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2012 DIGILAW 287 (UTT)

STATE OF U. P. v. TEJ PAL

2012-06-15

SERVESH KUMAR GUPTA

body2012
JUDGMENT Hon’ble Servesh Kumar Gupta, J. This is a Government Appeal against the judgment and order of acquittal dated 20.1.1999 rendered by the Special Judge, Tehri Garhwal while adjudicating the Special Trial No. 8/1998, State v. Tej Pal Singh and 3 Others. The learned Judge tried the accused respondents Tej Pal Singh, Nand Lal, Pradeep Kala and Nanhe for the offences under Section 7 read with Section 13, Section 8 read with Section 13 of the Prevention of Corruption Act, 1988 (for brevity, hereinafter referred to as the ‘Act’) nay the offence of Section 420 read with Section 109 IPC, PS Narendra Nagar, District Tehri Garhwal and after conclusion of the trial, all the four accused persons were acquitted. Hence, this appeal has been filed on behalf of the State. 2. Co-accused Pradeep Kala (respondent no. 3) died during the pendency of appeal, hence appeal against him was abated by this Court vide order dated 27.3.2012. 3. It would be worthwhile to mention that Tej Pal Singh was Reserve Inspector of Police at Police Line, Narendra Nagar. Nand Lal was the Peon of the Sports Officer, who was posted in the adjacent district Rudraprayag. Pradeep Kala was a Teacher in Narendra Nagar and Nanhe was the Sweeper posted in the Police Line, Narendra Nagar, District Tehri Garhwal. Sports Officer along with his peon Nand Lal came from his original place of posting Rudraprayag to the place of occurrence at Narendra Nagar in connection with the recruitment of 50 police constables, which commenced on 30.6.1997 onwards and the said process was completed within five weeks. It can be discerned that for the recruitment of 50 police constables, thousands of candidates must have applied to get employment in the lowest rung of the police. It was a tough competition, which involved several physical tests to judge the fitness and competency of the candidates, besides the written examination and interview. It can also be understood that in such recruitments, the Reserve Inspector of Police Line plays a significant role, particularly in conducting the various tests pertaining to the physical fitness of the incoming candidates and so was the task assigned to Tej Pal Singh, which he was performing at the relevant time. Nonetheless, he was not in the Core Committee, which was directly responsible for conducting the various examinations for judging the suitability of the candidates. Nonetheless, he was not in the Core Committee, which was directly responsible for conducting the various examinations for judging the suitability of the candidates. All the same, it cannot be gainsaid that Tej Pal Singh being the Reserve Inspector of Police had his prominence over the entire scenario of conducting the various examinations in sundry manner. 4. The process began for selecting the candidates and after completion of the same, 50 candidates were finally selected. After their selection, the Superintendent of Police, Tehri Garhwal Mr. Abhay Kumar Prasad, who was the President of the selection committee called the gathering of all the selected candidates in the recreation room of the Police Line on 6.8.1997. He vociferously delivered a speech among all the candidates in the presence of other members of the committee and subordinates staff and stated that the examination/various tests of the candidates were conducted in a very impartial and transparent manner and the candidates have got their selection on the strength of their own competency and ability. Superintendent of Police Mr. Prasad wanted to rule out the complicity of any member of the subordinate staff from being indulged in the corrupt practices and taking undue advantage or illegal gratification from any of the candidates so selected. 5. In the first instance, since all the candidates belonging to the lower middle strata of the society facing a galloping problem of unemployment got the job, so they were initially scared and reluctant to disclose anything foul, but being encouraged by the speech of Superintendent of Police, one of the candidates got up and disclosed that rupees five thousand was taken by the Reserve Inspector of Police Tej Pal Singh from him in consideration for his advancement in the recruitment. Having been boosted up by the said disclosure of one of the candidates, another candidate Upendra Singh Bhandari also got up and told that rupees forty thousand was taken by the same Reserve Inspector through the sweeper Nanhe. Superintendent of Police immediately called the sweeper Nanhe, who was a Government Servant, posted in the police line itself, and asked to