W. 20 is the author of the said letters. Neither he was recalled to mark the document, nor were they introduced to any witness. The trial court had, unfortunately, readily acted upon them. ( 30 ) ANOTHER important circumstance is that while P. W. 1 claims that he handed over ex. P-1 in a sealed cover to P. W. 15, P. W. 15 states that P. W. 1 directly handed over to the chief Justice, that too, when he was not present there. This is the controversy as regards the way in which Ex. P-1 got its entry into the residence of Hon ble Justice. According to P. W. 15, he handed over ex. P-1 to the Chief Justice after making the endorsement. Ex. P-20 however claims that p. W. 15 gave it to him at 9-45 a. m. on 4-9-1996. Even if the inconsistencies in this regard are to be ignored, Ex. P-1 should have been with the Chief Justice or with P. W. 20, irrespective of the fact whether he received it from P. W. 15 or the Chief Justice himself. He was the person from whose custody it should have been produced into the Court. Strangely, p. W. 1 himself has filed in into the Court. P-1 should have been with the Chief Justice or with P. W. 20, irrespective of the fact whether he received it from P. W. 15 or the Chief Justice himself. He was the person from whose custody it should have been produced into the Court. Strangely, p. W. 1 himself has filed in into the Court. When it came to be marked, an objection was raised by the defence. Then the prosecution came forward with a plea that Ex. P-1 is only a copy. A perusal of Ex. P-1 discloses that it not at all a copy, but the original itself. It was clearly elicited from P. W. 15 that he made only one endorsement and i. e. , Ex. P-l (a ). The trial Court blindly believed it to be a copy. The only source from which P. W. 1 could have secured Ex. P-1 is P. W. 20. The fact as to how P. W. 1 got Ex. P-1 remains unexplained. If at all any thing, the same indicates the accessibility of P. W. 1 to P. W. 20. ( 31 ) THE deposition of P. W. 15 is consistent and accords to the ordinary functioning of the office. Nothing was elicited through him to discredit his testimony. The versions of p. W. 1 and P. W. 20 are at variance with each other and they in turn contradict with what was statedby P. W. 15. In such a case, normally it has to be presumed that either P. W. 1 or p. W. 20 is not coming forward with the correct facts. However, the evidence extracted above indicates that both of them have misled the court with incorrect and inconsistent versions. ( 32 ) NOW comes to the question of utterance of code word. According to P. W. 21, A-1 had informed that on 4-9-1996, if he proclaims in the Court that "petitions will be posted to 6-9-1996", it can be taken that the deal is final and P. W. 1, along with P. W. 21 can proceed to Hanamkonda, Warangal district, to pay the amount. To substantiate its case in this regard, the prosecution has examined p. W. 8, the Public Prosecutor, P. W. 9, the counsel for P. W. 1 in S. CNo. 189/89,p. W. 10 and 11, the Bench Clerks, who worked on that day, and P. W. 12, an Inspector from acb. To substantiate its case in this regard, the prosecution has examined p. W. 8, the Public Prosecutor, P. W. 9, the counsel for P. W. 1 in S. CNo. 189/89,p. W. 10 and 11, the Bench Clerks, who worked on that day, and P. W. 12, an Inspector from acb. ( 33 ) SINCE what is to be established is the exact utterance of the Code word by A-1, the relevant portion of the evidence of P. W. 1 in this regard is extracted as under:-"then I went to the Court of III MSJ, hyderabad. Our case usually begins at 2-30 after lunch. Our case was called. I went into the Court hall of III MSJ hyderabad. A-1 was the Presiding officer of III MSJ Court, Hyderabad. Our advocate Mr. Milind Gokhle was presenting our case. Mr. Ramakrishna, p. P. was also present in the Court. When our Advocate represented about the pending petitions Accused No. 1 said that the petitions will be posted to 6-9-1996. Then our Advocate Sri Milind gokhle represented that 6-9-1996 will not be convenient to him as he will be attending High Court on that day and requested to post the petitions to 9-9-1996. A-1 reluctantly posted the petitions to 9-9-1996. Then we came out of the Court hall. " ( 34 ) P. W. 8 stated as under:-"as per my memory, the CC. No. 186 of 1989 as well as that the criminal M. Ps. filed in the case was called at about 2-30 p. m. One Milan Gokele was the advocate for A-1 Eswar Singh (P. W. 1 ). The Presiding Officer stated in the open court that all the Cr. M. Fs. . are posted to 6-9-1996. Sri Milan Gokale, advocate for the Accused in that case, immediately represented to the Court, that 6-9-1996 is being Friday, it is not convenient for him as the some matters are already posted before the Hon ble High Court on 6-9-1996. On representation of the above advocate, the Presiding Officer, A. O. I, posted all the matters to 9-9-1996". ( 35 ) P. W. 9, the Counsel for P. W. 1 in that case, stated as