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2003 DIGILAW 47 (AP)

S. JANARDHANA RAO v. State Of A. P.

2003-01-09

L.NARASIMHA REDDY

body2003
L. NARASIMHA REDDY, J. ( 1 ) THESE two crimina1 Appea1s arise out of common judgment in c. C. No. 16 of 1998 on the file of the Principa1 Subordinate Judge for SPE and ACB Cases, Hyderabad, dated 29-2-2000. The Tria1 Court convicted A1 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. A2 had turned as an Approver and was examined as PW. 21. He was granted pardon. A3 and A4 were acquitted of the offences under Section 12 of the Act read with Section 34 IPC alleged against them. A1 preferred Cr1. A. No. 272 of 2000 assailing the conviction and sentence against him, whereas Cr1. A. No. 807 of 2000 is filed by the State against the acquitta1 of A3 and a4. ( 2 ) THE brief facts as presented before the Tria1 Court may be stated as under:- ( 3 ) A1 functioned as the III Metropolitan Sessions Judge, Hyderabad, from May, 1995 to 4-9-1996. One of the cases being tried by him was SC. No. 186 of 1989. PW. 1 herein figured as Accused no. 1 in that case and was being tried for offences under Sections 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, A1ong with severa1 other accused. PW. 21 was a Constable in decoity wing of CCS of Police Control room, Hyderabad, who was entrusted with the work of attending that Court. ( 4 ) PW. 21 is alleged to have been called by A1 sometime in June 1996 to his chambers where two other persons were present. He was asked to secure a driving licence for one of them. PW. 21 complied with the instructions and afterwards A1 asked him to come to his residentia1 flat at Padma rao Nagar, at Hyderabad. There A1 informed him that there is a case pertaining to one sardarji (PW. 1) where the chances of acquitta1 and conviction are equa1. PW. He was asked to secure a driving licence for one of them. PW. 21 complied with the instructions and afterwards A1 asked him to come to his residentia1 flat at Padma rao Nagar, at Hyderabad. There A1 informed him that there is a case pertaining to one sardarji (PW. 1) where the chances of acquitta1 and conviction are equa1. PW. 21 said that the case relates to the murder of a team of CCS and does not concern his wing. Still A1 asked him to contact PW. 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. ( 5 ) SINCE PW. 21 was afraid of approaching PW. 1, after obtaining permission of A1, he approached PW. 2, who was another accused in SC. No. 186/89. PW. 2, in turn, had directed him to approach PW. 1 on the ground that the latter was looking after the case. PW. 21 met PW. 1 and conveyed the message of A1. PW. 1 expressed his inability to pay such a huge amount. On the same day, PW. 1 approached the ACB Officia1s. However, since the Director of ACB was busy and did not give any appointment to him, he went to the Court. Subsequently, pw. 21 approached PW. 1 stating that at least an amount of Rs. 3,00,000/- together with rs. 50,000/- to be shared equally by himself (PW. 21) and another Mediator be paid. ( 6 ) PW. 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 A1, who is a Judicial Officer, without the permission of the High Court. PW. 1 met the Chief justice of High Court on 3-9-1996 and submitted a complaint (Ex. PI ). PW. 1 wanted to know from PW. 21 the moda1ities of payment. PW. 21 has informed PW. 1 that on 4-9-1996, on which date the case was posted, a1 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, Waranga1 District, to the residence of A1, where his wife A3 and his son A4 are residing at the first floor and pay the amount there. , "petitions will be posted to 6-9-1996" in the Court and hearing the same both of them should go to hanamkonda, Waranga1 District, to the residence of A1, where his wife A3 and his son A4 are residing at the first floor and pay the amount there. ( 7 ) AFTER meeting with the Chief Justice once again in the morning of 4-9-1996, pw. 1 proceeded to the office of the Director of ACB and submitted a complaint (Ex. P2 ). 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 to the Court. At about 3-30 p. m. , A1 uttered the code word. PW. 21 was waiting outside. PW. 1 came out and asked PW. 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 A1. On their entry into the house, PW. 3 (sic A3) verified as to their identity and revea1ed that she has received information from A1 as regards payment. P. Ws. l and 21 handed over the amount of Rs. 3,00,000/- in a plastic cover. In their presence, A3, gave it to A4 and asked him to put in the A1mirah in the drawing room. In their presence, A3 tried to contact A1, but the phone was busy. ( 8 ) BOTH of them came down and went to the car. When PW. 1 took his kerchief and started wiping his face, ACB Officia1s waiting nearby came and caught hold of pw. 21. They took him to the residence of a1 and enquired with PW. 3 (sic A3) as to whether any one had come and paid the amount. A3 told them that PWs. 1 and 21 had come to their house, 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, A4 had led the party to the bathroom attached to the bedroom 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. They did not find any thing nearby. In the meanwhile, A4 had led the party to the bathroom attached to the bedroom 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 A4 were washed with Sodium carbonate (SC) solution. There was no change in colour. The hands of PW. 21 were a1so washed with SC solution and the same turned out to be pink. The house was searched. No incriminating materia1 was recovered. ( 9 ) PWS. 1 and 21 started for1 Hyderabad. PW. 22, Joint Director of ACB, who participated in the raid, had accompanied them. At 11-30 p. m. , they reached Uppa1, in the outskirts of Hyderabad. They went to the house of PW. 7, a friend of PW. 22. They sought the permission of PW. 7 to use his telephone. PW. 1 has connected electronic recording equipment to the phone. Thereafter, PW. 21 has rang up A1 at his flat at Padmaraonagar, Hyderabad. His daughter lifted the phone and gave it to A1. PW. 21 sought the permission of A1 to bring pw. 1 to his house. Initially, A1 refused to meet PW. 1 at that late hour and thereafter on persuasion, agreed to meet PW. 1. PWs. 1, 21 and 22 had their dinner in a hotel on their way to the house of A1 and reached the flat of A1 at about 1-00 a. m. , on 5-9-1996. By the time they reached, a team of acb Officia1s was there. PW. 21 first entered the house of A1 and informed him of PW. 1 being there. Thereafter PW. 1 was sent inside and PW. 21 came out. At that stage, ACB team had entered the house and conducted search. No incriminating materia1 was recovered from the house ofa1. ( 10 ) WITH this factua1 matrix, the prosecution has charged A1 of committing offences under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act. Initially, no charges were framed against A3 and A4. At a later stage, a Memo was filed explaining the omission and they too were charged. ( 11 ) AFTER commencement of the tria1 and after PW. 1 was examined-in-Chief, a2 submitted an application seeking permission to become Approver. Initially, no charges were framed against A3 and A4. At a later stage, a Memo was filed explaining the omission and they too were charged. ( 11 ) AFTER commencement of the tria1 and after PW. 1 was examined-in-Chief, a2 submitted an application seeking permission to become Approver. Permission was accorded by the tria1 Court and his statement was directed to be recorded under Section 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 Tria1 Court granted pardon on 15-12-1996. ( 12 ) THE prosecution examined P. Ws. 1 to 23. PW. 1 is de facto Complainant and a1 in SC. No. 186/89. He deposed, almost to the entire case of the prosecution. PW. 2 another accused in SC No. 186/89 and deposed that PW. 21 approached him 5 or 6 months prior to the tria1 and few days before the trap. PWs. 3, 4 and 18 are Panch witnesses and Mediators at various stages. PW. 5 claims to have given his car to PW. 1 on 4-9-1996. PW. 6 is Watchman of residentia1 Complex at Padmarao Nagar in which the flat of A1 is situated. PW. 7 is friend of PW. 22, Joint Director of ACB, from whose house P. W. 21 is said to have contacted A1. PW. 8 is the Public prosecutor who was conducting the case sc. No. 186/89 and PW. 9 is the Counsel of A1 (PW. 1) in SC 186/89. PW. 