disclose the true facts. Superintendent of Police immediately called the sweeper Nanhe, who was a Government Servant, posted in the police line itself, and asked to disclose the true facts. Nanhe was not ready to disclose the true facts, but when scolded by the Superintendent of Police, then he admitted the taking of rupees forty thousand and out of that rupees forty thousand, he had given rupees thirty thousand to Tej Pal Singh, Reserved Inspector of Police, rupees five thousand to co-accused Pradeep Kala, another mediator, and pocketed remaining amount of rupees five thousand as his own share. The Reserve Inspector was away from the headquarters on that day and was on duty at Kumbh Mela at Haridwar. He was immediately called by the Superintendent of Police from Haridwar. 6. Having received the call of the Superintendent of Police, Tehri through his superior officers, the Reserve Inspector reached to Tehri in the late evening on 6.8.1997. On being questioned, he disclosed the affairs and admitted the taking of the money. He also returned rupees thirty thousand at the same time to the Superintendent of Police Mr. Prasad. Since it was late in the evening, so the Superintendent of Police directed to keep this money in the treasury of the Police Line itself. On the next day i.e. on 7.8.1997, the candidates were again called in the same recreation room and the money of different candidates, namely, Upendra Singh Bhandari, Dan Singh, Neelam Das were respectively returned to them. Memos of recovery and return of money were prepared which are Ex. A-5 to A-8. 7. The Superintendent of Police entrusted the matter for preliminary enquiry to Deputy Superintendent of Police Mr. N.S. Naptiyal vide letter no. ST-Shipi.-6-11/97 dated 6.8.1997. Mr. Naptiyal conducted the preliminary enquiry, which resulted into submission of his detailed report Ex. A-3 within two days i.e. on 8.8.1997. It can be understood that this enquiry was completed very quickly because all the recruited candidates, who were the victims of compulsion of parting with the money from them in consideration of their recruitment, were present in the Police Line itself. So, the Deputy Superintendent of Police did not take much time to conclude the preliminary enquiry and submitted his report to the Superintendent of Police just within two days. After receiving this report, an FIR was lodged on 9.8.1997 at the instance of the Superintendent of Police. This FIR is Ex. So, the Deputy Superintendent of Police did not take much time to conclude the preliminary enquiry and submitted his report to the Superintendent of Police just within two days. After receiving this report, an FIR was lodged on 9.8.1997 at the instance of the Superintendent of Police. This FIR is Ex. A-1, which was lodged by Mr. Naptiyal himself. 8. The investigation was conducted again by an officer of the rank of Deputy Superintendent of Police Mr. D.K. Thapliyal, who has been examined as PW15. To make the investigation fair, the said officer, who was entrusted with this investigation, was selected from another district Pauri Garhwal. 9. Mr. Thapliyal submitted the chargesheet dated 17.6.1998 against all the abovenamed accused persons for the offences stated above. The charges were accordingly levelled against the accused persons. They abjured from the guilt and claimed trial. 10. Prosecution has examined as many as 16 witnesses. Out of these witnesses, PW3, PW4, PW5, namely, Constable Upendra Singh, Constable Dan Singh and Constable Neelam Das respectively were the candidates who participated in the competition for the recruitment of constables and undergone the various tests including physical tests conducted by the Reserve Inspector Tej Pal Singh. 11. PW1 Ummed Singh, PW2 Jairam, PW6 Raju Bharti, PW7 Kishor, PW8 Munna, PW12 Lalit Mohan Kala and PW13 Munshi Lal turned hostile and they did not support the prosecution version. But their hostility in not supporting the prosecution version does not affect the merits of the case because all these witnesses are not so important. All of them are the civil persons, who were either the guardians or parents of other candidates and were asked to sign upon the memo of recovery of the money made from Tej Pal Singh, Nanhe (sweeper) or the memos prepared for the return of the money to Upendra Singh, Dan Singh and Neelam Das. This is a normal tendency of an ordinary civil person not be become a witness in order to avoid the web of innumerable hassles of a trial and that too at the cost of inviting the wrath of a police officer of the rank of Reserve Inspector Tej Pal Singh, besides the other Government Servants. 12. However, all the three abovenamed selected constables have supported the prosecution version in their respective testimony. 