Patna High Court
Ras Bihari Prasad vs State Of Bihar on 26 June, 2012
Author: Sheema Ali Khan
Bench: Sheema Ali Khan
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) NO.98 OF 2000
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AGAISNT THE JUDGMENT OF CONVICTION DATED 21st OF FEBRUARY
2000 AND ORDER OF SENTENCE DATED 29TH OF FEBRUARY 2000
PASSED IN SPEACIAL CASE NO.11 OF 1994 ARISING OUT OF BHABHUA
P.S. CASE NO. 60 OF 1991 PASSED BY SHRI PRAKASH RAI, SPECIAL
JUDGE (VIGILANCE), SOUTH BIHAR, PATNA
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RAS BIHARI PRASAD S/O LATE RAJ KISHORE PRASAD, RESIDENT OF
BHABHUA, WARD NO.1, BHABHUA, P.S. BHABHUA, DISTRICT-KAIMUR
(BHABHUA)
.... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR
.... .... RESPONDENT/S
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APPEARANCE :
FOR THE APPELLANT/S : MR. J.P.SHAHA, ADVOCATE
MR. SURYA PRAKASH SINGH, ADV
FOR THE VIGILANCE: MR. RAMAKANT SHARMA,
SPL. LAW OFFICER, VIGILANCE
MR. RAVINDRA KUMAR, ADVOCATE
FOR THE STATE : MRS. ABHA SINGH, A.P.P.
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CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN
ORAL JUDGMENT
Date: 26-06-2012
Sheema Ali Khan, J.This appeal is directed against the judgment of the Special Judge (Vigilance,) South Bihar, Patna dated 21st of February, 2000.
2. The sole appellant has been charged for the offence under Section 7 and Section 13(2) read with Section 13(1)
(d) of the Prevention of Corruption Act. The appellant has been sentenced to undergo rigorous imprisonment for one year under Section 7 of the Prevention of Corruption Act and to pay a fine of 2 Patna High Court CR. APP (SJ) No.98 of 2000 dt.26-06-2012 2/9 Rs. 5,000/- , in default of which to undergo further imprisonment for a period of three months. The appellant is also sentenced to undergo rigorous imprisonment for offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.
3. This is a strange case in which the informant, who is the Sub-divisional Officer and an I.A.S. Officer has taken upon himself the task of investigation of the case by preparing the seizure list and thereafter giving a written report regarding the alleged occurrence to the Police Station/Central Bureau of Investigation. In other words, it is a case where that there is no pre-trap or post-trap procedures followed in order to prove the factum of guilt.
4. The case was initiated on the basis of an application filed by one Bechan Singh (Exhibit-5) in which he has alleged that his licensed rifle was seized by the Sub-divisional Officer at least five year prior to the occurrence and he had filed an application for its release. When he met the Steno of the Sub- divisional Officer (i.e. the appellant) a demand of Rs. 1000/- as bribe for release of the rifle was made by the appellant, he was asked to produce money on 11.2.1991. Bechan Singh gave a written report to the Sub-divisional Officer who asked him, to take the bribe money from him, the Sub-divisional Officer and give it to the appellant Rash Bihari Prasad in case there was a demand. The Sub- 3 Patna High Court CR. APP (SJ) No.98 of 2000 dt.26-06-2012 3/9 divisional Officer who is the informant then prepared a memorandum by taking note of the number of currency supplied to Bechan Singh. When the money was demanded and received, Bechan Singh gave a written note to the Sub-divisional Officer which is Exhibit 5/1 indicating that the money had been paid. The written report which is the basis of prosecution case indicates that the informant sent for the appellant and asked him to produce the money which he had received, the appellant denied the allegations. Thereafter the informant sent for his body-guard Chandra Mohan Singh and orderly Dharamdeo Tiwari to search the person of Rash Bihari Prasad. Whereupon Rash Bihari Prasad produced the money from his pocket. It is accepted that apart from the bribe money Rash Bihari was also carrying some cash of his own. The money was seized and seizure list prepared and duly signed by the informant which is Exhibit-3. The witnesses, i.e. P.Ws. 1 and 2 have also put their signatures on the seizure list which are Exhibits 1 and 1/1. After preparation of the seizure list, the informant forwarded the written report and seizure list as well as Exhibit 5 and 5/1 to the Officer-in-charge of the Police Station and ultimately the Deputy Superintendent of Police was appointed to conduct the so called investigation in this case.
5. The question before this Court is whether a 4 Patna High Court CR. APP (SJ) No.98 of 2000 dt.26-06-2012 4/9 judgment of conviction could have been passed in Vigilance Case without following the procedure of a pre trap and post trap procedure? The second issue in this appeal is as to whether on the informant i.e. The Sub-divisional Officer could have taken on the job of an Investigating Officer or a Vigilance Team?
6. Six witnesses have been examined on behalf of the prosecution and three witnesses on behalf of the defence. The appellant is merely the Stenographer of Sub-divisional Officer at Bhabhua. A complaint was made by P.W.3 (Exhibit-4) alleging that the Stenographer of the Sub-divisional Officer had demanded bribe for releasing the licensed gun.