under:-"on that day, the matter was adjourned. The matter was first sought to be posted to 6-9-1996. On representation of the above advocate, the Presiding Officer, A. O. I, posted all the matters to 9-9-1996". ( 35 ) P. W. 9, the Counsel for P. W. 1 in that case, stated as under:-"on that day, the matter was adjourned. The matter was first sought to be posted to 6-9-1996. since I was feeling inconvenience to appear on 6-9-1996, as i am busy in High Court on that day, at my request, it was adjourned to 9-9-96. All the other matters connected to the above session s case were also adjourned to 9-9-96. ( 36 ) THE evidence of P. Ws. 1, 8 and 9 indicate that what all had happened in the court as regards SC 186/89 is as under: (A) The case was called immediately after resumption of the Court after lunch; (B) The Presiding Officer (A-1) adjourned the case together with the miscellaneous Petition to 6-9-1996; (C) P. W. 8 had requested the Court to adjourn them to 9-9-1996 instead of 6-9-1996 on the ground that he is busy at High Court on 6-9-1996, being friday; (D) The case together with M. Ps. was posted to 9-9-1996. Their evidence also suggests that no proceedings of any kind whatever have taken place in the said case, except the adjournment initially to 6-9-1996 and thereafter to 9-9-1996. This version has to be examined in the context of what is borne out by record. ( 37 ) P. W. 10 is the Bench Clerk, who was attached to that Court. Since he did not work in the afternoon session, his evidence is of no use. ( 38 ) P. W. 11 is the Bench Clerk who dealt with the case after the lunch. In his Chief examination, he said that the case was called at about 3-00 p. m. In the cross-examination, it was elicited through him that P. W. 46 was examined in SC 186/89 and Exs. P-84 and 85 were marked. The same was recorded in the court Diary marked as Ex. X-2 (a ). Further, the Court has also dismissed Crl. M. P. Nos. 1862/91 and 507/91 as infructuous. The relevant entry in the Court Diary is ex. X-2 (b ). Crl. M. P. No. 1275/96 in the same case was heard and orders were pronounced vide separate orders and the petition was allowed. This was noted in Court Diary as ex. X-2 (c ). M. P. Nos. 1862/91 and 507/91 as infructuous. The relevant entry in the Court Diary is ex. X-2 (b ). Crl. M. P. No. 1275/96 in the same case was heard and orders were pronounced vide separate orders and the petition was allowed. This was noted in Court Diary as ex. X-2 (c ). Further, an order was passed allowing the prosecution to lead secondary evidence. After these proceedings, the case was adjourned to 9-9-1996. Ex. X-1 (a) is the relevant docket entry. It is also stated that the case was being taken up for trial on day-today basis or alternative days. It was elicited through him that the certified copies of the depositions were given to their Advocates or their authorised representatives. ( 39 ) WHEN so many proceedings have taken place in the form of examination of witnesses, disposal of as many as 3 Crl. M. Ps. and grant of permission to the prosecution to lead secondary evidence, it just did not lie in the mouth of P. Ws. . 1, 8 and 9 to depose that except adjournment of the case, nothing had taken place. One can understand P. W. 1 deposing of falsehood in his attempt to stall the progress in the case and resorting to all tactics. There did not exist any justification for the Public Prosecutor and Counsel for p. W. 1 to state falsehoods. Both of them were required to be independent and impartial, at least as regards what has happened in the court. It is rather unfortunate that they have acted in a manner, which does not befit the conduct of an ordinary prudent man, much less, the one of a person belonging to a noble profession as the law. It was not as if they were asked about an unrelated thing, bereft of context. The very purpose of examining them was to know as to what exactly transpired in the Court on that day. They tried to protect P:w. 1 or to protect themselves from him. In the process they have stated utter falsehoods. They have treated P. W. 1 as more respectable than the Presiding Officer of a Court. It is on account of such persons that the reputation of the Judicial Institutions is suffering. It is surprising that the trial court did not exhibit its ordinary prudence in arriving at the right conclusion. In the process they have stated utter falsehoods. They have treated P. W. 1 as more respectable than the Presiding Officer of a Court. It is on account of such persons that the reputation of the Judicial Institutions is suffering. It is surprising that the trial court did not exhibit its ordinary prudence in arriving at the right conclusion. It just took whatever was stated by P. W. 1 as a gospel truth, little realising that he was taking the entire system for a ride. ( 40 ) IT is rather curious that the trial Court has treated the version of the principal accused in SC 186/89 more reliable than the record maintained