Ab.Majid vs State of Jammu & Kashmir

This conviction appeal has been filed against the conviction and sentence passed by Special Judge, Anticorruption, Srinagar in case State versus

Abdul Majid Shagoo and another, file No. 14/B instituted on 20061977 decided on 26031980, whereunderthe persons of the appellants, Abdul

Majid Shagoo, Inspector Electricity and Mohammad Abdullah Dar, Lineman in the Electric Department seem to have'been sentenced and

convicted for offence under Section 5(2) of the Prevention of Corruption Act 2006 read with Section 161 RFC. The appellants have been

respectively convicted and sentenced for a term of one years's regorous imprisonment and a fine of Rs. 100/ each and in default of payment of fine,

to undergo further imprisonment of seven days.

In the grounds of appeal, the appellants have pleaded that the sentence and conviction awarded by the Special Judge is not warranted under law

as because it is not in correct appreciation of facts and the law and is based on wrong conclusions. Prosecution story is not supported by any

independent witness in material particulars and the logical conclusions should have been acquittal of the accused/appellants rather than conviction;

That the trial court having come to the conclusion that the demonstration part of the prosecution case of having recovered the money and then

tainted hands of the accused were dip in the sodium solution which turned pink etc. has not been admittedly by the trial court and discredited the

story of Fardi Muzahara, and even after having discredited the story, the conviction and sentence passed against the accused/appellants is on no

evidence

That the presumptions which have been inferred by the learned trial Judge are also not in accordance with the legal principles and the legal

evidence. Thus the presumptions drawn are not well founded which could sustain the conviction and sentence.

It is further pleaded that even the sanction accorded by the State in prosecuting the accused/appellants is not in accordance with law The

prosecution has failed to bring home the ingredients of the offence as enumerated under subsection (2) of Section 5 of the Prevention of Corruption

Act. Under Section 5 of the P.C. Act, criminal misconduct of a public servant which is made punishable has been defined in the following manner

Criminal misconduct(l) A public servant is said to commit the offence of criminal misconduct

a) if he habitually accepts or obtains or agrees to accept or attempt to obtain from any person for himself or for any other person, any gratification

(other than legal remuneration) as a motice or reward such as is mentioned in Section 161 of the State ranbir Penal Code, Samvat 1989; or

b) if he habitually accpets or obtains or agrees to accept or attempts to obtain for himself or any other person, any valuable thing without

consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been or to be or to be likely to

be concerned in any proceeding or business Ira .sacted or about to be transacted by him or having any connection with the official functions of

himself or of any public servant to whom he is subordinate or from any person whom he knows to be interested or related t"" the persons so

concerned; or

Furthermore subsection (2) of Section of the Prevention of Corruption Act, 2006 further provides:

(2) Any public ser/ant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but

which may extend to seven years and shall also be liable to fine

Mr. Qayoom submits that the prosecution has not brought on record the ingredients of the misconduct in as much as there is no evidence at all in

the prosecution case that the accused/appellant were habitual in accepting or obtaining or agreeing to accept of attempt to obtain for themselves or

for any other person any illegal gratification or they were habitually accepting or obtaining or agreeing to accept or attempt or attempt to obtain for

themselves or for any other person, any valuable thing without consideration or for a consideration which they knew to be inadequate in connection

with the official business of themselves or of any public servant to whom they are subordinate. Even neither any dishonest nor misappropriation of

otherwise of any property purported to have been entrusted to the accused or under their control as a public servant who have converted it to their

own use. In that view of the matter, the case for arguments sake can be taken b\to be failing under clause (d) of Section 5 of the P.C. Act.

However, while drawing that presumption, the. court has also to see as to whether the accused have commited misconduct by corrupt or illegal

means or by other, bbusing their position as public servant and in such capacity they have obtained for themselves or for any other person any

valuable thing or pecuniary advantage etc.

