Abetment — Necessary Requirements : Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the doing of a thing when…

Head Notes:
Abetment- Necessary requirements stated :
Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the doing of a thing when
1)      He instigate any person to do that thing or
2)      Engage with one or more other persons in conspiracy for the doing of that thing or
3)      Intentionally aids, by act or illegal omission, the doing of that thing.
These things are essential to complete abetment as crime.
 
 
REPORTABLE
 
Supreme Court of India (Criminal Jurisdiction)
CASE NO.: Appeal (crl.) 1464 of 2007
 
PETITIONER: Sohan Raj Sharma     Vs           RESPONDENT: State of Haryana
DATE OF JUDGMENT: 07/04/2008
BENCH: DR. ARIJIT PASAYAT & P. SATHASIVAM
 
JUDGMENT: Dr. ARIJIT PASAYAT, J.
 
1.       Challenge in this appeal is to the order passed by a learned Single Judge of the Punjab and Haryana High Court upholding appellant’s conviction for offence punishable under Section 306 of the Indian Penal Code, 1860 (in short ’IPC’) and
sentence of 7 years RI.
 
2.       Background facts in a nutshell are as follows:
 
First Information Report lodged by Shri Rajiv Lochan Jain (PW4) was to the effect that Jyoti (hereinafter referred to as the ’deceased’) had written in her letter that her husband Sohan Raj Sharma the accused-appellant was torturing him for sex in many different ways, mostly pervert and tired of the same, she had poisoned her children, and had consumed poison herself. The FIR is further to the effect that appellant- Sohan Raj Sharma, because of the circumstances, had compelled Jyoti to consume poison. The first endorsement of the Investigating Officer ASI Rohtash Singh (PW10) on the statement Ex.PL of Shri Rajiv Lochan Jain (PW4) is Ex.PL/1
and it is to the effect that on his reaching B.K. Hospital Faridabad alongwith other police officials, Shri Rajiv Lochan Jain had handed him over one letter (Ex.PX ) of eight pages which was taken into possession of the police vide memo Ex.PM and from the statement of Shri Rajiv Lochan Jain and the letter produced by him, the allegations of commission of offences punishable under Section 306 IPC on the part of the Sohan Raj Sharma were made out. Statement Ex. PL/1, the statement Ex. PL alongwith endorsement Ex.PL/1 was sent to the police station for registration of the case on which formal FIR was recorded. During investigation, the incriminating evidence in the form of medical evidence regarding death of Jyoti, Pinki and Gudiya having been caused due to consumption of poison surfaced. Further the report regarding letter (Ex.PX) and other oral evidence of the witnesses regarding circumstances connected with the occurrence were collected. Accused Sohan Raj Sharma was put on trial for offence punishable u/s 306 IPC, he was challaned by the police and was committed to the court of Sessions for trial by
the Illaqa Magistrate.
 
3.       Prosecution examined 11 witnesses and exhibited several documents. Most vital one is purported suicide note Ex.PX. Appellant took the stand during examination under Section 313 of the Code of Criminal Procedure, 1973 (in for ’Code’) that she was never married to the deceased officially. It also alleged that she was a lesbian and in proof of this stand, one Anita Parmar was examined as DW1. The Trial Court found the contents of Ex.PX satisfied ingredients of Section 306 IPC. Accordingly, the appellant was found guilty and convicted and sentenced as aforesaid.
 
4.       In appeal before the High Court, the stand taken before the Trial Court that ingredients of Section 306 IPC have not been fulfilled was reiterated. Stand of the prosecution was that the ingredients have been established.
 
5.       The High Court found that Ex.PX was sufficient to show as to what was the reason for deceased committing suicide.
 
6.       Learned counsel for the appellant submitted that letter Ex.PX in no way establishes that the appellant had abeted the suicide. As a matter of fact, the fact that the deceased took the lives of two innocent children and then committed suicide without any doubt establishes that she was mentally unsound. The letter at the most describes the accused as a sexual pervert, but his behaviour, if any, cannot be taken to be an act of abeting the suicide. It is pointed out that in Ex Px she has clearly stated that she wanted to take appellants’ life.
 
7.       Learned counsel for the respondents-State on the other hand supported the judgment of the courts below. Section 306 IPC deals with abetment of suicide. The said provision reads as follows:
 
306 ABETMENT OF SUICIDE.
If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
 
8.     Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing it required before a person can be said to be abetting the commission of offence under Section
306 IPC.
 
9.      In State of West Bengal v. Orilal Jaiswal (AIR 1994 SC 1418) this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of  suicide should be found guilty.
 
10.   Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word “instigate” literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. ’Abetted’ in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.
 
11.    In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough. [SeeMahinder Singh v. State of M.P. (1995 AIR SCW 4570)].
 
12.   When the factual scenario is examined, it is clear that the accused has been described as a sexual pervert and that he had behaved like an animal and the deceased had tolerated the insulting manner in which he behaved. They were married in court. It was stated that the accused was impotent and he was trying to defame the deceased for having relationship with ladies.
 
13.   The most significant part of the letter the deceased had written is as follows:
I desired to kill you along with us but no, if you have any sense of shame you will die as a result of the sequence of events. But it do not make any difference for shameless person because these abuses will sound as correct if you realize your capacity. You have not spent even eight days in a period of eight years in peace with me. You yourself are responsible for death of these children. Flowers had been prayed for from the deities of your family regarding whom you disclosed “they are not mine they are with me from my friend. (girl friend) on, you, the condemned the day children will be born as a result of cohabitation of a woman with woman, a woman will stop giving birth to man like you.”
(Underlined for emphasis)
 
14.   Above being the factual scenario, it cannot be said that the ingredients of Section 306 IPC have been established. Therefore, the conviction as recorded cannot be maintained. The order of the High Court is set aside. The appellant be released forthwith unless required in connection with other case.

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Prevention of Corruption Act, 1988- Illegal gratification- Demand and acceptance of- Involvement of co-accused

Prevention of Corruption Act, 1988 

Held: Accused Excise sub Inspector allegedly demanded bribe from complainant for returning stock register of his wine shop-  Complainant along with members of raiding party met accused and told him that money was ready— But , accused told him to come on next day and give bribe money to co-accused— Tainted Money recovered from co-accused — Co-accused merely being Home Guard , could not be said to have any role to play in return of stock register—Nothing appeared on record to show that co-accused knew that money was paid to him as bribe—Conviction of co-accused set aside.

 

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1309 OF 2007

(Arising out of SLP (Crl.) No. 6306 of 2005)

 

 

PETITIONER: K. Subba Reddy   v    RESPONDENT: State of Andhra Pradesh

DATE OF JUDGMENT: 28/09/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

 

J U D G M E N T: Dr. ARIJIT PASAYAT, J.

 

 

  1.         Leave granted.
  2.         Challenge in this appeal is to the judgment rendered by a learned Single judge of the Andhra Pradesh High Court upholding the conviction of the appellant punishable under Section 7 of the Prevention of Corruption Act, 1988 (in short the ’Act’). The appellant had faced trial along with another accused and for the sake of convenience he is described as A-2 hereinafter. Both the accused persons were convicted for the offence punishable under Section 7 of the Act and sentenced to undergo rigorous imprisonment of one year each and to pay a fine of Rs.1,000/- with default stipulation. They were, however, acquitted of the other charges.
  3.          Sans unnecessary details, the prosecution version as unfolded during trial is as follows:

A-1 worked as an Excise Sub Inspector, at Mydukur, Cuddapah District and A-2 worked as a Home Guard. PW.1 is the de facto complainant. His father by name Subba Reddy was running a wine shop at Mydukur known as “Eswara Wines” since 1987. PW.1 obtained a license to run another wine shop known as “New Eswara Wines” and was running the said wine shop. He was assisting his father in the said business. On 7.2.1988 the enforcement wing of the Excise Department raided the shop of his father in his presence. The raiding party found some stock without license. A case was registered against PW.1 and his father and it ended in conviction in April, 1994. They preferred an appeal and it was pending at the relevant point of time. On 27.4.1994 the Excise Superintendent issued a show cause notice to PW-1 for cancellation of license issued in his favour. On 3.5.1994 A.1 sealed his shop pursuant to the directions of the Excise Superintendent. On 4.5.1994 PW-1 sent Ex.P4 reply, which was received by the Excise Superintendent under Ex.P5 acknowledgement. Subsequently, PW.1 filed W.P. No. 9460 of 1994 before the High Court seeking a direction for the release of the stock seized by A.1 from his shop known as “New Eswara Wines”. The High Court passed an order on 11.5.1994 in W.P.M.P. No. 11535 of 1994, in favour of PW. 1, directing the excise officials to release the seized stocks. On 15.5.1994 PW.1 approached the Superintendent of Excise along with the order of the High Court for the release of the stock. On the same day, the Excise Superintendent directed A.1 to open the seal of the shop and handover the stock to PW.1. PW.1 approached A-1 to remove the seals and to open the doors of the shop. At that time A-1 demanded Rs. 5,000/- towards bribe for opening the seals and when PW.1 expressed his inability, A.1 reduced the amount to Rs.3,000/-. Though A.1 opened the shop by removing seals, he refused to give the stock register unless and until the bribe of Rs.3,000/- is paid. PW.1, who had no inclination to pay the bribe to A.1, preferred Ex.P-10 complaint to Anti Corruption Bureau (for short ’ACB’) officials on 16.5.1994. On the same day, PW.7 and members of the trap party reached the office of A-1 at about 5.00 p.m. Immediately, PWs. 1 and 2 went to A.1. When A-1 demanded the bribe, PW.1 told him that the money was ready, but A-1 told him to come on the next day i.e. 17.5.1994 and further told that in case he goes for checking of shops, the amount may be paid to A.2, i.e. the present appellant. On the next day i.e. 17.4.1994 at about 11.30 a.m. PW-1 met PW-2 enquiring about A-l and A-2 came and asked PW-1 to give the bribe of Rs. 3,000/- as demanded by A-l. Accordingly, PW-1 paid the amount to A.2. A.2 counted the notes, kept the amount in his left pocket. Subsequently, the amount was recovered from A-2 and the phenolphthalein test conducted on the fingers of both the hands and the left pant pocket of A-2 proved positive. PW- 8 after completion of investigation laid the charge sheet. Charges were framed. Appellant denied the charges and claimed for trial.

