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Himachal Pradesh High Court · body

2013 DIGILAW 844 (HP)

Suresh Kumar v. State of H. P.

2013-09-25

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. (Oral): Challenge herein is to the judgment dated 8.12.2011, passed by learned Special Judge, Solan in Corruption Case No.1-S/7 of 2010, whereby the appellant (hereinafter referred to as “the accused” for short) has been convicted under Section 7 read with Section 13(2) of Prevention of Corruption Act (hereinafter referred to as “the Act” for convenience sake) and sentenced to undergo rigorous imprisonment for one year and to pay `10,000/- as fine each under Sections 7 and 13(2) of the Act. 2. Admittedly, the accused was working as Superintendent Grade-II in the office of Licensing Authority, Nalagarh, District Solan. PW-1 Gurcharan Dass, who is the complainant, visited the office of accused on 9.6.2009 in connection with renewal of his driving licence. The accused allegedly proclaimed that in case it is only renewal of the licence, a sum of ‘1,000/- would be required for the purpose and in case of issuance of new licence, such amount would be ‘3,500/-. Therefore, the accused allegedly demanded ‘1,000/- as bribe from the complainant for renewal of his driving licence. The complainant was not interested to pay Rs.1000/- to the accused as bribe. Therefore, he reported the matter to the police of Police Station, State Vigilance & Anti Corruption Bureau, Solan, on 15.6.2009 around 6 a.m. Consequently, the police party headed by Inspector Kewal Ram proceeded towards Baddi and met the complainant at Hotel Panchkoha, where his friend PW-2 Vinod Kumar was also present with him. His statement Ext. PW1/A under Section 154 Cr. P.C. was recorded by PW-14 Inspector Kewal Ram. On the basis thereof, FIR Ext. PW12/E was registered. 3. The complainant produced two currency notes in the denomination of Rs.500/- each before PW-14, who after having given the demonstration as to how the mixture of phenolphthalein and sodium carbonate turns into pink and treating the currency notes with phenolphthalein powder, handed over the same to the complainant. He was directed to hand over the treated currency notes to the accused on demand. PW-2 Vinod Kumar, the shadow witness, was also directed to give the agreed signal to the police party, the moment currency notes are received by the accused. The accused and the shadow witness thereafter went to the office of the accused on a motor-cycle. They were followed by the police team, headed by PW-14. PW-2 Vinod Kumar, the shadow witness, was also directed to give the agreed signal to the police party, the moment currency notes are received by the accused. The accused and the shadow witness thereafter went to the office of the accused on a motor-cycle. They were followed by the police team, headed by PW-14. While the complainant and the shadow witness entered into the office premises, the police party remained outside the office. It is the complainant, who went inside the office, whereas the shadow witness remained outside the door of the office in the balcony. Complainant abruptly came out side the office of the accused and after some time again went inside and it is thereafter, the shadow witness passed on the agreed signal to the police. On receipt of the signal, the police party entered into the office premises and found the accused present on his seat. Complainant disclosed to the police that the accused did not receive the money and rather directed him to put the currency notes into a book, which after putting the currency notes therein, was kept by the accused in the drawer of his table. Two currency notes in the denomination of Rs.500/- each, were found kept in the book. The same were taken into possession alongwith the book. Further investigation took place on the spot and various memos were prepared there. 4. Sanction to prosecute the accused was sought by the Investigating Agency from the Divisional Commissioner, Shimla Division, Shimla, however, the same was declined vide order dated 22.1.2009 Ext. DX. Report under Section 173 Cr. P.C. was filed against the accused in the Court of Special Judge, Solan. 5. Learned trial Judge having gone through the evidence collected by the Investigating Officer and also the given facts and circumstances, proceeded further against the accused and charge sheeted him under Sections 7 and 13(1 )(d) read with Section 13(2) of the Act. 6. The prosecution in order to sustain the charge against the accused has produced 15 witnesses in all and also placed reliance on documentary evidence. On the other hand, the accused in his defence has stated that the case against him has been registered falsely at the instance of Ishwar Singh and Naresh Kalia in connivance with the complainant, the shadow witness and the police. On the other hand, the accused in his defence has stated that the case against him has been registered falsely at the instance of Ishwar Singh and Naresh Kalia in connivance with the complainant, the shadow witness and the police. He has also examined four witnesses in order to substantiate the plea so raised in his defence. 7. Learned trial Court after holding full trial and also analyzing the evidence produce by the prosecution and the accused during the course of trial, has concluded that a case for the commission of offence punishable under Sections 7 and 13(2) of the Act stands proved against the accused and as such, he has been convicted and sentenced as pointed out hereinabove at the outset. 