Gujarat High Court
State Of Gujarat vs Vikrambhai Kanjibhai Parmar on 1 March, 2018
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/2352/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2352 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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STATE OF GUJARAT
Versus
VIKRAMBHAI KANJIBHAI PARMAR
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Appearance:
MR HB PUNANI, APP for the PETITIONER(s) No. 1
MR UMESH A TRIVEDI, ADVOCATE WITH MR BHARAT K DAVE for the
RESPONDENT(s) No. 1,2,3,4,5
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 01/03/2018
ORAL JUDGMENT
1. This is an appeal preferred by the State of Gujarat under Section 378 (3) of the Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 23/05/2005 recorded by the learned Special Judge, 6th Fast Track Court, Sabarkantha, at Himmatnagar in Special Case No.8 of 1998 and Special Case No.7 of 1999 whereby the learned Trial Page 1 of 14 R/CR.A/2352/2005 JUDGMENT Judge acquitted the respondents-accused, of the charges for the offence punishable under Sections 7, 12, 13(2) read with Section 13(1)(d), 1, 2, 3 of the Prevention of Corruption Act, 1988.
2. Brief facts of the case are that Mr. H. R. Puvar, complainant was serving as Police Inspector in ACB, Ahmedabad. He received a secret information from his reliable sources that the RTO officials posted at Shamlaji out post which is situated at the boundary of Rajasthan and Gujarat State used to collect illegal gratification of Rs.20/- to Rs.300/- from the passers of vehicles while checking for violation of provisions of the Motor Vehicles Act as well as for overloading the goods vehicles and for not taking any legal action against them. Even the police officials and the traffic police and local police are also indulging in such sort of corrupt practice. Consequently, therefore, he planned for laying a running trap. In pursuance thereof, in the night of 10/05/1996, he found out the driver of truck bearing registration no.RJ-9-G-372 as a decoy for catching the corrupt officials and laying the trap on 11/05/1996 during nocturnal hours. At that time, respondent no.1, by way of raising signal, demanded an amount of illegal gratification and respondent no.2 accepted a sum of Rs.200/- treated with anthracene powder. Thereafter, raiding party members came there and detail search and seizure was carried out and the accused came to be caught red handed along with the tainted currency notes and thereafter detail investigation was carried out by Mr. D. L. Dodia and he filed the charge sheet. Accordingly, offence punishable under Sections 7, 12, 13(2) read with Section 13(1)(d), 1, 2, 3 of the Prevention of Corruption Act, Page 2 of 14 R/CR.A/2352/2005 JUDGMENT 1988 was registered against the respondents-accused.
3. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, the respondents were arrested and, ultimately, charge-sheet was filed and submitted the same before the learned Special Judge, 6th Fast Track Court, Sabarkantha, Himmatnagar where the case was registered as Special Case No.7 of 1999 and Special Case No.8 of 1998. The trial was initiated against the respondents.
4. To prove the case against the present respondents- accused, the prosecution has examined about seven witnesses and also produced several documentary evidence.
5. At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondents of all the charges leveled against them by the impugned judgment and order.
6. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant- State has preferred the present appeal.
7. This Court has heard Ms. Hansa Punani, learned APP for the appellant-State and Mr. Umesh Trivedi, learned advocate for Mr. Bharat Dave, learned advocate for the respondents-accused.
8. Ms. Hansa Punani, learned APP has taken this Court Page 3 of 14 R/CR.A/2352/2005 JUDGMENT through the entire proceedings and read over the evidence of decoy, shadow panch as well as other witnesses and has argued that though the prosecution has established the case relying upon the evidence of the police officials who were accompanying with the decoy and even the evidence of shadow panch is consistent with the complaint and contemporaneous panchnama as well as other evidence on record, the learned trial judge did not believe that the decoy had supported the case of the prosecution and wrongly acquitted the accused persons. It is also contended by learned APP that the judgment and order of the trial Court is against the provisions of law as the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved all the ingredients of alleged charges against the present respondents. It is further contended by learned APP that the judgment and order of acquittal passed by the learned Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also contended by her that the learned Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting the respondents accused for the alleged offence under Sections 7, 12, 13(2) read with Section 13(1)(d), 1, 2, 3 of the Prevention of Corruption Act, 1988 which requires to be reversed as such and the respondents-accused are required to be convicted.