4.             The prosecution in order to establish the guilt of the accused persons examined 8 witnesses and marked 23 documents and produced 9 material objects. As noted above, the trial Court considering the oral and documentary evidence recorded the conviction. Before the trial Court the prosecution referred to the evidence of PW-1 who claimed that as per the instructions of A-1 money was handed over to A-2. A-1 denied the demand and acceptance of the bribe and pleaded that PW- 1 paid the amount to A-2 to hand over the same to one person namely, Subbarayudu for the purpose of remitting the same to the treasury. The trial Court held that the tainted money was delivered to A-2 and it was recovered from A-2. Accordingly, both A-1 and A-2 were guilty. The High Court by the impugned order upheld the conviction of the two accused persons.

5.           In support of the appeal, learned counsel for the appellant submitted that no definite role was ascribed to the present appellant and no material has been adduced to show that A-2 had any knowledge that the money was being paid to A-1 as bribe. There is not even any suggestion, much less, no evidence to show that A-2 had any knowledge that he was being used as a conduit for the purpose of payment of bribe to A-1. It is, therefore, submitted that the conviction is not maintainable.

6.               Learned counsel for the State on the other hand submitted that the connected SLP (Crl.) No.2113/2006 filed by A-1 has been dismissed. Though there is no direct evidence about the knowledge of A-2-the present appellant about the money being bribe to A-1, it can reasonably be inferred from the background facts that he was actually a conduit and the money was paid to him and he was asked to hand over  the same to A-1. On the contrary, the totally unaccepted plea that money was to be paid to somebody else has been raised which has been rightly rejected by the trial Court and the High Court. The evidence of PW-1 is of vital importance.

7.           There is no material to show about the knowledge of A-2 regarding the money being bribe. He had offered the explanation that the money was to be paid to Subbarayudu. In this connection, reference is made to the evidence of PW-1. He has only stated that A-1 asked him to hand over the money to A-2 if he had gone out for checking of shops.

8.              Appellant (A-2) at the relevant point of time was working as a Home Guard. He was assigned different duties at different places. It is accepted in the cross examination by PW-1 that there is no Sub-treasury at Mydukur and if anybody wants to remit money to the Government, one has to go out to different places. It is also accepted that there is a practice of giving money to some boys working in the shops or some places to remit the money to the Government treasury at different places indicated by the shop owners. It was also accepted that Subbarayudu was a person who used to remit the amount to Government on behalf of shop owners. It is the accepted position that the present appellant had no role to play in the return of the stock register. It is the prosecution case that A-1 had wanted the bribe to be paid for the return of the stock register.

9.            Above being the position, the material is not sufficient to hold the appellant guilty. His conviction is accordingly set aside. He was released on bail pursuant to the order of this Court dated 27.2.2006. His bail bonds shall stand discharged.

10.           The appeal is allowed.

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Prevention of Corruption Act, 1988 – Section 19(4) – legality and validity of the sanction order

Head Note:-

Prevention of Corruption Act, 1988 – Section 19(4) – legality and validity of the sanction order – In a case where validity of the sanction order is sought to be challenged on the ground of non-application of mind, such challenge can be made in the course of trial.

 

 

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos.2170-2171 OF 2011 

[ARISING OUT OF S.L.P. (CRL) NOS. 10278-10279 OF 2010] 

 

Dinesh Kumar Vs. Chairman, Airport Authority of India and Another

 

R.M. LODHA AND H.L. GOKHALE on NOVEMBER 22, 2011

 

J U D G M E N T : R.M. LODHA,J. 

 

1. Leave granted.

2. The appellant is being prosecuted for the offences punishable under Section 13(2) read with Sections 13(1)(d) and 13(1)(a) of the Prevention of Corruption Act, 1988 (for short, “P.C. Act”).

3. On November 4, 2009, the sanctioning authority granted sanction to prosecute the appellant for the offences indicated above. After the sanction order was challenged by the appellant in the High Court on November 26, 2009, the charge-sheet has been filed by the Central Bureau of Investigation (CBI) -respondent No. 2- against the appellant on November 30, 2009 in the Court of Special Judge, Ernakulam. Following that, summons came to be issued to the appellant on December 18, 2009. During the pendency of thematter before the High Court, wherein the sanction order has been challenged by the appellant, the Court of Special Judge has taken cognizance against the appellant.

4. The Single Judge of the High Court was not persuaded with the contentions raised by the appellant and dismissed the appellant’s Writ Petition on July 19, 2010.

5. Against the order of the Single Judge, the appellant preferred an intra-court appeal. The Division Bench of the High Court dismissed the intra-court appeal on September 29, 2010 observing that it was open to the appellant to question the validity of the sanction order during trial on all possible grounds and the CBI could also justify the order of granting sanction before the Trial Judge.

6. Mr. Deepak Bhattacharya, learned counsel for the appellant referred to Section 19(4) of the P.C. Act and submitted that the appellant challenged the legality and validity of the sanction order at the first available opportunity, even before the charge-sheet was filed and, therefore, the Division Bench was not justified in relegating the appellant to agitate the question of validity of sanction order in the course of trial. He relied upon the decisions of this Court in Mansukhlal Vithaldas Chauhan vs. State of Gujarat (1997) 7 SCC 622; Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. 1998 (5) SCC 749;Abdul Wahab Ansari vs. State of Bhar and another, (2000) 8 SCC 500 and State of Karnataka vs. Ameerjan(2007) 11 SCC 273.

7. Mr. Deepak Bhattacharya, in view of the law laid down by this Court in the above decisions, submitted that the High Court ought to have gone into the merits of the challenge to sanction order. According to learned counsel, on its face, the sanction order suffers from non-application of mind.

8. On the other hand, Mr. H.P. Raval, learned Additional Solicitor General for the Central Bureau of Investigation – respondent No. 2- supported the view of the Division Bench. He submitted that in a case where validity of the sanction order is sought to be challenged on the ground of non-application of mind, such challenge can only be made in the course of trial. In this regard, he heavily relied upon a decision of this Court in Parkash Singh Badal and another vs. State of Punjab and others(2007) 1 SCC 1. He also relied upon a recent decision of this Court in Ashok Tshering Bhutia vs. State of Sikkim(2011) 4 SCC 402.

9. This Court has in Mansukhlal Vithaldas Chauhan considered the significance and importance of sanction under the P.C. Act. It has been observed therein that the sanction is not intended to be, nor is an empty formality but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and it is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. This Court highlighted that validity of a sanction order would depend upon the material placed before the sanctioning authority and the consideration of the material implies application of mind.

10. The provisions contained in Section 19(1),(2),(3) and (4) of the P.C. Act came up for consideration before this Court in Parkash Singh Badal and another.In paras 47 and 48 of the judgment, the Court held as follows:

“47: The sanctioning authority is not required to separately specify each of the offences against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalised guidelines in that regard. 

48: The sanction in the instant case related to the offences relatable to the Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial.” 

11. While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal expressed in no uncertain terms that the absence of sanction could be raised at the inception and threshold by an aggrieved person. However, where sanction order exists, but its legality and validity is put inquestion, such issue has to be raised in the course of trial. Of course, inParkash Singh Badal, this Court referred to invalidity of sanction on account of nonapplication of mind. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorised or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of mind – a category carved out by this Court in Parkash Singh Badal, the challenge to which can always be raised in the course of trial.

12. In a later decision, in the case of Aamir Jaan, this Court had an occasion to consider the earlier decisions of this Court including the decision in the case of Parkash Singh BadalAmeerjan was a case where the Trial Judge, on consideration of the entire evidence including the evidence of sanctioning authority, held that the accused Ameerjan was guilty of commission of offences punishable under Sections 7,13(1)(d) read with Section 13(2) of the P.C. Act. However, the High Court overturned the judgment of the Trial Court and held that the order of sanction was illegal and the judgment of conviction could not be sustained. Dealing with the situation of the case wherein the High Court reversed the judgment of the conviction of the accused on the ground of invalidity of sanction order, with reference to the case of Parkash Singh Badal, this Court stated inAmeerjan in para 17 of the Report as follows:

“17. Parkash Singh Badal, therefore, is not an authority for the proposition that even when an order of sanction is held to be wholly invalid inter alia on the premise that the order is a nullity having been suffering from the vice of total non-application of mind. We, therefore, are of the opinion that the said decision cannot be said to have any application in the instant case.” 

