Rajasthan High Court - Jodhpur
Kaushal Kumar Garg vs State Of Raj on 25 September, 2013
Author: Sandeep Mehta
Bench: Sandeep Mehta
SB Criminal Appeal No.160/2000
Kaushal Kumar Garg. Vs. State of Rajasthan.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
:::
JUDGMENT
:::
S.B. Criminal Appeal No.160/2000 Kaushal Kumar Garg. vs. State of Rajasthan Date of Judgment :: 25th September, 2013.
Hon'ble Mr. Justice Sandeep Mehta Mr.HSS Kharlia, Sr.Adv. A/w Mr.SS Dhillon, for appellant. Ms.Rajlaxmi, PP, for the respondent State.
Reportable ...
The instant appeal has been filed by the appellant Kaushal Kumar Garg challenging the judgment dated 31.3.2000 passed by the learned Special Judge cum Sessions Judge (Prevention of Corruption Act Cases), Jodhpur in Criminal Case No.56/1997 (8/1992) whereby he was convicted and sentenced as below :
U/S 7 of P.C. 6 months' S.I. & a fine of Rs.1,000/-, in Act. default of payment of fine, to further undergo 2 months' S.I. U/S 13(1)(d) 1 year's S.I. & a fine of Rs.1,000/-, in r/w 13(2) of default of payment of fine, to further P.C. Act. undergo 2 months' S.I. Both the sentences were ordered to run concurrently.
Succinctly stated, the facts of the case are that one SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan.2
Surta Ram Choudhary, the complainant, submitted a written report Ex.P/1 before Sh. Kheta Ram, Inspector Rajasthan State Bureau of Investigation, Barmer on 18.1.1991. As per the allegation levelled in the report, the complainant was having an electric connection at his agricultural field. The first bill of the said electric connection was raised by the department for a sum of Rs.1141/-. He felt that the amount of bill was excessive on which he approached Mr.Jethmal, Assistant Engineer in the electricity department on 17.1.1991. At that time, Ganga Ram s/o Kesra Ram Jat accompanied him. The Assistant Engineer instructed the complainant to meet Mr.Garg, the accountant and told him that his problem could be solved by Mr.Garg.
He met the accountant Mr.Kaushal Kumar Garg (the appellant) posted at Electricity department, Dhorimana on the day prior to filing of the report and requested him to reduce his bill. It was further alleged that the appellant told the complainant that the bill of Rs.1141/- had been deliberately sent by him and demanded an illegal gratification of Rs.300/- for issuing a fresh reduced bill. The accountant further threatened the complainant that if the bribe was not paid, the next bill would be raised for even a higher amount by imposing a penalty. The complainant was instructed that if he desired to have the bill amount SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 3 reduced, then he should meet the accountant in the office on 18.1.1991 with a sum of Rs.300/-. The appellant informed the complainant that if he was unavailable in the office, then he could be approached at his residence. The complainant alleged that the appellant assured him that a fresh bill for a reduced amount would be issued to him on the bribe being paid. The complainant further alleged that he did not intend to pay the bribe and wanted to have the accountant trapped red handed.
The complainant submitted his electricity bill to the Inspector and informed that he had brought Rs.300/- with him. He also informed that the appellant was habitual of raising such exaggerated fictitious bills against the rural consumers. Thereafter, when the consumers greased the accountant's palms, then he would issue a fresh bill for the reduced amount and destroyed the fabricated bill. The complainant also stated that he was not having any prior financial transaction or enmity with the accountant Mr.Garg.
On receiving the said report, the Inspector initiated trap proceedings at 1:30 P.M. on 18.1.1991. The Constable Mr.Amar Singh was given a requisition for calling two Government employees to act as shadow witnesses (motbirs). Amar Singh returned with Chuna Ram Vishnoi a Teacher posted at Dhorimana and Tulsa Ram Vishnoi posted SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 4 as Patwari, Dhorimana to stand as shadow witnesses in the trap proceedings.
