Amir Prasad vs State of U.P.

M.C. Agarwal, J.—This appeal u/s 374(2) of the Code of Criminal Procedure is directed against the judgment and order dated 4th of January, 1990 passed by the Vth Additional Sessions Judge. Varanasi, in Special Case No. 4 of 1984 whereby the Appellant has been found guilty of the offences u/s 161. I.P.C. and Section 5(2) of the Prevention of Corruption Act and has been sentenced to undergo rigorous Imprisonment for a period of two years for each of the offences. Both the sentences have been ordered to run concurrently.

I have heard Sri Rajesh Ji Verma and Sri R.C. Yadav, advocates, counsel for the Appellant and the learned Additional Government Advocate.

The Appellant was employed as a Lekhpal under the Tahsildar Chakia. The complainant Narbadeshwar Pandey had applied for a loan to purchase a tractor and in that connection he needed a certificate in Form 61-Kha containing the details of his agricultural holding. He made an application in that regard to the Tahsildar who marked the application to the concerned Kanungo and the Kanungo in his turn asked the Lekhpal, that is the Appellant to make a report. The application was moved on 15.3.1983. The complainant Narbadeshwar Pandey contacted the Appellant and told him that the needful would be done only if he paid Rs. 50 as illegal gratification. Thereupon, Narbadeshwar Pandey made an application on 21.3.1983 to the District Magistrate complaining of the demand of illegal gratification. The said application is Ext. Ka-2 on record. The Collector marked it to the Vigilance Inspector. The Vigilance Inspector talked to the complainant and on being satisfied that there was a demand for illegal gratification, he instructed the complainant to meet him in the Town of Chakia at 10 a.m. on 23.3.1983. Accordingly, the complainant Narbadeshwar Pandey along with the witness Janardan Singh and Ramanand Upadhya met the Vigilance Inspector Sarvajeet Misra at about 10 a.m. on 23.3.1983 near Tahsil Chakia. The Vigilance Inspector along with his colleagues Taj Pratap Singh. Prayag Dutt Tripathi and Ranjeet Singh, the complainant and two witnesses aforesaid arrived near the spot where the accused Amir Prasad was to be contacted. They took cover of a temple and the bank of a pond where Narbadeshwar Pandey, the complainant delivered five ten rupees notes to the said Inspector. The Inspector treated those currency notes with phenolphthalein powder. After wrapping those notes in a piece of paper, he instructed the complainant to give those currency notes to the accused. Then the complainant''s hands were got washed in a solution of sodium carbonate. The solution turned pink. It was kept in a bottle and sealed. All this was done in the presence of the aforesaid witnesses and a memo was prepared which is Ext. Ka.-3 on record. Thereafter the complainant accompanied by the witnesses was asked to contact the accused Amir Prasad who had arrived and was present in the office of the Lekhpal Sangh. The Vigilance Inspector and his colleagues took position outside the room, so that he could hear and see what was happening inside. The complainant Narbadeshwar Pandey asked the accused Amir Prasad to make a report on his application for the issue of a certificate in Form 61-Kha, whereupon Amir Prasad again repeated the demand of Rs. 50 for making a report. Narbadeshwar Pandey, the complainant assured him that he has got the money and requested Amir Prasad to make the report and that he is giving the money. Amir Prasad then took out the complainant''s application and scribed a report thereon and the complainant took out the money from his pocket and delivered the said currency notes to Amir Prasad who started counting the same. Immediately the Inspector introduced himself to Amir Prasad and arrested him while Amir Prasad was having money in his right hand. This activity was seen by the aforesaid witnesses also. The currency notes were recovered from the right hand of Amir Prasad and their numbers tallied with the numbers of currency notes which the complainant had given to the Inspector and the Inspector had returned to the complainant after applying phenolphthalein powder. The said currency notes were kept in an envelope and were sealed. Then the hands of accused Amir Prasad were got washed in a solution of sodium carbonate and the solution turned pink. This solution was kept in a bottle and sealed. The hands of the complainant Narbadeshwar Pandey were also got washed in the solution of sodium carbonate. This solution also turned pink and was kept and sealed in another bottle. The application that was moved by the complainant to the Tahsildar and on which Amir Prasad had scribed his report was also taken into possession. A memo was prepared in which this entire proceeding was noted. A report of the incident was lodged at Police Station Chakia at 2.10 p.m. the same day. The investigation was taken up by Dharampal Singh, Inspector, who inter alia got the various phials of solution and the currency notes examined by the police analyst. He also procured the sanction of the appropriate authority for the prosecution of the Appellant and submitted charge-sheet.