13. In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the Trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the Trial Court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal and not unjustified.

14. Mr. Deepak Bhhatcharya submits that the appellant resides in Delhi and he would be put to grave hardship if the question of validity of sanction is left open to be decided in the course of trial as the appellant will have to remain present before the Trial Court at Ernakulam on each and every date of hearing. He, however, submits that if the personal appearance of the appellant is dispensed with, unless required by the Trial Court, the appellant will not be averse in raising the issue of validity of sanction before the Trial Judge.

15. Mr. H.P. Raval has no objection if a direction in this regard is given by us.

16. In view of the above contentions and the factual and legal position indicated above, we are satisfied that the impugned order does not call for any interference. Appeals are, accordingly, dismissed. However, it will be open to the appellant to raise the issue of invalidity of sanction order before the Trial Judge. In the peculiar facts and circumstances of the present case, appellant is permitted to appear before the Trial Court through his advocate. His personal appearance shall not be insisted upon by the Trial Court except when necessary. 

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Prevention of Corruption Act, 1988 – Sections 7 & 13 (1) read with Section 13(1)(D) – Recall of the witnesses – Four years after they were examined in chief about an incident that is nearly seven years old – Whether Proper?

Held:- Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.

 

 

N THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 874-875 OF 2012 

(Arising out of S.L.P (Crl.) Nos.4286-87 OF 2011) 

 

T.S. THAKUR AND GYAN SUDHA MISRA, JJ. On July 2, 2012 

 

P. Sanjeeva Rao Vs. The State of A.P.

 

J U D G M E N T 

T.S. THAKUR, J.

1. Leave granted.

2. These appeals arise out of an order dated 29th March, 2011, passed by the High Court of Judicature for Andhra Pradesh whereby Criminal Revision Petitions No.534 and 710 of 2011 filed by the appellant have been dismissed and order dated 22ndJanuary, 2011 passed by the Special Judge for CBI cases at Hyderabad in Crl. M.P. Nos.18 and 19 of 2011 upheld.

3. The appellant is being prosecuted for offences punishable under Sections 7 & 13 (1) read with Section 13(1)(D) of Prevention of Corruption Act, 1988, before the Special Judge for CBI cases at Hyderabad. Around the time the prosecution concluded its evidence, the appellant filed Crl. Misc. Petitions No.18 and 19 of 2011 under Sections 242 and 311 Cr.P.C. for recall of prosecution witnesses No.1 and 2 for cross-examination. The appellant’s case in the said Criminal Misc. Petition No.18 of 2011 was that cross-examination of PWs 1 and 2 had been deferred till such time the Trap Laying Officer (PW 11) was examined by the prosecution and since the said officer had been examined, PWs 1 and 2 need be recalled for crossexamination by counsel for the accused-appellant. In Crl. Misc. Petition No.19 of 2011 the petitioner made a prayer for deferring the cross-examination of Investigating Officer (PW12) in the case till such time PWs 1 and 2 were crossexamined. 

4. Both the applications mentioned above were opposed by the prosecution resulting in the dismissal of the said applications by the Trial Court in terms of its order dated 22nd January, 2011. The Trial Court observed:

“For what ever be the reasons the cross-examination of PWs 1 and 2 has been recorded as “nil”. There is nothing to show on the record that the petitioner had reserved his right to cross examine the witnesses at a later point of time. The dockets of the Court do not reflect any such intention of the petitioner.” 

5. The Trial Court also held that recall of PWs 1 and 2 for cross-examination more than 3 and ½ years after they had been examined in relation to an incident that had taken place 7 years back, was bound to cause prejudice to the prosecution. The Trial Court was of the view that the appellant had adopted a casual and easy approach towards the trial procedure and that he could not ask for the recall of any witness without cogent reasons.

6. Aggrieved by the order passed by the Trial Court the appellant filed two revision petitions before the High Court which, as noticed earlier, have been dismissed by the High Court in terms of the order impugned in these appeals. The High Court took the view that PWs 1 and 2 had been examined on 13th June, 2008 and 31st July, 2008 respectively followed by examination of nearly one dozen prosecution witnesses. The High Court held that since this was an old case of the year 2005 and the matter was now coming up for examination of the appellant-accused under Section 313 Cr.P.C., there was no justification for recall of the prosecution witnesses No.1 and 2. The revision petitions were accordingly dismissed.

7. Appearing for the appellant Mr. A.T.M Ranga Ramanujan, learned senior counsel, contended that the Trial Court as also the High Court had taken a hyper technical view of the matter without appreciating that grave prejudice will be caused to the appellant if the prayer for cross-examination of PWs. 1 and 2 was not granted and the recall of the witnesses for that purpose declined. He submitted that counsel for the appellant before the Trial Court was under a bona fide belief that the crossexamination of the prosecution witnesses PWs. 1 and 2, who happened to be the star witnesses, one of them being the complainant and the other a witness who allegedly heard the conversation and observed the passing of the bribe to the accused could be conducted after PW-11 had been examined. It was contended that the lawyer appearing before the Trial Court had also filed a personal affidavit stating that PWs. 1 and 2 had not been crossexamined by him under a bona fide impression that he could do so after the evidence of the Trap Laying Officer (PW-11) had been recorded. Mr. Ramanujan urged that while the lawyer may have committed a mistake in presuming that the prosecution witnesses No. 1 and 2 could be recalled for cross-examination at a later stage without the Trial Court granting to the accused the liberty to do so, such a mistake should not vitiate the trial by denying to the appellant a fair opportunity to cross-examine the said witnesses. Heavy reliance was placed by learned counsel on the decision of this Court in Rajendra Prasad Vs. Narcotic Cell [1999 SCC (Cri) 1062], in support of his submission that no party to a trial can be denied the opportunity to correct errors if any committed by it. If proper evidence was not adduced or the relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such a mistake to be rectified.

8. Appearing for the respondent Mr. H.P. Rawal, learned Additional Solicitor General, contended that while crossexamination of PWs. 1 and 2 could be deferred at the option of the accused to a later stage, the Court record does not show any such request having been made or any liberty being reserved to the accused. It was, according to Mr. Rawal, a case where an opportunity to cross-examine had been given to the accused and his counsel but they had chosen not to avail of the same, in which case a belated request for recall of the witnesses to exercise the right to cross-examine could and has been rightly rejected by the Trial Court and that rejection affirmed by the High Court. It was also submitted that the recall of the prosecution witnesses, who have gone without cross-examination at an earlier stage, is likely to prejudice the prosecution inasmuch as the incident in question is as old as of the year 2005, while the request for recall was made only in the year 2011, nearly four years after the framing of the charges against the appellant.

9. The appellant who was working as Sub Divisional Officer in the B.S.N.L., Karimnagar, is accused of having demanded and received a bribe of Rs.3,000/- from the complainant who was examined as PW1 at the trial. The trap led by the CBI in which PW2 was associated as an independent witness is said to have succeeded in catching the petitioner red-handed with the bribe money eventually leading to the filing of a charge-sheet against him before the Court of Special Judge for CBI cases at Hyderabad in March, 2005. Charges were framed against the petitioner on 7th December, 2006. While PW1, the complainant in the case, was examined on two different dates i.e. 3rd March, 2008 and 13th June, 2008, prosecution witness No.2 was similarly examined on 18th July, 2008 and 31st July, 2008. It is common ground that both the witnesses have stood by the prosecution case for they have not been declared hostile by the prosecution. This implies that the depositions of the two witnesses are incriminating against the appellant and in the absence of any cross-examination their version may be taken to have remained unchallenged. It is also common ground that PWs. 3 to 11 were examined during the period 31st July, 2008 and 28th December, 2011. The Trap Laying Officer (PW 11) was examined on 18thFebruary, 2010 and on 1st April, 2010. The two applications referred to earlier were filed before the Trial Court at that stage, one asking for recall of PWs. 1 & 2 for crossexamination and the other asking for a deferring that the cross-examination of PW 12 till PWs. 1 and 2 are recalled and cross-examined.

