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2010 DIGILAW 887 (JHR)

Junias Guria v. State of Jharkhand

2010-09-14

PRASHANT KUMAR

body2010
JUDGMENT Prashant Kumar, J.- This appeal is directed against the judgment of conviction and order of sentence dated 5.7.2002 passed by Special Judge, Vigilance, Ranchi, in Special Case No. 25 of 1989, whereby and where under, he convicted the appellant under Sections 7 and 13(2) of the Prevention of Corruption Act and sentenced him to undergo R.I. for two years each for the aforesaid offences. 2. The case of prosecution in short as per the written report (Ext.-1) is that in between 1988-89 appellant (Junias Guria) was posted as Special Officer, Schedule Area Regulation, Ranchi. It is alleged that while functioning so, appellant passed various orders and judgments against the law after accepting huge amount of money from different persons. It is alleged that in SAR. Case No. 83 of 1983, appellant took signature of landowner Binod Oraon on the receipt to show payment of com-pensation, but without making payment, he misappropriated the same. It is alleged that for the aforesaid act of appellant a case bearing Kotwali P.S. Case No. 293 of 1989 instituted, but in spite of that, the appellant has not been arrested. It is further alleged that the appellant passed various irregular and illegal orders in S.R. Case Nos. 43 of 1986, 419 of 1985, 9 of 1985-86; Misc. Case Nos. 132, 136, 148, 163, 244, 257, 355, 356 of 1988..89 after taking bribe from different persons. 3. It appears that on the basis of Ext.-1, Vigilance P.S. Case No. 20 of 1989 instituted. It further appears that after completing investigation, police submitted charge-sheet under Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act, 1947 corresponding to Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 respectively. It appears that court below after appearance of appellant framed charges under Section 7 and Section 13(2) of Prevention of Corruption Act, 1988. The said charges read over to the appellant to which he pleaded not guilty and claimed to be tried. 4, Thereafter prosecution examined altogether 9• witnesses in support of its case. It appears that two witnesses, i.e. C.W.-1 and C.W.-2, examined as court witness, After close of the case of prosecution, statement of appellant recorded under Section 313 of the Cr.P.C. in which the defence of appellant is of total denial. 4, Thereafter prosecution examined altogether 9• witnesses in support of its case. It appears that two witnesses, i.e. C.W.-1 and C.W.-2, examined as court witness, After close of the case of prosecution, statement of appellant recorded under Section 313 of the Cr.P.C. in which the defence of appellant is of total denial. He also took defence that he has been falsely implicated in the present case because he did not favour P.W. 2 in the case filed by him. It appears that learned court below after considering the evidences available on record come to the conclusion that appellant has committed irregularities in passing various orders in different cases with motive to make favour and/or disfavour to the parties concerned, therefore committed offences punishable under Section 7 and Section 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988. Accordingly appellant was convicted and sentenced, against that present appeal filed. 5. While assailing the impugned judgment Mr. Jaiprakash, Senior Advocate, learned counsel for the appellant, submitted that in the instant case, there is absolutely no legal evidence to show that appellant accepted any illegal gratification from any person, nor there is any legal evidence to show that he had abused his position as a public servant and obtains for himself or for any other person any pecuniary advantage, thus, no offences under Sections 7 and 13(1)(d) of Prevention of Corruption Act, 1988 are made out. It is further submitted that P.W. 2, P.W. 4 and P.W. 5 had not stated that appellant had taken bribe and/or any pecuniary advantage from any person in their presence. They admitted in their depositions that they were making such allegations against the appellant on the basis of some oral complain received from some one. It . is submitted that as per aforesaid admission of P.W. 2, P.W. 4 and P.W. 5, it is clear that they are hearsay witnesses, therefore, their evidences cannot become the basis for conviction. Mr. Jaiprakash further submitted that appellant while deciding cases as Special Officer, SAR, act as a Judge, therefore he is entitled to get protection under Judges Protection Act, 1985. Accordingly, it is submitted that impugned judgment of conviction and order of sentence cannot be sustained in this appeal. 6. On the other hand, Mr. A.K. Kashyap, Sr. Mr. Jaiprakash further submitted that appellant while deciding cases as Special Officer, SAR, act as a Judge, therefore he is entitled to get protection under Judges Protection Act, 1985. Accordingly, it is submitted that impugned judgment of conviction and order of sentence cannot be sustained in this appeal. 6. On the other hand, Mr. A.K. Kashyap, Sr. Advocate, appearing for Vigilance, submits that various irregularities committed by the appellant in passing the orders goes• to show that he has passed the said orders after taking bribe and/or pecuniary advantage from the parties concerned, therefore he committed offences under Sections 7 and 13(1)(d) of Prevention of Corruption Act, 1988. It is further submitted that appellant is not a judicial officer. He then submits that while functioning as Special Officer, Schedule Area Regulation, appellant was not empowered to give any definitive judgment. Therefore he was not a Judge, as defined under Judges Protection Act, 1985. Accordingly it is submitted that appellant was not entitled to get protection under the' said Act. It is submitted that there is no illegality and/or irregularity in the impugned judgment which requires any interference by this Court. 7. Having heard the submissions, I have gone through the record of case. Before going into the facts of the case, it is appropriate to quote Section 7 and Section 13(1 )(d) of Prevention of Corruption Act, 1988 which run as follow:- Section 7. 