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 PW. 10 and PW. 12 who is the Inspector of ACB, were examined in relation to pronouncement of the code word by A1 on 4-9-1996. PW. 14 is the inspector of Police, CCS, under whom pw. 21 was working. PW. 15 is the PS to hon ble Chief Justice and he spoke to the factum of receiving phone call from PW. 1 seeking an appointment with the Hon ble chief Justice, receiving complaint Ex. P1 and making endorsement-Ex. P1 (a) on 3-9-1996. PWs. 16, 17 and 18 are Government Officia1s and who were examined in relation to sanctions accorded to prosecute A1, A2 and A3. PW. 1 seeking an appointment with the Hon ble chief Justice, receiving complaint Ex. P1 and making endorsement-Ex. P1 (a) on 3-9-1996. PWs. 16, 17 and 18 are Government Officia1s and who were examined in relation to sanctions accorded to prosecute A1, A2 and A3. PW. 20 is the then Registrar (Vigilance) of the High Court of AP. PW. 22 is the Joint Director of ACB, proceeded from Hyderabad to Hanamkonda and thereafter accompanied PW. 1 and PW. 21 to , Hyderabad. PW. 23 is the Deputy Superintendent of Police, ACB, at the relevant point of time. The prosecution has A1so marked documents Exs. Pl to P14 and Materia1 objects as M. Os. 1 to 8. For the defence, documents Exs. Dl, D2 and D2 (a) and XI to X2 (c) were marked. ( 13 ) ON a consideration of ora1 and documentary evidence before it, the Trial court found A1 guilty of the offences charged against him and imposed the punishment as mentioned above. A3 and A4 were, however, acquitted. ( 14 ) 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 A1 and the entire case of the prosecution rested upon the evidence of PW. 1, who is accused of grave offence in S. C. No. 186/89 and pw. 21. The learned Senior Counsel submits that (hough the Hon ble Supreme Court took exception to the Judicia1 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 A1 with a non-existent demand or recovery, the prosecution has invented the theory of code word and a phone call having been made by PW. 21 from the house of PW. 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 A1 guilty of the offence alleged against him. 21 from the house of PW. 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 A1 guilty of the offence alleged against him. The learned Counsel submits that there was non-application of mind in granting permission to prosecute A1, A3 and A4. He relies upon several judgments of the Supreme court in support of his contentions. He submits that the acquittal of A3 and A4 does not call for interference. ( 15 ) SRI G. Pedda Babu, the learned Standing Counsel for ACB submits that though there did not exist any direct demand from A1, the series of events as narrated by PWs. l and 21 coupled with the statement of PW. 2 demonstrates that there was a demand from A1. He submits that there was ample evidence before the tria1 Court to conclude that PW. 21 acted only on the directions of A1. He submits that the trap arranged by ACB was successful. It is his case that the prosecution A1so proved the two connecting factors, viz. , the utterance of code word in the Court and the conversation of PW. 21 with A1 after the trap. It is A1so his case that there was ample evidence before the Trial Court to convict a3 and A4, particularly, when the Trial court believed the factum of acceptance of the amount by A3 and A4 and recovery of the amount from the house of A1 at hanamkonda. ( 16 ) 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 offence 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 indirect 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. Demand may be direct by the public servant or may be indirect 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. ( 17 ) IN this case, admittedly, there was no direct demand by A1, nor any payment was made to him. However, despite the same, the charge against A1 can be held proved, if it is established that he made the demand from PW. 1 through PW. 21, A3 and a4 have received the amount, and such receipt was on the instructions and for the benefit of A1. For the purpose of adjudicating the case, from that angle, the case can be compartmenta1ised into the following aspects: (A) The demand on beha1f of A1; Into this aspect can be roped in, (i)that has transpired between A1, pw. 21, PW. 2 and PW. 1; and (ii) submission of complaint by PW. 1 to the Chief Justice, on one hand, and the ACB Officia1s, on the other. (b) The utterance of the code word; (c) The trap at Hanamkonda; and (d) The communication by PW. 21 with a1 from the house of PW. 7 as regards the successful payment of the amount to A3 and A4 at Hanamkonda. ( 18 ) SC. NO. 186/89 was pending before the III Metropolitan Sessions Judge, hyderabad from 1989, as the number of case itself suggests. PWs. 1 and 2 were some of the accused in that case. It has come on record that it was only after a1 assumed the office, that the tria1 of the case was taken up and as many as 45 witnesses were examined. PW. 21, a constable from C. C. S. 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 A1 to his chamber in the month of June 1996. A man and a woman were said to have been present in the Chamber and A1 is said to have asked PW. 21 to secure a permanent driving licence to one of them. PW. He is said to have been called by A1 to his chamber in the month of June 1996. A man and a woman were said to have been present in the Chamber and A1 is said to have asked PW. 21 to secure a permanent driving licence to one of them. PW. 21 stated that he got the permanent driving licence and it is thereafter A1 asked him to come to his flat at Padmarao Nagar. The exact date on which PW. 21 had gone to the house ofa1 is not spoken to. Be that as it may, from the evidence of PW. 1, it is evident that A1 informed that a case pertaining to one Sardarji is pending before him in which chances of conviction and acquittal are equal. PW. 21 is said to have informed a1 that the case belongs to murder team of ccs; obviously conveying that he is not dea1ing with the case. Still, A1 asked him to contact PW. 1. PW. 21, in turn, had stated that he is known to another person. A1 is said to have informed PW. 21 to tell PW. 1 to pay Rs. 6,00,000/- to another person known to them (and his work will be done ). ( 19 ) PW. 21 claims to have made some attempt to meet PW. 1 