10. The only question that arises in the above backdrop is whether the decision not to cross-examine PWs 1 and 2 was for the reasons stated by the petitioner or for any other reason. There is no dispute that no formal application was filed by the petitioner nor even an oral prayer made before the Trial Court to the effect that the exercise of the right to cross-examine the two witnesses was being reserved till such time the Trap Laying Officer was examined. This is precisely where counsel for the appellant has stepped in and filed a personal affidavit in which he has stated that even though there is no formal prayer made to that effect he intended to cross-examine the two witnesses only after the deposition of the Trap Laying Officer was recorded. In the peculiar circumstances of the case, we feel that the version given by the counsel may indeed be the true reason why two witnesses were not crossexamined on the conclusion of their examination-in-chief. We say so primarily because no lawyer worth his salt especially one who had sufficient experience at the Bar like the one appearing for the appellant would have let the opportunity to cross-examine go unavailed in a case where the witnesses had supported the prosecution version not only in regard to the demand of bribe but also its payment and the success of the trap laid for that purpose. There is no gainsaying that every prosecution witness need not be cross-examined by the defence. It all depends upon the nature of the deposition and whether the defence disputes the fact sought to be established thereby. Formal witnesses are not at times cross-examined if the defence does not dispute what is sought to be established by reference to his/her deposition. The decision to cross-examine is generally guided by the nature of the depositions and whether it incriminates the accused. In a case like the one at hand where the complainant examined as PW1 and the shadow witness examined as PW2 had clearly indicted the appellant and supported the prosecution version not only regarding demand of the bribe but also its receipt by the appellant there was no question of the defence not crossexamining them. The two witnesses doubtless provided the very basis of the case against the appellant and should their testimony have remained unchallenged, there was nothing much for the appellant to argue at the hearing. The depositions would then be taken to have been accepted as true hence relied upon. We may, in this connection, refer to the following passage from the decision of this Court in Sarwan Singh v. State of Punjab (2003) 1 SCC 240:

It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted.” 

11. We are, therefore, inclined to believe that the two prosecution witnesses were not cross-examined by the counsel for the appellant not because there was nothing incriminating in their testimony against the appellant but because counsel for the appellant had indeed intended to cross-examine them after the Trap Laying Officer had been examined. The fact that the appellant did not make a formal application to this effect nor even an oral prayer to the Court to that effect at the time the cross-examination was deferred may be a mistake which could be avoided and which may have saved the appellant a lot of trouble in getting the witnesses recalled. But merely because a mistake was committed, should not result in the accused suffering a penalty totally disproportionate to the gravity of the error committed by his lawyer. Denial of an opportunity to recall the witnesses for cross-examination would amount to condemning the appellant without giving him the opportunity to challenge the correctness of the version and the credibility of the witnesses. It is trite that the credibility of witnesses whether in a civil or criminal case can be tested only when the testimony is put through the fire of cross-examination. Denial of an opportunity to do so will result in a serious miscarriage of justice in the present case keeping in view the serious consequences that will follow any such denial.

12. The nature and extent of the power vested in the Courts under Section 311 Cr.P.C. to recall witnesses was examined by this Court in Hanuman Ram v. The State of Rajasthan & Ors. (2008) 15 SCC 652. This Court held that the object underlying Section 311 was to prevent failure of justice on account of a mistake of either party to bring on record valuable evidence or leaving an ambiguity in the statements of the witnesses. This Court observed:

“This is a supplementary provision enabling, and in certain circumstances imposing on the Court, the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. 

The object underlying Section 311 o f the Code is that there may not be failure o f justice on account o f mistake o f either party in bringing the valuable evidence on record or leaving ambiguity in the statements o f the witnesses examined from either side. The determinative factor is whether it is essentia l to the just decision o f the case . The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquires and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage o f inquiry or tria l or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.” 

(emphasis supplied) 

13. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC 430. The following passage is in this regard apposite:

In such circumstances, if the new Counsel thought to have the material witnesses further examined,the Court could adopt latitude and a libera l view in the interest o f justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 o f the Code. After al l the tria l is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible .” 

(emphasis supplied) 

14. The extent and the scope of the power of the Court to recall witnesses was examined by this Court in Mohanlal Shamji Soni v. Union of India & Anr. 1991 Supp (1) 271, where this Court observed:

“The principle of law that emerges from the views expressed by this Court in the above decisions is that the crimina l court has ample power to summon any person as a witness or recal l and re-examine any such person even i f the evidence on both sides is closed and the jurisdiction o f the court must obviously be dictated by exigency o f the situation, and fair-play and good sense appear to be the only safe guides and that only the requirements o f justice command and examination o f any person which would depend on the facts and circumstances o f each case. ” 

(emphasis supplied) 

15. Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of this Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs. 2012 (3) SCALE 550. A timely reminder of that solemn duty was given, in the following words:

“What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.” 

16. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.

17. In the result, we allow these appeals, set aside the orders passed by the Trial Court as also the High Court and direct that the prosecution witnesses No.1 and 2 shall be recalled by the Trial Court and an opportunity to crossexamine the said witnesses afforded to the appellant. In fairness to the counsel for the appellant, we must record that he assured us that given an opportunity to examine the witnesses the needful shall be done on two dates of hearing, one each for each witness without causing any unnecessary delay or procrastination. The Trial Court shall endeavour to conclude the examination of the two witnesses expeditiously and without unnecessary delay. The parties shall appear before the Trial Court on 6th August, 2012. 

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Prevention of Corruption Act, 1988 – Sections 7 & 13(1)(d) r/w 13(2) – Illegal Gratification – Imprisonment – Conviction by High Court upheld.

Held: It was held that a discrepancy would be minor if it did not affect the substratum of the prosecution’s case or impact on the core issue. In such an event, the minor discrepancy could be ignored.

 

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1323 OF 2007

 

A.K. Patnaik and Madan B. Lokur, JJ. On July 31, 2012

 

Syed Ahmed …..Appellant

Versus

State of Karnataka …..Respondent

 

 

J U D G M E N T: Madan B . Lokur, J .

 The Appellant (Syed Ahmed) was acquitted by the Trial Court of offences under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The acquittal was set aside by the High Court and he is aggrieved thereby. We are in agreement with the order of conviction handed down by the High Court. We are not in agreement with the sentence awarded, but prefer to let the matter rest. Accordingly, we dismiss this appeal.

The facts:

Nagaraja @ Nagarajegowda (PW1) and his father, Thimmegowda (PW4) are owners of some land. On 7th June, 1993 they had a boundary dispute with their immediate neighbour, Channakeshavegowda which resulted in their being assaulted by him and others. Thimmegowda then lodged a complaint on the same day with the Konanur Police Station in this regard.

According to Syed Ahmed (a police officer in the Konanur Police Station), the complaint was inquired into by S.C. Rangasetty (PW7). According to Nagaraja, illegal gratification was demanded by Syed Ahmed to enable him to file a chargesheet against Channakeshavegowda and others on the complaint by Thimmegowda.

The dispute between Thimmegowda and Channakeshavegowda was, however, amicably resolved in a few days time and the settlement entered into between them is Exhibit P.15 in the Trial Court.

Unfortunately, on 27th June, 1993 a boundary dispute again arose between Nagaraja and Thimmegowda on the one hand and Channakeshavegowda and others on the other. This resulted in Nagaraja lodging a complaint against Channakeshavegowda in the Konanur Police Station on 27th June, 1993. For inquiring into this complaint, Syed Ahmed allegedly demanded illegal gratification from Nagaraja.

Feeling aggrieved by the unlawful demand, Nagaraja lodged a complaint with the Lok Ayukta Police at Hassan on 28th June, 1993. The Lok Ayukta Police decided to trap Syed Ahmed while demanding and accepting illegal gratification from Nagaraja. As per the arrangement for the trap, some currency notes were treated with phenolphthalein powder and upon delivery of these tainted currency notes to Syed Ahmed, his fingers would get smeared with the powder. Thereafter, on washing the powdered fingers with sodium carbonate solution, the resultant wash would turn pink indicating thereby the physical receipt of the tainted currency by Syed Ahmed.

Also, as per the arrangements, two independent persons were to accompany Nagaraja to witness the transaction of delivery of the tainted currency notes to Syed Ahmed. The two independent witnesses in the case are Sidheshwara Swamy (PW2) and Keshavamurty (PW6).

As per the plan chalked out by the Lok Ayukta Police, Nagaraja went to the Konanur Police Station to hand over the illegal gratification to Syed Ahmed. However, when he reached there, he was told that Syed Ahmed was available at the Inspection Bungalow. Accordingly, Nagaraja and the trap party went to the Inspection Bungalow.

At the Inspection Bungalow, the two independent witnesses positioned themselves close to Syed Ahmed’s room. Nagaraja then entered his room and after a brief conversation with Syed Ahmed, he handed over some currency notes to him. Thereafter, Nagaraja exited from the room and gave a pre-determined signal to the trap party who reached Syed Ahmed’s room and washed his hands with sodium carbonate solution which turned pink. This confirmed his physical receipt of the tainted currency notes from Nagaraja.

On these broad facts, the prosecution charged Syed Ahmed (a public servant) with demanding and accepting illegal gratification from Nagaraja and thereby committing an offence under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the Act’).

The prosecution examined eight witnesses including Nagaraja (PW1) and the two independent trap witnesses Sidheshwara Swamy (PW2) and Keshavamurty (PW6). In addition, the prosecution also examined Bistappa (PW3) the scribe of the complaint dated 28th June, 1993 to the Lok Ayukta Police; Thimmegowda (Nagaraja’s father) as PW4; B. Pradeep Kumar (PW5) the Police Inspector of the Lok Ayukta Police, who arranged the trap, prepared the trap mahazar and investigated the case; S.C. Rangasetty (PW7) who dealt with the complaint dated 7th June, 1993 and confirmed the settlement Exhibit P.15. The officer who seized the samples relevant to the trap and sent them to Bangalore for analysis and then received the report was examined as PW8. None of the prosecution witnesses turned hostile.

