Punjab-Haryana High Court
Sucha Singh vs State Of Punjab on 16 November, 2010
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
Crl. Appeal No.756-SB of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.756-SB of 2000
Date of decision:16.11.2010
Sucha Singh
...Appellant
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr.T.P.Singh, Advocate
for the appellant.
Mr. Rajinder Mathur, AAG, Punjab.
JITENDRA CHAUHAN, J. (Oral)
1. The present appeal is directed against the judgment and order dated 17.8.2000 (for short `impugned judgment') passed by the learned Special Judge, Jalandhar (for short `trial Court'), whereby the accused/appellant has been convicted for the offence punishable under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 (for short `the Act') and ordered to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months.
2. Brief facts of the case are that the appellant Nirmal Singh, Crl. Appeal No.756-SB of 2000 2 Head Constable, was posted in 13th Battalion of PAP, Chandigarh. On 30.1.1996, appellant made request to Commandant of the Battalion for his character verification for the purpose of passport. The application was marked to the Officer Incharge of Police Station, Bhogpur for making a report regarding the character verification of H.C. Nirmal Singh. The concerned SHO marked that letter to the accused for doing the needful. On 12.2.1996, the appellant visited the house of complainant and met with his wife namely Salinder Kaur. He demanded a sum of Rs.500/- as bribe for making the report. Salinder Kaur, stated that she was not having that much amount with her. The appellant threatened her and received Rs.200/- from her on the pretext to get fuel filled in the official vehicle and that was also the fee prescribed by the government. As per prosecution case, at that time Kartar Singh, Panch of the Gram Panchayat, was present and the accused/appellant recorded his statement regarding the antecedents of the character complainant and forwarded the same to the MHC who put up the same before the SHO, who further placed the same before SSP. However, the accused/appellant did not submit his report for a period of one month. At this conduct of the appellant, the complainant moved an application to his Commandant, which was forwarded to the Sr. Superintendent of Police, Jalandhar and an enquiry was assigned to DSP. On the basis of that application, DSP recorded the FIR, Exhibit PF.
3. During investigation, the accused was arrested on Crl. Appeal No.756-SB of 2000 3 20.11.1996. Final report under Section 173 Cr.P.C. was presented.
4. The accused/appellant was charge sheeted for the offence under Section 7 read with Section 13(2) of the Act, to which he pleaded not guilty and claimed trial.
5. To prove its case, the prosecution examined as many as ten witnesses, namely, H.C. Shamsher Singh, as PW1; Kartar Singh, as PW2; Bhag Singh, as PW3; Salinder Kumar, as PW4; Inspector Narinder Singh, as PW5; C.Tajinder Singh, as PW6; C. Avtar Singh, as PW7; C. Surinder Kaur, as PW8; Bhupinder Singh, MHC, as PW9 and DSP Rajinder Singh as PW10.
6. PW-2 Kartar Singh, (Panch of the village) deposed that on 12.2.1996 the appellant came to their village to verify the antecedents of character of the complainant. He was called at the house of the complainant. He further deposed that in his presence, the appellant did not take any money for making the report.
7. PW-4 Salinder Kaur (wife of the complainant) deposed that the appellant came to their house for character verification of her husband and he demanded a sum of Rs.200/- ,which were given to him. In cross-examination, she admitted that she handed over Rs.200/- to Kartar Singh, who further handed over the same to the appellant.
8. After completion of prosecution evidence, the accused was examined under Section 313 Cr. P.C. The accused denied all the incriminating circumstances appearing against him in prosecution evidence and pleaded innocence.
Crl. Appeal No.756-SB of 2000 4
9. After hearing both the parties, the learned trial Court convicted and sentenced the accused/appellant as noticed at the outset of this judgment.
10. Feeling aggrieved by the judgment of conviction and order of sentence passed by the learned trial Court, the appellant has preferred this appeal, which was admitted by this Court on 25.8.2000.
