Autar Krishan vs State

This criminal appeal is against the conviction and sentence passed under section 5(2) read with section 5(1) (d) of Prevention of Corruption Act,

2C06 by Special Judge, Anticorruption, Jammu vide his judgment dated 18th September, 1980.

To put briefly, the prosecution case is that Gernail Singh, complainant, filed a report on 291076 EXPWI/1 before Superintendent of Police,

Anticorruption, Jammu with an allegation that Police had presented proceedings under section 107 Cr. P.C. at his instance in the Court of

Tehsildar, Executive Magistrate, R.S. Pura in the first week of September, 1976. The appellant happened to be the Judicial Clerk in the court.

Process though ordered to be issued, was delayed by the appellant. He approached the appellant for getting the summons issued and requested

him again, but the case was left unattended to for about last two months. The appellant clerk has demanded Rs. 10/ as bribe for issuance of

summons and he was going to pay the bribe money, therefore, action under law. A case got registered under the Prevention of Corruption Act,

2006 against the appellant. The Deputy Superintendent of Police arranged a trap, procured trap witnesses, powered two currency notes of Rs. 5/

denomination each, presented to him by the complainant and returned to him with specific direction for signaling on payment to and acceptance by

the appellant. The complainant appears to have met the appellant outside the court premises and took him inside the room, gave him the two

currency notes of Rs. 5/ who on acceptance kept the same in his pocket. The complainant gave signal to the Dy. SP and the raiding party entered

the office, disclosing identity, searched the appellant and recovered the tainted money from the pant pocket of the appellant. The Dy. SP took the

handwash of the appellant which appears to have turned pink on account of handling of the powdered currency notes by the appellant. Seizure

memo was prepared on spot. The appellant was taken into custody. After completion of the investigation, the challan was presented by the

AntiCorruption Organization before the Special Judge, Anticorruption, Jammu, The charge was framed against the appellant under section 5(2)

read with 5(1) (d) of Prevention of Corruption Act for having accepted the bribe amount. The appellant pleaded not guilty. Prosecution lead

evidence and on conclusion of the trial arguments were heard and appellant convicted under section 5(2) read with 5[t) (d) of the Prevention of

Corruption Act, 2006 and sentenced to two years imprisonment and fine of Rs 500/, in default of payment of fine further simple imprisonment for a

period of two months. It is against this conviction and sentence the appellant has come in appeal before this court.

Before entering upon the arguments of the learned counsel for the parties, I am compelled to observe the sad stats of affairs through which this

appeal has remained pending since September, 1980 till date and the challan, as indicated, having been presented in the year 1^76 the appellant

grilled under the agony of his prosecution.

I have beard LC for the appellant, Mr. A K.Malik and Mr.B M Sadiq, AAG appearing on behalf of the State.

Mr. Malik for appellant argued that no demand has been proved regarding the alleged acceptance of gratification by the appellant and the

prosecution case on this point is short of evidence. The second point raised by Mr. Malik is that FIR, the main pillar of the prosecution c""""a lodged

by the complainant, contradicts his statement, at the trial before the Court, that there is no independent evidence to support the prosecution case as

no witness was picked from the spot regarding the demand acceptance or the vita! aspect of recovery of tainted money, that the appellant has

been deprived of the right of defence by the court, having closed his defence evidence without examination of try defence witness.

I will deal with the points raised by Mr. Malik one by one.

To appreciate the charge framed in this case against the appellant by the trial Judge, I need to reproduce the relevant portion of the section here

under :

Criminal Misconduct in discharge of official duty: (!) A public servant is said to commit the offence of criminal misconduct in the discharge of his

duty :

(a) if he habitually accepts or obtains agrees to acceptor attempts to obtain from any person for himself or for any other person, any gratification

(other than legal remuneration) as a motive or reward such as is mentioned In section 161 of the Ranbir Penal Code, 1989,.....