Trial Court judgment:

Upon a consideration of the testimony of the witnesses and the documents on record, the Trial Judge by his judgment and order dated 21st July, 2000 concluded that the prosecution had failed to prove its case against Syed Ahmed beyond a reasonable doubt. Accordingly, Syed Ahmed was acquitted of the charges leveled against him.

The Trial Judge held that the dispute between Thimmegowda and Channakeshavegowda (of 7th June, 1993) was amicably settled and so there was no occasion for Syed Ahmed to demand any gratification from Nagaraja in connection with that complaint. As far as the other dispute (of 27th June, 1993) is concerned, it was held that Syed Ahmed had no role to play in it since he was not investigating that complaint. There was, therefore, no occasion for Syed Ahmed to demand any gratification from Nagaraja. On the contrary, it was held that Nagaraja had some enmity with Syed Ahmed as a result of Nagaraja’s failure to return some village utensils, which led to Syed Ahmed taking action against Nagaraja’s elder brother Thimmegowda. It was to wreak vengeance on Syed Ahmed because of that event that Nagaraja filed a false complaint against him.

The Trial Judge had some reservations about the location of the witnesses when the gratification was said to have been given to Syed Ahmed. The Trial Judge also held that Syed Ahmed’s wallet and a Rs.10/- currency note recovered therefrom ought to have been sent for forensic examination. The Trial Judge also noted that there was an inconsistency in the testimony of the witnesses about the dress worn by Syed Ahmed when he is alleged to have taken the illegal gratification. Finally, the Trial Judge held that the failure of the prosecution to produce the complaint dated 27th June, 1993 made by Nagaraja against Channakeshavegowda was significant.

Taking all these factors and discrepancies into consideration, the Trial Judge did not accept the version of the prosecution and acquitted Syed Ahmed of the charges framed against him.

High Court judgment:

On appeal by the State, a learned Single Judge of the High Court of Karnataka by his order dated 25th July, 2006 set aside the judgment and order of the Trial Court and convicted Syed Ahmed for an offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act. Syed Ahmed was sentenced to suffer rigorous imprisonment for a period of three months and to pay a fine of Rs.20,000/-, and in default thereof to undergo simple imprisonment for a period of six months.

The High Court held that there was no reason to disbelieve Nagaraja, nor was there any reason to disbelieve Sidheshwara Swamy (PW2) the independent witness. It was also held that in view of Section 7(d) of the Act, a public servant who is not in a position to do any favour to a person could also be deemed to commit an offence under the Act if he demands and accepts illegal gratification. As regards the discrepancies pointed out by the Trial Court, the High Court found that they did not dent the veracity of Nagaraja (PW1) or of Sidheshwara Swamy (PW2). Accordingly, the High court reversed the order of acquittal and convicted Syed Ahmed.

Feeling aggrieved, Syed Ahmed preferred an appeal to this Court.

Statutory provisions:

Section 7 of the Act, to the extent that we are concerned, reads as follows:

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. 

Explanations.— 

(a) xxx xxx xxx. 

(b) xxx xxx xxx. 

(c) xxx xxx xxx. 

(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) xxx xxx xxx.” 

Sections 13(1)(d) and 13(2) of the Act read as follows: 

Section 13 – Criminal, misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct,  

(a) xxx xxx xxx 

(b) xxx xxx xxx 

(c) xxx xxx xxx 

(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; or 

(e) xxx xxx xxx 

Explanation.— xxx xxx xxx 

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.”

Preliminary submissions and conclusions:

Learned counsel for Syed Ahmed contended that the High Court ought not to have interfered with the order of acquittal given by the Trial Judge. In this context, reference was made to the principles laid down in Chandrappa v. State of Karnataka, (2007) 4 SCC 415, namely:-

“(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. 

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. 

(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. 

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. 

Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. 

Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. 

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

While culling out the above principles, this Court referred to and relied upon over a dozen earlier decisions. These principles were reiterated recently in Jugendra Singh v. State of U.P., 2012 (5) SCALE 691. We do not think it necessary to burden this decision with the very large number of citations on the subject. Suffice it to say that these principles are now well settled.

It is also necessary to appreciate the ingredients of the offence for which Syed Ahmed was convicted. This is necessary for understanding whether or not the Trial Judge correctly applied the law on the subject.

Learned counsel relied upon State of Kerala v. C.P. Rao (2011) 6 SCC 450 and Banarsi Dass v. State of Haryana, (2010) 4 SCC 450 and contended that “mere recovery of tainted money, divorced from the circumstances in which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable”. It was also contended that the prosecution should, additionally, prove that payment to the accused was by way of a reward for doing or proposing to do a favour to the complainant.

We are in agreement with learned counsel on this issue and it is for this reason that we went through the evidence on record.

We must add that on a reading of the provisions of the Act, it is also necessary for the prosecution to prove that the person demanding and accepting gratification is a public servant. In so far as the present case is concerned, there is no dispute that Syed Ahmed is a public servant. The prosecution must also prove a demand for gratification and that the gratification has been given to the accused. If these basic facts are proved, the accused may be found guilty of an offence under the provisions of law that concern us in this case.

Viewed in this light, the inquiry by the Trial Judge ought to have been somewhat limited and confined to the question of a demand for illegal gratification by Syed Ahmed, meeting that demand by Nagaraja and acceptance of the illegal gratification by Syed Ahmed. Of course, Syed Ahmed was entitled to put forward his defence, which was required to be considered by the Trial Judge. However, in this case, no defence was put forward, but an attempt was made to discredit the witnesses.

Given the law laid down by this Court, we are of the opinion that the High Court did not commit any error in reappraising the evidence for arriving at the truth of the matter. The High Court also rightly confined itself to the core issues before it in concluding the guilt of Syed Ahmed.

Submissions on merits and conclusions:

On the merits of the case, learned counsel made several submissions. It was submitted that there is nothing on record to suggest that Syed Ahmed made any demand for gratification or received and accepted any illegal gratification.

This contention does not appeal to us, particularly in view of the unshaken testimony of Nagaraja (PW1) and the corroborative evidence of the eye witness Sidheshwara Swamy (PW2). This witness was near the window and just outside the room occupied by Syed Ahmed. He refers to some conversation that took place between Syed Ahmed and Nagaraja in a low tone and which he could not hear. Thereafter, this witness specifically states that Syed Ahmed asked Nagaraja if he had brought what he was told to bring. Nagaraja replied in the affirmative and thereupon Nagaraja gave the tainted currency notes to Syed Ahmed, which he accepted. Thereafter, Syed Ahmed kept the tainted currency notes in a purse which was then placed in the pocket of his trousers hung on the wall. There is, therefore, a clear statement of Sidheshwara Swamy (PW2), which has not been shaken in cross-examination, to the effect that there was a demand for some gratification by Syed Ahmed from Nagaraja and that Nagaraja paid some money to Syed Ahmed by way of gratification. The ingredients of Section 13(1)(d) of the Act are fulfilled in this case and have been proved beyond any doubt.

We agree with the High Court that in view of Explanation (d) to Section 7 of the Act, the issue whether Syed Ahmed could or could not deliver results (as it were) becomes irrelevant in view of the acceptance of the testimony of Nagaraja (PW1) and Sidheshwara Swamy (PW2).

It was then contended that the High Court overlooked the fact that the complaint dated 7th June, 1993 made by Thimmegowda had been settled vide Exhibit P.15 and that the subsequent complaint made by Nagaraja on 27th June, 1993 was not available on the record. It was submitted that in the absence of the basic document, that is the complaint dated 27th June, 1993 the case of the prosecution could not stand scrutiny.

We are unable to accept this submission. The basis of the action against Syed Ahmed was not the complaint dated 27th June, 1993 but the complaint dated 28th June, 1993 made by Nagaraja to the Lok Ayukta Police. This complaint is on the record and is marked as Exhibit P.3. In the complaint, it is alleged, that Syed Ahmed had demanded illegal gratification from Nagaraja and it is on a follow up of this complaint that arrangements were made to lay a trap against Syed Ahmed. Learned counsel is, therefore, in error in assuming that action against Syed Ahmed was based on the complaint dated 27th June, 1993. As mentioned above, this is factually not so.

As regards settlement of the dispute referred to in the complaint dated 7th June, 1993 in our opinion that would not take away the substance of the issue before us, namely, whether Syed Ahmed demanded and accepted illegal gratification from Nagaraja or not. But, it is submitted that the complaint against Syed Ahmed was motivated. This is traced to an earlier dispute between Nagaraja’s elder brother (also named Thimmegowda) and Syed Ahmed. It appears that sometime in May, 1993 Nagaraja had taken some utensils belonging to the village community for performing the marriage of his younger brother. These utensils were retained by Nagaraja for quite some time. A complaint came to be made against Thimmegowda (PW4) in this regard and at that time, Syed Ahmed assaulted Thimmegowda (elder brother of Nagaraja) for not promptly returning the utensils. Due to this incident, and by way of revenge, Syed Ahmed is said to have been falsely implicated by Nagaraja.