12. However, all the three abovenamed selected constables have supported the prosecution version in their respective testimony. PW3 Upendra Singh has proved that rupees forty thousand were given by him to Tej Pal Singh, the Reserve Inspector through the sweeper Nanhe. Likewise, other police constables PW4 Dan Singh and PW5 Neelam Das have also proved parting of the money from them to Reserve Inspector Tej Pal Singh. Their version finds the absolute support from the memo Ex. A-5, which was prepared by SI Meghraj Singh of the Police Line Narendra Nagar in the presence of Superintendent of Police, which testifies the return of rupees forty thousand by Tej Pal Singh, the main accused when he was rebuked by the Superintendent of Police on 6.8.1997 after calling him from Haridwar. This Ex. A-5 also bears the signatures of Tej Pal Singh himself. The writer of this memo Meghraj Singh has been examined as PW11 and he has proved the preparation of the said memo in the presence of the Superintendent of Police. 13. Another important memo corroborating the facts of entire episode is Ex. A-6, which was again prepared by Meghraj Singh and has also been proved by him. It also adverts the return of money worth rupees five thousand from Tej Pal Singh. It also bears the signature of Tej Pal Singh. Other exhibits A-7 & A-8 divulge the return of different amount of money to the candidates from whom the said money was taken by Tej Pal Singh through his agents Nanhe, Pradeep Kala and Nand Lal. 14. Learned Counsel for the accused respondents raised several points of defence. His most crucial point of defence is that to initiate the prosecution against the accused for any offence under the Act, the previous sanction under Section 19 of the Act was indispensable. Without obtaining the prior sanction, no proceeding under the Act can be drawn by any Court against a Government Servant. Learned Deputy Advocate General (Criminal) admits this lapse on the part of the prosecution. So, here this Court finds that no prosecution for any alleged offence under the Act could have been conducted by the trial court. But unfortunately, this aspect has nowhere been discussed in the impugned judgment and order. This way, on this technical ground the accused persons could not have been held guilty for the offence under the Act. 15. So, here this Court finds that no prosecution for any alleged offence under the Act could have been conducted by the trial court. But unfortunately, this aspect has nowhere been discussed in the impugned judgment and order. This way, on this technical ground the accused persons could not have been held guilty for the offence under the Act. 15. Another defence put forth by the learned Counsel is that to conduct the trial under the Act, the Uttar Pradesh Government (at the time of occurrence) had issued a notification no. 3590/VI/P/9/91-315-73 dated October 16, 1991 which notified the area of Special Judge, Anti Corruption (East) with headquarters at Dehradun to try the offences under the Act pertaining to District Garhwal and Tehri Garhwal. So, it has been argued that the trial under the Act could have been conducted only by the Special Judge having its posting at Dehradun. 16. The contention of learned Counsel for the accused respondents is probably not acceptable because the case has been tried by the District & Sessions Judge, Tehri Garhwal not in the capacity of Sessions Judge, but in the capacity of a Special Judge. Special Judge, Tehri Garhwal might have been entrusted the powers to try such cases even after the above notification, which was issued by the Government of U.P. in October, 1991. A Special Judge while trying and adjudicating such trials is not supposed to mention its special powers and the particulars of the notification whereby he is entrusted with the powers to try such cases. The Court deems that such notification issued subsequent to the notification dated 16.10.1991 must certainly have been available in the guard file of the Judgeship of District Tehri Garhwal. 17. Even otherwise, the trial was not only for the offence of Prevention of Corruption Act, but also for the offences of Section 419 & 420 IPC. The Court deems that such notification issued subsequent to the notification dated 16.10.1991 must certainly have been available in the guard file of the Judgeship of District Tehri Garhwal. 