(d) If he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains (or attempts to obtain) for himself or for any

other parson any valuable thing or pecuniary advantage.

The word 'obtain' has a significance to make out the offence. It, in my option, presupposes the demand for the bribe amount, not only acceptance.

To obtain bribe has two ingredients. The offender should make the demand its his official capacity means using his official authority and accept the

demands, amount for the needful. In this case the demand regarding the bribe amount has been alleged in the FIR only by the complainant and in

his statement before the court, the complains it has resiled from the fact contained in the FIR that bribe was demanded from him by the appellant

for issuing process in the case lodged by him. In his statement before the court, he states that the demand was made from his cousin brother by the

accused. Therefore, the complainant has not supported the prosecution case regarding the demand of bribe amount, a necessary ingredient to

make out the offence under section 5(2) read with 5(1) (d) of Prevention of Corruption Act, 2006. What is funny the cousin brother whom the

complainant refers in his statement before the court, has not been examined nor even named by the prosecution. Therefore, in short the demand of

bribe is not at all proved by the prosecution by not examining the cousin brother of the complainant, not even the interested witness like the

complainant, who has not volunteered to state before the court that bribe was demanded from him. He has shifted the responsibility of demand of

bribe to his cousin brother who, as observed, has not teen examined. Therefore, the ingredient of demand of bribe prosupposed in obtaining the

gratification amours is absent. If the statement of the complainant is appreciated, it firstly contradicts the basic prosecution case in the FIR where

demand of bribe is straightway allegedly made from the complainant, but as discussed above, at the trial the complainant has resiled and burdened

with the fact of demand 'Io his cousin brother. Further the statement of the complainant to the effect that his case remained pending for about two

months for issuance process before she appellant (Judicial Clerk), this fact is falsified by the record of 107 Or. P.C. proceedings tided State versus

lndru Devi and ors seized from the office of the Tehsildar Executive Magistrate, 1st Class for perusal wherein the interim orders reveal that on

11.9J976 show cause notice has been issued to the respondents in that case for 21.9.1976 on which date the two respondents appeared who

have been bound down and process issued for the third person for 15.10.1976. Therefore the allegation of the complainant that she Judicial clerk

had not taken action in issuing the process is not only baseless, but unfounded because the process by the Judicial clerk appears to have been

issued in normal rather speedy manner reflected even by the service return in the proceedings. Another allegation of the complainant crops in his

statement before the court is that the opposite party had lodged 107 Cr. P.C, proceedings against the complainant wherein summons had been

issued on the very day. This aspect of the case revealed by the complainant gives the clue that his allegation that appellant did not issue the process

m his case, as held unfounded, has been hatched presumably why the accused appellant did issue the process at the instance of opposite party

against him and his associates which he was bound to do. Possibly he could not oblige the complainant to withhold the process. That fact has been

kept under shadow even by defence, may be due to the fact that defence having been a struck off in this case which fact has also kept a blanket on

the whole affair. Therefore, the circumstantial evidence attempted to corroborate the demand has fallen to the ground. The complainant due to

contradictions indicated, cannot be held a trust worthy witness which will warrant condemnation of a person who has been denied the opportunity

to defend himself.

Coming to the spot where the alleged occurrence has taken place, the prosecution, being biased, has prejudged the demeanor of witnesses from

the spot. It is no secret that the alleged offence has taken place in the office of Tehsildar Executive Magistrate, 1st Class where people are

supposed to assemble in respect of their litigation pertaining to proceedings under Criminal Procedure Code, the revenue and other executive

matters. The prosecution has opted arranged witnesses as frequently happens in trap cases. The complainant, PW, has stated that Sukhdev Singh