We are not inclined to give much weight to this incident. The reason is that the issue regarding the return of utensils was settled as testified by Nagaraja and S.C. Rangasetty (PW7). In addition, we find that no suggestion was given by Syed Ahmed to any witness that the complaint of 28th June, 1993 was a result of this particular incident. Even in his statement recorded under Section 313 of the Criminal Procedure Code, Syed Ahmed does not make out a case that that incident had some nexus with this complaint. Also, if anybody had to have any grievance in this regard, it would be Thimmegowda (elder brother of Nagaraja) and not Nagaraja. In fact, it appears that Nagaraja was not particularly happy with his brother because he says in his cross examination that during 1993-94 he was managing the family affairs since his father was aged and infirm and his elder brother was a drunkard.

The next two submissions of learned counsel were to the effect that a currency note of Rs.10/- recovered from the wallet of Syed Ahmed and indeed the wallet also were not sent for forensic examination to ascertain the presence of phenolphthalein powder. Moreover, there is nothing on record to indicate what eventually happened to that currency note.

We cannot see relevance of these submissions. What we are concerned with is whether Syed Ahmed had demanded illegal gratification from Nagaraja and whether he had received and accepted that illegal gratification. The tainted currency notes given to Syed Ahmed as illegal gratification are material and not the untreated Rs.10/- currency note or the wallet in which all the currency notes were kept. These are minor issues that have no real bearing on the controversy on hand.

The final contention was that there is considerable doubt about the attire of Syed Ahmed at the time of receiving the illegal gratification from Nagaraja. It is pointed out that Nagaraja stated that Syed Ahmed had kept the tainted currency notes in a purse and that the purse was kept in the hip pocket of his trousers. It is suggested by learned counsel that this would indicate that Syed Ahmed was wearing trousers at that point of time.

In his cross-examination also, Nagaraja stated that Syed Ahmed was wearing his uniform when the illegal gratification was given to him. According to learned counsel, both these statements confirm that Syed Ahmed was wearing his trousers when the concerned incident took place.

In this context, reference was made to the testimony of Sidheshwara Swamy (PW2) who stated that Syed Ahmed kept the tainted currency notes in a purse which he put in the pocket of his trousers hanging on a wall. In his crossexamination this witness stated that at the relevant time, Syed Ahmed was sitting on a cot wearing a vest and a lungi.

On this basis, it is submitted by learned counsel that there is a discrepancy in the testimony of the witnesses with regard to the dress worn by Syed Ahmed when he was sought to be trapped. It is submitted by learned counsel that the discrepancy casts a doubt on the correctness of the events said to have taken place on 28th June, 1993 and the benefit of this must go to Syed Ahmed.

In our opinion, the discrepancy with regard to the attire of Syed Ahmedthe Rs.10/- currency note and the forensic examination of the wallet are rather minor matters. What is a minor discrepancy? This has been the subject matter of discussion in Abdul Nawaz v. State of West Bengal , 2012 (5) SCALE 357 and Jugendra Singh. After referring to a few earlier decisions of this Court, it was held that a discrepancy would be minor if it did not affect the substratum of the prosecution’s case or impact on the core issue. In such an event, the minor discrepancy could be ignored.

As far as we are concerned, whether the absence of the Rs. 10/- currency note could or could not be explained or why Syed Ahmed’s wallet was not sent for forensic examination or whether he was wearing trousers or a lungi at the relevant point of time are matters of minor detail which do not impact on the substratum of the prosecution’s case. We are required to look at the core issue and at the overall picture of the events that transpired on 28th June, 1993 and not get diverted by minor discrepancies or trivialities.

It is while undertaking this exercise that we find from the evidence of the witnesses that there was sufficient evidence of Syed Ahmed demanding illegal gratification from Nagaraja and receiving and accepting it when given by him. On this basis, we find no reason to interfere with the judgment and order under appeal.

With regard to the sentence awarded to Syed Ahmed, the High Court has erred in awarding a sentence of only three months rigorous imprisonment. Section 13(2) of the Act prescribes a minimum sentence of one year imprisonment. However, the State has not appealed against the quantum of sentence. Moreover, the incident is of 1993, which is about 19 years ago. Keeping these factors in mind, we do not propose to interfere with the sentence awarded.

The appeal is dismissed.

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Practice and procedure – Quashing of FIR – Corruption – Bribe demanded by government doctor – Practice of reliance on affidavits submitted by witnesses in support of accused – Whether Proper?

Held:- It is risky to encourage the practice of filing affidavits by the witnesses at the stage of investigation or during the court proceedings in serious offences such as offences under the PC Act. If such practice is sanctioned by this Court, it would be easy for any influential accused to procure affidavits of witnesses during investigation or during court proceedings and get the FIR and the proceedings quashed. 

 Criminal Procedure Code, 1973 – Section 482 – Inherent powers of High Court – Principles. 

Held:– The plentitude of the power under Section 482 of the Code by itself makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. 

 Prevention of Corruption  Act, 1988 – Section 7 and 13 – Plea of Mercy -Respondent is on the verge of retirement

He has suffered the agony of investigation since 2007 – Held, Rampant corruption is seen in every walk of our life. People, particularly those holding high office, are frequently seen accepting illegal gratification. In such serious cases showing mercy at this stage may send wrong signals. 

 Prevention of Corruption Act, 1988 -Sections 7 & 13(1)(d)(2) – Criminal Procedure Code, 1973 – Section 482 -Practice and procedure – Quashing of FIR – Corruption – Bribe demanded by government doctor – Whether the exercise of powers under Section 482 of the Code by the High Court to quash the complaint was warranted in the facts of this case? 

 Held:– By the impugned judgment, a learned Single Judge of the High Court has quashed the complaint filed against respondent 1 by one Sohan Lal (the complainant) alleging that respondent 1 demanded Rs.5,000/- as illegal gratification for  performing the operation of Smt. Sita Devi, whom he treated as his aunt. The conversation of respondent 1 and the complainant was heard on the tape recorder. Thereafter, the raiding party, two independent witnesses and the complainant went inside the house of respondent 1. Upon being questioned, respondent 1 stated that he had kept the money in the drawer of his table. The money was recovered and hand wash of respondent 1 was taken which turned pink. After following the necessary formalities, FIR came to be registered the PC Act at Police Station, ACB Chowki, Sriganganagar, against respondent 1. Sanction for prosecution was obtained from the competent authority on 23/6/2009. How far the evidence collected by the investigating agency is credible can be decided only when the evidence is tested by cross examination during the trial. But, in our opinion, in view of the contents of the FIR and nature of evidence collected by the investigating agency, this is certainly not a case where the FIR can be quashed. If we examine the instant FIR in light of the principles laid down by this Court in Bhajan Lal it is not possible to concur with the High Court that the allegations made in the FIR and the evidence collected in support of the same do not disclose the commission of any offence.

 

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1222 OF 2012

[Arising out of Special Leave Petition (Crl.) No.4845 of 2010]

AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ. On AUGUST 17, 2012

 

STATE OF RAJASTHAN                       … APPELLANT

Vs.

DR. RAJKUMAR AGARWAL & ANR            . … RESPONDENTS

 

JUDGMENT : (SMT. ) RANJANA PRAKASH DESAI , J .

 1. Leave granted.

2. This appeal, by special leave, filed by the State of Rajasthan is directed against judgment and order dated 10/9/2009 delivered by the High Court of Rajasthan in Cri. Misc. Petition No.307 of 2009 filed by respondent 1 herein – Dr. Rajkumar Agarwal under Section 482 of the Code of Criminal Procedure, 1973 (for short, “the Code”). By the impugned judgment, a learned Single Judge of the High Court has quashed the complaint filed against respondent 1 by one Sohan Lal (the complainant) alleging that respondent 1 demanded Rs.5,000/- as illegal gratification for performing the operation of Smt. Sita Devi, whom he treated as his aunt. The question before this court is whether the exercise of powers under Section 482 of the Code by the High Court to quash the complaint was warranted in the facts of this case.

3. The facts, briefly stated, are as follows:Respondent 1 was working as Junior Specialist (Surgery), Government Hospital, Suratgarh, District Sriganganagar, Rajasthan. On 11/12/2007, the Complainant submitted a written complaint to the Police Station, Anti Corruption Bureau (for short, “the ACB”) Chowki, Sriganganagar stating that on 7/12/2007, respondent 1 performed the operation of uterus of his aunt – Smt. Sita Devi w/o. Navranglal in a Government Hospital at Suratgarh. According to the complainant, respondent 1 demanded Rs.5,000/- as bribe for the operation and for better treatment. The complainant gavea sum of Rs.2,500/- at the time of operation. The complainant stated that his aunt was still in the hospital and respondent 1 was demanding the remaining sum of Rs.2,500/-. According to the complainant, he did not want to give the money but he apprehended that respondent 1 may cause harm to his aunt, if he does not pay the amount.