The report submitted by Surta Ram the complainant was read over to the witnesses in his presence. Surta Ram admitted the contents of the report in the presence of the witnesses and confirmed that the report had been submitted by him. He handed over three currency notes of Rs.100/- each to the Inspector for being utilised as the trap money. The trap proceedings were rehearsed in the presence of the complainant and the witnesses. The notes were initialled by the Inspector and phenolphthalein powder was applied to them. The complainant was handed back the tainted currency notes with the instruction that he should pass the same to the accused on his demand. The complainant was also instructed to give a signal by brushing his hand on the head as soon as the accused accepted the bribe. The shadow witnesses were instructed to try to overhear the conversation which preceded the passing on the bribe and also to see the transaction. The trap party thereafter proceeded to the R.S.E.B. office, Dhorimana. The complainant was sent to the R.S.E.B. office and the members of the trap party took their respective positions in and around the office. At about 4:30 PM, the complainant gave the pre-arranged signal, on which the Inspector and SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 5 the other members of the trap party rushed to the premises of the R.S.E.B. Office. The accountant (appellant) was seen standing with the complainant near the official jeep of R.S.E.B. Chuna Ram, the shadow witness, was also standing nearby. The Inspector introduced himself to the accused accountant. He was taken inside the office and was made to sit on a chair. On being asked about having accepted the bribe from the complainant, the accused panicked. A little later, he mulled over and then conceded that Surta Ram had given him Rs.300/- which he placed in his trouser's pocket. On being enquired about the purpose of accepting the amount, the accountant replied that the amount had been given by Surta Ram voluntarily for issuing a scaled down revised electricity bill. The hands of the accused were washed in a solution of Sodium Carbonate. The wash turned pink and was sealed in glass bottles. The accused was asked to present the currency notes. He took out the notes from the right side back pocket of his trousers. On tallying, the number on the notes matched with the notes submitted by the complainant. The notes bore the initials of the Inspector. The accused was asked to hand over the trousers worn by him. A fresh pair of trousers was arranged from his official residence. He was made to change the trousers. On washing the trouser's pocket in a solution of Sodium SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 6 Carbonate, the colour thereof also turned pink and was also sealed in glass bottles.
The seizure proceedings were recorded by the trap laying officer. The accused was arrested and later on released on bail. Thereafter, the trap party proceeded to the Anti Corruption Bureau office. The Inspector registered an unnumbered F.I.R. and forwarded the same to the headquarters where FIR No.17/1991 was registered and investigation commenced. Sanction was sought and accorded for the appellant's prosecution. At conclusion of investigation, a charge-sheet was laid against the appellant for the offences under Sections 7 & 13(1)(d) r/w 13(2) of the Prevention of Corruption Act (for short referred to herein after as 'P.C. Act').
Charges were framed against the appellant for the aforesaid offences. The appellant pleaded not guilty and claimed trial. The prosecution examined twelve witnesses in support of its case. The appellant, in his statement under Section 313 Cr.P.C., denied the allegations of the prosecution and refused having accepted the bribe. He submitted that he had been falsely implicated in the case. The learned subordinate court at the conclusion of the trial proceeded to hold the appellant guilty of the offences under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act and SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 7 sentenced him as above. Hence, this appeal.
Shri H.S.S. Kharlia, learned senior counsel for the appellant vehemently contended that the appellant had been falsely implicated in the matter. He urged that the complainant Surta Ram did not support the prosecution case at the trial and as such, the prosecution allegation regarding the appellant having demanded bribe from the complainant remained unsubstantiated and uncorroborated. He further urged that one of the independent motbirs namely, Chunni Lal also did not support the prosecution story and as such, the prosecution case regarding the appellant having accepted the bribe remained uncorroborated. He further urged that the seizure proceedings as well as the investigation of the case was conducted by the inspector Kheta Ram, who was not authorised to conduct the investigation and as such, the whole proceedings of the trap and investigation are vitiated. As such, he urged that the appellant's conviction was wrongly and unjustly recorded by the learned trial judge. He thus prayed that the appeal deserves to be accepted.
A short written submission with a list of precedents was filed by the learned counsel for the appellant in support of the oral submissions at the time of the arguments which was taken on record.
SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 8 Per contra, the learned Public Prosecutor vehemently opposed the submissions raised on behalf of the appellant. He urged that :-
• The seizure documents were duly proved by the shadow witnesses. PW2 Tulsa Ram ; PW3 Amar Singh, Constable, Anti Corruption Bureau ; PW7 Punjraj Singh, Dy. S.P. ;
PW9 Lal Singh, Clerk in Anti Corruption Bureau and PW10 Kheta Ram, Inspector, Anti Corruption Bureau.
• The prosecution led foolproof evidence to prove that the appellant demanded and accepted bribe from the complainant.
• The tainted currency notes were recovered from the pocket of the trouser worn by the appellant and he failed to give any explanation for the same.
• Presumption under Section 20 of the P.C. Act fully applied to the case and as such, the burden of proof was on the appellant to give an explanation about the tainted currency notes recovered from his personal possession.
• The appellant failed to offer any explanation whatsoever for the amount of Rs.300/- recovered from him.
• The FSL report gave positive result for presence of Phenolphthalein and Sodium Carbonate in the wash collected by washing the appellant's hands and the trouser pocket in which, the bribe money was kept.
SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan.9
Thus, he submitted that the learned trial judge rightly held the appellant guilty of the offences under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act. He, therefore, prayed that the appeal deserves to be rejected.
Heard and considered the arguments advanced at the bar and perused the impugned judgment as well as the record of the case.
The first argument which is required to be dealt with is regarding the challenge to the powers of the Inspector, A.C.B. to conduct the search and seizure proceedings.
Learned counsel for the appellant referred to Section 17 of the P.C. Act and submitted that the provision is mandatory.
He urged that the investigation of a case registered under the P.C. Act, 1988 cannot be carried out by an Inspector without seeking permission from the Magistrate or without being authorised by the State Government and as such, the whole proceedings of the search and investigation are vitiated. He relied upon the following judgments in support of this contention :-
(1)1999 Cri.L.J. 635 (Punjab & Haryana High Court) (Harnek Singh vs. State of Punjab).
(2)1999 (1) R.C.D. 406 (Raj.) (Hari Vallabh vs. State of Rajasthan) (3)2002 Cri.L.J. 845 (Karnataka High Court) (State of SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan.10
Karnataka & Ors. vs. B. Narayana Reddy).
(4)AIR 2007 SC (Supp) 1860 (State, Inspector of Police, Visakhapatnam. Vs. Surya Sankaram Karri). (5)AIR 1992 SC 604 (State of Haryana and others. Vs. Ch. Bhajan Lal and others).
Section 17 of the P.C. Act, which has been referred to by the learned counsel for the appellant, reads as under :-
"17. Persons authorised to investigate - Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank,-
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973, of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:
Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan.11
any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant:
Provided further that an offence referred to in clause (e) of sub-section (1) of section 13 shall not be investigated without the older of a police officer not below the rank of a Superintendent of Police."
On reading the provision, particularly, the Proviso thereof, it would become apparent that a police officer not below the rank of an Inspector of Police on being authorised by the State Government by a general or special order is empowered to investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, to make arrest without a warrant.
It is unfortunate to notice that learned senior counsel appearing for the appellant has placed reliance on the decision of Punjab & Haryana High Court rendered in Harnek Singh vs. State of Punjab (supra). In that case, the learned Single Judge of Punjab & Haryana High Court quashed the proceedings of a case under the P.C. Act on the ground that the Inspector of Police who conducted the investigation was not authorised to investigate the case. It is essential to mention here that the said decision of Punjab & Haryana High Court was challenged by the State of SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 12 Punjab before the Hon'ble Apex Court and the Hon'ble Apex Court reversed the judgment whilst deciding Criminal Appeals No.801-810 of 1999 (State of Punjab vs. Harnek Singh). The Hon'ble Apex Court's judgment is reported in AIR 2002 SC at page 1074. The Hon'ble Apex Court held that the notifications authorising the Inspector of Police under the Old P.C. Act of 1947 are saved in the new P.C. Act of 1988. The relevant portion of the view expressed by the Hon'ble Apex Court in the case of State of Punjab vs. Harnek Singh (supra) is quoted here under :-
"It is, therefore, evident that the notifications issued by the Government of Punjab, in exercise of the powers conferred under Section 5A of the 1947 Act, empowering and authorising the Inspectors of Police posted in Special Inquiry Agency of the Vigilance Department, Govt. of Punjab to investigate the cases registered under the said Act were saved under the saving provision of the re-enacted 1988 Act. Such notifications are not inconsistent with the provisions of re-enacted Act and are deemed to continue in force as having been issued under the re-enacted 1988 Act till the aforesaid notifications are specifically superseded or withdrawn or modified under the 1988 Act. The investigation conducted by the Inspectors of Police authorised in that behalf under the 1947 Act are held to be proper, legal and valid investigation under the re-enacted Act and do SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan.13
not suffer from any vice of illegality or jurisdiction. The High Court committed a mistake of law in holding the aforesaid notifications as not saved under the re-enacted 1988 Act. The quashing of the proceedings on the basis of the First Information Report registered against the respondent-accused was illegal and contrary to the settled position of law. The judgment of the High Court, impugned in these appeals, is, therefore, liable to be set aside."
