Patna High Court
Ram Avtar Sah vs State Of Bihar on 28 February, 2002
Equivalent citations: 2002(50)BLJR1339, 2002CRILJ3899
JUDGMENT Indu Prabha Singh, J.
1. The sole appellant has been convicted under Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the Act') and sentenced to undergo rigorous imprisonment for one year with a fine of Rs. 200/- in default, to undergo simple imprisonment for one month. He has been further convicted under Section 161 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. However, both the sentences have been ordered to run concurrently.
2. The prosecution case, in short, is that the appellant Ram Avtar Sah was working as Amin in Survey-cum-Chakbandi operation (consolidation of holdings operation) which was going on in village Tetariya Bhiksharam P. S. Kateyan, Gopalganj. It has been stated that the complainant has some land in the same village and he contacted the appellant and asked him for entry of his name over his land, for which the appellant demanded Rs. 100/- as illegal gratification. Further the case of the complainant is that the appellant told him that if the bribe is not paid, the work will not be done. The complainant asked for 4-5 days' time for arranging the money. Thereafter on 6th of March, 1981 he submitted an application (Ext. 7) addressed to the Chief Secretary, Govt. of Bihar, Patna, for arrest of the appellant at the time of accepting the bribe. On this application the Inspector (Vigilance) was appointed as verifier by order dated 7th March, 1981 of Dy. Superintendent of Police (Vigilance), Mantrimandal Nigrani Vibhag, Patna, who verified the truth of the allegation of the complainant and found it correct. He submitted his report (Ext. 4) and after this verification report Additional Superintendent of Police (Vigilance), Patna, directed the Officer-in-charge Vigilance P. S., Patna for institution of the case under Section 161 of the Indian Penal Code (for short 'Penal Code') and entrusted the investigation to Shri R.K. Singh, Dy. S. P., Vigilance Department, Muzaffarpur (Ext. 1/2). The Officer-in-charge, Vigilance P.S., Patna instituted a case as Vigilance P.S. Case No. 01, dated 16-3-1981 under Section 161 of the Penal Code. One Shri Radha Kant Singh, Dy S.P. (Vigilance) was appointed as Investigating Officer of this case (Ext. 1/1). Thereafter a formal F.I.R. (Ext. 1) was drawn up and raid was organised. A memorandum of currency notes (Ext. 2) was prepared on 17-3-81 over which Shyam Behari Pd. (P.W.9) signed as Special Magistrate. The currency notes were handed over to the complainant Bechu Pandey with a direction that when the accused will ask for the bribe, he would hand it over to him. The complainant made endorsement on this memorandum to that effect, Ext. 2/2. On 17th March, 1981 at about , 1 p.m. the raiding party along with the complainant went to Kateyan Bazar at the tea Shop of Ramanand Prasad. The appellant came and asked for the bribe as aforesaid on which the complainant handed over Rs. 90/-. The accused kept that money in the right lower pocket of his shirt. Thereafter the raiding party arrested the appellant and after observing the legal formalities of search, searched his person and recovered the amount aforesaid paid to him by the complainant as bribe. The raiding party seized the shirt from the pocket of which illegal gratification was recovered. Thereafter the appellant handed over the sale deed of the complainant which was kept in his Jhola at his residence. The sale deed was also seized by the Vigilance Deptt. Seizure lists were prepared and the copy of which was also handed over to the appellant. After completion of investigation charge-sheet was submitted against the appellant under Section 161 of the Penal Code and under Section 5(2) of the Act. The prosecution was sanctioned by Tarkeshwar Nath (P.W. 10) Deputy Director, Consolidation of Holdings Department, Siwan (Ext. 6). Cognizance was taken on 18-6-84 and the trial proceeded. Finally, the trial concluded with the result as indicated above.
The defence of the appellant was that as he was not a Govt. servant, none of the sections either Section 161 of the Penal Code or Section 5(2) of the Act was attracted against him and he had been falsely implicated in this case.
3. The prosecution in support of its case examined altogether 17 witnesses during the course of trial. P.W. 1 is Madan Lal. He is Inspector of Police (Vigilance). P.W. 2 is Kedar Singh, a tendered witness, P.W.3 is Lakhindar Prasad, a tendered witness, P.W.4 is Rameshwar Prasad, a tendered witness. P.W. 5 is A. K. Bhattacharjee, Inspector, Vigilance Department. P.W. 6 is Rameshwar Lal. He is Inspector, Vigilance Deptt. P.W. 7 is Mahendra Pd. Deo, a tendered witness. P.W.8 is R. B. Subarno, Officer-in-Charge. P.W.9 is Shyam Bihari Prasad, Dy. Secretary,, Agriculture Deptt. P.W. 10 is Tarkeshwar Nath, P.W. 11 is Tapeshwar Singh. He is also a tendered witness. P.W. 12 is Bechu Pandey, the complainant. P.W. 13 is Shyam Kishore Singh, a tendered witness. P.W. 14 is Suresh Kr. Verma. He is Circle Officer, P.W. 15 is Kamlesh Kumar Bhatt, P.W. 16 is Radhakant Singh, Dy. Superintendent of Police (Vigilance) and P.W. 17 is Surendra Kr. Singh. He is Watcher, Vigilance Department.
The defence has also examined D.Ws. 1 and 2. D.W. 1 is Jai Narayan Mahto and D.W. 2 is Ram Nandan Mahto.