4. It is the case of the petitioner that on the same day at about 11.00 a.m., a blank cassette “A” was inserted in a small tape-recorder and handed over to the complainant at the ACB Office. The complainant was explained about its functioning. Mr. Jagdish Rai, Ct.No.179 was sent along with the complainant to Suratgarh for verification of the demand of bribe. At 5.00 p.m., both the complainant and Mr. Jagdish Rai returned to the ACB office. The tape-recorder was played and the demand was found corroborated. Its memo was prepared and the cassette was sealed and labelled. It is the case of the appellant that preparation for trap was made. Two independent witnesses i.e. Mr. Darshan Singh, Assistant Engineer and Mr. Kripal Singh, Assistant Project(Samanvayak) Office, Sarva Shiksha Abhiyan, Sriganganagar were introduced to the complainant. Currency notes of Rs.1,500/- produced by the complainant which were to be handed over to the appellant were smeared with phenolphthalein powder. The necessary procedure was followed. A new blank cassette was inserted in the tape recorder and it was handed over to the complainant. On 12/12/2007, the Additional Superintendent of Police along with the complainant, the two independent witnesses and others left for Suratgarh. The complainant was given necessary direction for contacting respondent 1. The trap party waited there. The complainant came out of the residence of respondent 1 and gave fixed signal to the Additional Superintendent of Police. The raiding party along with the independent witnesses went to the complainant, who stated that respondent 1 had kept the bribe money of the complainant in the drawer of his table. The conversation of respondent 1 and the complainant was heard on the tape recorder. Thereafter, the raiding party, two independent witnesses and the complainant went inside the house ofrespondent 1. Upon being questioned, respondent 1 stated that he had kept the money in the drawer of his table. The money was recovered and hand wash of respondent 1 was taken which turned pink. After following the necessary formalities, FIR came to be registered under Sections 7 and 13(1)(d)(2) of the Prevention of Corruption Act, 1988 (for short, “the PC Act”) at Police Station, ACB Chowki, Sriganganagar, against respondent 1. Sanction for prosecution was obtained from the competent authority on 23/6/2009.

5. As stated above, respondent 1 filed petition under Section 482 of the Code for quashing of the said FIR. The High Court has quashed the said FIR. The State of Rajasthan is in appeal before us.

6. Mr. Manish Singhvi, Addl. Advocate General for the appellant submitted that the High Court has fallen into a grave error in quashing the FIR. Counsel submitted that the High Court misinterpreted the ratio of the judgment of this court in State of Haryana v. Bhajan Lal, 1992 Supp. (1)335. Counsel submitted that the FIR and the other material collected by the prosecution prima facie make out a strong case against respondent 1.

7. Mr. Pallav Shishodia, learned senior advocate for respondent 1, on the other hand, submitted that the High Court has rightly quashed the complaint. He pointed out that Smt. Sita Devi was not related to the complainant. Therefore, the complainant’s case that he went to respondent 1 in connection with the uterus operation of Smt. Sita Devi and the amount was demanded by respondent 1 from him is inherently improbable. Counsel submitted that the complainant owns a Chemist shop near the hospital in which respondent 1 is working. The complainant does not have the necessary licence to run the Chemist shop. The illegalities committed by the complainant were known to respondent 1 and, therefore, the complainant has falsely implicated respondent 1 in this case. Counsel pointed out that in their statements recorded under Section 161 of the Code, Smt. Sita Devi as well as her husband have stated that they were notaware whether the appellant demanded any money from respondent 1. In fact, Smt. Sita Devi and her husband have filed affidavits stating that respondent 1 never asked for money and his behaviour towards Smt. Sita Devi was good and the allegations made by the complainant are false. In support of his submission, counsel relied on the judgments of this court in V.P. Shrivastava v. Indian Explosives Limited & Ors. (2010) 10 SCC 361 andShiji alias Pappu & Ors. V. Radhika & Anr. (2011) 10 SCC 705. Counsel submitted that since Smt. Sita Devi and her husband have not supported the prosecution case, the prosecution has become a lame prosecution and in all probability the case will end in acquittal. Therefore, the High Court has rightly quashed the complaint because if the proceedings are allowed to continue, that will be an abuse of the process of court. Counsel submitted that in any case, even if this court comes to a conclusion that the complaint discloses a prima facie cognizable offence, considering the fact that the offence is of the year 2007; that respondent 1 is on the verge of retirement and that he has suffered the agony of investigationand possibility of a criminal trial from 2007 onwards till today, this court may take a kindly view of the matter. Counsel submitted that in the facts of this case, ends of justice would be met if the High Court’s order is confirmed.

8. We find no substance in Mr. Shishodia’s submissions. It is true that the complainant is not related to Smt. Sita Devi but nothing has been brought on record to even prima facie establish that the complainant holds any grudge against respondent 1 because respondent 1 had knowledge about the alleged irregularities in respect of his Chemist shop. Since Mr Shishodia has referred to statements of Smt. Sita Devi and Navrang Lal recorded under Section 161 of the Code, we have perused them. In these statements, Smt. Sita Devi and Navrang Lal have stated that the complainant was treating Smt. Sita Devi as his aunt and he had admitted her to the hospital. Navrang Lal has stated that because of his work he had to leave Suratgarh and therefore, the complainant admitted Smt. Sita Devi in the hospital. So far as the alleged demand for money made by respondent 1 is concerned, theyhave stated that respondent 1 did not demand any money from them and they were not aware whether respondent 1 demanded any money from the complainant. Thus, these statements support the complainant’s case that he was treating Smt. Sita Devi as his aunt; that he had admitted her to the hospital and that he had dealt with respondent 1. Respondent 1 is relying on three affidavits. Affidavits have been filed by Smt. Sita Devi, Navrang Lal and another patient by name Devcharan Bhagat. Surprisingly, in these affidavits, Smt. Sita Devi and Navrang Lal have given a totally contrary version. They have gone on to say that the complainant has lodged a false complaint against respondent 1. In his affidavit Devharan Bhagat, another patient of respondent 1, has given a certificate to respondent 1 that he is an expert doctor and he had never taken any money from him for treatment. At this stage, we do not want to give any final opinion on these affidavits but we find it difficult to quash the complaint on the basis of these affidavits. As we have already noted, Smt. Sita Devi and her husband have in their statements recorded under Section 161 of the Code partly supported the complainant. Apart from these statements there is another prima facie clinching circumstance against the appellant. The police claim that they have taped the conversation between respondent 1 and the complainant. We have read the transcript of this tape recorded conversation. It is not possible for us to agree with the High Court that the transcription does not corroborate the FIR. Prima facie, we feel that if it is read against the background of the other facts, it is apparent that it relates to the operation of Smt. Sita Devi and the demand pertains to the said operation. Besides, according to the prosecution, the trap was successful. Money smeared with phenolphthalein powder was found with respondent 1. The notes recovered from the respondent 1 tallied with the notes given by the complainant to the police for the purpose of trap and respondent 1’s hand wash turned pink. It is also pertinent to note that when the complaint was lodged, Smt. Sita Devi was still in hospital, probably because after the money was handed over, she was to be discharged, and in fact, her discharge card was found on the table of respondent 1. It is also the case of the appellant that respondent 1refused to give his voice sample for the purpose of investigation. How far the evidence collected by the investigating agency is credible can be decided only when the evidence is tested by cross examination during the trial. But, in our opinion, in view of the contents of the FIR and nature of evidence collected by the investigating agency, this is certainly not a case where the FIR can be quashed. If we examine the instant FIR in light of the principles laid down by this Court in Bhajan Lalit is not possible to concur with the High Court that the allegations made in the FIR and the evidence collected in support of the same do not disclose the commission of any offence.

9. There is yet another and a very sound reason why we are unable to quash the instant FIR. It is risky to encourage the practice of filing affidavits by the witnesses at the stage of investigation or during the court proceedings in serious offences such as offences under the PC Act. If such practice is sanctioned by this Court, it would be easy for any influential accused to procure affidavits of witnesses during investigationor during court proceedings and get the FIR and the proceedings quashed. Such a practice would lead to frustrating prosecution of serious cases. We are therefore, wary of relying on such affidavits. So far as the judgment cited by Mr. Shishodia in V.P. Shrivastava is concerned, it is purely on facts and can have no application to this case. Shiji @ Pappu also does not help respondent 1. That case involved a civil dispute. Parties had settled their civil dispute and therefore, the complainant was not ready to proceed with the proceedings. It is against this background that in Shiji @ Pappu, this Court held that exercise of power under Section 482 of the Code was justifiable. However, this court added that the plentitude of the power under Section 482 of the Code by itself makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. We feel that in the instant case, the High Court failed to appreciate that the wholesome power vested in it under Section 482 of the Code has to be exercised with circumspection and very sparingly. It is not possible for us, on the facts of this case, to come to a conclusion that no offence is made out at all against respondent 1 and continuance of proceedings would be abuse of the process of court.

10. Mr. Shishodia submitted that respondent 1 is on the verge of retirement. He has suffered the agony of investigation since 2007 and therefore, this court may take a kindly view of the matter. Rampant corruption is seen in every walk of our life. People, particularly those holding high office, are frequently seen accepting illegal gratification. In such serious cases showing mercy at this stage may send wrong signals. We are, therefore, unable to accede to Mr. Shishodia’s request.

11. In the circumstances, we set aside the impugned judgment and order. It is not necessary for us to say the obvious that all observations made by us are prima facie observations and the court which may be seized of this mattershall deal with it strictly on merits and in accordance with law.