by the concerned Court, in trial case. The law in this regard was laid down in State of Maharashtra v. R. S. Nayak as under:"7. The Judge s record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else. " ( 41 ) HAVING noticed the recorded proof in the form of Exs. X-1 (a), X-2 (a), X-2 (b) and x-2 (c), which had just belied the versions of p. Ws. 1, 8 and 9, the prosecution has introduced P. W. 12. He stated that on 4-9-1996, the Joint Director of ACB, has instructed him to attend the Court of III metropolitan Sessions Judge, and observe the proceedings in SC 186/89. He said "the judge pronounced that all the pending miscellaneous matters, stands posted to 6th". No where in the proceedings, be it Ex. P-3, or any other records maintained by ACB, it was mentioned that P. W. 12 was deputed to the court to witness the utterance of the code word by A-1. P. W. 1 did riot refer to P. W. 12 at any place. P. W. 23, the Investigating officer, does not speak about P. W. 12. What all stated in his Chief examination in this regard was as under:"i instructed P. W. 1 to attend the Court of III Addl. Metropolitan Sessions Judge (A. O. 1) Hyderabad, along with the treated money and after hearing the pass word mentioned in Ex. P. W. 23, the Investigating officer, does not speak about P. W. 12. What all stated in his Chief examination in this regard was as under:"i instructed P. W. 1 to attend the Court of III Addl. Metropolitan Sessions Judge (A. O. 1) Hyderabad, along with the treated money and after hearing the pass word mentioned in Ex. P-2, pick up the constable Moin i. e. , A. O. 2, examined as P. W. 21, and reach Subedari, hanumkonda by 7-30 p. m. "therefore, P. W. 12 is nothing but a planted witness, in an attempt to explain the inconsistency of the evidence of P. Ws. 1, 8 and 9, on one hand, and P. W. 11, Exs. X-1 (a), x-2 (a), (b) and (c), on the other. The prosecution has miserably failed to establish the so-called utterance of code word by A-1. If the version of the prosecution is to be accepted, any thing said by a Presiding Officer of a Court can be branded as a code word. ( 42 ) COMING to the question of trap, one important aspect that needs to be noted is that according to the arrangements made by the ACB officials at Hyderabad, P. W. 1 was to proceed to the Court and await the utterance of the code word by A-1. On the code word being uttered, he was to proceed to Hanamkonda, Warangal, along with p. W. 21, to make the payment. If it were to have been an affair left to be dealt with by p. W. 1 alone, there did not exist much of a controversy. The ACB team was to proceed to Hanamkonda to lay the trap at the time of making payment to A-3 and A-4. For this purpose, the team was to have received an intimation or communication as to the utterance of the code word by A-1 and the factum of P. W. 1 proceeding to Hanamkonda on having been satisfied about the signal by a-1. No witness spoke about and no proceedings have thrown any light on this. The evidence on record discloses that even without waiting for or receiving any communication from P. W. 1, the team comprising of P. Ws. 22, 23 and P. W. 3 (Mediator), have proceeded to Hanamkonda. This shows that they have taken every thing for granted. No witness spoke about and no proceedings have thrown any light on this. The evidence on record discloses that even without waiting for or receiving any communication from P. W. 1, the team comprising of P. Ws. 22, 23 and P. W. 3 (Mediator), have proceeded to Hanamkonda. This shows that they have taken every thing for granted. They did not even leave any scope for the A-1 not being present on that day, or his not uttering the code word etc. This only shows that every thing was premeditated. ( 43 ) BE that as it may, it needs to be seen as to what transpired at Hanamkonda. Admittedly, the house owned by A-1 at hanamkonda comprises of ground and first floar. The ground floor is let out to one of the senior Judicial Officers, working in the Courts at Warangal, P. Ws. 1 and 21 claimed to have entered the house on the 1st floor and it is said that A-3, on seeing these persons, had observed that she has already received a phone call from A-1. According to them, they offered to pay the amount to A-3 and she in turn had asked them to put the cover on the tea-pie. It is also their case that she instructed A-4 to put the cover in the almyrah, which is in the left side of the room in which they were talking. It is their further case that A-3 tried to contact A-1 on phone, but she could not. Thereafter they left the house. ( 44 ) AFTER P. W. 1 gave the instructed signal, p. W. 23, ACB officials from Hyderabad, p. W. 3, the Mediator taken from Hyderabad and local ACB officials are said to have taken p. W. 21 and entered the house at first floor once again. On their enquiry, A-3 had stated that she had only offered water to P. Ws. 1 and 21 and that she did not receive any amount. The ACB officials washed her hands with