but could not meet him in view of presence of other accused in the Court. Thereafter, PW. 21 is said to have been asked by A1 to come to his house to discuss about the matter. It is then that PW. 21 claims to have obtained the permission of A1 to meet another sardarji. The relevant portion of the deposition reads as under:"i told him A. O. I (A1) that due to fear I could not meet PW. 1 and discuss this matter with him. Further I informed A. O. I that there is another Sardarjee in the case A1ong with P. W. I 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 A1so warned me to be very cautious while discussing the matter with him. "pw. 21 deposed that he met PW. Then A. O. 1 asked me to contact the other Sardarjee by name rajender Singh, P. W. 2 and A1so warned me to be very cautious while discussing the matter with him. "pw. 21 deposed that he met PW. 2 on 20-8-1996, discussed with him and conveyed to him what was instructed by A1. PW. 2 replied that PW. 1 was looking after the matter and any discussion should be only with him. When PW. 21 expressed fear to speak to PW. 1, PW. 2 assured him not to be afraid and gave residentia1 address as well as telephone number of pw. 1. PW. 21 claims to have met PW. 1 on 24-8-1996 at 8-00 a. m. After expressing his fear to talk to him and after having been assured by PW. 1, he conveyed the instructions given to him by A1. It is his case that he came in contact with PW. 1 on phone some times before going personally to meet PW. 1, 4 or 5 days after, i. e. , sometime 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 A1 and the deal was said to have been finalised at Rs. 3,00,000/- to A1, rs. 25,000/- to PW. 21 and Rs. 25,000/~ to another third person. So much so, even the denomination in which it was to be paid has been informed to PW. 21. It was further stated that the amount should be kept ready by 2-9/3-9-1996 and this was conveyed by PW. 21 to PW. 1 on 1-9-1996. ( 20 ) THIS version of PW. 21 needs to be cross-checked with what happened at his meetings with PW. 2 and PW. 1. It needs to be borne in mind that A1 is said to have mooted this issue with PW. 21 after he met A1 in June, 1996. The proposa1 was not mooted at the first meeting. It was only after PW. 21 secured the permanent licence to one of the relative of A. I that pw. 21 was asked to come to the residence of A1. 21 after he met A1 in June, 1996. The proposa1 was not mooted at the first meeting. It was only after PW. 21 secured the permanent licence to one of the relative of A. I that pw. 21 was asked to come to the residence of A1. Though no dates are mentioned in the evidence of PW. 21 or at any other place, for the sake of testing the veracity of the evidence that may be assumed to have taken place sometime during June itself. The trap took place in the 1st week of september, and the gap between the first meeting of PW. 21 with A1 and the trap was 2 to 2 1/2 months. Even according to PW. 21, the first person, whom he met with the alleged demand of A1 was PW. 2. ( 21 ) PW. 2 in his evidence stated about his meeting with PW. 21 as under:"5 or 6 months prior to the trap, Mohd. Omer Moin (PW. 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 Moin 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 acquitta1 as he knew the Presiding Officer (A 1 ). "pw. 2 further stated that when PW. 21 raised the topic, he said that it is only PW. 1, who was dea1ing with the matter. He A1so claims to have informed PW. 1 about the proposa1 and PW. 1 in turn had informed him that pw. 21 can approach him. ( 22 ) IT was the specific case of PW. 21 that he met PW. 1 on 24-8-1996. However, it is the case of PW. 1 that PW. 21 met him, for the first time on 29-8-1996. The following extract of his deposition would revea1 the same:"then 1 told Rajender Singh (PW. 2) that if a2 (PW. 21) approaches him, he may direct a2 to contact me. For two or three days A2 did not approach any one of us. On 29-8-1996, A2 came to my house at about 8 a. m. in the morning. The following extract of his deposition would revea1 the same:"then 1 told Rajender Singh (PW. 2) that if a2 (PW. 21) approaches him, he may direct a2 to contact me. For two or three days A2 did not approach any one of us. On 29-8-1996, A2 came to my house at about 8 a. m. in the morning. He told me that he was feared to ta1k with me, then I told him that he need not have any fear and he can ta1k with me freely. "contrast this, with the deposition of PW. 21 :"on 24th August, 1996 at about 8-00 a. m. , i met PW. 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 PW. 1 assured that I need not fear about him and wanted me to express freely. "there is absolutely no doubt that PWs. 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 PW. 2 when he says that he verified with PW. 1 on 29-8-1996 about his meeting with P. W. 21 and the same was confirmed. The discrepancy as to the dates of meeting between PW. 21 and PW. 2, on one hand, and PW. 21 and P. W. 1, on the other, remained unexplained. ( 23 ) PW. 21 was consistent in his version that A1 is alleged to have told him that the amount needs to be paid through another person who is known to himself and A1. The relevant portion of the evidence is as under:-"a1 informed me to tell that one person who is known to me is close to A. O. I and if p. W. I pays an amount of Rs. 6,00,000/- through that person then his work will be done. "neither PW. 1 nor any other witness has spoken to about the said person nor furnished the particulars. PW. 21 and the said person were supposed to share Rs. 50,000/- and that PW. 1 has agreed about the same. Not a word is spoken to about the so- called person nor payment of any amount to PW. 21 or the other person. PW. PW. 21 and the said person were supposed to share Rs. 50,000/- and that PW. 1 has agreed about the same. Not a word is spoken to about the so- called person nor payment of any amount to PW. 21 or the other person. PW. 1 further said:"the D. G, A. C. B. , directed me to proceed 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 Section 114 (g) of the Evidence Act deserves to be drawn. So much, for the demand aspect of it. ( 24 ) PW. 1 deposed that soon after he received a phone call from PW. 2 that there was a demand by A1, 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 A1so and when they expressed their inability to proceed in the matter, in view of the fact that A1 is a Judicial Officer, he thought of contacting the Chief Justice. The version as presented by PW. 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 ta1ked over phone with me. He advised me to come to the bunga1ow 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. He advised me to come to the bunga1ow 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 sometime the Hon ble Chief Justice called me inside. " ( 25 ) THE prosecution has examined the Persona1 Secretary of the Chief Justice (PW. 15), His evidence is to the following effect:"on 3-9-1996, at about 8-00 p. m. , one person by name Santh Eswar Singh (PW. 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 persona1 appointment is possible on that day. If be wants to make any representation he can give in writing. But he was insisting to see the Hon ble Chief justice in person, saying that it is a very confidentia1 and serious matter which cannot be disclosed to anyone except the Hon ble chief Justice and A1so 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. P1 is the complaint given by PW. 