Thus for arguments sake if the Lineman who has been asked to answer the charge or that of the Inspector has not been brought home to the

accused to show that it was they who were responsible for saying that the wiring in the complainant's house which was under his occupation had

gone rotten or was defective in any way and that it was the person of the lineman or the Inspector who was to verify and certify it. Prosecution has

built its case that it was the person of this lineman and the Inspector Electricity who had told the complainant that they will certify about his fitness

of wiring in the house; provided the complaning gives them some illegal gratification. But infact as is borne out by the records, the person of lineman

or the Inspector have not at all issued the certificate of fitness of his wiring which is the bone of contention (hat it was for obtaining this certificate

that illegal gratification was demaned and illegal gratification was paid and the requisite certificate was obtained. I say so because from the records,

it is revealed that the person of the complainant was a defaulter for payment of his electric dues, as such, he was not being supplied with electric

power, when he approached the authorities. It was on 5101976 that his meter was got checked and he was found in arrears as per meter reading

of Rs. 60/. He deposited the same and on 8th November, 1976, his proforma seems to have been marked to M.I. with the direction to seal up the

meter under rules. The Meter Inspector inturn has marked the proforma to Inspector Installation for necessary action. This endorsement has also

been recorded on 8th November, 1976.1 also find a note pruported to have been written under the column meant for orders of Assistants

Electrical Engineer, which reads:

Issue D.O. Recover B.O.A. charges.M.I. be directed to seal up the meter. Reconnection should not be allowed till consumer gets necessary

certificate from concerned I.I.

This order was passed by the Assistant Electrical Engineer on 8111976. There is also endorsement of the foreman on the said proforma

recorded on 8111976 to the following effect:

The inner wiring is rotten and all is defective. Submitted for further orders please.

There is again the endorsement of the foreman recorded on 9111976 who has certified that the inner wiring has been repaired by the consumer.

Admittedly the certificate having been issued by the Foreman regarding repairs having been done in the inner wiring etc. by the consumer, but this

Foreman is neither accused before me nor he is witness cited by the prosecution. It is also not shown that it was Mr. Shagoo, one of the appellants

that he was acting as foreman or was discharging the duties of the foreman in the capacity of being Inspector Electric. It is also not being shown

that the person of the lineman was acting as foreman or was discharging the functions of foreman and in that capacity had the access to verify

regarding wiring repairs etc. The whole case of the prosecution is that it was in consideration of this certificate that demand was made by the

accused/appellants to the complainant that they will give this certificate about wiring in case he pays them illegal gratification. In order to prove this

fact, it was incumbent upon the prosecution to have given nexus regarding the certificate issued by the foreman and the person of the

accused/appellants that it was at the behest of the foreman or it was the person of the lineman and the Inspector who procurred the illegal

gratification for issuance of this certificate from the Foreman.

On the other hand, prosecution case is that it was the person of the lineman and the inspector Mr. Shagoo, accused No. 1/appellant before me

that they asked for illegal gratification for issuance of this certificate. So the first ingredient of the offence that payment of consideration of illegal

gratification for issuance of certificate, from the complainant, for doing that duty they had charged something which was not due to the person of

the appellants is not proved. The prosecution has not even proved that the person of the appellants had the duty or were authorised to verify or

check electric fittings of the complainant, and that it was in the discharge of their official duty that they made a demand for this illegal gratification

and that the person of the complainant was compelled or constrained to part with his earned money to the tune of Rs. 35/ by bribing the person of

the accused, to do this job and obtain a certificate, which has neither been connected or proved. So when I saw this material defect in the case, I

took recourse to the sanction.

In the sanction accorded for the prosecution of the accused, I find that the sanction order does not disclose that it was the duty of the person

of the lineman or of the Inspector to issue the certificate of fitness regarding electric fittings and that it was their duty to issue such inspection report.

On the other hand, sanction in respect of accused Mohammad Abdullah, lineman reads;

Whereas it is alleged that Shri Mohammad Abdullah Dar as public servant in the capacity of lineman(regular) obtained a sum of Rs. 10/ from Shri

Ali Mohammad Shora S/o Sh. Abdul Gaffar Shora R/o Sherigari Mohalla Nawabazar Srinagar in consideration of inspection report about rotten

inner wiring but subsequently wiring was not found rotton.