The Hon'ble Apex Court had the occasion to consider the impact of the irregularity in investigation and non- compliance of Section 5A which was the cognate provision in the Prevention of Corruption Act, 1947. In the case of Munna Lal. Vs. State of Uttar Pradesh reported in AIR 1964 SC 28, after considering the provisions in detail, it was held that the provision of Section 5A was mandatory and not directory and the investigation conducted in violation thereof would be illegal. However, the Hon'ble Apex Court added that even if there was an irregularity in investigation and Section 5A was not complied with in substance, the trial could not be held to be illegal unless it was shown that miscarriage of justice was caused on account of non-compliance of the provision. Accordingly, it was held that no miscarriage of justice was caused by the alleged irregular investigation.
SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 14 Recently, the Hon'ble Apex Court again had the occasion to consider the same issue in the case of Ashok Tshering Bhutia vs. State of Sikkim reported in AIR 2011 SC 1363. The Hon'ble Apex Court observed as under :-
"The issues raised hereinabove are no more res integra. The matter of investigation by an officer not authorised by law has been considered by this Court time and again and it has consistently been held that a defect or irregularity in investigation however serious, has no direct bearing on the competence or procedure relating to cognizance or trial and, therefore, where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. The defect or irregularity in investigation has no bearing on the competence of the Court or procedure relating to cognizance or trial. (Vide H.N. Rishbud and Anr. v. State of Delhi, AIR 1955 SC 196; Munnalal v. State of U.P., AIR 1964 SC 28, Khandu Sonu Dhobi and Anr. v. The State of Maharashtra, AIR 1972 SC 958; State of M.P. v. Bhooraji and Ors., AIR 2001 SC 3372; State of M.P. v. Ramesh Chand Sharma, (2005) 12 SCC 628; and State of M.P. v. Virender Kumar Tripathi (2009) 15 SCC 533).
9. In Kalpnath Rai v. State (Through CBI) AIR 1998 SC 201, a case under the provisions of Section 20 of Terrorist and Disruptive Activities SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan.15
(Prevention) Act, 1987, this Court considered the issue as to whether an oral direction to an officer to conduct investigation could meet the requirement of law. After considering the statutory provisions, the Court came to the conclusion that as oral approval was obtained from the competent officer concerned, it was sufficient to legalise the further action.
10. In State, Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri, (2006) 7 SCC 172 : (AIR 2007 SC (Supp) 1860), a two-Judge Bench of this Court had taken a contrary view without taking note of the earlier two-Judge Bench judgment in Kalpnath Rai (supra) and held as under:
"When a statutory functionary passes an order, that too authorizing a person to carry out a public function like investigation into an offence, an order in writing was required to be passed. A statutory functionary must act in a manner laid down in the statute. Issuance of an oral direction is not contemplated under the Act. Such a concept is unknown in administrative law. The statutory functionaries are enjoyed with a duty to pass written orders.
However, the Court taking note of
subsequent proceedings recorded its
conclusions as under:
'It is true that only on the basis of
illegal investigation a proceeding may not be quashed unless miscarriage of SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan.16
justice is shown, but in this case as we have noticed hereinbefore, the respondent had suffered miscarriage of justice as the investigation made by PW 41 was not fair'."