At the trial, the prosecution examined P.W. 1 Narbadeshwar Pandey. P.W. 2 Sarvajeet Misra, the Inspector, who conducted the case, P.W. 3 Ramanand Upadhya. These are the eye-witnesses of the incident of demand and acceptance of illegal gratification. P.W. 4 Uma Shanker is the Supervisor Kanungo concerned who sent the application made by Narbadeshwar Pandey for issue of a certificate in Form 61 Kha and his order thereon. P.W. 5 is Sri Kailash Behari Srivastava, S.D.M. Chakia who had granted sanction for the prosecution of the accused Amir Prasad. P.W. 6 is one Lal Saheb, the Manager of the Land Development Bank Limited, Chakia, who stated that Narbadeshwar Pandey had moved an application for a loan. According to him, the application was received in the Bank on 18.3.1983 and the loan was sanctioned on 26.3.1983 and no additional document was demanded from the Applicant because the khasra was already there. P.W. 7 is Radhey Shyam Misra, the Public Analyst of Forensic Science Laboratory, Lucknow who proved the reports. P.W. 9 is Bade Lal Pal. Manager, Zila Udyog Kendra. Who stated that under the various Government orders, subsidy could be granted to the small and marginal farmers. He also stated that Narbadeshwar Pandey, the complainant was a marginal farmer as the land to the extent of 1 bigha 1 biswa and 17 dhoors only was recorded in his name. P.W. 10 is Dharma Narain Misra, the Investigating Officer. The accused had led no evidence in defence. In his statement u/s 313, Code of Criminal Procedure he did not mention any facts that may be helpful to him and stated that whatever he has to say. would be given in writing. No statement in writing was. however, made.

The documentary evidence consisted of the Chik F.I.R. Ext. Ka.-10, the application dated 23.3.1983 moved by Narbadeshwar Pandey before the Collector Ka-2, the memo dated 23.3.1983 prepared before laying of the trap Ext. Ka-3, the memo dated 23.3.1983 prepared after the trap Ext. Ka-4, the sanction for prosecution dated 19.5.1984 Ext. Ka-5, the report of the Public Analyst dated 27.8.1983 Ext. Ka-9. the copy of the entry in the general diary being Report No. 26 at 2.10 p.m. on 23.3.1983 Ext. Kail, the application moved by the complainant Narbadeshwar Pandey to the Tahsildar for the issue of requisite particulars in Form 61-Kha Ext. Ka-1, the report recorded thereon by the accused Ext. Ka-1-C and the order of the Supervisor Kanungo Ext. Ka-l-b and that of the Tahsildar Ext. Ka-1 (a), the copy of the application for loan Ext. Ka-6, the abstract prepared by the officials of the Bank dated 18.3.1983 Ext. Ka-7, the bill dated 18.4.1983 of Mahendra Agricultural Stores in respect of purchase of thrasher Ext. Ka-8, the copy of a Government order dated 14.5.1980 regarding the grant of subsidy in respect of Bank loan Ext. Ka-12, the copy of another G.O. dated 28.7.1975 on the subject Ext. Ka-13, a copy of a letter from the Joint Secretary to the Government authorising the Investigating Officer to seek sanction for prosecution Ext. Ka-21, a letter from the Superintendent of Police to the Collector, Varanasi seeking confirmation of the proceedings of trap Ext. Ka-16 and the Collector''s note thereon Ext. Ka-17.

The first point raised by the learned Counsel for the Appellant was that by virtue of Section 7 of the Criminal Law Amendment Act, 1952 the trial for the offences u/s 161, I.P.C. and Section 5 of the Prevention of Corruption Act could be held only before a Special Judge appointed u/s 6 of the said Act. He pointed out that the judgment under appeal has been passed by the Vth Additional Sessions Judge, Varanasi and has not been passed by a Special Judge and is, therefore, without jurisdiction. Section 7 aforesaid makes the offences triable by the Special Judges only. The power to appoint the Special Judges has been conferred on the Government by Section 6 of the Act. The appointment has to be made by notification in the official Gazette. The Government may appoint as many Special Judges, as may be necessary for such area or areas as may be specified in the notification. In exercise of this power, the Governor of Uttar Pradesh issued notification No. 4342/viii. 9-739-72 dated 11th March, 1977 appointing with effect from the date of publication of the said notification in the official Gazette all Sessions Judges and Additional Sessions Judges to be ex officio Special Judges for the purposes of the Criminal Law Amendment Act. 1952, in the district or districts over which they exercise jurisdiction as Sessions Judges. The notification was published in the U.P. Gazette dated 2nd of April, 1977. Therefore, the Additional Sessions Judge who tried the case and passed the impugned judgment was an ex officio Special Judge and, therefore, had jurisdiction to try the accused and pronounce the Judgment. The mere fact that in the judgment it has not been stated that he was acting as a Special Judge does not vitiate the proceedings. This contention, therefore, has no force.