SC solution and the result was neutral. The place (Almyrah) where the amount is said to have been kept was not ( 48 ) IN the sketch prepared by P. W. 3, the mediator, no ventilator was shown to exist to the bathroom. However, on behalf of the accused, Ex. The ACB officials washed her hands with SC solution and the result was neutral. The place (Almyrah) where the amount is said to have been kept was not ( 48 ) IN the sketch prepared by P. W. 3, the mediator, no ventilator was shown to exist to the bathroom. However, on behalf of the accused, Ex. D-2, which is the sanctioned plan of the house was marked, which shows that all around the house at the first floor, there is verandah and a ventilator to the bath room, from where the amount is said to have been recovered. Suggestions were made as to possibility of something being thrown in to the bathroom from verandah through the ventilator. The prosecution failed to explain this circumstance. ( 49 ) THE details of the currency notes were not incorporated in Ex. P-4. The concerned witnesses stated that the notes tallied with the annexure attached to Ex. P-3, which is a panchanama prepared at Hyderabad. No separate list was prepared. While it was the case of prosecution that P. W. 23, the Investigating Officer, remained at hanamkonda, through out the night on 4-9-1996, an independent witness has categorically deposed that he was at hyderabad by 9. 30 p. m. on that day. The distance is 140 km. That aspect will be dealt with at a latter stage. From the discussion undertaken above, it emerges that- (A) the hands of A-3 and A-4 when washed with SC solution yielded neutral result; (B) the hands of P. W. 1 were not washed at all; (C) the water in flush tank nor the almyrah were not treated with SC solution; (D) The hands of P. W. 21 alone turned pink; (E) no official or independent person from the locality was associated with the trap; (F) the Judicial Officer, who was residing in the same building at the ground floor, was neither informed of nor associated with the operation; (G) the delay in furnishing copy of Ex. P-4 to A-3 is not explained; (H) no lady witness or officials were included in the entire operation; ( 50 ) THEREFORE, the so-called recovery was a make believe affair and it does not gain the confidence of the Court. P-4 to A-3 is not explained; (H) no lady witness or officials were included in the entire operation; ( 50 ) THEREFORE, the so-called recovery was a make believe affair and it does not gain the confidence of the Court. ( 51 ) THE prosecution was aware that even if a successful trap was laid at Hanamkonda, at the residence of A-1, unless there exists some link, it is too difficult to connect A-1 with the same. The reason is that mere receipt of amount by A-3 and A-4, even if true, by itself does not constitute offence under the provisions of the Act by A-1. It is for this reason that the prosecution has come forward with a version that after the recovery of the amount, P. Ws. 1 and 21 started for Hyderabad and were accompanied by P. W. 22, Joint director of ACB in their car, while others viz. , P. Ws. 23 and 3 and the local officials were said to have been continuing their search and preparation of Panchanama at hanamkonda. It is said that after reaching uppal, which is sub-urban of Hyderabad, at around 11-00-11-30 in the night, P. W. 22 had asked the car to be taken to the house of p. W. 7, who is his friend, for the purpose of availing the telephone. According to P. W. 1, they went to the house of P. W. 7 and sought his permission to use the telephone. On the permission having been accorded, P. W. 1 is said to have connected his recording instrument to the phone. It is stated that as per the directions of P. W. 22 (who is described as DSP, ACB, though he is a Joint Director, acb), P. W. 21 made a call to A-1. The phone was said to have been received by his daughter and thereafter handed over to A-1. The factum of the amount having been paid is said to have been conveyed. When P. W. 21 sought the permission of A-1 to bring P. W. 1, initially A-1 was said to have been reluctant and thereafter accorded permission. P. W. 1 does not speak about any other phone call having been made from that place either by himself or P. W. 22. He is specific about time being 11-30 p. m. P. W. 21 has virtually repeated what was said by P. W. 1. P. W. 1 does not speak about any other phone call having been made from that place either by himself or P. W. 22. He is specific about time being 11-30 p. m. P. W. 21 has virtually repeated what was said by P. W. 1. ( 52 ) THE evidence of P. W. 22 on this aspect is as under:"myself, P. W. 1 and P. W. 21 reached uppal in the car at about 11-00 p. m. We went to the house of P. W. 7, Buchan goud, and from his house, I phoned to acb office, Hyderabad, and I contacted p. W. 18 (Sri Kumar ). I instructed him to secure two mediators to the Garunda gagan Apartments, Padmarao Nagar, secunderabad. P. W. 21 (Omer