11. In the instant case, the officer has mentioned in the FIR itself that he had orally been directed by the Superintendent of Police to investigate the case. It is evident from the above that the judgments in Kalpnath Rai (supra) and Surya Sankaram Karri (supra) have been decided by two Judge Benches of this Court and in the latter judgment, the earlier judgment of this Court in Kalpnath Rai (supra) has not been taken note of. Technically speaking it can be held to be per incuriam. There is nothing on record to show that the officer's statement is not factually correct. We have no occasion to decide as which of the earlier judgments is binding. It is evident that there was a direction by the Superintendent of Police to the officer concerned to investigate the case. Thus, in the facts and circumstances of the case, the issue as to whether the oral order could meet the requirement of law remains merely a technical issue. Further, as there is nothing on record to show that the investigation had been conducted unfairly, we are not inclined to examine the issue further.
12.Same remained the position regarding sanction. In the absence of anything to show that any defect or irregularity therein caused a failure of justice, the plea is without substance. A SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 17 failure of justice is relatable to error, omission or irregularity in the sanction. Therefore, a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19 (1) of the PC Act 1988 is a matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the Court under Cr.P.C., it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance. (Vide Kalpnath Rai (supra); State of Orissa v. Mrutunjaya Panda, AIR 1998 SC 715; State by Police Inspector v. Sri T. Venkatesh Murthy, (2004) 7 SCC 763 : (AIR 2004 SC 5117); Shankerbhai Laljibhai Rot v. State of Gujarat (2004) 13 SCC 487; Parkash Singh Badal and Anr. v. State of Punjab and Ors., AIR 2007 SC 1274; and M.C. Mehta v. Union of India and Ors. (Taj Corridor Scam), AIR 2007 SC 1087)."
Thus, the argument raised on behalf of the appellant challenging the Inspector's power to investigate a case under the P.C. Act is fallacious on the face of the record in the light of the views expressed by the Hon'ble Apex Court which have been referred to above.
Besides this, there is another important aspect regarding the State Government having empowered the Inspectors in this regard. The State of Rajasthan issued a SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 18 notification dated 10.2.1978, published in Rajasthan Gazette Part 4(g) on 9.3.1978, whereby all Inspectors of Police posted in the Anti Corruption Branch of the Rajasthan Police force were authorised to exercise the powers of an officer-in-charge of a police station. The notification reads as follows:-
कम क एफ 1/6(40)गह(गप-5)77 र जस न सरक र गह (गप-5) व भ ग जयपर, द न क 10 फर र , 78 अध सचन भष च र नन रण अध ननयम, 1947 (1947 क क%न' य अध ननयम 11) क( र 5-क क( उप र (1)क% खन+ (घ) क% प म परन.क द र प त शक3य4 क पय5ग कर.% हय% र जय सरक र, भ र.7य ण+ सदह. 1860 (1860 क क%न' य अध ननयम 45) क( र ऐ 161, 165 और 165 क क% क%न' य अध ननयम नन रण अध ननयम, 1947 (1947 क अध ननयम (1) क( र 5) क% अ 7न ण;न7य अपर < क अन %षण करन% और उसक% ल?य% बAन रनB धगरD. र करन% क% ल?य% र जस न क% भष च र ननर5 क व भ ग म< प स वप. समस. पल?स ननर कक4 क5 ए.द द र प ध क. कर.7 हG ।
र जयप ? क% आ % श स%, सह :-
(ए? एन गप ) गह आय3 ए श सन सधच This notification would be saved under the P.C. Act of 1988 in view of Section 27 of the Rajasthan General Clauses Act, 195 which reads as below :-
27. Continuation of orders, etc., issued under SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan.19
enactments repealed and re-enacted.- Where, any enactment is repealed and re- enacted with or without modifications, then, unless it is otherwise expressly provided any appointment, notification, order, scheme, rule, regulation, form or bye-law made or issued and anything duly done or action taken under the repealed enactment shall, so far as it is not inconsistent with the provisions so re-enacted, continue in force, and be deemed to have been made or issued and done or taken under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, regulation, form or bye-law made or issued or anything done or action taken under the provisions so re-enacted."