8.Shri Ramakant Sharma, Advocate, assisted by Ms. Soma Thakur, Advocate, has strenuously contended that sine qua non to bring the guilt home to the accused in a case of this nature is the demand of bribe by the accused from the complainant and its acceptance. Learned counsel has further canvassed that there is no iota of evidence to show that the accused demanded a sum of Rs.1000/- as bribe from the complainant and ultimately accepted it. It has also been pointed out from the record that instead of joining independent and respectable persons from the area, the Investigating Agency opted for associating PW-2 Vinod Kumar, who as per the evidence available on record, is a close friend of the complainant. It is also pointed out that even from the prosecution evidence itself, no case against the accused is made out and as such, the findings of conviction and sentence recorded by learned trial Judge are based on conjectures and surmises. It has also been emphasized that for want of prosecution sanction entire proceedings against the accused are vitiated. 9.On the other hand, learned Additional Advocate General has come forward with the version that on the basis of overwhelming evidence, oral as well as documentary, available on record, learned trial Judge has not committed any irregularity or illegality, while convicting and sentencing the accused. 10.First, I propose to adjudicate the last contention of Mr. Sharma that for want of prosecution sanction, the entire proceedings in this case are vitiated. 10.First, I propose to adjudicate the last contention of Mr. Sharma that for want of prosecution sanction, the entire proceedings in this case are vitiated. 11.Be it stated that the prosecution sanction was sought by the Investigating Agency vide letter No. SV&ACB (R-Hqrs/S/R.) Case (SLN)8/2009-22280 dated 17th December, 2009 from the Competent Authority, i.e. Divisional Commissioner, Shimla Division, Shimla, who having gone through the entire case file relating to this case, has declined the sanction to prosecute the accused, vide order dated 22/1/2009 Ext. DX, which on the face of it shows that the same is a speaking order supported with reasons. The Competent Authority, therefore, after due application of mind, has declined the sanction as sought by the Investigating Agency, to prosecute the accused. 12. Learned trial Judge has dealt this aspect of the matter and observed that sanction to prosecute the accused was declined by the competent authority at such a stage, when the accused stood already retired from service on attaining the age of superannuation, however, without recording any findings qua impact of refusal of prosecution sanction by the competent authority in this case. The prosecution sanction in a case of this nature is not merely an idle formality, but the same is essentially required to prosecute a government servant facing charge of corruption. Section 19 of the Act has been incorporated to protect a government servant from false prosecution. The law on the point is no more res integra, as the Apex Court in a recent judgment in State of Maharashtra through CBI Vs. Mahesh G. Jain, (2013) 8 SCC 11, while discussing the necessity of obtaining prosecution sanction in a case of this nature, has held as under: “6. Grant of sanction is irrefragably a sacrosanct act and is intended to provide safeguard to a public servant against frivolous and vexatious litigations. Satisfaction of the sanctioning authority is essential to validate an order granting sanction.” 13.It is further held in this judgment that the prosecution is required to prove the grant of a valid sanction by the competent authority and also that the sanction is a pre-requisite to launch criminal proceedings against an offender booked for the commission of an offence under the Act. The ratio of this judgment to this effect is reproduced as under: “14. From the aforesaid authorities the following principles can be culled out: 14.1. The ratio of this judgment to this effect is reproduced as under: “14. From the aforesaid authorities the following principles can be culled out: 14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. 14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution. 14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him. 14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. 14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. 14.6. If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction. 14.7. The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity.” 14.The present is a case where the competent authority has declined to grant the sanction to the Investigating Agency for prosecution of the accused. Therefore, in view of the law laid down by the Apex Court in the judgment cited supra, entire proceedings against the accused are vitiated and his conviction deserves to be quashed and set aside on this ground alone. 