11. Learned counsel for the appellant has argued that initially the complaint was made more than one month after the alleged incident and FIR was registered after more than five months. Therefore, there is inordinate and unexplained delay in making the complaint and lodging the FIR.
12. It has further been argued that FIR in the instant case has been lodged by Nirmal Singh, husband of Smt. Salinder Kaur, PW4, who allegedly made the payment of Rs.200/- to the appellant. However, complainant Nirmal Singh has not been examined in the instant case.
13. Learned counsel has also argued that as per deposition made by Salinder Kaur, PW4, an amount of Rs.200/- was paid to Kartar Singh, PW2. However, Kartar Singh, PW2, has not support the case of the prosecution.
14. The learned counsel has further argued that there is no compliance of Section 17 of the Act. Inspector Rajinder Singh, PW10, Investigating Officer of the present case was holding the post of Deputy Superintendent of Police in officiating capacity and, therefore, Crl. Appeal No.756-SB of 2000 5 he is not a Gazetted Officer. He has further referred to the statement of appellant recorded under Section 313 of Cr. P.C., wherein he has categorically stated that the complainant wanted him to do the verification on the application of passport pertaining to the complainant while sitting in the police station itself and without visiting his house on the same day. The appellant refused to oblige the complainant. On that, the complainant abused the appellant and threatened him that he would teach him a lesson for not obliging him. He further submitted that the present case has been got registered in order to wreck vengeance for not favouring the complainant.
15. On the other hand, learned counsel for the State has argued that the delay itself is not fatal to the case and case of the prosecution is fully established on the basis of statement of Salinder Kaur, PW4, who made the payment to the appellant.
16. I have heard the learned counsel for the parties and perused the record with their able assistance.
17. As per case of prosecution, the appellant visited the house of the complainant on 12.2.1996 and met with his wife Salinder Kaur, PW2. He demanded a sum of Rs.500/- as bribe for making the report. The verification in the instant case was completed on 20.2.1996 and the report in this behalf was sent to the SHO concerned on 4.3.1996. The complaint was lodged on 21.3.1996. In pursuance thereof, FIR was registered on 23.8.1996, i.e., after more than five months. Since the report regarding verification was made by the appellant on 20.2.1996 Crl. Appeal No.756-SB of 2000 6 and sent the same to the concerned SHO on 4.3.1996, so the appellant had no effective control over the matter once he had prepared the report and submitted. From the perusal of the record, there is no explanation for inordinate and unexplained delay of more than five months in lodging the FIR.
18. As per the case of prosecution, the FIR was lodged by Nirmal Singh-husband of Salinder Kaur, whose antecedents were to be verified for the purpose of issuing of the passport. However, the complainant Nirmal Singh has not been cited as witness in the instant case, neither there is any explanation on record for the same. Therefore, an adverse inference has to be drawn against the prosecution. From the scrutiny of the statement of Salinder Kaur, PW4, it emerges that the payment of alledged amount was made through Kartar Singh, Panch, PW2. He has not supported the case of prosecution. He is the sole independent witness. The conviction solely on the basis of statement of Salinder Kaur, PW4, who is an interested witness, cannot be upheld in the absence of any independent corroboration.
19. The mandate of Section 17 of the Act gives chart of the Officers, who are competent to investigate under the Act. Section 17 of the Act is reproduced as under:-
17. Persons authorised to investigate.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 ( 2 of 1974.), no police officer below the rank, --
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;Crl. Appeal No.756-SB of 2000 7
(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 (2 of 1974.), 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 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 order of a police officer not below the rank of Superintendent of Police.
20. From the perusal of statement of PW10, it is made out that he is not Gazetted officer, therefore, investigation was not conducted as per the procedure laid down under the statute.