7. Having heard the submissions, I have gone through the record of case. Before going into the facts of the case, it is appropriate to quote Section 7 and Section 13(1 )(d) of Prevention of Corruption Act, 1988 which run as follow:- Section 7. Public servant taking gratification other than legal remuneration in respect of an official act.-Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. Explanation.-(a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section. (b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the• Government or the organisation, which he serves, to accept. (d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus, induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section. Section 13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct,- (a) .......................... (b) .......................... (c) ...,....................... (d) if he, (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest. 8. From the plain reading of aforesaid provisions, I find that before convicting a person for the offences under Sections 7 and 13(1)(d) of Prevention of Corruption Act, 1988, it is mandatory for the prosecution to prove: (i) That accused is a public servant at the time of commission of offence, and (ii) Accused accepted Illegal gratification or any other pecuniary benefit from any person as motive or reward for doing or forbearing to do any official act or for showing any favour or disfavour to someone in exercise of his official functions. 9. In the instant case appellant has been charged to have accepted huge amount of money from different persons as a motive or reward for showing favour or disfavour to them in exercise of his official functions. Thus, in my view, it is necessary to prove that appellant accepted bribe or any other pecuniary benefit from any person, while discharging duties as Special Officer, Schedule Area Regulation, Ranchi. 10. In the instant case, some members, of' Joint Action Committee of Jharkhand Mukti Morcha have filed complaint (Ext.-1) against the appellant, on the basis of same first information report lodged. 10. In the instant case, some members, of' Joint Action Committee of Jharkhand Mukti Morcha have filed complaint (Ext.-1) against the appellant, on the basis of same first information report lodged. It appears that two members of the said action committee namely Jogesh Oraon and Bhai Helen Kujur examined in this case as witnesses i.e. P.W. 2 and P.W. 4. From perusal of evidences of P.W. 2 and P.W. 4 I find that they admitted in their deposition that they lodged a complain against the appellant on the basis of some oral complain received by them from public at large. They further deposed that on the basis of complain of public, they made enquiry, then they lodged complain before Special Judge, Vigilance. I find that aforesaid witnesses did not disclose the name of the person who paid bribe to the appellant. They said that during enquiry some body told them that appellant used to take bribe in discharge of his official duties. 10A. Under the said circumstance, I find that aforesaid witnesses made allegations against the appellant merely on the basis of some oral complain received from public at large. Even name of persons, from whom they received such complain, has not been disclosed. Thus, I find that they are hearsay witnesses, therefore their evidences cannot be looked into, as the same are not admissible under the law. 11. Apart from aforesaid two witnesses, prosecution also relied on the evidence of Sudhansu Kachhap (P.W. 5). This witness appears to be the first party of Restoration Case No. 17 of 1987-88. He deposed that in the aforesaid case, an ex parte order passed in his favour, but the said ex parte order recalled on the application made by opposite party. He did not allege that appellant accepted bribe from opposite party for recalling ex parte order. He accepts that he has not moved before higher authority against the aforesaid order. Under the said circumstance, I find that even the evidence of P.W. 5 is of no help to the prosecution to prove the charges levelled against the appellant. In this respect, it is worth mentioning that P.W. 7, who happens to be one of the Investigating Officer, had stated at paragraph no. 5 of his deposition that during the investigation, he did not find any evidence to show that accused (appellant) had accepted bribe from any person. In this respect, it is worth mentioning that P.W. 7, who happens to be one of the Investigating Officer, had stated at paragraph no. 5 of his deposition that during the investigation, he did not find any evidence to show that accused (appellant) had accepted bribe from any person. The aforesaid statement of Investigating Officer gives a big jolt to the prosecution case. 12. It is not out of place to mention that learned court below in the last of pa~agraph no. 13 of impugned judgment had stated that from perusal of various records, it appears that Junius Guria (appellant) had committed some irregularities while passing orders in various cases. But court below, without giving any finding that appellant committed such irregularities after taking bribe and/or accepting pecuniary benefit from. any party, convicted him under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. Under the said circumstance, I conclude that aforesaid findings of the court below are based on conjecture and surmises, as there is no legal evidence to suppol1 such findings. 13. Since there is no legal evidence available on record to show that the appellant has accepted illegal gratification or any pecuniary benefit by misusing his official position, I find that charges levelled against the appellant have not been proved. Therefore, impugned judgment of conviction and order of sentence cannot be sustained in this appeal. 14. Since I have already come to the conclusion that impugned judgment cannot be sustained, thus, I am of the view that second point raised by Mr. Jaiprakash that appellant is entitled for protection under the Judges Protection Act is not required to be dealt with, because same will remain an academic discussion. 15. In the result, this appeal is allowed. Impugned judgment of conviction and order of sentence are set aside. Appellant is acquitted from the charges levelled against him. He is also discharged from the liability of bail bonds furnished by him.