12. The appeal is disposed of in the afore-stated terms.

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Prevention of Corruption Act, 1988 – Section 19(1)(c) – Removal from his office – Previous sanction necessary for prosecution

Held:- In our opinion, office means a position which requires the person holding it to perform certain duties and discharge certain obligations and removal from his office would mean to snap that permanently. By repatriation, the person holding the office on deputation may not be required to perform that duty and discharge the obligation of that office, but nonetheless he continues to hold office and by virtue thereof performs certain other duties and discharge certain other obligations. Therefore the power to repatriate does not embrace within itself the power of removal from office as envisaged under Section 19(1)(c) of the Act. The term removal means the act of removing from office or putting an end to an employment. The distinction between dismissal and removal from service is that former ordinarily disqualifies from future employment but the latter does not.

 

 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 459 OF 2013

(@SPECIAL LEAVE PETITION (CRIMINAL) No. 1593 of 2007)

 

STATE OF UTTARAKHAND                                                                           … APPELLANT

VERSUS

YOGENDRA NATH ARORA & ANR                                                       . …RESPONDENTS

 

J U D G M E N T : CHANDRAMAULI KR. PRASAD, J.

 

            Yogendra Nath Arora (hereinafter referred to as “the Accused”) was earlier employed as Deputy General Manager in U.P. Industrial Consultants, an undertaking of the State of Uttar Pradesh. Consequent upon reorganization of the State of Uttar Pradesh, he was taken on deputation on 23rd January, 2003 and posted as Deputy General Manager of the State Industrial Development Corporation,  (hereinafter referred to as “SIDCUL”), a Government undertaking of the State of Uttarakhand. While working as the Deputy General Manager of SIDCUL, a trap was laid on 30th of June, 2004 and he was arrested while accepting an illegal gratification of Rs.30,000/-. This led to lodging of Criminal Case No. 168 of 2004 at Police Station Dalanwala, District Dehradun under Section 7 read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act”). The accused was repatriated on the same day to his parent organization by the State Government of Uttarakhand. It also granted sanction for his prosecution on 23rd of August, 2004 and the charge sheet was submitted on 25th of August, 2004 in the Court of Special Judge, Anti-Corruption-II, Nainital. Accused prayed for discharge, inter alia contending that the materials on record are not sufficient for framing of the charge and further, in the absence of valid sanction from the competent authority, as required under Section 19(1)(c) of the Act, the trial can not legally proceed. The Special Judge, by his order dated 18th of August, 2005 rejected his contention, inter alia, observing that there is sufficient material on record for framing of the charge. As regard the plea of absence of sanction, the learned Judge observed as follows:

“…the question of sanction being merely an incident to the trial of the case is not to be considered at this stage. It is undoubtedly true, that the accused was an employee of the State of  Uttar Pradesh and was on deputation to the State of Uttaranchal and under the subordination and administrative control of the State of Uttaranchal. Thus, the question of sanction being incident to the trial of the case and on perusal of the record, there is a sufficient material on record to charge the accused, the accused shall be charged under Section 7 read with Section 13(a)(d) and 13(2) of the Prevention of Corruption Act, 1988.”

         Accordingly, the Special Judge rejected the prayer of the accused.

        Aggrieved by the same, the accused preferred an application under Section 482 of the Criminal Procedure Code before the High Court challenging the aforesaid order. It was contended before the High Court that the accused being an employee of an undertaking of the State Government of Uttar Pradesh, the State Government of Uttarakhand is not competent to grant sanction. This submission found favour with the High Court. The High Court held that the accused being an employee of an undertaking of the State Government of Uttar Pradesh and having been repatriated to his parent department, it is the State Government of the Uttar Pradesh which is competent to remove him and to grant necessary sanction. Accordingly, the High Court quashed the prosecution of the accused being without valid sanction and, while doing so, observed that the State Government of Uttarakhand shall be at liberty to prosecute the accused after obtaining valid sanction from the State Government of Uttar Pradesh.

 

           Aggrieved by the aforesaid order, the State of  Uttarakhand has filed the present special leave petition.

 

             Leave granted.

 

             It is common ground that without prejudice to the contention raised in the present appeal, the State Government of Uttarakhand has written to the State Government of Uttar Pradesh for granting sanction. But, till date no decision has been communicated.

             Ms. Rachana Srivastava, learned counsel representing the State of  Uttarakhand concedes that sanction by the competent State Government is necessary for prosecution of an accused for an offence punishable under Section 7 and 13 of the Act. She points out that the accused being on deputation to an undertaking of the State Government of Uttarakhand, it had the power to repatriate him which would mean the power of removal from office by the State Government of Uttarakhand. According to her, dislodging an accused from an office and repatriating him would mean removal from his office. Removal from office, according to her, would not mean the removal from service. She emphasizes that the expression used in Section 19(1)(c) is ‘removal from his office’ and not ‘removal from service’. Section 19(1)(c)  of the Act which is relevant for the purpose reads as follows:

 “19. Previous sanction necessary for  prosecution.(1) No court shall take cognizance of an offence punishable under Sections 7,10,11,13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-………..

(a) xxx                                                 xxx                                                               xxx

(b) xxx                                                 xxx                                                                xxx

 (c)in the case of any other person, of the authority competent to remove him from his office.”

             In support of the submission reliance has been placed to a Constitution Bench judgment of this Court in the case of R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183 and our attention has been drawn to the following passage from paragraph 23 of the judgment which reads as follows:

 “…Each of the three clauses of subsection(1) of Section 6 uses the expression ‘office’ and the power to grant sanction is conferred on the authority competent to remove the public servant from his office and Section 6 requires a sanction before taking cognizance of offences committed by public servant. The offence would be committed by the public servant by misusing or abusing the power of office and it is from that office, the authority must be competent to remove him so as to be entitled to grant sanction. The removal would bring about cessation of interrelation between the office and abuse by the holder of the office. The link between power with opportunity to abuse and the holder of office would be severed by removal from office. Therefore, when a public servant is accused of an offence of taking gratification other than legal remuneration for doing or forbearing to do an official act (Section 161 IPC) or as a public servant abets offences punishable under Sections 161 and 163 (Section 164 IPC) or as public servant obtains a valuable thing without consideration from person concerned in any proceeding or business transacted by such public servant (Section 165 IPC) or commits criminal misconduct as defined in Section 5 of the 1947 Act, it is implicit in the various offences that the public servant has misused or abused the power of office held by him as public servant. The expression ‘office’ in the three sub-clauses of Section 6(1) would clearly denote that office which the public servant misused or abused for corrupt motives for which he is to be prosecuted and in respect of which a sanction to prosecute him is necessary by the competent authority entitled to remove him from that office which he has abused. This interrelation between the office and its abuse if severed would render Section 6 devoid of any meaning. And this interrelation clearly provides a clue to the understanding of the provision in Section 6 providing for sanction by a competent authority who would be able to judge the action of the public servant before removing the bar, by granting sanction, to the taking of the cognizance of offences by the court against the public servant. Therefore, it unquestionably follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider.”

            In fairness to her, she concedes that power to remove the accused from service is with the State Government of Uttar Pradesh and if her contention that power to repatriate would mean the power to remove from service does not find favour, it shall be the State Government of Uttar Pradesh which would be competent to grant sanction.

              Mr. R.G. Srivastava, learned counsel representing the accused, however, contends that the expression removal from office would mean termination from service and un disputably in the facts of the present case it was the State Government of Uttar Pradesh which was competent to terminate the service of the accused. According to him, removal from office would mean removal from permanent employment.

               In view of the rival submissions, the question which falls for determination is as to whether the expression removal from his office would mean dislodging him from holding that office and shifting him to another office. In other words, the power of the State Government of Uttarakhand to repatriate the accused would mean that it has power to remove. In our opinion, office means a position which requires the person holding it to perform certain duties and discharge certain obligations and removal from his office would mean to snap that permanently. By repatriation, the person holding the office on deputation may not be required to perform that duty and discharge the obligation of that office, but nonetheless he continues to hold office and by virtue thereof performs certain other duties and discharge certain other obligations. Therefore the power to repatriate does not embrace within itself the power of removal from office as envisaged under Section 19(1)(c) of the Act. The term removal means the act of removing from office or putting an end to an employment. The distinction between dismissal and removal from service is that former ordinarily disqualifies from future employment but the latter does not. Hence, we reject this submission of Ms. Srivastava.

                The view which we have taken finds support from the decision of this Court in the case of V.K. Sharma v. State (Delhi Admn.), 1975 (1) SCC 784 in which it has been held as follows:

 “…..The purport of taking the sanction from the authority competent to remove a corrupt government servant from his office is not only to remove him from his temporary office but to remove him from government service.”

                 We are told by Ms. Srivastava that the request of the State Government of Uttarakhand for sanction of prosecution of the accused is still pending before the State Government of Uttar Pradesh. Hence, we deem it expedient that the latter takes decision on the request so made, if already not taken, within 8 weeks from the date of communication of this order. It is made clear that we are not expressing any opinion in regard to the merit of the request made by the State Government of Uttarakhand and it shall be decided by the State Government of Uttar Pradesh on its own merit in accordance with law.

                    Let a copy of this order be forwarded to the Chief Secretary of the State Government of Uttar Pradesh for appropriate action forthwith.

                    In the result, we do not find any merit in this appeal and it is dismissed accordingly with the aforesaid observation.

…………………………………………………………J.

(CHANDRAMAULI KR. PRASAD)

…………….………………………………………J.

(V. GOPALA GOWDA)

NEW DELHI,

MARCH 18,2013

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