9. On the contrary, Mr. Umesh A. Trivedi, learned advocate for Mr. Bharat Dave, learned advocate for the respondents- accused supported the impugned judgment and order of Page 4 of 14 R/CR.A/2352/2005 JUDGMENT acquittal and has argued that the decoy had not supported the case of the prosecution and even the decoy refused to identify any one of the accused involved in the alleged offence and he had not at all involved the present respondents accused in the crime in question. Even, to some extent, after declaring hostile, the shadow panch has deposed against the present respondents, which is also not in consonance with the contemporaneous record like panchnama as well as police statement and he has made improvement therein, consequently, therefore, his evidence is also not believable. Mr. Trivedi, learned advocate has further contended that the trap in question was a running trap. Consequently, therefore, after conclusion of investigation, complaint came to be lodged by Mr. H. R. Puvar, Police Inspector, ACB, Ahmedabad. As the independent witnesses like decoy and shadow panch had not supported the case of the prosecution, therefore, the learned trial court has rightly acquitted the accused which may not be disturbed as such. Mr. Trivedi, learned advocate has further submitted that Mr. D. L. Dodia, Police Inspector had managed the entire trap and at the time of trap he even accompanied the decoy in the truck itself and thereafter he himself has investigated the entire case and after conclusion of investigation, he filed the charge sheet. Consequently, therefore, he assumed all the roles commencing from laying trap, becoming member of trapping party and investigated the entire case which vitiates the entire proceedings, in view of the decision of Hon'ble Apex Court in the case of Bhagwan Singh vs. State of Rajasthan reported in AIR 1976 SC 985 followed by this Court in case of Kanubhai Kantibhai Patel vs. State of Gujarat reported in 1999 (1) GLH 924. He has contended that the findings recorded by the learned trial Page 5 of 14 R/CR.A/2352/2005 JUDGMENT court does not require any interference by this Court.
10. This Court has minutely perused the oral as well as documentary evidence available on record and gone through the impugned judgment and order passed by the trial court as well as paper book and evidence adduced by the prosecution in its entirety and has also considered the submission made by learned APP for the appellant-State and learned advocate for the respondent.
11. At this juncture, it would be fruitful to refer to some decisions of Hon'ble Apex Court. In the case of A. Subair vs. State of Kerala reported in (2009) 6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act, the Hon'ble Apex Court ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
12. In the case of State of Kerala and another vs. C.P. Rao reported in (2011) 6 SCC 450, the Hon'ble Apex Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
Page 6 of 14R/CR.A/2352/2005 JUDGMENT
13. In a recent enunciation by the Hon'ble Supreme Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined by the Hon'ble Apex Court in the case of B.Jayaraj vs. State of A.P. reported in AIR 2014 SC (Supp) 1837, in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
14. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, the Hon'ble Apex Court in the case of Sujit Biswas vs. State of Assam, reported in (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and Page 7 of 14 R/CR.A/2352/2005 JUDGMENT the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
15. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.
16. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)
(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
17. Having heard learned advocate for the respective parties to the present proceedings and having perused the impugned judgment as well as records and proceedings, it clearly reveals that Mr. H. R. Puvar, complainant who was serving as Police Inspector in ACB, Ahmedabad. He received a secret information from his reliable sources that the RTO officials posted at Shamlaji out post which is situated at the boundary of Rajasthan and Gujarat used to collect illegal gratification of Page 8 of 14 R/CR.A/2352/2005 JUDGMENT Rs.20/- to Rs.300/- from the passers of vehicles while checking for violation of provisions of the Motor Vehicles Act as well as for overloading the goods vehicles and for not taking any legal actions against them. Even the police officials and the traffic police and local police are also indulging in such sort of corrupt practice. Consequently, therefore, he planned for laying a running trap. In pursuance thereof, in the night of 10/05/1996, he found out the driver of truck bearing registration no.RJ-9-G-372 as the decoy for catching the corrupt officials and laid the trap on 11/05/1996 during the nocturnal hours. At that time, respondent no.1, by way of raising signal, demanded illegal gratification and respondent no.2 accepted an amount of Rs.200/- treated with anthracene powder. Thereafter, raiding party members came there and detail search and seizure was carried out and the accused came to be caught red handed along with the tainted currency notes and thereafter detail investigation was carried out by Mr. D. L. Dodia and he filed the charge sheet. Accordingly, offence punishable under Sections 7, 12, 13(2) read with Section 13(1)(d), 1, 2, 3of the Prevention of Corruption Act, 1988 was registered against the respondents-accused
18. PW-1 Mulchand Kanaiyalal, decoy who was requisitioned by the ACB has deposed that he was driver of truck bearing registration no.RJ-9-G-372 and was serving with Lalaram Sindhi and he was coming from Madhya Pradesh to Ahmedabad. He had shown willingness to act as decoy. During the course of his testimony, he deposed that at the time of trap while the truck was passing within the vicinity of Shamlaji RTO check post, three persons were found seated there. They investigated the papers and asked as to how Page 9 of 14 R/CR.A/2352/2005 JUDGMENT much weight he is carrying in the said truck to which he answered that he is carrying 16 tons of weight whereas the truck was permitted to carry 10 tons of weight. So the truck was found overloaded. At that time, none had asked any amount of illegal gratification though he handed over the amount of illegal gratification treated with anthracene powder to the person who was seated there as the police said him to do so and thereafter other members of raiding party arrived there and detail search and seizure was carried. He did not raise any signal. None of the accused were identified by him. As he did not support the case of the prosecution, he was declared hostile and thereafter detail cross examination was carried out by learned Additional Public Prosecutor though he did not supported the case of the prosecution.