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 nloney 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 outside sir. "this paragraph indicates that the representation was prepared after PW. 1 phoned PW. 15, who in turn, asked him to come by morning. By the time Ex. 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 outside sir. "this paragraph indicates that the representation was prepared after PW. 1 phoned PW. 15, who in turn, asked him to come by morning. By the time Ex. P1 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 PW. 1, which is extracted above. While PW. 1 says he phoned at 6-00 p. m. , PW. 15 says he received the call only at 8. 00 p. m. PW. 1 claims that the PS gave the appointment at 7-00 p. m. on the same day, whereas PW. 15 narrates the circumstances under which he was permitted to meet the Chief Justice subsequent to 8-00 p. m. ( 26 ) WHAT happened subsequent to the submission of Ex. Pl is another issue. After having been permitted to see the chief Justice, PW. 1 handed over the representation. According to the evidence of PW. 15, he is not aware as to what transpired between the Chief Justice and pw. 1, but after 10 or 15 minutes, he was called by the Chief Justice and was given the petition submitted by PW1. PW. 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. Pl by PW. 1 is somewhat significant. PW. 15 has stated that Ex. Pl (a) is only the endorsement made by him and Ex. Pl was retained by the Hon ble Chief Justice. There is absolutely nothing to disbelieve this version, which is in the normal course of events. ( 27 ) PW. 20 is the then Registrar (Vigilance) of the High Court. According to him, he received Ex. Pl 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. Pl in office at about 9-45 a. m. , though office hours are from 10-30 to 5-00 p. m. PW. 15 Sri Pasha personally handed over Ex. According to him, he received Ex. Pl 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. Pl in office at about 9-45 a. m. , though office hours are from 10-30 to 5-00 p. m. PW. 15 Sri Pasha personally handed over Ex. P1 to me in the office. "as regards his acquaintance with PW. 1, pw. 20 stated as under: - "i did not record any statement of PW. 1 eswar Singh, but he came to me on 4-9-1996, while I was in the office. In the morning hours, after 1 received Ex. P1, that was the first time and last time, I have seen pw. 1, Eswar Singh. ( 28 ) ACCORDING to PW. 20, he received Ex. Pl for the first time at 9-45 a. m. on 4-9- 1996 and he has seen PW. 1 for the first time and A1so last time after he received Ex. P1. However, this is what PW. 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 bunga1ow 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 sea1ed cover. After sometime 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 (PW. 20), the registrar of Hon ble High Court was called to the residence of the Hon ble Chief Justice. The Private Secretary had A1so made an endorsement on the copy of the representation submitted by me dated 3-9-1996. "not only this, PW. 1 has further deposed that ha 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 1 went to the residence of Hcn ble Chief Justice, the Director General, acb Mr. Rajan and Mr. Satyanarayana, Jt. Director ACB, Mi. Surya Narayana, DSP acb (PW. 23), Mr. Patrudu, Registrar (Vigilance) A. P. High Court were already there ta1king with Hon ble Chief Justice. They called me inside. "since PW. 20 claimed that he has seen pw. 1 for the first time in the morning of 4-9-1996, on beha1f of the Accused, Ex. D1 was placed before the Trial Court. PW. 20 functioned in 1989 as the I Addl. Metropolitan sessions Judge, where SC. No. 186/89 was pending. He granted bail to PW. 1, in crl. M. P. No. 1 146/89. On severa1 earlier occasions, the bail applications filed by pw. 1 was rejected. After discussing the matter at length, PW. 20 granted conditiona1 bail to PW. 1. One of the conditions was that pw. 1 shall appear before him every day between 12-00 noon and 1-00 p. m. , and that he should not leave the Municipa1 corporation limits without the permission of the Court. Therefore, it is rather impossible to believe that PW. 20 has seen pw. 1 for the first and last time in the morning of 4-9-1996. ( 29 ) IT has come on record that ACB officia1s refused to initiate proceedings against A1 unless the High Court gives clearance. PW. 23, the Investigating Officer, has registered the case at 10-45 a. m. He stated that he did not receive any complaint from PW. 1, but the same was forwarded to him by the Director of ACB. Ex. P2 is the complaint received by him. It was elicited through PW. 23 that no permission was granted to them by the High Court by the time the case was registered. 1, but the same was forwarded to him by the Director of ACB. Ex. P2 is the complaint received by him. It was elicited through PW. 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. I ( 30 ) PLACING reliance upon the order passed by the Hon ble Supreme Court in u. P Judicial Officials Association v. U. O. I. , (1994) 4 SCC 687 , 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 PW. 20 nor any other witness has deposed that any permission was accorded to the ACB to proceed with the trap against A1, nor any proceedings, as such, were marked through any witness. During the course of arguments before the tria1 Court, the prosecution has come forward with two letters dated 4-9-1996 said to have been addressed to the Director of ACB. PW. 20 is the author of the said letters. Neither he was recalled to mark the document, nor were they introduced to any witness. The tria1 Court had, unfortunately, readily acted upon them. ( 31 ) ANOTHER important circumstance is that while PW. 1 claims that he handed over ex PI in a sea1ed cover to PW. 15, PW. 15 states that PW. 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. P1 got its entry into the residence of Hon ble Chief justice. According to PW. 15, he handed over Ex. P1 to the Chief Justice after making the endorsement. Ex. P. 20 however claims that PW. 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. P1 should have been with the Chief Justice or with pw. 20, irrespective of the fact whether he received it from PW. 15 or the Chief justice himself. He was the person from whose custody it should have been produced into the Court, Strangely, PW. 1 himself has filed it into the Court. P1 should have been with the Chief Justice or with pw. 20, irrespective of the fact whether he received it from PW. 15 or the Chief justice himself. He was the person from whose custody it should have been produced into the Court, Strangely, PW. 1 himself has filed it 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. P1 is only a copy. A perusal of Ex. P1 discloses that it is not at all a copy, but the original itself. It was clearly elicited from PW. 15 that he made only one endorsement and i. e. , Ex. P1 (a), The tria1 Court blindly believed it to be a copy. The only source from which PW. 1 could have secured Ex. P1 is pw. 20. The fact as to how PW. 1 got Ex. P1 remains unexplained. If at all any thing, the same indicates the accessibility of PW. 1 to PW. 20. ( 32 ) THE deposition of PW. 15 is consistent and accords to the ordinary functioning of the office. Nothing was elicited through him to discredit his testimony. The versions of PW. 1 and PW. 20 are at variance with each other and they in turn contradict with what was stated by PW15. In such a case, normally it has to be presumed that either PW. 1 or PW. 