Moin) also telephoned to A. O. 1 from the house of p. W. 7, about the payment made at hanumkonda and his intention to visit the house of A. O. 1 along with P. W. 1. After this, on our way to Padmarao nager we had our dinner at about 1-00 and reached Padmarao nagar at about 1-00 a. m. i. e. , on intervening night of 4/5-9-1996. "while P. W. 22 does not speak about any instrument having been fitted to the telephone and recording of conversation of p. W. 21 with A-1, P. Ws. 1 and 21 do not speak about P. W. 22 having made any call to p. W. 18. Keeping these material discrepancies aside, let us see what P. W. 7, from whose house the phone call is said to have been made, has deposed. ( 53 ) IN a way, it could be said that the only person who is not associated with any of the operations either directly or indirectly is p. W. 7. His deposition is very brief: It just reads as under:"i am resident of Uppal. I am an agriculturist as well as businessman. My house is at Ramalayam Street at Uppal. I am having phone bearing No. 850 334. I know L. W. 20, Sri G. Balreddy, Deputy director ACB (P. W. 22 ). On one day on september, 1996, at about 9-00 or 9-30 p. m. L. W. 20, Sri Bal Reddy and L. W. 22, r. Suryanarayana (P. W. 23), came to my house L. W. 20, Balreddy phoned to some body from my house. I know L. W. 20, Sri G. Balreddy, Deputy director ACB (P. W. 22 ). On one day on september, 1996, at about 9-00 or 9-30 p. m. L. W. 20, Sri Bal Reddy and L. W. 22, r. Suryanarayana (P. W. 23), came to my house L. W. 20, Balreddy phoned to some body from my house. Both of them were in my house for about one hour. Thereafter, they left my house. Cross-Examination:- Nil" ( 54 ) FROM the deposition of P. W. 7, the only independent witness, it is evident that p. W. 22 and L. W. 20 (P. W. 23) have come to his house in September 1996 at about 9 or 9. 30 p. m. and that P. W. 22 has phoned to some body from his house. He stated that both of them were in his house for about one hour. His evidence contradicts, the time of arrival of P. W. 22 stated by P. Ws. 1,21 and 22. He does not speak about P. Ws. 1 and 21 having come to his house at all. He has categorically stated that P. W. 23 has come to his house along with P. W. 22, whereas the case of the prosecution was that P. W. 23 remained at Hanamkonda till the next date to complete the proceedings. It was not elicited through him either that P. W. 1 fitted a recording instrument to his phone or that p. W. 21 spoke to any one from the phone. ( 55 ) P. W. 7 was not declared hostile nor the prosecution had suggested to him that he is speaking any falsehood. His evidence remains unquestioned. If the evidence of p. W. 7 is to be accepted; and this Court sees no reason to doubt it, the entire case of the prosecution falls to the ground. It was not even suggested to P. W. 7 that P. W. 23 did not come to his house or that any recording statement was fitted to his telephone. Neither the so-called instrument nor the cassette recording the alleged conversation between p. W. 1 and A-1 was placed before the Court. ( 56 ) IF the evidence of P. Ws. 1 and 21 is to be believed, P. W. 22 did not make any call to any officials at that late hour. Neither the so-called instrument nor the cassette recording the alleged conversation between p. W. 1 and A-1 was placed before the Court. ( 56 ) IF the evidence of P. Ws. 1 and 21 is to be believed, P. W. 22 did not make any call to any officials at that late hour. According to the evidence of P. W. 7, except P. W. 22, nobody has made any call from his telephone, much less any instrument was fitted to the phone. The result of this discussion is that the theory of P. W. 21 contacting A-1 was deliberately knitted by the prosecution in their deliberate attempt somehow to connect a-1 to a non-existing trap. ( 57 ) WHAT happened at the residence of a-1 at Padmarao Nagar is rather secondary and is of no consequence. Even the incidents said to have taken place there are shrouded in mystery. The only factor that the prosecution wants to emphasis is that P. W. 1 was found with A-1 and photograph was taken. If the whole drama enacted by the prosecution with the active collusion of p. W. 1 is to be given a logical extension, their gaining entry into the house of A-1 at the midnight and taking his photograph along with P. W. 1 can not at all be said to be difficult. ( 58 ) IT has also come in the evidence that p. W. 1 have tried his level best to drag the proceedings in SC. 186/89. He made complaints against the Public Prosecutor, published some news items and, so much so, filed a writ petition in the High Court challenging his very appointment. Till 1996, the case remained untouched, though it was received in 1989. It was only after A-1 assumed charge of that Court he took up the trial and examined as my as 45 witnesses. Even on the question of adjournments, p. W. 1 went to the High Court and has put all sorts of hurdles in the trial. When the case was in