The next contention made on behalf of the Appellant was that no sanction for the offence u/s 161, I.P.C. was procured. The sanction is contained in an order dated 19th of May, 1984 which is Ext. Ka-5 on record. The order was made by Sri Kailash Behari Srivastava, Sub-Divisional Magistrate who was examined as a witness at the trial (P.W. 5). The order states the necessary facts regarding the demand and acceptance of illegal gratification and the arrest of the accused while accepting illegal gratification. It states that the accused was sent to jail for the offences u/s 161, I.P.C. and Section 5(2) of the Prevention of Corruption Act being Crime No. 47 of 1983. It states that in the investigation the accused Amir Prasad has been found guilty of the said offences and, therefore, the requisite sanction for the prosecution of the accused is granted in terms of Section 6 of the Prevention of Corruption Act. Section 6 of the said Act provides that no Court shall take cognizance of an offence punishable u/s 161 or Section 164, Section 165 of the Indian Penal Code, 1860 or under sub-section (2) or Sub-section (3-A) of Section 5 of this Act committed by a public servant except with the previous sanction.... Thus, when the Sub-Divisional Magistrate stated that the sanction was granted for the offences mentioned in Section 6, it means that it was granted for the offences mentioned in Section 6, as were made out by the facts of the present case. In the body of the order, the necessary facts are stated and it is also stated that the offences u/s 161, I.P.C. and Section 5(2) of the Prevention of Corruption Act were made out. Therefore, there was a valid sanction for the offences under both the sections referred to above, and it cannot be said that there was no sanction in respect of the offence u/s 161, I.P.C.

The next contention raised by the learned Counsel for the Appellant is that the particulars in Form 61-Kha were not necessary for obtaining a loan from the Bank. He referred to the statement of P.W. 6 Lal Saheb, who has stated that the loan had been sanctioned on 26.3.1983 and that no other paper was demanded from him. It is true that it is not established on record that the particulars in Form 61-Kha were necessary for the sanction of the loan but from the evidence referred to above, it is apparent that the extent of the land holding of a farmer has to be seen where he claims a subsidy and for disposal of the claim for subsidy, verified particulars in Form 61-kha may be necessary. Whether the said particulars were actually required or not, has no relevance in the case. What is established on the record is that the complainant Narbadeshwar Pandey did apply for the particulars of his land in Form 61-Kha and that application had been received by the accused Amir Prasad for report in his capacity as a Lekhpal of the area. The issue of the particulars was a public duty and, therefore, as a public servant Amir Prasad had to make a report thereon and he did make a report. Therefore, even if the said particulars were not required by the Bank, Amir Prasad was a public servant obliged to deal with the application made by the complainant and, therefore, while making report thereon, he was discharging his duties as a public servant it cannot, therefore, be said that there was no cause of a demand of illegal gratification or that the function of making a report on the complainant''s application was not the duty of the Appellant as a public servant. This argument too, therefore, has no force.

On the merits of the prosecution case, it was contended that there was a plan to trap the accused because of the previous enmity and no independent witnesses were procured. As stated above, the Appellant had neither made a statement u/s 313, Code of Criminal Procedure nor led any evidence to establish that the complainant or any other witness had any grudge against him, so as to falsely implicate him. It was, therefore, contended that the omission to establish defence version could not add veracity to the prosecution case. Reliance was placed on Ravishanker Keshavji Dave Vs. State of Gujarat, . in which it was held that it is open to the accused to say that his defence may be false, but that cannot make the case of prosecution true or rather such as if accepted, would constitute an offence for which he is sought to be made liable. There can be no dispute with this legal proposition and the learned Additional Government Advocate also did not assert to the contrary.

