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2014 DIGILAW 1312 (PNJ)

Mangesh Kumar v. State of Haryana

2014-09-17

MAHAVIR S.CHAUHAN

body2014
Mahavir Singh Chauhan, J. 1. Convict, Mangesh Kumar, is in appeal against judgment of conviction/order of sentence dated 02.05.2009, whereby Court of learned Special Judge, Rewari, has convicted him under Sections 7 and 13 of the Prevention of Corruption Act, 1988 ('the Act' - for short) and sentenced him to rigorous imprisonment for a period of two and a half years with a fine amounting to Rs. 5,000/- and in default of payment of fine to further simple imprisonment for three months under Section 7 of the Act. 2. Case of the prosecution put as briefly as one may, is that the complainant-Piare Lal wanted to have mutation of land measuring 1 bigha 18 biswas belonging to his aunts, namely, Chalti and Barji entered and sanctioned in the name of his wife, but the appellant, who was posted as Patwari Consolidation, Rewari, demanded an amount of Rs. 2,500/- as illegal gratification to do the needful. Out of the total demanded amount of Rs. 2,500/-, complainant - Piare Lal paid him an amount of Rs. 1,000/- on an earlier occasion and promised to pay the balance amount of Rs. 1,500/- on 04.09.2006. However, the complainant did not intend to pay illegal gratification and, accordingly, appeared before the investigating officer, namely, Inspector Jagdish Parshad (PW-12) and narrated before him the entire sequence of events besides handing over to him a written complaint Exhibit PH. The complainant also produced before Inspector Jagdish Parshad (PW-12) an amount of Rs. 1,500/- in the form of one currency note of one thousand rupees and another in the denomination of five hundred rupees. Investigating Officer treated the currency notes with phenolphthalein powder and handed them back to the complainant with a direction to hand over these very currency notes to the appellant when illegal gratification was demanded by him. Head Constable Satish Kumar (PW6) was nominated as shadow witness and G.L.Yadav (PW-1) was joined as official witness with the raiding party. The shadow witness was instructed to accompany the complainant to the appellant and to over-hear the conversation and over-see the transaction between the two. Complainant was instructed to signal the shadow witness by raising his hand over his head and shadow witness to signal police party after the amount of illegal gratification had been demanded and accepted by the appellant. Accordingly, the patwarkhana, where the appellant was working was raided. Complainant was instructed to signal the shadow witness by raising his hand over his head and shadow witness to signal police party after the amount of illegal gratification had been demanded and accepted by the appellant. Accordingly, the patwarkhana, where the appellant was working was raided. Complainant (PW-5) and Shadow witness H.C. Satish Kumar (PW6) went to the office of the appellant and other members of the raiding party stayed a little away. The appellant asked about demanded money to which complainant Piare Lal replied in the affirmative and handed over to him the phenolphthalein treated currency notes. Thereafter the complainant gave signal to the shadow witness, who, in turn, passed it on to the raiding party. The spot was raided, tainted currency notes were recovered, hands of the appellant tested positive to the phenolphthalein-sodium carbonate test. Appellant was arrested. Statements of witnesses were recorded. After obtaining sanction, the appellant was challaned and was charged by the learned trial Court under Sections 7 and 13 of the Act. Appellant pleaded not guilty to the charge and claimed to be tried. In a bid to prove its case against the appellant, prosecution examined complainant - Pyare Lal as PW5, Head Constable Satish Kumar as PW6, G.L.Yadav as PW1, D.S.P Jagdish Parshad as PW12, Inspector Kurda Ram as PW11, Amar Singh as PW13, Draughtsman - Dharampal as PW4 and Sant Lal Patwari as PW7 in addition to other formal witnesses. 3. All the inculpating circumstances brought on record by the prosecution in its evidence were put to the appellant in his examination under Section 313of the Code of Criminal Procedure, 1973 ('Cr.P.C' for short). Appellant denied all these circumstances and while reiterating plea of his innocence and false implication submitted that the complainant - Pyare Lal came to him and wanted him to transfer the land in question directly in the name of his wife from the name of his aunts, namely, Chalti and Barji, which he refused to do as the land was to be inherited by Raghubir, after death of aforesaid Chalti and Barji. However, he did not examine any witness in his defence. 4. However, he did not examine any witness in his defence. 