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. ( 33 ) NOW comes to the question of utterance of code word. According to PW. 21, a1 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 PW. 1, along with PW. 21 can proceed to Hanamkonda, Warangal district, to pay the amount. To substantiate its case in this regard, the prosecution has examined PW. 8, the Public Prosecutor, PW. 9, the Counsel for PW. 1 in SC. No. 186/89, pws. 10 and 11, the Bench Clerks, who worked on that day, and PW. 12, an Inspector from ACB. 21 can proceed to Hanamkonda, Warangal district, to pay the amount. To substantiate its case in this regard, the prosecution has examined PW. 8, the Public Prosecutor, PW. 9, the Counsel for PW. 1 in SC. No. 186/89, pws. 10 and 11, the Bench Clerks, who worked on that day, and PW. 12, an Inspector from ACB. ( 34 ) SINCE what is to be established is the exact utterance of the code word by A1, the relevant portion of the evidence of PW. 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 M. S. J. Hyderabad. A1 was the Presiding Officer of III M. S. J. Court, Hyderabad. Our Advocate Mr. Milind gokhle was presenting our case. Mr. Ramakrishna, P. P. was A1so 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. "pw. 8 stated as under:"as per my memory, the SC. No. 186 of 1989 as well as that the crimina1 M. P. s, filed in the case were called at about 2-30 p. m. One Milind Gokhle was the advocate for a1 Eswar Singh (PW. 1) the Presiding Officer stated in the Open court that all the Cr. M. Ps. , are posted to 6-9-1996. Sri Milind Gokhle, 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 A1ready 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. "pw. 9, the Counsel for PW. 1 in that case, stated as under:-"on that day, the matter was adjourned. On representation of the above Advocate, the presiding Officer, A. O. I, posted all the matters to 9-9-1996. "pw. 9, the Counsel for PW. 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 9-9-1996. all the other matters connected to the above Session s case were a1so adjourned to 9-9-1996. The evidence of PWs. l, 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 (A1) adjourned the case together with the Miscellaneous petitions to 6-9-1996; (c) PW. 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 A1so 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. ( 35 ) PW. 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. ( 40 ) 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, pw. 1 was to proceed to the Court and await the utterance of the code word by A I. On the code word being uttered, he was to proceed to Hanamkonda, Warangal, along with PW. 21, to make the payment. If it were to have been an affair left to be dealt with by PW. 1 alone, there did not exist much of a controversy. 21, to make the payment. If it were to have been an affair left to be dealt with by PW. 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 A3 and A4, for this purpose, the team was to have received an intimation or communication as to the utterance of the code word by A1 and the factum of PW. 1 proceeding to hanamkonda on having been satisfied about the signa1 by A1. 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 PW. 1, the team comprising of PWs. 22, 23 and PW. 3 (Mediator), have proceeded to Hanamkonda. This shows that they have taken everything for granted. They did not even leave any scope for the A1 not being present on that day, or his not uttenng the code word etc. This only shows that everything was premeditated. ( 41 ) BE that as it may, it needs to be seen a, to what transpired at Hanamkonda. Admittedly, the house owned by A1 at hanamkonda comprises of ground and first floor. The ground floor is let out to one of the Senior Judicia1 Officers, working in the courts at Waranga1. PWs. 1 and 21 claimed to have entered the house on the 1st floor and it is said that A3, on seeing these persons, had observed that she has A1ready received a phone ca1l from A1. According to them, they offered to pay the amount to A3 and she in turn had asked them to put the cover on the tea-pie,- It is A1so their case that she instructed A4 to put the cover in the A1mirah, which is in the left side of the room in which they were ta1king. It is their further case that A3 tried to contact A1 on phone, but she could not. Thereafter they left the house. ( 42 ) AFTER PW. 1 gave the instructed signa1, PW. 23, ACB officia1s from hyderabad, PW. 3, the Mediator taken from hyderabad and loca1 ACB officia1s are said to have taken PW. 21 and entered the house at first floor once again. On their enquiry, a3 had stated that she had only offered water to PWs. ( 42 ) AFTER PW. 1 gave the instructed signa1, PW. 23, ACB officia1s from hyderabad, PW. 3, the Mediator taken from hyderabad and loca1 ACB officia1s are said to have taken PW. 21 and entered the house at first floor once again. On their enquiry, a3 had stated that she had only offered water to PWs. 1 and 21 and that she did not receive any amount. The ACB officia1s washed her hands with SC solution and the result was neutra1. The place (A1mirah) where 2003 (l){crl.)F-23 the amount is said to have been kept was not treated with SC solution. Then they conducted the search in the house and they did not recover anything. It is their case that after some time A4, who is deaf and dumb, had volunteered to lead them in the bathroom attached to the bedroom and pointed out the flush tank, from where the amount is said to have been recovered. The hands of A4 were A1so washed with sc solution. The result was neutra1. Simultaneously, the hands of PW. 21 were washed and the solution turned out to be pink. With this state of affairs, it can be said that there did not exist any connecting link or contact between the tainted amount and a3 and A4. ( 43 ) THE only link that is sought to be provided by the prosecution is the recovery of the amount from the flush tank. On their own saying, the currency notes were drenched with the water of the flush tank. Situation demanded that the water in the flush tank be tested with SC solution. What result could have ensured from, is a different thing A1together. However, they did not choose to do so. Without there being any warrant, they searched the house through out the night when only one woman and a deaf and dumb boy were there. The ACB officia1s did not think of including any respectable person from the loca1ity, particularly, when a Senior Judicia1 Officer was residing in the ground floor. The panchanama is said to have been prepared on 4-9-1996, but a copy of it was delivered to A3 on 5-9-1996. The ACB officia1s did not think of including any respectable person from the loca1ity, particularly, when a Senior Judicia1 Officer was residing in the ground floor. The panchanama is said to have been prepared on 4-9-1996, but a copy of it was delivered to A3 on 5-9-1996. ( 44 ) IN Raghbir Singh v. State of Punjab, AIR 1976 SC 91 , the Supreme Court observed that in cases of trap, the officia1s of the acb should ensure and endeavour to secure rea1ly independent and respectable