7. P.W.1 was the bodyguard of the Sub-divisional Officer in the year 1991. He has stated that he was asked to search the appellant to determine as to whether he had accepted bribe from Bechan Singh, P.W.4 is a witness to the seizure list. Strangely enough he has stated at paragraph 14 of his evidence, that he was not present when the seizure list was prepared. Another witness to the seizure list is P.W.2, who is the Peon of Sub-divisional Officer (P.W.3), he has stated at paragraph 4 that Bechan Singh had signed the seizure list in front of him however, the seizure list Exhibit 3 would indicate that Bechan Singh had not signed on the seizure list. He further stated at paragraph 11 that he does not know or 5 Patna High Court CR. APP (SJ) No.98 of 2000 dt.26-06-2012 5/9 recognize Bechan Singh and that he has signed on the seizure list at the behest of the Sub-divisional Officer. It is submitted that his evidence raises doubt with respect to the seizure list prepared by the Sub-divisional Officer especially in view of the fact that P.W.3, the informant who had prepared the seizure list also recovered some other money from the pocket of the appellant which has not been noted in the seizure list.
8. Counsel for the appellant submits that P.W.1 at paragraph 15 states that the appellant did not take out the bribe money in his presence, thereby giving a go-bye to the entire case set up by the Sub-divisional Officer. The Sub-divisional Officer, P.W.3 has stated that he came to know about the payment of bribe and thereafter he has given the money to Bechan Singh to offer as bribe. After the bribe was supposedly received by the appellant, the appellant was called in the chamber of the Sub-divisional Officer and confronted with the allegation that he had received bribe. It is alleged that the money was recovered with the help of body-guard and Sub-divisional Officer, seizure list was prepared and thereafter information sent to the Police Station. In his cross-examination, P.W. 3 admits that he has not seen the application filed on behalf of Bechan Singh supposedly in the year 1986 for release of his licensed gun. P.W.3, in fact, states that he seems to remember that 6 Patna High Court CR. APP (SJ) No.98 of 2000 dt.26-06-2012 6/9 there was one such application for release of the licensed gun. The case of the informant regarding the genesis of the demand seems rather weak and incomplete.
9. The tenor of the evidence of P.Ws. 1, 2 and 3 in the court and the procedure described by the Sub-divisional Officer who conducted the entire case, cannot be considered to be the proper procedure, moreover doubt has been created with respect to preparation of the seizure list. The most important question which arises is that without there being any evidence to support the evidence of Bechan Singh that a demand was made, it cannot be said that the appellant had demanded bribe, especially as the nature of his work certainly does not include either preparing a note, for the Sub-divisional Officer or preparing the office file relating to official work of the Sub-divisional Officer.
10. This Court would also consider the evidence of P.W.5, Deputy Superintendent of Police, who appointed by the Superintendent of Police to investigate this case. Virtually the Deputy Superintendent of Police has no role as he has not conducted the investigation by collecting evidence etc. The seizure list and documents produced by the informant such as Exhibit 4, Exhibit 5, Exhibit 3 and exhibit 6 is not part of the investigation of P.W.5. As such his evidence is of no value.
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11. This case will also fail on the simple ground that the prosecution has failed to prove that the bribe money was handed over to the appellant.
12. It is well settled law and procedure that in a case where there is an allegation of demand of bribe, a pre-trap is prepared by sending decoy who is able to confirm the factum of demand of bribe, to be followed by setting up a trap where the concerned government servant is caught in the act of taking bribe. In fact a recovery made de hors the demand without setting up the trap and leading evidence to show that there was a demand and subsequent acceptance of the bribe would lead to the conclusion that the prosecution has to fail to prove its case regarding demand or acceptance of bribe. The manner in which the seizure list has been prepared and investigation carried out in this case, leads this Court to conclusion that the conviction cannot be sustained. The appellant is acquitted and discharged of the liabilities of the bail bond.
13. A defence has been raised on behalf of the appellant that he being Stenographer was neither responsible for accepting applications nor was he responsible for preparing or going through any of the files and preparing a note for the Sub- divisional Officer. The case of the appellant is that apart from the 8 Patna High Court CR. APP (SJ) No.98 of 2000 dt.26-06-2012 8/9 taking down dictation and order of the Sub-divisional Officer, he was not in any manner part and parcel of the administrative job done by the Sub-divisional Officer. A defence has also been raised on behalf of the appellant regarding the reason for his implication according to the appellant the Sub-divisional Officer used to work till late in the evening and was very rude and rough with the appellant. It is said that the appellant had filed application for transfer before District Magistrate stating therein that he was uncomfortable working with the Sub-divisional Officer because of late hour and rude behaviour. The appellant was made to wait till late night. The complaint was that Sub-divisional Officer used abusive language, which was very demeaning. This document has been marked as Exhibit-A. The Trial Court has rejected the document on the ground that it was not called or produced from the Office of the District Magistrate. This aspect could easily be verified by the Trial Court. However, even without believing this document, this Court would conclude that the very reason for demand of bribe could not be acceptable in view of the nature of work of the appellant.
14. Considering the submissions aforesaid, the judgment of conviction dated 21.02.2000 and the order of sentence dated 29.02.2000 is set aside and the appellant is acquitted from the 9 Patna High Court CR. APP (SJ) No.98 of 2000 dt.26-06-2012 9/9 charges under Sections 7, 13(1) and 13 (2) (d) of the Prevention of Corruption. He is also discharged from the liability of bail bond.
15. In the result, this appeal is allowed.
(Sheema Ali Khan, J.) Vats/-