the middle of the trial, A-1 was transferred to another Court and within a short time he was brought back to the Court of in Additional Metropolitan Sessions Judge. Even on the question of adjournments, p. W. 1 went to the High Court and has put all sorts of hurdles in the trial. When the case was in the middle of the trial, A-1 was transferred to another Court and within a short time he was brought back to the Court of in Additional Metropolitan Sessions Judge. ( 59 ) P. W. 1 is a decoy witness: His attempt appears to have been not only to ensure that a-1 does not hear his case, but also to crate a situation that the case is not proceed with at all. He has been substantially successful in his attempt. Across the Bar, it has been stated that till today SC No. 186/89 remains at a stage where it was, before A-1 was relieved of his duties on the basis of the so called trap. ( 60 ) IT was categorically alleged by the defence that P. W. 20, who granted bail to p. W. 1 while functioning as Presiding Officer of that Court, started giving trouble to A-1, when he (P. W. 20) was functioning as registrar (Vigilance ). The veracity of his claim that he has been P. W. 1 for the first and the last time on the morning of 4-9-1996 was sought to be attacked by filing Ex. D-1, wherein he not only granted bail to P. W. 1, but directed him to appear before him between 12-00 and 1-00 p. m. every day. His ignorance about P. W. 1 was belied by the latter when he said that at 7-30 in the morning on 4-9-1996, he went to the house of the Chief justice where the Director of ACB, P. W. 20 and several others were present and he was called by him. ( 61 ) P. W. 21 has been chosen by P. W. 1 and other concerned to create the theory of demand and to play roles at various levels. It needs to be seen that there was no prior acquaintance between A-1 and P. W. 21. Even according to him, he was called to the chamber by A-1 for the first time in June 1996, that too, for the purpose of obtaining a driving license. It needs to be seen that there was no prior acquaintance between A-1 and P. W. 21. Even according to him, he was called to the chamber by A-1 for the first time in June 1996, that too, for the purpose of obtaining a driving license. It has come in the evidence of p. W. 2 that P. W. 21 approached him 5 or 6 months prior to the trap that should take us to March or April. P. W. 21 was the only person whose handswere found to be tainted. The story has been knitted such that he implicates A-1 but gets himself exculpated. At a time when the code word was said to have been uttered, he claims to have remained outside the Court. Though it has been pleaded that P. W. 1 had agreed to pay Rs. 3,50,000/- and out of 50,000/- he was to be paid rs. 25,000/- and the other man another rs. 25,000/-, the prosecution has made him not to reveal the name of the so called third person and the factum of his having been paid his share of Rs. 25,000/ -. The evidence clearly discloses that P. W. 21 is chosen to lend some credence to P. W. 1. ( 62 ) HE has been granted pardon on his becoming approver. The Supreme Court had sounded note of caution in the matter of accepting the evidence of approver. Reference may be made to the judgment in c. Challappan v. State of Kerala. Speaking for the Bench, Fazal Ali,j. , held as under:"the law is well settled that the Court looks with some amount of suspicion on the evidence of an accomplice witness which is a tainted evidence and even section 133 of the EVIDENCE ACT, 1872 clearly provides that the evidence of an accomplice witness should not be accepted unless corroborated. "to the same effect is the judgment in Babuli v. State of Orissa and Abdul Sattar v. Union territory, Chandigarh. The only corroboration which we get to the evidence of P. W. 21 in all respects is that of P. W. 1 who himself is an decoy witness and also an accomplice. ( 63 ) THE evidence of mediators at various levels does not gain the confidence of this court. Their evidence fits into the standard pattern woven by the prosecution. ( 63 ) THE evidence of mediators at various levels does not gain the confidence of this court. Their evidence fits into the standard pattern woven by the prosecution. ( 64 ) THE trial court had taken the evidence of P. Ws. 1 and 21 as gospel truth. Whenever material contradictions and defects were pointed out, it just brushed them aside, by noting them. For example, when the discrepancy as to the date of the meeting between P. Ws. 1 and 21 was pointed out, the trial court observed as under:-"of course, it is true as per Ex. P-2 on 24-8-1996 A. O. 2 approached P. W. 1 while as per the evidence of P. W. 1, P. W. 21 approached him on 29-8-1996, while according to P. W. 21 he approached p. W. 1 on 24-8-1996. Thus there is discrepancy as to on what date P. W. 21 approached P. W. 1 for the first time. I, therefore, hold that the circumstances relied on by the learned counsel for the a. O. , is not sufficient to