PW is not his friend, only an acquaintance with him. PW Sukhdev Singh himself states that he knows Gernail Singh (complainant) since long time

and has very good relations with him. The complainant has tried t3 suppress the fact of close relationship with Sukhdev Singh PW, who has not

concealed the fact. The witness ii in line with the complainant and is held interested witness in the trap. He appears to have been prepared by the

complainant and rather prosecution has facilitated the intention of the complainant by taking him as an independent witness which he cannot be due

to his relationship with the complainant and he is not expected to be an independent witness having integrity to speak truth what is needed in

evidence. The witness has given a blow to the prosecution case that Rs. 40/ only were recovered from the search of the appellant which included

the two currency notes numbers of which were recorded. Looking to the seizure muffle* EXPW 1/2 and 1/3 which indicate that two separate

seizures EXPW 1/2 indicating the seizure of tainted notes from the search of the appellant and Rs, 40/ vide seizure memo EXP 1/3. The total

recovery from the appellantconvict is Rs. 50/ including the tainted money. This revealation of fact by the socalled independent witness cracks the

prosecution case that in fact only Rs. 40/ have been recovered from the appellant which are reflected in EXP 1/3, though the witness has signed

EXPW 1/2 also, but does not add the tainted money of Rs. 10/ to Rs. 40/ recovered vide EXPW 1/3. Then the witness, though interested has

given a clue to a vital aspect that there were independent witnesses also available on the spot which indicates that the trap witnesses were not

uninterested. It is not ruled out by the evidence that Tehsildar Executive Magistrate 1st Class was not present in the office. The prosecution was

expected to get the recovery memo witnessed by witnesses availed on the spot, may be ministerial staff of the Tehsil office or witnesses like

litigants who are expected to be there as the occurrence has allegedly taken place some time in the midday. The prosecution given the seizure

memo a colour as if there was none available on the spot except the trap witnesses who were arranged. The recovery presents a state as it has

been made in an isolated place where t ere is no human communication and the trap witnesses have visited that place which was uninhabited,

otherwise the prosecution to give the occurrence a trustworthy colour could pick any witness on the spot to corroborate the prosecution case.

One of the prosecution witnesses, namely, Deeraj Kumar Jain, a Research Officer, Government College of Education, Jammu, who was picked up

by the prosecution to witness the occurrence has thrown a black blanket on the prosecution case that before he could reach on the spot every

thing was complete i.e. the alleged recovery was made and other members of the party had raided the spot before him and he was told by the Dy.

S.P that trap had succeeded and the currency notes were shown to him. In his presence only Rs. 40/ were recovered from the search of the

accused which were seized under seizure memo EXPW 1/3 and the tainted money Rs. 10/ were not recovered in his presence. Though the witness

has been declared hostile by the prosecution, but he cannot be disbelieved because he has corroborated the prosecution case regarding the

powdering of the tainted money, hand wash and recovery of Rs. 40/ which were not the bribe money. The witness appears to me not only

uninterested but independent too and his statement clouds the recovery, the only main pillar of the prosecution case.

Regarding the other witnesses, Amrik Chand Gupta, Dy. SP and Constable Jagdesh Singh, they are decidedly interested witnesses in the

prosecution case. Their testimony cannot be given much of credit unless supported by an independent witness.

To sumup the point, the prosecution has examined Gernail Singh the complainant PW. Deeraj Kumar, Master Sukhdev Singh, Amrik Chand

Gupta, Dy SP and Jagdesh Singh, constable. As per discussions made above, I am of the opinion that the complainant Gernail Singh PW appears

to have put up a false story in the FIR regarding the demand of bribe by the appellantconvict for the visible reason that he appears not to have

been happy with the appellantconvict who bad issued notice to him bounding him down and his party at the instance of the opponents in 107

Cr.P.C. Proceedings on 26th October, 1976 and this occurrence is arranged on 29th of October, 1976. Otherwise the other portion of his story is

that case remained pending for issuance of process for about two months as per record is not only .baseless but unfounded. The appellantconvict

having issued the notice for hounding down in the proceedings under section 107 Cr.P.C. on I3ih September, 1976 when the report was put up

before the Executive Magistrate, 1st Class on 11.9.1976 and process issued for 21.9.1976 when two respondents appeared in the court of