Similarly in the case of Abdul Majid Shagoo, the sanction reads:

Whereas it is alleged that Shri Abdul Majid Shagoo (Work charge as public servant in the capacity of Inspector obtained a sum of Rs. 25/ from

Shri Ali Mohammad Shora S/o Abdul Gaffar Shora R/o Sheragari Mohalla Nawabazar, Srinagar in consideration of inspection report about rotton

inner wiring but subsequently wiring was not found rolton....

13 Here also the sanctioning authority has not appreciated the matter in its correct perspective and has not addressed himself in a proper way and

without bringing home the averments and the allegations about the person of the accused/appellants as to what were their functions and in what

way they have, in discharge of their functions committed criminal misconduct as envisaged under the provisions of Section 5(2) of the Prevention of

Corruption Act read with Section 161 RFC. The sanctioning authority is not clear on this aspect of the matter, consequently the sanctions referred

to above are not valid, which are basis of prosecution in such cases.

Moreover the statement of Inspector Ghularn Hassan Beig who has been recorded as a witness had spoken before the court and given report

in details by inspecting the house of the complainant Ali Mohammad Shora, certifying therein that he had inspected the house of Ali Mohammad

Shora, complainant accompanied by Saidaullah, SubInspector of police and one G.M. Gandroo, Foreman and has observed that the wiring for

ground and first floor is an old one and no repairs carried out so far.

15 The wiring for the top (2nd floor) is in deteriorated conditions with few pieces of wires here and there on the walls, ceilings and wooden

partitions;

The wiring of one point controlled by a new Amp. Switch is a new one in the Cooridoorof the ground floor. Besides this the controlling Ironclad

appears to be new one from its conditions.

From the report of this Ghulam Hassan Beig, Assistant Executive Engineer, I do find that the wiring in the ground and first floor of the

complainant's house was an old one and deteriorated i.e it was rotten with few pieces of wires here and there on the walls and ceiling.

Subsequently it is the person of Foreman who has reported about the rotten fitting, old wiring and deteriorated conditions of the fittings and it is this

very Foreman who is writing that the repairs have been done. Nowhere it is shown or established that it was the person of Ab. Majid Shagoo,

Inspector who had issued the certificate or who had inspected the fitting or for that matter, even the lineman had in any way contributed to the

commission of the offence forgetting the certificate of fitness issued.

Even on facts, I do find that when some trap is alleged to have been arranged, the person of Dy. Superintendent of Police when reached on

spot on the signal of the complainant, he conducted the search in presence of the Magistrate who was accompanying him, some currency is alleged

to have been recovered from the accused which subsequently was found tainted. Rs 25/ were recovered from the pocket of Shagoo accused

which were tallied with Fardi waqa. It is also alleged that the person of Saidullah who was accompanying the search party, searched Mohammad

Abdullay, Lineman and recovered Rs. 10/ from his waste coat's pocket.

There is clear discrepancy in the search having been conducted on the person of these accused/appellants. In the first instance some witnesses

who are alleged to be eyewitnesses say that the money was recovered from the right pocket of the coat which was being worn by the person of

the Inspector and Seizure memo says that it was recovered from the upper pocket of the coat. Similarly the seizure memo does not show the

person of Saidaullah as witness to the recovery nor has he subscribed to the recovery memos. Only four persons are signatories to the recovery

memo, viz. the complainant Ali Mohammad Shora, Dy. Superintendent of Police, the Magistrate and the person of Boshan Lal Garyali.

SubInspector Saidultah is neither witness of the recovery nor has he subscribed to the seizure memo. The Dy. Superintendent of Police has stated

in his statement that it was Saidullah who conducted the search on the person of accused/appellant Mohammad Abdullah. So these factual

discrepancies are of material consideration.

Mr. Watali appearing for the respondent/State vehemently argued the matter pertains to the year 1976 and the witnesses were made to tender

their evidence after a prolonged time. Human error is there. People can forget, but main ingredients as per Mr. Watali seem to have been brought

home and established and links have been proved. The contentions of Mr. Watali are not wet founded.

