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2024 DIGILAW 588 (AP)

T. Prabhakara Rao v. Secretary To Government

2024-05-10

HARINATH N.

body2024
ORDER : (Harinath N., J.) : The petitioner challenges the G.O.Ms.No.21 Home (SC.B) Law and Justice, Department, dated 28.01.2013 and Memo No.190/SC.B/A2/2006-4, dated 05.03.2012 as illegal, arbitrary and un-constitutional. 2. The petitioner while working as Junior Assistant/Bench Clerk of I Additional Chief Metropolitan Magistrate Court, Vijayawada was involved in a Trap Case conducted by the Anti Corruption Bureau, Vijayawada (herein after be referred as ‘ACB’) on 04.02.2006. It is stated that, one Shaik Mahaboob Shareef, the defacto-complainant therein was involved in a criminal case CC.No.1396 of 2002 and that the same ended in acquittal on 06.12.2005. It is also stated that the defacto-complainant met the bench clerk by name Subba Rao on 07.01.2006 and requested for issuance of the copy of the Judgment. It is the case of the defacto-complainant that the said Subba Rao demanded an amount of Rs.200/-for issuance of the certified copy of the Judgment. The ACB, Vijayawada conducted the trap operation on 04.02.2006 and the ACB recovered the tainted amount from the said writ petitioner. 3. Crime No.07 of 2006 was registered under Section 7 of the Prevention of Corruption Act, however, the sanctioning authority declined the sanction for prosecution, however, referred the same to the Tribunal for disciplinary proceedings for enquiry and submission of the report. 4. The Tribunal submitted the report on 31.01.2011 alleging that the petitioner is guilty of the charge. The impugned G.O. was issued in pursuance of the report of the Tribunal. 5. Sri.Ch.Dhanunjaya, learned Senior Counsel appearing for the petitioner would submit that the Tribunal has erred in ignoring the Section 164 Code of Criminal Procedure, 1973 (for short Cr.P.C.,) statement marked as Ex.P4 and that there was no demand for bribe from the petitioner’s end. The learned Senior Counsel submits that, permission is necessary for the ACB to conduct any such operation within the Court premises and that no permission was applied or accorded in the name of the petitioner. It is also submitted that permission was obtained in the name of Subba Rao, the Bench Clerk. As such, the entire proceedings are vitiated and bad in law. 6. The Government Pleader for Home on the contrary submits that the petitioner was found guilty by the Tribunal for disciplinary proceedings after conducting detailed enquiry and as many as seven witnesses were examined and eleven exhibits were marked on behalf of prosecution. As such, the entire proceedings are vitiated and bad in law. 6. The Government Pleader for Home on the contrary submits that the petitioner was found guilty by the Tribunal for disciplinary proceedings after conducting detailed enquiry and as many as seven witnesses were examined and eleven exhibits were marked on behalf of prosecution. The Tribunal also recorded the evidence of one witness for defence and marked nine exhibits for defence apart from Ex.X1, the letter of the High Court granting permission to lay trap against Subba Rao. The Tribunal also marked material objects i.e., MOs.1 to 8. 7. The learned Government Pleader submits that there is no infirmity in the report of the Tribunal and as such no relief can be granted to the petitioner. 8. Heard the learned Senior Counsel for the petitioner and the learned Government Pleader for the respondents and also perused the material available on record. 9. The report of the Tribunal for disciplinary proceedings has elaborately conducted an enquiry in Case No.21 of 2007. The trigger for the ACB to lay a trap on the petitioner is the alleged demand of Rs.200/-by one Mr.Subba Rao. The High Court vide Ex.X1 has granted permission for proceeding further against Subba Rao, Bench Clerk, I Additional Chief Metropolitan Magistrate Court, Vijayawada. 10. Ex.P4, the Section 164 Cr.P.C., statement of PW.1 recorded before the Magistrate would categorically indicate there was no demand from petitioner of PW.1 and that PW.1 approached the charged officer from behind and thrusted the tainted amount in the pocket of the charged officer/petitioner. 11. The defacto complainant in the cross-examination stated that, he was approached by the charged officer with a threat of dire consequences if he does not state before the Magistrate as required by the charged officer. 12. The other evidences recorded speak about the incident and the proceedings conducted by the ACB. The evidence of mediators and other witnesses speak of the incident and the trap proceedings. 