witness. The Supreme Court held as under:"we must take this opportunity of impressing on the officers functioning in the anti- corruption department to insist on observing this safeguard as zea1ously and scrupulously as possible for the protection of public servants against whom a trap may have to be laid. They must seriously endeavour to secure rea1ly independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. "no explanation is offered as to why any witness from the loca1ity, much less, the judicia1 Officer, who was very much present in the same building, was not drawn as mediator. The omission in this regard appears to be deliberate. ( 45 ) NO explanation is offered as to the delay in furnishing the copy of the panchanama i. e. , Ex. P4, one day later. No woman constable or Officer was drawn in the team when the search was said to have been carried out at the odd hours in the night when A3, a woman, and her deaf and dumb son A4, A1one were present. It was rather curious that a deaf and dumb person, who can neither hear nor speak, had volunteered the team to the flush tank, for the purpose of recovery of the amount. ( 46 ) IN the sketch prepared by PW. 3, the Mediator, no ventilator was shown to exist to the bathroom. However, on beha1f of the accused, Ex. D2, which is the sanctioned plan of the house was marked, which shows that A1l around the house at the first floor, there is veranda and a ventilator to the bath room, from where the amount is said to have been recovered. However, on beha1f of the accused, Ex. D2, which is the sanctioned plan of the house was marked, which shows that A1l around the house at the first floor, there is veranda 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 into the bathroom from veranda through the ventilator. The prosecution failed to explain this circumstance. ( 47 ) THE details of the currency notes were not incorporated in Ex. P4. The concerned witnesses stated that the notes ta1lied with the annexure attached to Ex. P3, which is a Panchanama prepared at hyderabad. No separate list was prepared. While it was the case of prosecution that pw. 23, the Investigating Officer, remained at Hanamkonda, through out the night on 4- 9-1996, an independent witness has categorica1ly deposed that he was at hyderabad by 9-30 p. m. , on that day. The distance is 140 KM. That aspect will be dea1t with at a later stage. ( 48 ) FROM the discussion undertaken above, it emerges that - (A) the hands of A3 and A4 when washed with SC solution yielded neutra1 result; (b) the hands of PW. 1 were not washed at A1l; (c) the water in flush tank or the A1mirah were not treated with SC solution; (d) the hands of PW. 21 A1one turned pink; (e) no officia1 or independent person from the loca1ity was associated with the trap; (f) the Judicia1 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. P4 to A3 is not explained; (h) no lady witness or officia1s were included in the entire operation. ( 49 ) THEREFORE, the so-ca1led recovery was a make believe affair and it does not gain the confidence of the Court. ( 50 ) THE prosecution was aware that even if a successful trap was laid at hanamkonda, at the residence of A1, unless there exists some link, it is too difficult to connect A1 with the same. The reason is that mere receipt of amount by A3 and A4, even if true, by itself does not constitute offence under the provisions of the Act by a1. The reason is that mere receipt of amount by A3 and A4, even if true, by itself does not constitute offence under the provisions of the Act by a1. It is for this reason that the prosecution has come forward with a version that after the recovery of the amount, PWs. 1 and 21 started for Hyderabad and were accompanied by PW. 22, Joint Director of ACB in their car, while others viz. , P. Ws. 23 and 3 and the loca1 officia1s 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, PW. 22 had asked the car to be taken to the house of PW. 7, who is his friend, for the purpose of availing the telephone. According to PW. 1, they went to the house of PW. 7 and sought his permission to use the telephone. On the permission having been accorded, PW. 1 is said to have connected his recording instrument to the phone. It is stated that as per the directions of PW. 22 (who is described as DSP, ACB, though he is a Joint director, ACB), PW. 21 made a ca1l to A1. The phone was said to have been received by his daughter and thereafter handed over to A1. The factum of the amount having been paid is said to have been conveyed. When PW. 21 sought the permission of A1 to bring PW. 1, initia1ly A1 was said to have been reluctant and thereafter accorded permission. PW. 1 does not speak about any other phone ca1l having been made from that place either by himself or PW. 22. He is specific about time being 11-30 p. m. PW. 21 has virtua1ly repeated what was said by PWl. ( 51 ) THE evidence of PW. 22 on this aspect is as under:"myself, PW. 1 and PW. 21 reached Uppa1 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 PW. 18 (Sri Kumar ). I instructed him to secure two mediators to the Garunda Gagan Apartments, Padmarao nagar, Secunderabad. PW. 21 (Omer Main) a1so telephoned to A. O. I from the house of pw. 18 (Sri Kumar ). I instructed him to secure two mediators to the Garunda Gagan Apartments, Padmarao nagar, Secunderabad. PW. 21 (Omer Main) a1so telephoned to A. O. I from the house of pw. 7, about the payment made at hanamkonda and his intention to visit the house of A. O. I A1ong with P. W. I. After this, on our way to Padmarao Nagar 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 PW. 22 does not speak about any instrument having been fitted to the telephone and recording of conversation of pw. 21 with A1. PWs. 1 and 21 do not speak about PW. 22 having made any ca1l to pw. 18. Keeping these materia1 discrepancies aside, let us see what PW. 7, from whose house the phone ca1l is said to have been made, has deposed. ( 52 ) 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 PW. 7. His deposition is very brief; It just reads as under:"i am resident of Uppa1. I am an agriculturist as well as businessman. My house is at ramalayam Street at Uppa1. I am having phone bearing No. 850 334. I know L. W. 20, Sri G. BA1reddy, Deputy director ACB (PW. 22 ). On one day on september, 1996, at about 9-00 or 9-30 p. m, lw. 20, Sri BA1 Reddy and LW. 22, r. Suryanarayana (PW. 23), came to my house. LW. 20, BA1reddy 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" ( 53 ) FROM the deposition of PW. 7, the only independent witness, it is evident that pw. 22 and LW. 20 (PW. 23) have come to his house in September 1996 at about 9 or 9-30 p. m. , and that PW. 22 has phoned to somebody from his house. He stated that both of them were in his house for about one hour. His evidence contradicts, the time of arriva1 of PW. 22 stated by PWs. 1, 21 and 22. He does not speak about PWs. 1 and 21 having come to his house at A1l. He has categorica1ly stated that PW. He stated that both of them were in his house for about one hour. His evidence contradicts, the time of arriva1 of PW. 22 stated by PWs. 1, 21 and 22. He does not speak about PWs. 1 and 21 having come to his house at A1l. He has categorica1ly stated that PW. 23 has come to his house A1ong with PW. 22, whereas the case of the prosecution was that PW. 23 remained at Hanamkonda till