Similarly I find that the statement of the Magistrate is also worth noting. The Magistrate has stated that the money was recovered from outer

right pocket of the Inspector, but the seizure memo says otherwise. The complainant on the other hand has given the different version to the whole

episode, by saying that the money was not recovered from the persons of the accused/appellants, but it was presented by them to the Dy.

Superintendent of Police on spot, when they were asked. These are the versions regarding the trap, which is not proved to hilt.

In trap cases, the courts have to be very cautions. There is no person who was made to show that money was demanded and then it was paid

and that it was accepted by the persons asking for it voluntarily. On the other hand, the accused have joined the issue in their statements recorded

under Section 342 Cr.P.C. by stating that the money was thrusted in their pocket. They were crying hoarse that the money is being thrusted and

this episode of thrusting money has been corroborated by one of the prosecution witnesses, who has been declared hostile. This witness has stated

before the court that the person of appellant/accused was crying hoarse that money is being thrusted in their pocket and in the event when the plea

of thrust is being pleaded by the accused, the presumption envisaged under section 4 of the Prevention of Corruption Act are not to be concluded

easily. On the other hand, it should be given credence to the person of the accused. The basic concept of criminal jurisprudence that accused is an

innocent person, should be kept in mind.

In the case in hand, it was under Prevention of Corruption Act No. 21,1947 and as per section 4(i), presumption under statement of accused

recorded that currency were thrusted in his pocket not by itself sufficient to raise presumption against the accused as has been done in the present

case by learned trial court that the plea taken by the accused that the money was thrusted in his pocket, the presumption has been drawn that the

money has been recovered from his pocket and as such, made the person of the appellants convicts for the offence for which, they were being

tried. In support of the contention, Mr. Qayoom has referred to AIR 1981 SC 1235, wherein their lordships have observed:

Before presumption can be raised, the burden is on the prosecution to prove that the accused has accepted or obtained, or has agreed to accept

or attempted to obtain, for himself any gratification other than legal remuneration etc. If the accused when examined under Sec. 313 of Criminal

PC. stated that currency notes were thrust in his pocket, that statement by itself without anything more is not sufficient to satisfy the necessary

ingredients of Section 4(1) that accused obtained or has agreed to accept or attempted to obtain, any gratification other than legal remuneration

other than legal remuneration so as to be able to raise the presumption. Acceptance or obtaining, or agreeing to accept or attempting to obtain is a

vountary act. In the statement of the accused, this element of voluntary acceptance is missing. Therefore, the statement of the accused by itself in

the facts and circumstances of this case and especially the language used cannot provide, the necessary factual basis or fact situation which must

exist before presumption can be raised.

So learned trial Judge has erred in the case under consideration when he draws a conclusion that as because the accused has himself stated

that money was being thrusted in his pocket which gives presumption against him that money was recovered from his person. Mr. Qayoom has

also invited my attention to Section 4(3) of the Prevention of Corruption Act, which lays down:

(3) Notwithstanding anything contained in subsection (1) and (2), the court may decline to draw the presumption referred to in either of the said

subsections, if the gratification or thing aforesaid is, in its opinion so trival that no inference of corruption may fairly be drawn.

By referring to above referred provision Mr. Qayoom wants to convass before this court that for arguments sake, even if it is presumed that

the person of the accused had as per version of the prosecution demanded a meager amount of Rs. 25/ and Rs. 10/ respectively for issuing him a

certificate of fitness of wiring in his house, the amount is so trival and trifle, that in certain cases such things have been considered as Chaipani. So

keeping that thing under consideration, the offence was not such a heinous nor it was proved in the circumstances of the case.

So the cumulative effect of the contentions raised and the arguments advanced and perusal of records and keeping under consideration other

legal and factual assessments. I do find that the prosecution has not been in a position to establish that it was the person of the accused/appellants

who were responsible for issuing the certificate of fitness of electric fittings in the house of the complainant, for which illegal1 gratification is

projected to have been demanded and paid. That being the main contention which has not been established and having regard to what has been

stated above, this appeal is accepted and the order of conviction and sentence awarded by the court below against the accused/appellants is set

aside. The money recovered by given to the complainant. Records be sent back to the trial court.