hold on the evidence of P. W. 2 as well as P. W. 1 that p. W. 21 has originally approached p. W. 2 to convey the message of A. O. 1 is an improvement and P. W. 2 was introduced in view of P. W. 21 originally approached him. " ( 65 ) IN his evidence P. W. 21 made substantial improvements over the statements recorded under Section 161 cr. P. C. The discrepancies, which run to several pages, were elicited through P. W. 23, who is the Investigating Officer. When the same was brought to the notice of the trial court, it took note of the same as under:"it is, of course, true that some of the facts spoken to by P. W. 1 in his chief examination do not find place in his 161 cr. P. C. , statement or in Ex. P-2 complaint. As per his evidence, he has been contacting ACB officials from time to time right from 24-8-1,996 till 4-9-1996 on which date he gave Ex. P-2 complaint and informing them about the day to day developments i. e. , P. W. 21 approaching on behalf of A. O. 1 on 24-8-1996 subsequent dates informing about the modalities for the payment of amount to a-1, when and to whom it has to be paid. P-2 complaint and informing them about the day to day developments i. e. , P. W. 21 approaching on behalf of A. O. 1 on 24-8-1996 subsequent dates informing about the modalities for the payment of amount to a-1, when and to whom it has to be paid. The said facts however do not find place in Ex. P-2, but it only refers to his meeting with P. W. 21 on 24-8-1996 and 3-9-1996. P. W. 1 he stated that he has only given a gist of the case when he was examined under Sec. 161 Cr. P. C, as such, some of the facts stated by him in the Court may not find place in his 161 Cr. P. C. statement. It has been elicited in the cross- examination of P. W. 23 that he has recorded the statement of P. W. 1 verbatam and he also stated that some of the facts spoken to by P. W. 1 in his chief examination were not stated before him. "however, the trial Court ignored the discrepancies on the basis of the following observation:"thus, P. W. 1 gave clarification as to some of the omissions brought out in his evidence on the basis of 161 Cr. P. C. , statement given by him; I am of the view that simply because P. W. 1 is an accused in a murder case as well as TADA case, it cannot be said that he is a man of doubtful character for whose evidence no credence can be given even it has not been brought out in the cross-examination that he has an axe to grind against the accused and hence he has come up with this false case. "as regards the discrepancies in the evidence of P. W. 21 and the untrust worthiness of his evidence as an approver, the trial Court ignored the same with the following observation:"i am of the view simply because P. W. 21 was examined at the fag-end of the trial because of the above reasons then he applied for tendering pardon and to treat him as an approver even after the trial of the case has started, it cannot be inferred that he has been either induced or threatened to turn as an approver or he turned as an approver to escape from punishment. "there are several such lapses in the judgment of the trial Court. "there are several such lapses in the judgment of the trial Court. ( 66 ) NEITHER P. W. 20 nor P. W. 23 stated that any permission was accorded to ACB by the High Court to proceed against A-1. Through a Memo, two letters dt. 4-9-1996 addressed by P. W. 20 to the Director, ACB, were placed before the trial court. It accepted the same and proceeded on the footing that permission was accorded by the High Court. ( 67 ) IN one of the letters, P. W. 20 conveyed the permission of the High Court to ACB to register a case against A-1, as under: "as the allegations of corruption against the said Officer are prima facie established. " ( 68 ) THE letter was signed before 2-30 p. m. on 4-9-1996. By that time, except the complaint of P. W. 1 i. e. , Ex. P-1, no material was there nor any proceedings took place. It is not known as to how P. W. 20 found that prima facie case is established. Obviously because of this observation, the ACB officials have knitted a case, so that the blame should not go on them. ( 69 ) THE precautions directed to be taken by the Supreme Court in U. P. Judicial Officers association case (1 supra), were not empty formalities. They were intended to protect the Judicial Officers from jealous Police officials and crooked litigants. No attempt was made by the High Court to verify as to whether there was any pigment of truth in what was alleged by P. W. 1 or to see whether the proceedings were genuine. The evidence in this case discloses that the ACB officials were reluctant to believe P. W. 1 but were exhorted to act by certain functionaries in the High Court, in a procedure that does not conform to law. ( 70 ) IT is contended by the learned counsel for the appellant that initially the permission to prosecute A-1 was accorded by the High court, contrary to law, and the Government had accorded permission