the next date to complete the proceedings. It was not elicited through him either that PW. 1 fitted a recording instrument to his phone or that pw. 21 spoke to any one from the phone. ( 54 ) PW. 7 was not declared hostile nor the prosecution had suggested to him that he is speaking any fa1sehood. His evidence remains unquestioned. If the evidence of pw. 7 is to be accepted; and this Court sees no reason to doubt it, the entire case of the prosecution fa1ls to the ground. It was not even suggested to PW. 7 that PW. 23 did not come to his house or that any recording instrument was fitted to his telephone. Neither the so-ca1led instrument nor the cassette recording the A1leged conversation between pw. 1 and A1 was placed before the Court. ( 55 ) IF the evidence of PWs. 1 and 21 is to be believed. PW. 22 did not make any ca1l to any officia1s at that late hour. According to the evidence of PW. 7, except pw. 22, nobody has made any ca1l from his telephone, much less any instrument was fitted to the phone. The result of this discussion is that the theory of PW. 21 contacting A1 was deliberately knitted by the prosecution in their deliberate attempt somehow to connect A1 to a non-existing trap. ( 56 ) WHAT happened at the residence of A1 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 pw. 1 was found with A1 and photograph was taken. If the whole drama enacted by the prosecution with the active collusion of pw. 1 is to be given a logica1 extension, their gaining entry into the house of A1 at the midnight and taking his photograph a1ong with PW. 1 was found with A1 and photograph was taken. If the whole drama enacted by the prosecution with the active collusion of pw. 1 is to be given a logica1 extension, their gaining entry into the house of A1 at the midnight and taking his photograph a1ong with PW. 1 cannot at A1l be said to be difficult. ( 57 ) IT has A1so come in the evidence that PW. 1 have tried his level best to drag the proceedings in SC. 186/89. He made complaints against the Public Prosecutor, published some newsitems and, so much so, filed a writ petition in the High Court cha1lenging his very appointment. Till 1996, the case remained untouched, though it was received in 1989. It was only after A1 assumed charge of that Court, he took up the tria1 and examined as many as 45 witnesses. Even on the question of adjournments, PW. 1 went to the High Court and has put A1l sorts of hurdles in the tria1. When the case was in the middle of the tria1, a1 was transferred to another Court and within a short time he was brought back to the Court of III Additiona1 Metropolitan sessions Judge. ( 58 ) PW. 1 is a decoy witness. His attempt appears to have been not only to ensure that A1 does not hear his case, but A1so to create a situation that the case is not proceeded with at A1l. He has been substantia1ly 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 A1 was relieved of his duties on the basis of the so ca1led trap. ( 59 ) IT was categorica1ly A1leged by the defence that PW. 20, who granted bail to pw. 1 while functioning as Presiding Officer of that Court, started giving trouble to A1, when he (PW. 20) was functioning as registrar (Vigilance ). The veracity of his claim that he lias seen PW. 1 for the first and the last time on the morning of 4-9-1996 was sought TO be attacked by filing Ex. D1, wherein he not only granted bail to PW. 1, but directed him to appear before him between 12-00 and 1-00 p. m. , every day. His ignorance about PW. 1 for the first and the last time on the morning of 4-9-1996 was sought TO be attacked by filing Ex. D1, wherein he not only granted bail to PW. 1, but directed him to appear before him between 12-00 and 1-00 p. m. , every day. His ignorance about PW. 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, pw. 20 and severa1 others were present and he was ca1led by him. ( 60 ) PW. 21 has been chosen by PW. 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 A1 and PW. 21, Even according to him, he was ca1led to the chamber by A1 for the first time in June 1996, that too, for the purpose of obtaining a driving licence. It has come in the evidence of PW. 2 that PW. 21 approached him 5 or 6 months prior to the trap that should take us to March or April. PW. 21 was the only person whose hands were found to be tainted. The story has been knitted such that he implicates A1 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 PW. 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 revea1 the name of the so-ca1led third person and the factum of his having been paid his share of Rs. 25,000/ -. The evidence clearly discloses that PW. 21 is chosen to lend some credence to PW. 1 ( 61 ) 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. Cha1lappan v. State of Kera1a, AIR 1979 sc 1761 . 21 is chosen to lend some credence to PW. 1 ( 61 ) 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. Cha1lappan v. State of Kera1a, AIR 1979 sc 1761 . Speaking for the Bench, Faza1 a1l I, 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 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, AIR 1974 SC 775 , and Abdul Sattar v. Union Territory, chandigarh, AIR 1986 SC 1438 . The only corroboration which we get to the evidence of PW. 21 in A1l respects is that of PW. 1, who himself is a decoy witness and A1so an accomplice. ( 62 ) 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 tria1 Court had taken the evidence of PWs. 1 and 21 as gospel truth. Whenever materia1 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 PWs. 1 and 21 was pointed out, the tria1 Court observed as under:"of course, it is true as per Ex. P2 on 24-8-1996 A. O. 2 approached PW. 1 while as per the evidence of PW. 1, PW. 21 approached him on 29-8-1996, while according to PW. 21 he approached PW. 1 on 24-8-1996. Thus mere is discrepancy as to on what date PW. 21 approached PW. 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 pw. 2 as well as PW. 1 that PW. 21 has origina1ly approached PW. 2 to convey the message of A. O. I is an improvement and pw. 2 was introduced in view of PW. 21 origina1ly approached him. " ( 64 ) IN his evidence PW. 2 as well as PW. 1 that PW. 21 has origina1ly approached PW. 2 to convey the message of A. O. I is an improvement and pw. 2 was introduced in view of PW. 21 origina1ly approached him. " ( 64 ) IN his evidence PW. 21 made substantia1 improvements over the statements recorded under Section 161 Cr. P. C. The discrepancies, which run to severa1 pages, were elicited through PW. 23, who is the investigating Officer. When the same was brought to the notice of the tria1 Court, it took note of the same as under:"it is, of course, true that some of the facts spoken to by PW. 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 officia1s from time to time right from 24-8-1996 till 4-9- 1996 on which date he gave Ex. P. 2 complaint and informing them about the day-to-day developments i. e. , PW. 21 approaching on beha1f of A. O. I on 24-8-1996 subsequent dates informing about the moda1ities 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 PW. 21 on 24-8-1996 and 3-9-1996. PW. 1 has stated that he has only given a gist of the case when he was examined under Section 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 PW. 23 that he has recorded the statement of PW. 1 verbatim and he A1so stated that some of the facts spoken to by PW. 1 in his chief examination were not stated before him. "however, the tria1 Court ignored the discrepancies on the basis of the following observation:"thus, PW. 