19. PW-2 Muljibhai Dahyabhai Parmar was shadow panch and was serving at the relevant time in Telephone Exchange. He was directed to hear conversation and view the trap and to remain along with the decoy during the course of trap. Accordingly, he proceeded along with the decoy as well as other police officials and he was traveling in the aforesaid truck along with the decoy and other police officials. While the truck was passing within the vicinity of Shamlaji out post, two officials and one another private persons were found there. They investigated the papers and asked about the weight being loaded in the truck to the driver of truck and thereafter by raising signal by hand, directed to hand over an amount of Rs.200/-. Thereafter, the decoy took out the money from his pocket treated with anthracene powder and handed over to the private person and thereafter he gave signal due to which other members of raiding party arrived there and Page 10 of 14 R/CR.A/2352/2005 JUDGMENT detail procedure of search and seizure was carried out. In the cross examination, he clearly and categorically admitted that during the course of trap, the police officials directed to catch the RTO officials due to which the accused persons were wrongly roped in the crime in question.
20. PW-7 Mr. D. L. Dodia has deposed that he was functioning as the Police Inspector, ACB, Ahmedabad Rural at the relevant time. On 11/05/1996, a running trap was arranged at Shamlaji out post wherein he was also one of the members of raiding party and he carried out a detail search and seizure and investigated the entire case and after conclusion of investigation, charge sheet was filed. Almost entire investigation was carried out by him, but the charge sheet was filed by one Shri R. V. Jotangia, Assistant Director, ACB.
21. On overall analysis of the evidence on record, it appears that Shri Puvar, Police Inspector received secret information from his own sources. In pursuance thereof, entire trap came to be arranged. While carrying out the trap, Shri D. L. Dodia, Police Inspector was also along with him. During the course of trap, PW-1 was requisitioned as decoy and PW-2 was requisitioned as shadow panch. Both of them have not supported the case of the prosecution. On the contrary, the decoy has deposed that he handed over the amount treated with anthracene powder to a private person who was seated at Shamlaji out post as per the direction of the police and none has demanded any amount from him and even after the trap, none has made any identification of the accused who came to be apprehended thereafter. So far as the evidence of Page 11 of 14 R/CR.A/2352/2005 JUDGMENT shadow panch is concerned, this Court has minutely gone through his evidence. His evidence is not leading any case further of the prosecution to involve the present accused with the crime in question. Even if his evidence as he deposed in the examination-in-chief may be taken in toto, then also he had merely stated that one of the officials of RTO by way of raising signal by hand demanded Rs.200/-. That itself is not establishing either the instant demand or the acceptance thereof. Whereas in his cross examination, he, in a clear and categorical terms, admitted that the police officials directed to rope the officials of the RTO in the trap case due to which the bribe money came to be handed over to one of them.
22. In view of the aforesaid nature of evidence, this being a running trap wherein there cannot be any pre-demand, consequently, therefore, a strict proof as regard to instant demand and acceptance in clear terms is required to be established by the prosecution beyond reasonable doubt so as to attract the provisions of the Prevention of Corruption Act for punishing a person for demanding and accepting an amount of illegal gratification. As noted above, the prosecution miserably failed to establish the demand and acceptance in toto. Consequently, therefore, even if recovery, search and seizure may be believed to be true, then also it renders meaningless.
23. Moreover, one disturbing feature is emerging out from the evidence available on record. The Police Inspector Mr.Dodia has assumed all roles right from the stage of recording complaint, arranging trap as well as members of raiding party, carrying out investigation. This course of action Page 12 of 14 R/CR.A/2352/2005 JUDGMENT go against the basic tenets of criminal jurisprudence and fair investigation. The credibility of the case of prosecution becomes suspicious on this count only. In the present facts of the case, the status of investigating officer could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. There should be no occasion to suspect fair and impartial investigation. The said view is fortified by the decision of the Hon'ble Apex Court in the case of "Bhagwan Singh vs. State of Rajasthan", reported in AIR 1976 SC 985, followed by this Court in the case of "Kanubhai Kantibhai Patel vs. State of Gujarat" reported in 1998 (1) GLH 924. Therefore, in this case, the prosecution case suffers from the aforesaid basic infirmity which itself is sufficient to vitiate the whole investigation and accordingly the whole proceedings based on such investigation deserves to be quashed and set aside on this count only.
24. In view of the aforesaid nature of evidence, learned Special Judge has rightly recorded the finding of acquittal thereby rightly acquitted the accused which calls for no interference of this Court. Even otherwise also, this case is squarely covered by the decision of Hon'ble Apex Court in the case of M. R. Purushotham vs. State of Karnataka reported in (2015) 3 SCC 247 and on that count also, there appears no merit in the appeal.
25. For the reasons recorded as above, it appears that the learned trial court has rightly appreciated the evidence on record and rightly acquitted the accused from the charges Page 13 of 14 R/CR.A/2352/2005 JUDGMENT leveled against them which calls for no interference by this Court. This Court is of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. This Court find that the findings recorded by the Trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings when the reasons assigned by the Court below are found to be just and proper. Accordingly, present appeal is devoid of any merits and requires dismissal.
26. In the result, the present appeal is hereby dismissed. Record and Proceedings to be sent back to the trial Court, forthwith. Bail bond and bail, if any, stands cancelled. Surety also, if any given, stands discharged. Fine, if any paid, be refunded forthwith.
(R.P.DHOLARIA,J.) ila Page 14 of 14