15. Apart from the aforesaid reason, even on merits also, the demand of Rs.1000/- by the accused from the complainant is not proved beyond all reasonable doubt for the reason that PW-5 Chaman Lal, Registration Clerk in the office of Licencing Authority, Nalagarh, has stated that file Ext. P7, pertaining to renewal of licence of the complainant was marked to him by the accused on the same day and thereafter it was brought to him by the complainant himself. P7, pertaining to renewal of licence of the complainant was marked to him by the accused on the same day and thereafter it was brought to him by the complainant himself. His statement in the cross-examination reveals that the complainant came to him alongwith the file before lunch straightway without getting the same marked from the Superintendent (accused) and hence, he directed him to get the file marked to him from the accused. It is after 10-15 minutes of getting the file marked from the accused, the complainant brought the same to him. 16.Now if coming to the prosecution case, the raid was conducted around 3 p.m. The testimony of PW-5 Chaman Lal demolishes the entire prosecution case for the reason that when the accused marked the file to the said witness in pre-lunch sessions itself, there was no occasion to the complainant to give Rs.1000/- as bribe to him in the post lunch session, particularly when the accused had already marked his file to the clerk concerned. No other and further evidence has been produced by the prosecution except for own statement of the complainant, to show that the accused had demanded Rs.1000/- as bribe from the accused for getting the same marked to the dealing clerk. Demand of Rs.1000/- as bribe by the accused from the complainant is, therefore, not proved beyond all reasonable doubt. 17.If coming to the acceptance of two currency notes in the denomination of Rs.500/- each by the accused, again there is no cogent and reliable evidence available on record, except for own statement of the complainant. Even the statement of the complainant also reveals that the accused never accepted the treated currency notes and asked him to put the same in the book “Central Motor Vehicle Rules” which allegedly was taken out from the drawer of his table. The complainant allegedly put the currency notes in that book and the same was again kept by the accused in the drawer of his table. The present, therefore, is not a case of acceptance of bribe by the accused and at the most it is recovery from a book, which was lying in the drawer of his table. The complainant allegedly put the currency notes in that book and the same was again kept by the accused in the drawer of his table. The present, therefore, is not a case of acceptance of bribe by the accused and at the most it is recovery from a book, which was lying in the drawer of his table. The possibility of treated currency notes having been kept in the book, in the absence of the accused from his seat cannot be ruled out, as DW-4 Ram Nath, who was working as Daftri in the office of Registering and Licencing Authority, Nalagarh, noticed the presence of one person near the seat of the accused on 15.6.2009 around 1.45 p.m., when the accused, on account of lunch time, was not available in the office. According to this witness, the said person was handling with the papers lying on the table of the accused. On inquiry by DW-4 from him as to what he was doing there, the said person disclosed that he had come in connection with some work. DW-4 Ram Nath advised the said person to come at 2 p.m. when the accused would also be present after lunch break. DW-4 had also noticed one book in the hand of that person. While in the witness box, DW4 has further deposed that he can identify the said person, if produced before him. Such testimony of DW-4 remained un-shattered, as neither cross- examined nor any suggestion to the contrary given to him in his cross-examination. No doubt, two currency notes in the denomination of Rs.500/- each were recovered from the book, which was taken out from the drawer of the table of accused, as stated by PW-4 Amarjit Singh, Senior Assistant, whose seat was adjoining to that of the accused in the same room, however, it has come in his cross-examination that the accused, on account of lunch hours, had left the office on that day from 1.30 to 2 p.m. and returned late after lunch hours around 3 p.m. and well before to it around 2.45 p.m., the complainant was seen in the office. He has denied having made any statement to the police during the course of investigation that the currency notes were received by the accused from the complainant. He has denied having made any statement to the police during the course of investigation that the currency notes were received by the accused from the complainant. 18.If coming to the testimony of shadow witness PW-2 Vinod Kumar, it leads to the only conclusion that he did not hear any conversation nor did he notice any activity having taken place on the seat of the accused. Rather, it is the complainant, who abruptly came out of the room of the accused and then reentered, most probably to apprise PW-2 by way of his presence outside the office qua payment of bribe money to the accused. The present, therefore, is a case where PW-2 did not witness the acceptance of bribe i.e. two currency notes in the denomination of Rs.500/- each by the accused from the complainant and rather, passed on the agreed signal to the police party, believing the payment thereof having been made to the accused, just on account of presence of the complainant for a moment outside the office and then reentering inside the office. 19.Therefore, the present is a case where neither the demand of bribe nor the acceptance thereof by the accused is at all proved. The gravamen of the offence of this nature is the demand of bribe and its acceptance by the accused. The present is a case, where at the most, it can be said that the treated currency notes had been recovered from a book, which was lying in the drawer of the table of accused. Mere recovery of the tainted money in this manner, however, is not sufficient to bring the guilt home to the accused. In a case titled Rakesh Kapoor Vs. State of Himachal Pradesh, 2013 (1) RCR (Criminal) 21 1, having more or less similar facts and evidence, the Apex Court has held that in the absence of proof of demand and acceptance of bribe, the accused is entitled to the benefit of doubt. 