4. Learned trial Court on appraisal of the evidence available on record in the light of submissions made at the bar, concluded that the prosecution was able to prove appellant's guilt beyond reasonable doubt, and, accordingly, convicted him under Sections 7 and 13 of the Act, but sentenced him under Section 7 of the Act only, vide judgment/order dated 02.05.2009. 5. I have heard learned counsel for the parties. 6. It is vehemently argued by learned counsel for the appellant that the prosecution has failed to prove demand and acceptance of the amount of illegal gratification by the appellant in so far as the complainant- Pyare Lal (PW-5) has refused to support the prosecution story while evidence of PW-1 G.L.Yadav is unreliable in view of what has been stated by him in his cross-examination and that of PW-6 H.C. Satish Kumar is unworthy of acceptance for the reason that he happened to be a subordinate of PW-12 Jagdish Prashad (Investigating Officer) and no reasons have been given for preferring this official to an independent witness from the public. It has also been pointed out by learned counsel for the appellant that sanction for prosecution of the appellant is no sanction in the eyes of law. As per admission of PW-13 Amar Singh, the competent punishing authority S.C.Goyal, Director Consolidation Haryana, had appended his signatures on the draft of order of sanction as received from the investigating agency without application of mind to the facts and circumstances of the case. 7. Learned State counsel, on the other hand, defends the impugned judgment/order and submits that demand and acceptance by and recovery of the amount of illegal gratification from, the appellant have been proved beyond any manner of doubt by PW-6 H.C. Satish Kumar and his evidence is supported on all the fours by PW-1 G.L.Yadav and PW-12 Jagdish Prashad. According to learned counsel for the respondent - State mere recovery of the tainted money from the possession of the appellant is sufficient to maintain judgment of conviction recorded by the learned trial Court against him. 8. Nothing more has been urged on the either side. 9. There is no dispute as regards the standard of proof expected of the prosecution to fix guilt of an accused to be beyond reasonable doubt. Has the prosecution been able to discharge its onus? 8. Nothing more has been urged on the either side. 9. There is no dispute as regards the standard of proof expected of the prosecution to fix guilt of an accused to be beyond reasonable doubt. Has the prosecution been able to discharge its onus? is the question, answer to which shall decide fate of the instant appeal as also that of the appellant. 10. As per case of the prosecution, law was set in motion by PW-5, complainant Pyare Lal by making statement Exhibit PH before the investigating officer to the effect that the appellant had demanded an amount of Rs. 2,500/- from him to enter mutation in respect of the land in question out of which an amount of Rs. 1,000/- was handed over by him to the appellant earlier and the balance amount of Rs. 1,500/- was promised to be paid on the date of raid. However, PW-5 Pyare Lal has refused to tread the dotted line and has been declared hostile to the case of the prosecution. He has been cross-examined at considerable length on behalf of the prosecution but to no avail. Rather, when cross-examined on behalf of the prosecution, he has stated that he did not make complaint Exhibit PH before the investigating officer and his signatures were obtained on some blank papers by some officials of the police. When cross-examined on behalf of the defence he has further demolished case of the prosecution by stating that the mutation in question had already been sanctioned by the competent authority in favour of wife of the complainant and he did not even apply for certified copy of that mutation. Even otherwise, it has remained unexplained as to when an amount of Rs. 2,500/- was demanded by the appellant and when the amount of Rs. 1,000/- was handed over by the complainant-Pyare Lal to him. 11. G.L.Yadav (PW1), the then Sub Divisional Magistrate, Rewari, was joined as official witness with the raid. Even otherwise, it has remained unexplained as to when an amount of Rs. 2,500/- was demanded by the appellant and when the amount of Rs. 1,000/- was handed over by the complainant-Pyare Lal to him. 11. G.L.Yadav (PW1), the then Sub Divisional Magistrate, Rewari, was joined as official witness with the raid. He, though, has supported the case of the prosecution in his examination-in-chief, but when subjected to cross-examination he could not tell for how long he remained in the vigilance office after the raid, what was the age and physical data of the complainant, i.e., colour, height etc., what were details of the vehicle used in the raid, how many persons were present in the appellant's office, what was the colour of the shirt of the shadow witness, namely, H.C.Satish Kumar, towards which direction shadow witness was standing in the office of the appellant, whether there was any window at the place of Patwarkhana, what was the manner of signal statedly given to raiding party, who had written memoranda Exhibits PA to PE, what were these memoranda about, whether FIR No. was recorded on Exhibits PA to PE, who had got the hands of complainant and appellant washed, for what purpose appellant had demanded the amount of illegal gratification and what were the allegations against the appellant. In view of all these circumstances, it is found to be difficult to accept that PW-1 G.L.Yadav was, in fact, part of the raiding party and had witnessed the occurrence. 