to prosecute A-1, a-3 and A-4, without taking into account the fact that there was no demand or acceptance by A-1 and that the washing of hands of a-3 and A-4 with the SC solution by the ACB officials yielded neutral result. He submits that it was a clear case of non-application of mind. He submits that it was a clear case of non-application of mind. However, having regard to the findings arrived at an other aspects, this court does not feel the necessity to go deeper into that aspect. ( 71 ) EVEN if a fraction of the allegation against A-1 is true, he deserves to be proceeded against, to maintain the purity of system. The evidence, however, discloses that the system has fallen into the trap laid by an indiscriminate person, accused of serious crimes. While he is at large, the Judge who was trying the case is convicted. ( 72 ) FROM the aforesaid discussion, it is evident that- (A) P. W. 1 was being tried for grave offences in C. C. No. 186/89 on the file of the III Addl. Metropolitan Sessions judge, Hyderabad. He had the habit of petitioning against the Advocates, public Prosecutors, filing one petition after the after to protract the trial of the case; (B) It was only after A-1 assumed charge of that Court that there was progress in the trial of the case and in a short span of time he recorded the evidence of as many as 45 witnesses and the trial was almost coming to a close. (C) With a view to get rid of A-1 and to further stall the case, P. W. 1 had taken the assistance of P. W. 21 in inventing the theory of demand of bribe by A-1. (D) The way in which Ex. P-1 complaint was presented by P. W. 1 to Chief justice and the steps that ensued thereafter, left much to be explained. The material contradictions as well as the way in which P. W. 1 got access to ex. P-1, which is the record of the High court, remains unexplained. (E) The so-called utterance of the code word by A-1 is not at all established. P. Ws. 8 and 9 have spoken utter falsehoods and their statements are belied by the records maintained by the Court viz. , Ex. X-1 (a) and X-2 (a), (b) and (c ). (F) The trap laid by the ACB was totally unsuccessful. The hands of A-3 and a-4 when washed with SC solution yielded neutral result. P. Ws. 8 and 9 have spoken utter falsehoods and their statements are belied by the records maintained by the Court viz. , Ex. X-1 (a) and X-2 (a), (b) and (c ). (F) The trap laid by the ACB was totally unsuccessful. The hands of A-3 and a-4 when washed with SC solution yielded neutral result. Neither the almyrah where the amount was said to have been initially kept, nor the water in the flush tank from where the amount is said to have been recovered were tested or treated with SC solution, and invariably an adverse inference needs to be drawn. (G) P. W. 1 claimed that he has recorded his conversation with P. W. 21 as well as the conversation between P. W. 21 and A-1 from the house of P. W. 7. However, nothing was place before the Court. Presumption under sec. 113 (g) of the EVIDENCE ACT, 1872 deserves to be drawn. (H) The attempt of the prosecution to establish link with the so called trap to a-1, with the telephone call by P. W. 21 to A-1 from the house of P. W. 7 has miserably failed in view of the deposition of P. W. 7. (I) The ACB officials have acted highhandedly in registering the case without securing the permission of the High Court and conducting searches in the houses of A-1 at hanamkonda and at Hyderabad, without there being any valid permission or search warrants in this regard. (J) The evidence of P. W. 21, who turned as an approver, is not corroborated by any independent witnesses, and on the other hand, it is falsified by the evidence of several witnesses. This Court is, therefore, of the view that the prosecution has failed to establish its case against the accused and subjected A-1 to untold hardship and harassment. ( 73 ) THE Criminal Appeal filed by A-1 is accordingly allowed and the conviction and sentence against him are set aside. The fine, if any, paid by him shall be refunded. Crl. A. No. 807 of 2000:- ( 74 ) THE discussion undertaken above indicates that the prosecution has failed to establish its charge against A-3 and A-4 and their acquittal by the trial Court is accordingly affirmed. The Criminal Appeal filed by the state is accordingly dismissed. The fine, if any, paid by him shall be refunded. Crl. A. No. 807 of 2000:- ( 74 ) THE discussion undertaken above indicates that the prosecution has failed to establish its charge against A-3 and A-4 and their acquittal by the trial Court is accordingly affirmed. The Criminal Appeal filed by the state is accordingly dismissed. ( 75 ) THE Registry is directed to verify whether S. C. No. 186/89 on the file of the III additional Metropolitan Sessions Judge, hyderabad, is still pending disposal and if so, to issue necessary instructions to that court to speed up the disposal. The Registry shall also monitor the progress of the same.