Thus, the notification authorising the Inspector to conduct a trap and investigate in a case under the P.C. Act, 1947 is saved and continues to hold field under the new P.C. Act of 1988 in view of Section 27 of the Rajasthan General Clauses Act and in the light of the decision rendered by the Hon'ble Apex Court in Harnek Singh's case.
From a perusal of the said notification, it becomes evident that an Inspector of Police is empowered to exercise all the powers of an officer-in-charge of a police station. The officer-in-charge of a police station is empowered under Chapter XII of Cr.P.C. to register an F.I.R. and to investigate a cognizable offence. It goes without saying that SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 20 the offences under the P.C. Act are cognizable offences. As such, an Inspector of Police posted in the Anti Corruption Bureau, by virtue of the notification dated 10.2.1978, is authorised and empowered to conduct investigation in the cases under the P.C. Act of 1947 and thereafter under the P.C. Act of 1988.
Thus, the argument advanced by the learned counsel for the appellant regarding the investigation of case having been conducted by an unauthorised officer has no legs to stand. The other judgments cited by the learned counsel for the appellant are of no avail to him because they run contrary to the view expressed by the Hon'ble Apex Court in the case of State of Punjab vs. Harnek Singh (supra). The judgment of the Hon'ble Apex Court cited by the learned counsel for the appellant in the case of Surya Sankaram Karri (supra) is also of no help to the appellant for the reason that in the said case, the Inspector who conducted the investigation admitted that the authorisation letter was not available. That apart, the Hon'ble Apex Court also held that the investigation was highly unfair in the said case and that is why it was held that it resulted into miscarriage of justice entitling the accused to acquittal. The relevant observations made by the Hon'ble Apex Court in the case of Surya Sankaram Karri (supra) are reproduced below :-
SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan.21
"It is true that only on the basis of illegal investigation, proceeding may not be quashed, unless miscarriage of justice is shown, but, in this case, as we have noticed herein before, the respondent has suffered miscarriage of justice as the investigation made by PW41 was not fair."
In the opinion of this Court, citing an overruled judgment rendered by the Punjab and Haryana High Court in Harnek Singh's case which stood reversed by the Hon'ble Apex Court by its judgment reported in AIR 2002 SC 1074 (State of Punjab. vs. Harnek Singh) (referred to supra), is a conduct unbecoming of a Senior counsel as held by the Hon'ble Bombay High Court in the case of Ganesh Nivrutti Marne. vs. The State of Maharashtra reported in 2010 (112) BOMLR 2280.
Now coming to the remaining arguments advanced on the appellant's behalf. The principal argument advanced by the learned counsel for the appellant was that the decoy turned hostile and did not support the prosecution case and as such, the prosecution failed to prove the fact regarding the demand and acceptance of bribe and resultantly, the appellant was entitled to be acquitted.
Learned counsel for the appellant placed reliance on the decision rendered by the Hon'ble Apex Court in the case of Subash Parbat Sonvane. Vs. State of Gujarat reported in SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 22 JT 2002(4) SC 348 in order to buttress the contention that unless the demand of bribe is proved, the accused cannot be held guilty for the offences under the P.C. Act.
For appreciating this argument, the evidence led by the prosecution has to be re-appreciated. Though it is true that the decoy PW1 Surta Ram turned hostile at the trial and did not support the prosecution case but when he was examined as PW1, he admitted his signatures on the written FIR Ex.P/1 and the documents Ex.P/2, P/3, P/4, P/5, P/6, P/7, P/8, P/9 and P/10 prepared during the trap proceedings. He categorically testified that he went to the RSEB office and his bill was accepted for a reduced amount. Therefore, the fact regarding the complainant's bill having been accepted for a truncated amount was admitted by him.
The shadow witness PW2 Tulsa Ram firmly stood by and totally corroborated the allegations made in the FIR and stated that the complainant Surta Ram admitted the contents of the FIR and stated that the accountant Mr.Garg was demanding Rs.300/- for reducing his bill. These facts are also fully corroborated by the testimony of the departmental witnesses the Constable PW3 Amar Singh and the Inspector PW10 Kheta Ram. No animosity is claimed existing between the appellant and the witnesses Tulsa SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 23 Ram, Amar Singh, Kheta Ram. No argument was raised as to why Tulsa Ram, Kheta Ram & Amar Singh would depose falsely against the appellant.