17. Even otherwise, the trial was not only for the offence of Prevention of Corruption Act, but also for the offences of Section 419 & 420 IPC. The contention that this was a composite trial and once it was vitiated for any technical ground like absence of previous sanction for conducting the trial for any offence under the Act, then it was also vitiated for rest of the offences pertaining to the Indian Penal Code is not acceptable because offence of Section 420 IPC is an independent offence and the cheating on the part of Tej Pal Singh, Reserve Inspector, through his agents, by dishonestly inducing the prospective candidates of the police constabulary was evident from the oral as well as documentary evidence available on the record. Tej Pal Singh along with his agents/other accused persons received the money as illegal gratification and thus it was a wrongful gain to Tej Pal Singh and other accused persons, while on the other hand, it was a wrongful loss to the victims Upendra Singh, Dan Singh and Neelam Das. 18. It has further been contended in defence that the letter written by the Superintendent of Police on 6.8.1997 to Mr. Naptiyal, the Deputy Superintendent of Police has nowhere been produced before the trial court. This Court does not agree with the said contention because Mr. Naptiyal, an officer of the rank of Deputy Superintendent of Police, was a responsible officer and he conducted the detailed enquiry promptly within two days, which is available on the record as Ex. A-3. In the circumstances, the letter written by the Superintendent of Police looses its relevance for finding out the truth in the controversy. 19. It has been further argued that Mr. N.S. Naptiyal had enclosed several enclosures along with his enquiry report, but those were not brought on the record. This argument is also not tenable for the reason that the said annexures were the statements of the witnesses recorded by Mr. Naptiyal, the Deputy Superintendent of Police at the time of preliminary/basic stage in order to find out the truth and he has finally submitted his elaborate enquiry report on 8.8.1998, which is Ex. A-3. This argument is also not tenable for the reason that the said annexures were the statements of the witnesses recorded by Mr. Naptiyal, the Deputy Superintendent of Police at the time of preliminary/basic stage in order to find out the truth and he has finally submitted his elaborate enquiry report on 8.8.1998, which is Ex. A-3. He has also proved this report in the trial court. Besides after lodging the FIR, independent investigation was again conducted by an officer of the rank of Deputy Superintendent of Police, who was posted in another district and he recorded the statements of all the witnesses in his case diary, which made the basis for the submission of the chargesheet. This way, the investigation was quite fair. So, prowling imaginative doubts in the entire prosecution story on the basis of various conjectures and surmises is something which should not be accepted by the Court. 20. The learned Counsel on behalf of the respondents have pointed out certain minor discrepancies here and there in the prosecution story. But these are not of very glaring nature. He tried to blow the same out of proportion and make these minor discrepancies to the size of mountains in order to obliterate the truth, which is not tenable. 21. For the reasons recorded above, the offence under Section 420 IPC is proved against the accused respondents beyond any shadow of doubt. Hence, the appeal is acceptable. 22. Accordingly, the appeal is allowed. Impugned judgment and order of acquittal dated 20.1.1999, rendered by the Special Judge, Tehri Garhwal in the Special Trial No. 8/1998, State v. Tej Pal Singh and 3 Others, is hereby set aside. This Court hold the accused respondents, namely, Tej Pal Singh, Nand Lal and Nanhe guilty of the offence punishable under Section 420 IPC and they are sentenced as under: (i) Tej Pal Singh is sentenced with rigorous imprisonment for a period of three years along with fine of rupees ten thousand. In default of payment of fine, he will further undergo two months’ simple imprisonment. (ii) Accused Nand Lal and Nanhe, having played subsidiary role, are sentenced with rigorous imprisonment for a period of two years and fine of rupees five thousand each. In default of payment of fine, one month’s simple imprisonment is imposed. In default of payment of fine, he will further undergo two months’ simple imprisonment. (ii) Accused Nand Lal and Nanhe, having played subsidiary role, are sentenced with rigorous imprisonment for a period of two years and fine of rupees five thousand each. In default of payment of fine, one month’s simple imprisonment is imposed. (iii) Co-accused Pradeep Kala died during the pendency of this appeal and hence, the appeal against him was abated by this Court vide its order dated 27.3.2012. 23. Let a copy of this judgment and order be sent to the trial court for compliance. Lower court record be sent back.