20.Yet again, the prosecution case suffers from another infirmity on account of non-joining of independent and respectable persons as witnesses during the alleged trap proceedings. The law laid down by the Apex Court and various other High Courts by way of judicial pronouncements qua this aspect of the matter, emphasizes the need of joining independent and respectable persons as witnesses in a trap case. The law laid down by the Apex Court and various other High Courts by way of judicial pronouncements qua this aspect of the matter, emphasizes the need of joining independent and respectable persons as witnesses in a trap case. The law laid down by the Apex Court in Ganga Kumar Srivastava Vs, State of Bihar, (2005) 6 SCC 211 , can be pressed into service qua this aspect of the matter, which reads as follows: “20. We must not forget that in a trap case the duty of the officer to prove the allegations ma .de against a Government officer for taking bribe is serious, and therefore, the officers functioning in the Vigilance Department must seriously endeavour to secure really 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 whether or not any money was paid to the public servant by way of bribe. It is also the duty of the officers in the Vigilance Department to safeguard for the protection of public servants against whom a trap case may have been laid.” 21.In the case in hand, besides the complainant, another witness associated in the trap is PW-2 Vinod Kumar, the shadow witness. He is none-else, but a friend of the complainant, as he himself has admitted while in the witness box that Vinod Kumar is his friend since childhood. It is not understandable as to what prevented the Investigating Officer from joining someone either from Hotel Panchkoha itself or from nearby vicinity to witness the trap proceedings to remove all possible doubts with respect to the genuineness and authenticity of prosecution case. Therefore, non-joining of independent and respectable persons as witnesses is also fatal to the prosecution case. 22. The remaining oral evidence as has come on record by way of the statements of official witnesses could have been used as link evidence, had the prosecution been otherwise able to prove its case beyond all reasonable doubt against the accused and as such need not be discussed in detail. `23. Now, if coming to the defence of the accused, as emerges from the trend of the cross-examination of the prosecution witness and also the reply to question No.19, in his statement under Section 313 Cr. `23. Now, if coming to the defence of the accused, as emerges from the trend of the cross-examination of the prosecution witness and also the reply to question No.19, in his statement under Section 313 Cr. P.C, he has raised, the same reads as follows: “I am innocent and have been falsely implicated in this case and the case has been registered at the instance of Ishwar Singh, Naresh Kali in connivance with complainant and shadow witness and in connivance with the Vigilance Official.” 24. The plea so raised by the accused not only seems to be plausible but also nearer to factual position for the reason that plaint Ext. DW3/A and judgment Ext.DW3/B make it crystal clear that the accused had instituted a civil suit against Ishwar Singh aforesaid, who is in relations of the complainant, as the latter himself admits in his cross- examination. 25. Another material piece of evidence is Ext. DW1/A, detail of calls pertaining to cell phone No.98160-36232 of Ishwar Dass aforesaid for the period 1.6.2009 to 30.6.2009. It is seen from this document that on the day of occurrence, i.e. 15.6.2009, calls have been made by Ishwar Singh from this cell phone to PW-15 Inspector Hari Ram, who has partly investigated this case. Cell phone number of PW-1 5 Hari Ram is 94181-29973. Similarly, calls have also been made by Ishwar Singh from his cell phone to Naresh Kalia whose cell number is 94181-60417. Detail of calls Ext. DW1/A is proved by DW-1 Devinder Verma, Nodal Officer, Airtel, Kasumpti, Shimla. 26. The evidence so produced by the accused in his defence leads to the only conclusion that he has been falsely implicated in this case, may be at the instance of Ishwar Singh and Naresh Kalia, in connivance with the police. 27. Therefore, on re-appraisal of the evidence available on record and also analyzing the rival contentions, I find the present a case where learned trial Judge has failed to appreciate the evidence in its right perspective and recorded the findings of conviction against the accused erroneously. 28. As a matter of act, the present is a case, where the prosecution has miserably failed to bring the guilt home to the accused with the help of cogent and reliable evidence. The present, therefore, is a case where the accused is entitled to benefit of doubt and consequently acquittal. 29. 28. As a matter of act, the present is a case, where the prosecution has miserably failed to bring the guilt home to the accused with the help of cogent and reliable evidence. The present, therefore, is a case where the accused is entitled to benefit of doubt and consequently acquittal. 29. This appeal, therefore, succeeds and the same is accordingly allowed. Consequently, impugned judgment is quashed and set aside and the accused is acquitted of the charge under Sections 7 and 13(1)(d) read with Section 13(2) of the Act. The amount of fine, in case deposited by the accused, be refunded to him against proper receipt. Personal bond furnished by the accused stands cancelled and the surety bond discharged.