PW10 Kheta Ram, Inspector, has duly proved the fact regarding the presentation of the FIR, the laying of the trap proceedings and the recovery of the bribe money from the pocket of the trouser worn by the accused.
The complainant's electricity bill for a sum of Rs.1141/-, for the reduction whereof, the whole proceedings were initiated, was proved as Ex.P/11. PW12 Pawan Kumar, a clerk in the R.S.E.B. office, proved the receipt Ex.P/32A. As per the receipt, a sum of Rs.397/- was deposited in the name of Surta Ram on the very day of the trap. It is thus, evident that in pursuance to the bargaining between the complainant and the accountant, the complainant's electricity bill was accepted for a reduced amount.
PW11 Gowardhan Lal, another clerk in the R.S.E.B. Office, proved that the bills Ex.P/11 and Ex.P/31 were scribed by the accused. Both the bills for the same consumption period were issued in the name of Surta Ram. The bill Ex.P/11 is for a sum of Rs.1141/- and it does not bear the signatures of the Assistant Engineer but it bears a seal dated 18.1.1991. The bill Ex.P/31 is for a sum of Rs.397/- and bears the signatures of the Assistant Engineer.
SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 24 It is apparent from a perusal of these two documents that the appellant deliberately prepared two bills in the name of Surta Ram - one for a sum of Rs.1141/- and another for Rs.397/-. Ex.P/11 bill for the sum of Rs.1141/- was obviously a fictitious bill raised and issued to the complainant for facilitating procurement of bribe. PW11 Gowardhan Lal proved the bills and no question was put to him challenging his deposition regarding both the bills being drawn in the appellant's handwriting. It is clear from the aforesaid two documents that the accused appellant prepared the two different bills in Surta Ram's name for the same period so that procurement of bribe could be facilitated. The accused did not give any explanation for preparing and raising the two simultaneous bills of the same consumer for different amounts.
It can thus safely be concluded that the accused prepared a fabricated bill Ex.P/11 for an exaggerated amount in the name of the complainant and then procured illegal gratification of Rs.300/- and thereafter passed on the a reduced bill Ex.P/31 to the complainant. The fact of demand of bribe though not supported by the complainant at the trial is amply proved and corroborated by other independent material and evidence available on the record which has been referred to above.
SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 25 The bribe amount i.e. tainted currency notes worth Rs.300/- bearing the Trap Laying Officer's initials were recovered from the trousers worn by the accused. The wash of the accused hands as well as trousers pocket turned pink. The F.S.L. report regarding the wash is positive for the presence of phenolphthalein and Sodium Carbonate thereby corroborating the fact that the accused accepted the tainted currency notes from the complainant. Merely because the complainant turned hostile at the trial, the accused does not stand to gain any advantage because the prosecution has proved its case beyond all manner of doubt by other evidence.
As the currency notes were found in the possession of the accused, the burden shifted on to him by virtue of Section 20 of the P.C. Act to explain about being in possession of the bribe money. The accused miserably failed to offer any explanation for being in possession of the tainted currency notes. Apart from a bare denial in the statement under Section 313 Cr.P.C., no explanation whatsoever was offered by the accused for the amount recovered from him. As such, he failed to discharge the burden cast upon him under Section 20 of the P.C. Act.
As a result of the aforesaid discussion, this Court has no hesitation in holding that the prosecution proved the SB Criminal Appeal No.160/2000 Kaushal Kumar Garg. Vs. State of Rajasthan. 26 guilt of the accused beyond all manner of doubt. The burden of proof shifted on to the accused to explain the possession of the tainted currency notes and was not discharged by him. As such, the learned trial judge committed no error, perversity or illegality in convicting and sentencing the appellant as mentioned above.
Resultantly, this appeal being meritless is hereby dismissed. The judgment dated 31.3.2000 passed by the learned Special Judge cum Sessions Judge (Prevention of Corruption Act Cases), Jodhpur in Criminal Case No.56/1997 (8/1992) is upheld. The appellant is on bail. He shall be taken into custody forthwith for serving out the sentence awarded to him.
[Sandeep Mehta],J.
/S.Phophaliya/