13. The demand for bribe in exchange of an official favour by the petitioner has to be stated by the defacto-complainant or the charged officer. In the present set of facts and circumstances, defacto-complainant named one Subba Rao as Bench Clerk and that the said Subba Rao demanded the bribe amount. 13. The demand for bribe in exchange of an official favour by the petitioner has to be stated by the defacto-complainant or the charged officer. In the present set of facts and circumstances, defacto-complainant named one Subba Rao as Bench Clerk and that the said Subba Rao demanded the bribe amount. On the strength of his complaint the Anti Corruption Bureau at Vijayawada sought the required permissions from the High Court in the name of said Subba Rao. 14. The Section 164 Cr.P.C., statement of the defacto complainant has to be considered as an important exhibit for deciding the issue on hand. 15. The Hon’ble Supreme Court in K.Shanthamma Vs. State of Telangana, Criminal Appeal No. 261 OF 2022, held that the proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act. The Hon’ble Supreme Court placed reliance on P.Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another, (2015) 10 SCC 152 and summarised the well-settled law on the subject in paragraph 23 which reads thus: “23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.” (emphasis added) 16. The recovery of the tainted money from the possession of the petitioner is not in dispute. Now the question which arises is whether mere recovery of tainted money from the possession of the charged officer is sufficient for holding the said officer guilty of offence under Section 7 of Prevention of Corruption Act. 17. In the present set of facts and circumstances, admittedly there was no permission in the name of the writ petitioner. Thus, there could not have been demand of bribe by the petitioner. 17. In the present set of facts and circumstances, admittedly there was no permission in the name of the writ petitioner. Thus, there could not have been demand of bribe by the petitioner. The same is evident from the complaint of the defacto complainant. The evidence of PW.1 appears to be an improvement from the statement recorded under Section 164 Cr.P.C., Such improvements are not permissible under Criminal Jurisprudence. 18. The Tribunal for disciplinary proceedings could not establish the demand for bribe beyond all reasonable doubt. The ambiguity which is unanswered as to how the petitioner got involved when permission was sought from the High Court for proceeding against one Mr.Subba Rao. The defacto complainant complained to the Anti Corruption Bureau authorities that the Bench Clerk by name Subba Rao of I Additional Chief Metropolitan Magistrate Court, Vijayawada was demanding bribe. The circumstances under which the petitioner replaced Subba Rao are unexplained. 19. It is only after recovery of the tainted money from the possession of the charged officer, the proceedings were drafted in the name of the writ petitioner. This Court finds strength in the submissions of the learned Senior Counsel that the petitioner was entrusted with money allegedly in the form of bribe without any demand. 20. From the material on record, it is evident that the defacto-complainant Mr.Subba Rao and that it was Subba Rao who demanded the bribe amount. As such, the defacto-complainant, approached Anti Corruption Bureau, Vijayawada. Permissions were sought from the High Court in the name of Subba Rao and not on the writ petitioner’s name. Thus, it is clear that on 04.02.2006 when all arrangements were made by the ACB, Vijayawada for laying a trap for Subba Rao, the defacto-complainant could not find Subba Rao and entrusted the tainted money to the writ petitioner without any demand. The same is evident from Ex.P4, the statement under Section 164 Cr.P.C., 21. With these facts and evidences the 1st respondent issued GOMs.No.21, dated 28.01.2013 imposing the punishment of dismissal from service by holding that the charge against the writ petitioners is proved beyond all reasonable doubt by the Tribunal in Tec.No.21 of 2007. 22. This Court finds the punishment of removal from service as grossly disproportionate and thus set asides the impugned proceedings. 22. This Court finds the punishment of removal from service as grossly disproportionate and thus set asides the impugned proceedings. The petitioner shall be reinstated into service within a period of eight weeks from the date of receipt of this order and it is made clear he shall not be entitled for any back wages. The period during which he was not been in service shall be treated dies non. 23. In the result, the writ petition is allowed without costs. Pending miscellaneous petitions, if any, shall stands closed.