4. P.W. 12 the complainant has stated in his statement that in the year 1981 Chakbandi operation was going on in his village and also nearby villages. The appellant was working as Amin in the village Tetariya. The informant had purchased land from one Uma Shankar Pandey by registered sale deed. He contacted the appellant for getting that plot recorded in his name in the Chakbandi records of right. The appellant asked him that he had to pay money for the same and then only his work would be done. The appellant demanded Rs. 100/- for that work. It has been further stated that he was not inclined to pay illegal gratification to the appellant for getting the above mentioned land recorded in his name. He made a complaint in writing to the Chief Secretary, Govt. of Bihar, Patna. The Chief Secretary directed him to contact the Dy. Secretary, Vigilance and he accordingly contacted him. Thereafter Inspector, Vigilance was appointed as verifier. According to him on 12-3-81 he along with verifier came to Kateya (sic) ock. The verifier sat in the tea shop which was situated just near the residence of the appellant. He called appellant there in the tea shop and offered him a cup of tea and requested him to do his work. The appellant again asked for illegal gratification and told him if money is paid, his work would be done immediately. According to him, he told the appellant that for the present he had not brought the money and requested him to make some concession. The accused told that you give me only Rs. 90/-. He has further stated that the appellant took the sale deed of the complainant and the complainant sought for time to arrange the money. He has further stated that the appellant asked him to pay the money by 16-17th March, 1981. According to him on 17th March, 1981 at 12 noon he was in his village as per the direction of the verifier where the members of the raiding party came. The raiding party consisted one Dy. Superintendent of Police and one Magistrate, Vigilance Department and others. He handed over Rs. 90 to them. Thereafter they prepared the memo of the currency notes and returned to him with a direction that when the appellant will ask for the bribe then only he will pay the same to the appellant. According to him, from there he along with the members of the raiding party went near the tea shop and called the appellant for a cup of tea. According to him, the Dy. Superintendent of Police, Vigilance and Special Magistrate, Vigilance also sat in that tea shop and then he asked the appellant to record his name. The appellant enquired from him as to whether he had come with the money or not. He replied in affirmative, then the appellant asked for money, he handed over the same which the appellant kept it in the right lower pocket of his shirt. Thereafter, the verifier gave signal on which the Dy. Superintendent of Police and Special Magistrate came near the appellant. The Dy. Superintendent disclosed his identity and said that he had taken bribe. The B.D.O., Kateyan was called and the appellant was searched, the currency notes given to the appellant were recovered from the right lower pocket of his shirt. The currency notes as well as shirt were seized. He has also stated that an enquiry was made regarding the sale deed from the appellant. He told that he had got the sale deed at his residence and the same was recovered from his residence and a seizure list of sale deed was also prepared.
Except the tendered witnesses the other witnesses have also supported the version of the complainant.
5. Learned counsel appearing on behalf of the appellant submitted that in this case no independent witnesses has been examined. All the witnesses are related to the Vigilance Department. As such, they are highly interested. He has further submitted that sale deed and Khanapuri documents were not placed in the Court and Khanapuri report was submitted on 9-3-81 and the occurrence took place on 17-3-81. Therefore, there was no occasion for the complainant to give money to the appellant for getting favour in Khanapuri. As such, there was no motive for giving bribe to the appellant. It has also been submitted that the appellant accepted the money in a tea shop which was a busy place and there were many persons around in the tea shop. It has been also submitted that the appellant is not a public servant and the case against him under the Act is not maintainable. So far the contention of the learned counsel that the witnesses are interested and they cannot be relied upon, but there is no hard and fast rule that the prosecution case can be out-rightly discarded on this ground alone, rather in such cases their evidence should be scrutinised with great care and caution. The contention of the learned counsel is that the appellant was not public servant, but according to Section 21 of Indian Penal Code public servants are those who fall under the definition of Public Servant, as defined under Section 21 of the Penal Code.
Clause Ninth of Section 21 of the Penal Code states like this :
Ninth - Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of (the Government), or to make any survey, assessment or contract on behalf of (the Government), or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of (the Government), or to make authenticate or keep any document relating to the pecuniary interests of (the Government), or to prevent the infraction of any law for the protection of the pecuniary interests of (the Government).
6. From the above definition it is clear that any surveyor while performing his legitimate function under any of the Revenue Civil Court is a public servant. As such the appellant who was entrusted with the survey work for the purpose of consolidation process, was a public servant and for his misconduct a case under the Act is maintainable.
7. From the deposition of P.W.5, who is Inspector, it appears that the demand of money and transaction of money was done at a tea shop, which was a busy place and it is not a normal conduct that a person would accept the bribe at such places. However, only on this ground the case of the prosecution cannot be discarded. It is also very pertinent to mention that the alleged bribe was for making Khanapuri in favour of the complainant but, from the record it is evident that Khanapuri was already completed, even final report was submitted to the higher authority on 9-3-81 and the alleged transaction of money for Khanapuri was done on 17-3-81, which is not convincing why the appellant was paid money for the work which has already been done. As such the genesis of the occurrence becomes doubtful. Even the sale deed, which was recovered from the house of the appellant, was not produced before the Court below, for which a seizure list was prepared. Moreover, in this case no independent witness has been examined to support the case of the prosecution.
8. In view of above the prosecution could not prove its case against the appellant beyond all reasonable doubts. Therefore, he deserves benefit of doubt. Accordingly, the appellant is acquitted of the charges framed against him. The conviction and sentence passed by the Court below are set aside and he is discharged from the liability of bail bonds. In the result, this appeal is allowed.