21. The appellant when examined under Section 313 of Cr. P.C. has categorically stated that he has been falsely implicated in the instant case as he did not oblige the complainant, who wanted him to do the verification on the application for passport, while sitting in the police station itself on the same day without visiting his house, to which he refused. The complainant abused the appellant and threatened him that he would teach a lesson for not obliging him. The complainant himself is a Head Constable and attached to an Officer of the rank of Commandant, so he is very well aware about the implication for lodging a complaint after a delay of more than one Crl. Appeal No.756-SB of 2000 8 month and not appearing in Court to support his case. The conviction is solely based on the statement of Salinder Kaur, PW4, the antecedents of whose husband were to be verified by the appellant, who is an interested witness.
22. In the cases under Prevention of Corruption Act, demand and acceptance of gratification is an essential ingredient, which is missing in the present case coupled with the fact that the complainant has not come forward to depose and the case is not supported by any independent witness/evidence.
23. This Court in Hari Kishan vs. State of Haryana, 1997 (2) RCR 330, has held as under:-
"12. Mr. H.S. Gill, Senior Advocate, for the appellant, contended that in order to bring home the guilt to the appellant, it had to be established by the prosecution that the appellant had demanded the bribe from complainant Daya Singh (PW-5) and had accepted the same in pursuance of the said demand. He further contended that to prove these ingredients, merely the statement of complainant Daya Singh (PW-5) or the trap witness Mithu (PW-7) cannot be relied upon without independent corroboration. He further contended that the solitary independent witness Birja Nand, District Revenue Officer, was not examined by the prosecution and, therefore, the appellant was entitled to be acquitted. In support of his argument, he relied upon 'Darshan Lal v. Delhi Administration, 1974(2) Chandigarh Law Reporter 611, B.C. Goswami v. Delhi Administration, AIR 1973 (SC) 1457, 'Prem Kumar v. State of Punjab, 1976 Chandigarh Law Reporter (Punjab & Haryana) 366, Mohinder Singh v. State of Punjab, 1990(2) RCR 371 and Gurmej Singh v. State of Punjab, 1987(2) RCR 296.Crl. Appeal No.756-SB of 2000 9
13. In Darshan Lal v. Delhi Administration (supra) it was held that trap witnesses in a case under Section 5(2) of the Prevention of Corruption Act, being interested in the success of the trap, the Court should require independent corroboration of their statements before convicting the accused. In Prem Kumar v. State of Punjab (supra), it has been held that no implicit reliance can be placed on the testimony of trap witnesses in the absence of independent corroboration. Trap witnesses are interested and partisan witnesses and on that count they spring from a tainted source. It was further held that unless there is independent and trust- worthy corroboration of the evidence of all these prosecution witnesses, the same could not form basis for conviction of the accused. In Ram Parkash Arora v. The State of Punjab, AIR 1973 SC 498 it has been held by the Apex Court as under :-
"It must be remembered that both Joginder Singh (bribe giver) and Dalbir Singh (shadow witness) P.Ws. were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."
14. After hearing the learned counsel for the parties, I hold that in the present case afore-mentioned requirements of law have not been satisfied. The independent witness, Sh. Birja Nand, District Revenue Officer, has been withheld by the prosecution. Thus, the alleged demand of bribe and acceptance thereof by the appellant is not supported by any independent evidence and as such, the appellant is entitled to the benefit of doubt in view of the dictum laid down by the Supreme Court in the Darshan Lal's case (supra)."
Crl. Appeal No.756-SB of 2000 10
24. In Lachman Das v. State of Punjab, AIR 1970 SC 450, Hon'ble the Supreme Court has refused to convict an accused under the Prevention of Corruption Act on the uncorroborated testimony of the complainant while holding as under:-
"On the whole, therefore, we are satisfied that there is considerable room for doubt in this case and that the statement of Kishori Lal which alone is the foundation stone of the charge against the appellant cannot be accepted without corroboration. We are satisfied that his conviction and sentence should be set aside."
25. Resultantly, the present appeal is allowed. The impugned judgment and order dated 17.8.2000 passed by the learned trial Court is set aside. The appellant is stated to be on bail. His bail bonds shall stand discharged.
18.11.2010 (JITENDRA CHAUHAN) mk JUDGE Note: Whether to be referred to the Reporter? Yes / No