Executive Magistrate. Therefore, this story also cracks into pieces because it is only a made up affair. What has happened and boiled between

26th October, 1976 when the opposite. party put up the complaint before the Executive Magistrate against the complainant and on 29th of

October, 1976, ibis episode was given birth to against the appellantconvict. Thus the complainant's uncorroborated statement regarding the

demand and issuance of process is baseless. The complainant, as observed, has resiled even from the FIR in his statement before the court that

demand was made through his cousin brother by the appellantconvict who has not been examined. Therefore, the complainant is not a trust worthy

witness and dose not deserve to be given credit for his testimony before the trial court. Another witness, Sukbdev Singh, as observed, has long

standing good relations with the complainant, obviously an interested witness. Deeraj Kumar has given an independent story regarding the recovery

of only Rs.40/ and not the painted money of Rs. 10/. Why he should be disbelieved, the court has no reason. Others are the police witnesses, as

observed, interested to see the prosecution case a success. Therefore, the recovery of the tainted amount is full of doubt, not corroborated by any

independent uninterested witness.

Above all comes the crucial stage for the prosecution case the learned trial Judge has ignored the norms of justice rather defeated it by refusing

permission to the appellant convict to deposit the witness expenses for summoning the defence witnesses whose list under the orders of the court is

enclosed with the file. The witnesses named in the delence list are mostly officials and they could be only summoned and not produced by the

appellant convict. I must refer to the interim order on the subject of defence. Vide order dated 4.3.1980, the statement of the appellantconvict has

been ^recorded under section 342 Cr. P.C. and he has been given liberty to produce defence evidence with reservation that he could summon the

witnesses on depositing the witness expenses within ten days otherwise he will have to produce the witnesses of his own. The trial judge at that tine

(Mr. Justice S M. Rizvi as he then was) on 10th of March ordered the Nazir to deposit the witness expanses but the witness expenses some how

could not deposited till 19.4.1980 Counsel for the appellant convict sought an opportunity to deposit the witness expanses to be summoned

through cum, but the learned trial Judge (Mr. Justice Malik ShariefudDin now retired as he than was) turned down the prayer of the defence

counsel for depositing the witness expanses. The interim order is reproduced hereunder :

9.4.1980 Dy. SP prosecution is present. The accused is also present. The counsel for the accused submits that he may be granted opportunity to

deposit the expenses for defence witnesses and then DWs may be summoned. On the last hearing case was adjourned for defence. An application

dated 10.3.1980 was also presented indicating the list of the defence witnesses and the order of my learned predecessor to the effect that witness

effect expenses be deposited. It appears that despite court order and the willingness of the court the expenses of the defence witnesses have not

been deposited. It is this lapse of the accused which I am requested may be condoned and accused's witnesses summoned. Even uptodate the

expenses have not been deposited. The accused has not kept any defence witness in attendance. His defence as such is closed. Application be

filed with the record. Case be argued on 28.4.80,.

From the bare perusal of order, it appears that the trial judge has referred to earlier order that the defence be produced 'Dusti' if the witness

expenses are not deposited within ten days and on that court rejected the application bringing an end to the defence of the appellantconvict. The

order on appreciation appears an order passed in hothaste by the learned Judge ignoring the principles of natural justice, overtaking the state of

affairs of the appellantconvict who had been facing the trial before the court from August, 1977 and before investigation from October, 1976.