As stated above, the prosecution examined Narbadeshwar Pandey (P.W. 1). Sarvajeet Misra, the Vigilance Inspector (P.W. 2) and Ramanand Upadhya (P.W. 3) as the witnesses of fact. Narbadeshwar Pandey stated that he had moved an application for a Bank loan and an order to get ''chhoot'' (concession or subsidy), he had to obtain the Intakhab (revenue records from the Tahsil) and it was for that purposes that he had moved the application before the Tahsildar which is Ext. Ka-1 on record. He stated that when he contacted the accused for the purpose, he demanded a sum of Rs. 50 as illegal gratification and clarified that the work will not be done without payment of Rs. 50. Thereupon, Narbadeshwar Pandey told the accused that he will come after arranging the money. Thereafter, he repeated the story how he moved an application before the Collector an how the trap was ultimately organised. He had taken Ramanand Upadhya and Janardan Singh with him and these persons had also seen the delivery of the money to Amir Prasad and had heard the talks that had taken place between the accused and P.W. 1. It was suggested to him that he had encroached upon a public drain and had included the same in his chak for which the accused had made a report against him. He denied having done any such thing. It is also suggested to him that his father had put pressure on Amir Prasad to record him as a heir of one Smt. Sonjhari. This too was denied. As regards the trap operation, nothing adverse was brought out in the evidence. P.W. 2 Sarvajeet Misra, (P.W. 6) is the Vigilance Inspector, who conducted the trap in the manner stated above. He stated the whole manner regarding the preparation of the various documents, the treatment of the currency notes with phenolphthalein powder and the washing of the hands of the complainant and Amir Prasad in the solution of sodium carbonate and the Chemical Analysis of these articles by the Public Analyst. Then comes Ramanand Upadhyaya (P.W. 3) who supports the prosecution story in all its details. He is a resident of the same village where the complainant Narbadeshwar Pandey resides. His evidence shows that it was after reaching Chakia that Narbadeshwar Pandey told him that he is required two witness of the demand of illegal gratification by Amir Prasad. He then narrated the whole story about how the trap was organised, and further stated that when he along with Narbadeshwar Pandey and Janardan Singh reached the office of Amir Prasad, the complainant asked for the report regarding the Form 61-Kha and Amir Prasad demanded Rs. 50 and on being assured of the payment, Amir Prasad scribed the report and then the complainant handed over the money to him. There is nothing in his brief cross-examination that may discredit this witness and no motive for false evidence was suggested to him. P.W. 2 Sarvajeet Misra had stated that while the complainant was conducting this transaction with the accused, he (the witness) remained outside the room by the side of a pillar. Ramanand Upadhya has stated that there was no pillar and the learned Counsel for the Appellant laid emphasis on this contradiction to contend that the prosecution story is unreliable. It is to be remembered that the incident took place in March, 1983 while the evidence of Sarvajeet Misra (P.W. 2) was recorded in June. 1988, i.e., after more than five years. He would have had no occasion to visit the spot again and, therefore, such a contradiction can result from lapse of memory. However, the site plan Ext. Ka-18 prepared by the Investigating Officer shows that there was a room where the accused Amir Prasad was present and in the north eastern corner of which he had his seat. This room had two doors in the southern wall from which one could enter into this room from the road side. The two doors are separated by a gap which must have had a small column of wall. The site plan shows that out of two doors, Sarvajeet Misra stood outside the western door and, therefore, when standing there, there would have been cover of the wall between the two doors and it is that column of the wall which he seems to have described as a khambha (pillar). Therefore, in fact there is no contradiction and there is only a difference in describing the thing that obstructed the direct view between the accused and P.W. 2. It was then contended that the trap Inspector had delivered the currency notes to Narbadeshwar Pandey (P.W. 1) wrapped in a paper and this paper was not found later on. This is too small a thing to discredit the prosecution version and the veracity of the statements of P.Ws.

It was contended that the trap inspector Sarvajeet Misra did not make any attempt to secure independent witnesses. It is true that P.W. 2 Sarvajeet Misra did not himself procure the persons to act as public witnesses which he should preferably have done. In Raghbir Singh v. State of Punjab AIR 1976 SC : XII 1975 ACC 79 (SC). it was held that the officers functioning in the Anti-corruption Department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the Court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. That was, however, a case where one of the trap witnesses was a relative of the complainant and the other was a sweeper in the whole time employment of the police. It is not laid down as a rule of law that where the trap officer does not himself procure the witnesses, the evidence of witnesses brought by the complainant should be rejected outright. In a case like the present one, where the two witnesses were brought by the complainant along with him, the only care required is to scan their evidence with a little caution. A perusal of the evidence of Ramanand Upadhya would show that he cannot be described as a witness under the influence of either the complainant or the trap officer and is of the nature of an independent public witness. The evidence of the three witnesses, referred to above, have been found reliable by the learned Sessions Judge and having been taken through their statements, nothing has been shown that may justify rejection of their evidence. As stated above, though certain suggestions were made to P.W. 1 regarding the alleged encroachment and report against him by the accused and the alleged pressure by the father of Narbadeshwar Pandey to be recorded as a heir of a lady, nothing of the sort was stated by the accused in his statement u/s 313, Code of Criminal Procedure The allegations were denied. The accused stated that he would make a statement in writing but no written statement was filed. The result, therefore, was that there was no explanation by the accused why he could have been falsely implicated.