12. In this situation, the only evidence in support of the case of the prosecution is the evidence of PW-12 Jagdish Prashad and PW-6 H.C Satish Kumar. It is pointed out on behalf of the appellant and is not disputed by the learned State counsel that H.C Satish Kumar (PW-6) was working in State Vigilance Bureau under Inspector Jagdish Prashad (PW-12). To put it straight, H.C. Satish Kumar (PW-6) was under the thumb of Inspector Jagdish Prashad (PW-12) and it seems that it was for this reason only that Inspector Jagdish Prashad (PW-12) joined this witness as one of the members of the raiding party as a shadow witness. To put it straight, H.C. Satish Kumar (PW-6) was under the thumb of Inspector Jagdish Prashad (PW-12) and it seems that it was for this reason only that Inspector Jagdish Prashad (PW-12) joined this witness as one of the members of the raiding party as a shadow witness. No explanation is coming forth as to why this particular witness was chosen by the Investigating Officer (PW-12 Jagdish Prashad) even though a large number of persons were available in the office of Deputy Commissioner from where PW-1 G.L.Yadav was stated to have joined as witness and on way to the office of the appellant as also at the Patwarkhana, where the raid was conducted. 13. Be that as it may, evidence of PW-6 H.C.Satish Kumar is found to be unacceptable for another reason because according to him hands of the appellant were subjected to phenolphthalein sodium carbonate test by the Investigating Officer himself, whereas according to the Investigating Officer Jagdish Prashad (PW-12) it was done so by his Reader namely, Satish Kumar. However, for reasons best known to the prosecution, said reader Satish Kumar has not been examined as a witness. 14. In view of the above, finding of the trial Court that the illegal gratification had been demanded and accepted by the appellant and its recovery from the appellant are found to be unsustainable. Even otherwise evidence of PWs Satish Kumar HC, G.L.Yadav and Inspector Jagdish Prashad cannot be read in proof of demand of illegal gratification by the appellant. 15. Section 19 of the Act mandates that no public servant can be prosecuted for commission of an offence punishable under the Act unless the competent punishing authority grants sanction for his prosecution. Grant of sanction for prosecution of a public servant is not a mere formality or ritual. It, rather, is an important aspect of the investigation and, infact, Section 19 of the Act bars cognizance of an offence in the absence of valid sanction. Order of sanction has been placed on record as Exhibit P-13A by PW-13 an Assistant of the office of Director Consolidation of Holdings, Haryana. However, author of the order Exhibit PW-13A, namely, S.C.Goyal, IAS, has chosen not to appear before the learned trial Court and to prove the order of sanction. Amar Singh PW-13 could prove the writing only if its author, namely, S.C.Goyal, IAS, was unavailable. However, author of the order Exhibit PW-13A, namely, S.C.Goyal, IAS, has chosen not to appear before the learned trial Court and to prove the order of sanction. Amar Singh PW-13 could prove the writing only if its author, namely, S.C.Goyal, IAS, was unavailable. It is not the case of the prosecution. That being so, in my view, the order of sanction, Exhibit P13A has remained unproved and as such no reliance can be placed thereupon. 16. Even otherwise, even if the order of sanction is taken to have been properly proved, still it is of no help to the case of the prosecution because from cross-examination of Amar Singh, PW-13, it comes out that draft of the order was received from State Vigilance Bureau, Gurgaon and Director of Consolidation of Holdings, namely, S.C.Goyal, IAS, appended his signatures on that draft without applying his own mind to the facts and circumstances of the case. 17. For the reasons recorded above, the impugned judgment/order cannot be allowed to sustain and same are hereby set aside. 18. Consequently, the appeal succeeds and is allowed. The appellant is acquitted of the offence of which he was charged and convicted. 19. The appellant is on bail. His bail bonds are discharged. 20. Amount of fine, if already deposited, shall be refunded to the appellant, as per procedure known to law.