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 pw. 1 in his chief examination were not stated before him. "however, the tria1 Court ignored the discrepancies on the basis of the following observation:"thus, PW. 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 pw. 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 fa1se case. "as regards the discrepancies in the evidence of PW. 21 and the untrustworthiness of his evidence as an Approver, the tria1 Court ignored the same with the following observation:"i am of the view simply because PW. 21 was examined at the fag-end of the tria1 because of the above reasons then he applied for tendering pardon and to treat him as an approver even after the tria1 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 severa1 such lapses in the judgment of the tria1 Court. ( 65 ) NEITHER PW. 20 nor PW. 23 stated that any permission was accorded to ACB by the High Court to proceed against A1. Through a Memo, two letters dated 4-9- 1996 addressed by P. W. 20 to the Director, acb, were placed before the tria1 Court. It accepted the same and proceeded on the footing that permission was accorded by the high Court. ( 66 ) IN one of the letters, PW. 20 conveyed the permission of the High Court to ACB to register a case against A1, as under:"as the A1legations of corruption against the said Officer are prima facie established. " ( 67 ) THE letter was signed before 2-30 p. m. , on 4-9-1996. By that time, except the complaint of P. W. I i. e. , Ex. P. 1, no materia1 was there nor any proceedings took place. It is not known as to how PW. 20 found that prima facie case is established. " ( 67 ) THE letter was signed before 2-30 p. m. , on 4-9-1996. By that time, except the complaint of P. W. I i. e. , Ex. P. 1, no materia1 was there nor any proceedings took place. It is not known as to how PW. 20 found that prima facie case is established. Obviously because of this observation, the ACB officia1s have knitted a case, so that the blame should not go on them. ( 68 ) THE precautions directed to be taken by the Supreme Court in U. P. Judicia1 officers Association case (supra), were not empty forma1ities. They were intended to protect the Judicia1 Officers from jea1ous police Officia1s and crooked litigants. No attempt was made by the High Court to verify as to whether there was any pigmen of truth in what was A1leged by pw. 1 or to see whether the proceedings were, genuine. The evidence in this case discloses that the ACB officia1s were reluctant to believe PW. 1 but were exhorted to act by certain functionaries in the high Court. , in a procedure that does not conform to law. ( 69 ) IT is contended by the learned Counsel for the appellant that initia1ly the permission to prosecute A1 was accorded by the High Court, contrary to law, and the government had accorded permission to prosecute A1, A3 and A4, without taking into account the fact that there was no demand or acceptance by A1 and that the washing of hands of A3 and A4 with the SC solution by the ACB officia1s yielded neutra1 result. He submits that it was a clear case of non-application of mind. However, having regard to the findings arrived at on other aspects, this Court does not feel the necessity to go deeper into that aspect. ( 70 ) EVEN if a fraction of the A1legation against A1 is true, he deserves to be proceeded against, to maintain the purity of system. The evidence, however, discloses that the system has fa1len 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. ( 71 ) FROM the aforesaid discussion, it is evident that - (A) PW. 1 was being tried for grave offences in S. C. No. 186/89 on the file of the III Addl. Metropolitan Sessions judge, Hyderabad. While he is at large, the judge who was trying the case is convicted. ( 71 ) FROM the aforesaid discussion, it is evident that - (A) PW. 1 was being tried for grave offences in S. 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 other to protract the tria1 of the case. (B) It was only after A1 assumed charge of that Court that there was progress in the tria1 of the case and in a short span of time he recorded the evidence of as many as 45 witnesses and the tria1 was A1most coming to a close. (C) With a view to get rid of A1 and to further sta1l the case, PW. 1 had taken the assistance of PW. 21 in inventing the theory of demand of bribe by A1. (D) The way in which Ex. Pl-complaint was presented by PW. 1 to Chief justice and the steps that ensued thereafter, left much to be explained. The materia1 contradictions as well as the way in which PW. 1 got access to ex. P1, which is the record of the high Court, remains unexplained. (E) The so-ca1led utterance of the code word by A1 is not at A1l established. PWs. 8 and 9 have spoken utter fa1sehoods and their statements are belied by the records maintained by the Court viz. , Ex. Xl (a) and X2 (a), (b) and (c ). (F) The trap laid by the ACB was tota1ly unsuccessful. The hands of A3 and a4 when washed with SC solution yielded neutra1 result. Neither the a1mirah where the amount was said to have been initia1ly 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) PW. 1 claimed that he has recorded his conversation with PW. 21 as well as the conversation between PW. 21 and A1 from the house of PW. 7. However, nothing was placed before the Court. Presumption under section 113 (g) of the Evidence Act deserves to be drawn. (H) The attempt of the prosecution to establish link with the so-ca1led trap to A1, with the telephone ca1l by pw. 21 as well as the conversation between PW. 21 and A1 from the house of PW. 7. However, nothing was placed before the Court. Presumption under section 113 (g) of the Evidence Act deserves to be drawn. (H) The attempt of the prosecution to establish link with the so-ca1led trap to A1, with the telephone ca1l by pw. 21 to A1 from the house of PW. 7 has miserably failed in view of the deposition of PW. 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 A1 at hanamkonda and at Hyderabad, without there being any va1id permission or search warrants in this regard. (J) The evidence of PW. 21, who turned as an Approver, is not corroborated by any independent witnesses, and on the other hand, it is fa1sified by the evidence of severa1 witnesses. This Court is, therefore, of the view that the prosecution has failed to establish its case against the accused and subjected A1 to untold hardship and harassment. ( 72 ) THE Crimina1 Appea1 filed by A1 is accordingly A1lowed and the conviction and sentence against him are set aside. The fine, if any, paid by him sha1l be refunded. Crl. A. No. 807 of 2000:- ( 73 ) THE discussion undertaken above indicates that the prosecution has failed to establish its charge against A3 and A4 and their acquitta1 by the tria1 Court is accordingly affirmed. The Crimina1 Appea1 filed by the state is accordingly dismissed. ( 74 ) THE Registry is directed to verify whether S. C. No. 186/89 on the file of the III Additiona1 Metropolitan Sessions judge, Hyderabad, is still pending disposa1 and if so, to issue necessary instructions to that Court to speed up the disposa1. The registry sha1l also monitor the progress of the same.