During the pendency of the present appeal, the Appellant appear to have moved an application to adduce additional evidence in respect of the allegations of bias against the complainant. The said application is not available on record. It appears that in pursuance of the Court''s order dated 13.12.1995. the Lekhpal''s diary for the year 1983, Fasli year 1390, was summoned through the C.J.M., Varanasi whereupon a photocopy of the diary was sent by the Tahsildar, Chakia directly to this Court. Then by order dated 27.8.1997 the Court directed the Vth Additional Sessions Judge/Special Judge, Varanasi, to record the evidence with regard to the proof of Lekhpal''s diary but the same could not be done as in the meantime the said diary had been weeded out. The photocopy of the diary is available on record of the appeal and the learned Counsel for the Appellant referred to an entry dated 28.2.1983 which stated that on that date a report u/s 122 was made against Murad etc., Sadanand, Kailash etc., Narbadeshwar etc. of village Chari Jharu. This entry, thus, is not shown to relate to the present complainant who is a resident of village Newaj Ganj. Thus, the Appellant''s attempt to establish bias against the complainant at the stage of the appeal has also failed.

Having carefully perused the record of the case and the judgment and order of the Court below and the arguments of the learned Counsel for the Appellant and the Respondents, I am of the view that the conclusion arrived at by the learned Sessions Judge that the aforesaid charges were established against the Appellant beyond reasonable doubt, does not require any interference in this appeal. The appeal, therefore, has no force on merits.

As regards the sentence, the learned lower court has sentenced the Appellant to undergo rigorous imprisonment for a period of two years for each of the offences under Sections 161, I.P.C. and 5(2) of the Prevention of Corruption Act. Section 5(2) provides for a sentence which shall not be less than one year but which may extend to seven years. The proviso thereto provides that the Court may for any special reason record in writing, impose a sentence of imprisonment of less than one year. The learned Counsel for the Appellant states that in this case offence was committed in March, 1983. The trial began in the year 1988 and concluded in the year 1992 and thereafter this appeal has remained pending in this Court for more than six years. A reference was made to the affidavit filed along with an application for expediting the hearing of this appeal in which Hon''ble Chief Justice passed an order for expediting the hearing of the appeal on 6.11.1992 and still the appeal could not be disposed of quickly, for no fault of the Appellant. He referred to the affidavit to show that the accused was about 52 years of age in the year 1983 and he reached the age of superannuation on 31.7.1989. Thus, according to the learned Counsel the Appellant has already suffered much and further sentence on him would cause grave injustice to this old man who might lose even the retirement benefits.

In Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, , the Hon''ble Supreme Court emphasised that speedy trial in criminal case though, no specific fundamental right, is implicit in the broad sense and content of Article 21. In Triveni Ben v. State of Gujarat XXV 1988 ACC 546 (SC), the Hon''ble Supreme Court observed that Article 21 is relevant at all stages of the trial including the disposal of a mercy petition. Thus, the Appellant''s right to life has been adversely affected by the undue delay in the conclusion of the trial and the disposal of the appeal and as observed by the Hon''ble Supreme Court in Triveni Ben''s case, the mental torment is more devastating than the funeral fire. The accused must have suffered great mental torment after he was arrested for the offence, suspended from the service, faced the trial and ultimate conviction and waited for the disposal of this appeal. In my view, therefore, these are the special circumstances in which (he Court is required to exercise its discretion conferred on it by Section 5(2) of the Prevention of Corruption Act, 1949, and I am of the view that no useful purpose would be served to send this old man of more than 65 years of age again to jail. The sentence awarded to him, therefore, is, looking to the circumstances of the case, reduced to the period already undergone.

In the result, the appeal is partly allowed. The conviction of the Appellant for the offences u/s 161, I.P.C. and Section 5(2) of the Prevention of Corruption Act is sustained but the period of sentence awarded to him is reduced to the period already undergone. He is on bail. He need not surrender. The bail bonds are cancelled.