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2010 DIGILAW 2875 (PNJ)

Mohinder Singh v. State of Punjab

2010-10-08

A.N.JINDAL

body2010
JUDGMENT Mr. A.N. Jindal, J:- The accused – appellant Mohinder Singh (herein referred as ‘the accused’) was convicted and sentenced to undergo rigorous imprisonment for 2½ years and to pay fine of Rs.2000/-, each, under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (for brevity ‘the Act’). 2. The accused was a Junior Engineer in the Punjab State Electricity Board at the relevant time. The transformer, from which the electricity was being supplied to the complainant was burnt, which was neither being rectified, nor replaced. On 9.6.1998, complainant Dharam Singh (herein referred as ‘the complainant’) went to the office of the accused and made a request for rectifying the fault or to replace the transformer, but the accused replied saying that it would have to be replaced, provided he pays Rs.1000/- on account of illegal gratification to him. However, the bargain was settled at Rs.800/-. The complainant being reluctant to pay the gratification went to Sukhdev Singh PW and narrated to him the whole episode. Thereafter, both of them approached the Vigilance Bureau, Patiala and the complainant suffered statement, on the basis of which the First Information Report Ex.PB was recorded. The complainant produced a sum of Rs.800/- before Deputy Superintendent of Police Ranjit Singh Dhillon, who after treating the currency notes with phenolphthalein powder, returned the same to the complainant with a direction to hand over the same to the accused on demand. After completing the formalities, the Investigating Officer sent the statement of the complainant to the police station, on the basis of which First Information Report was registered and they proceeded to the office of the accused. As directed, on demand by the accused, the tainted amount was tendered by the complainant to him. Sukhdev Singh then signalled the police party, upon which the Investigating Officer accompanied by the independent witness and other police officials reached the place, where the accused was found occupying a chair in the office. After getting hand-wash of the accused, searched him, whereupon the accused handed over a sum of Rs.800/- i.e, tainted money after picking up the same from a store like room. On completion of the investigation, the challan was presented against the accused. 3. He was charged under Sections 7 and 13 of the Prevention of Corruption Act, to which he pleaded not guilty and claimed trial. 4. On completion of the investigation, the challan was presented against the accused. 3. He was charged under Sections 7 and 13 of the Prevention of Corruption Act, to which he pleaded not guilty and claimed trial. 4. In order to substantiate the charges, the prosecution examined nine witnesses in all. Amrik Singh having died and G.S.Mann as unnecessary, were given up. The trial ended in conviction. 5. At the very outset, learned senior counsel for the accused has urged that no adequate opportunity was given to the accused to cross-examine the witnesses, therefore, he has been seriously prejudiced. 6. Having pondered over the contention, the same weighs with the mind of this Court. Though, the complainant (PW2), Rajinder Singh, Junior Engineer (PW3), an official witness, and Surjit Singh (PW4) were examined in-chief, but the cross-examination was closed by the Trial Court on 10.10.2001 by passing the following order:- “(The learned counsel for the accused states that he cannot cross-examine the witness as he has been engaged only today. Perusal of the file shows that two witnesses present and examined in-chief on 27.4.2001, but their cross-examination was deferred on the request of the accused as his counsel was not available. On 16.8.2001, when four witnesses were present, including the two witnesses, who had been present on 27.4.2001, examination-in-chief of other two witnesses was recorded, but cross-examination of all the four witnesses had to be deferred as the request for the purpose was made by the accused stating that his counsel was not available. Today again, a request is being made only on the ground that the counsel has been engaged only today. It is no ground for deferring cross-examination of the witnesses. Even otherwise, from the circumstances as noticed here-in-above, the effort of the accused sseems to be to stall progress of the case unreasonably. The request is, therefore, declined.) Nil (opportunity given). RO & AC Spl.Judge 10.10.2001" 7. The perusal of the record reveals that on 27.4.2001 when the witnesses were examined-in-chief, Mr.K.S.Ahluwalia, Advocate was representing the accused. However, on that day, PW Dharam Singh – complainant and PW Rajinder Singh were examined in-chief and the case was adjourned to 16.8.2001, on which date, PWs Surjit Singh and Sukhdev Singh were examined in-chief. However, they were not cross-examined for want of the counsel. However, on that day, PW Dharam Singh – complainant and PW Rajinder Singh were examined in-chief and the case was adjourned to 16.8.2001, on which date, PWs Surjit Singh and Sukhdev Singh were examined in-chief. However, they were not cross-examined for want of the counsel. Then the case was adjourned to 10.10.2001, on which date, Mr.Ashok Mathur, Advocate – counsel for the accused was present, but on day, the Trial Court while taking the view that the accused was prolonging the matter, recorded the cross-examination as “Nil. Opportunity given.” 8. As a matter of fact, after the change of the counsel on 27.4.2001, Mr.Ashok Mathur did not appear till 10.10.2001, therefore, the Trial Court had no occasion to record the reason that the accused was prolonging the matter on one pretext or the other. In any case, if the counsel had not turned up, then the Court could provide an opportunity to the accused to engage another counsel, but that was not so done. PW Sukhdev Singh was also examined in-chief on 16.8.2001 and crossexamined on 13.11.2001. Then, the Court had no difficulty in deferring the cross-examination of the other witnesses too along with Sukhdev Singh as they could be cross-examined together. In any case, it is right of the accused to have fair trial and due opportunity should have been provided to him for cross-examining the prosecution witnesses. 9. In the aforesaid facts and circumstances of the case, it would be expedient and in the interest of justice to provide the accused – appellant opportunity to cross-examine the witnesses in order to enable the Trial Court to reach a right conclusion with regard to the guilt of the accused. The apprehension of the prosecution that the accused was prolonging the case, could be safe-guarded by imposing necessary restriction. Resultantly, the appeal is accepted, the impugned judgment is set aside and the matter is remitted back to the Trial Court to provide two fair opportunities to the accused to cross-examine the witnesses, who could not be cross-examined, and then to proceed further in accordance with law, or in any case the prosecution evidence would be closed within six months from today, whichever is later. The accused – appellant shall not be granted any date for any excuse to defer the cross-examination, if the witnesses are present on the date fixed by the Court. The accused – appellant shall not be granted any date for any excuse to defer the cross-examination, if the witnesses are present on the date fixed by the Court. Parties to appear before the Trial Court on 29.11.2010. ——————