Heavens would not have fallen had the trial Judge given an opportunity to the appellantconvict to deposit the witness expenses as ordered by the

court, and fulfilled its obligation to summon the witnesses, majority of whom were official witnesses : i.e. witnesses 1, 2 and 4 officials while

witnesses 3 and 5 common men. It could cot be within the power of the appellantconvict to procure the presence of the witnesses before the court

unless aided by the trial Judge which he was bound to fulfill the norms of justice and not to gag the appellant convict to prove his innocence in the

circumstances of the case and the testimony of doubtful witnesses. This aspect of the prosecution case delaying the defence to the appellantconvict

to examine the defence witnesses is an irreparable blow to the prosecution case which cannot be bridged under law. The order closing the defence

of the accused appears not justified under law, having been passed in hothaste to burden the appellantconvict with a state of exparte prosecution

evidence though crossexamined, but not allowing the true facts to come on record to expose the whole affair, the conduct of the complainant and

the appellantconvict to disprove his misconduct allegedly misusing his official authority withholding the process in the case of the complainant and

having allegedly taken the false plea of demand of bribe. As I have observed, closure of defence to the appellantconvict has shattered the

prosecution case and the appellantconvict appears to have been implicated on false evidence and even the prosecution witnesses have stated that

the appellantconvict at the time of alleged trap raised hue and cry that he has been illegally involved as per statement of even interested witness,

Sukhdev Singh and then Deeraj Kumar PW that the appellantconvict raised cry that he is being wrongly involved and his cry coincides with the

baseless story put forth by the prosecution.

Mr. B.M. Sadeq, AAO could not support the prosecution evidence the method and manner in which the recovery was made. He, however,

pointed out that the handwash of the appellantconvict at the time of recovery was taken and the handwash turned pink which gives the presumption

that the appellantconvict had accepted the bribe money.

The argument of the learned AAG gets neutralized by the state of affair* that the Dy. SP having taken handwash had immediately before the

occurrence powdered the currency notes and he has not washed his hands first to remove the presumption that the powder was sticking to his

hands and it also could turn the hand wash pink. Therefore, it is not clear whether it was due to the handwash of the appellantconvict or the Dy. SP

that the water turned pink. Therefore, this is not an evidence to be given credit, being deeply doubtful.

To approach the conclusion on the basis of above discussion, I need to observe that the allegation against the appellantconvict is that he misused

his official position as Judicial Clerk in the office of Tehsildar Executive Magistrate, 1st Class delaying the issuance of process in Section 107 Cr.

P.C. proceedings lodged by the complainant and he not only demanded bribe to do so, but accepted it from the complainant to the tune of Rs.

10/which was recovered from his possession. The appellantconvict's plea in the appeal is that he is innocent and the allegation is baseless, that he

has been deprived to rebut the prosecution case by calling his defence. It is in this context the appeal has to be disposed of.

As observed in the body of the judgment, demand of bribe is absolutely not proved and the allegation that issuance of process was delayed by the

appellantconvict as per record has been held false and baseless. As regards the recovery of the alleged bribe amount, the prosecution witnesses,

except two police officials who are interested witnesses the prosecution evidence is not unanimous but differ on vital points, even with regard to

recovery. Only Rs. 10/ are stated to have been recovered, other witnesses stating that in all Rs. 40/ were seized though the total amount

recovered, including the tainted bribe amounts to Rs. 50/. The complainant as per his deposition is declared a false witness.

Then the defence of the appellantconvict without valid and just reason has been closed, keeping open charge for the prosecution to malign the

appellantconvict under doubtful prosecution case and without giving him any opportunity to rebut the same despite his prayer, reduced the

prosecution case to below minimum degree of credence to dislodge the charge framed.

The result is that the appeal is allowed. The conviction and sentence under section 5(2) read with section 5(1) (d) of Prevention of Corruption Act

is setaside. The appellantconvict (namely, Autar Krishan) is acquitted of the charge framed against him and the prosecution case dismissed. Fine if

paid, the sane should be refunded forthwith. The record of 107 Cr. P.C. proceedings, seized from the office of Tehsildar, Executive Magistrate,

1st Class, R.S. Pura be returned for further proceedings. Seized amount of Rs. 40/ from the appellant be returned to him, while Rs. 10/ of Rs.

5/denomination two currency notes be returned to the complainant, not claimed by any body else. The bail bonds tendered by the appellant shall

stand cancelled.

File be consigned to records.