Patna High Court
Md. Hadi Ansari @ Hadi Ansari vs The S.P.E.C.B.I.Patna on 3 April, 2014
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.385 of 2002
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Md. Hadi Ansari @ Hadi Ansari, son of late Bhuchang Mian, resident
of village-Dhunnagar, Police Station-Shikarpur, District-Bettiah, West
Champaran.
.... .... Appellant/s
Versus
The S.P.E.C.B.I.Patna
.... .... Respondent/s
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Appearance :
For the Appellant/s : Sri Manan Kumar Mishra, Sr.Advocate.
For the Respondent/s : Sri Bipin Kumar Sinha, Standing Counsel,CBI.
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CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA
ORAL JUDGMENT
Date: 03-04-2014
The solitary appellant Md. Hadi Ansari @ Hadi Ansari
was indicted of committing the offences under Sections 420, 461 and
471 IPC as also Section 13(2) read with 13(1)(d) of the Prevention of
Corruption Act, 1988 (in short 'P.C.Act') by the learned Special
Judge, C.B.I., North Bihar, Patna for being put on trial in Special
Case No.8 of 1992 arising out of R.C.Case No.42(A) of 1992 and by
judgment dated 11.07.2002 was convicted of the above offences. The
appellant was heard on sentence and the learned trial Judge directed
him to suffer rigorous imprisonment for one year on each of the four
counts, further directing that the sentences would run concurrently.
The appellant has filed the present appeal to question the correctness
of the findings and the appropriateness of sentence inflicted upon him.
2. The facts of the case was that the appellant Md.
Hadi Ansari @ Hadi Ansari was posted as a Loco Fitter in
Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 2
Narkatiaganj under the Samastipur Division of the North Eastern
Railways and information was received from some reliable sources
that he was misusing his official position and was forging official
documents to use those documents to cheat innocent persons by
demanding and accepting illegal gratification of different amounts
which was to the tune of Rs.53,000/- and thereby causing wrongful
gain to himself and others and corresponding wrongful loss to the
victims of the offence.
3. It was alleged that he under some criminal
conspiracy with one Barkoo Tudu, who was also holding the same
post, allured innocence persons on the ground of providing
employment to them in the Railways of different classes and grades,
if they had paid to the appellant a particular sum which was demanded
by him. It is stated that some of the persons who fell in the lure of
getting a job, met the appellant and paid different amounts to him
which was the half of the demanded amount by the appellant for
getting a job for each of them. They subsequently got registered call
letters to appear at the interview at the Railway Board, Gorakhpur
and when they went there, it was found that the call letters or the
interview cards which had been received by them were all forged and
fabricated. They approached the vigilance cell of the Board and their
statements were recorded and the vigilance cell of the Railway Board,
Gorakhpur, sent the materials for investigation by sending the report
in that behalf to Superintendent of Police, C.B.I upon which R.C.Case
Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 3
No.42A of 1992 was registered by P.W.7 Ramchandra Chaudhary
who was on the relevant day, i.e., 29.11.1991 posted as Inspector.
After investigation of the case, the appellant was sent up for trial
which ended in the impugned judgment of conviction and sentence.
4. The defence of the appellant was that the whole case
was false and fabricated and that he was not such a public servant who
could offer jobs and allure aspirants to pay money for getting
employment.
5. It appears that in a total nine witnesses were
examined during the trial. P.W.1 S.N.Yadav was posted in Samastipur
Division of Railways as Mechanical Engineer and he stated that
Engine Fitter Grade-II, the cadre to which belonged the present
appellant, was under his authority, i.e., to say that he was the
disciplinary authority and he had the authority to issue sanction orders
in respect of prosecution of an employee, like, Engine Fitter Grade-II,
i.e., the present appellant and accordingly he granted sanction. The
sanction order was marked Ext-1. P.W.2 Ram Ganesh Prasad was
tendered for cross-examination whereas P.W.3 Pusha Mahto, P.W.4
Ozair Hussain, P.W.5 S.K.Mirhussain and P..W.6 Ramchandra
Chaudhary were persons who had been the victim of the fraud and
had paid different amounts to the present appellant. The above
witnesses, i.e., P.Ws.3,4,5 and 6 stated that they had met appellant
Md. Hadi Ansari @ Hadi Ansari after being told by one Rajendra
Mahto that he was managing the things for getting employment to
Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 4
different unemployed persons in the Railways and as per the evidence
of P.W.3, he was asked to pay a sum of Rs.10,000/- for getting a job
of Apprentice in the Railways, out of which, he paid Rs.5,000/-
under a promise that when he had got employed, he could have paid
the remainder part of the agreed money of Rs.10,000/-. Likewise,
P.W.4 Ozair Hussain had also met the present appellant and had
promised to get an employment as Train Ticket Examiner, if he had
paid a total amount of Rs.18,000/- and accordingly, he paid a sum of
Rs.9,000/-, remainder to be paid after P.W.4 had got employed as per
the promise. P.W.5 S.K.Mirhussain was also a person who was
promised by the present appellant the job of a fitter in the Railways if
he had paid an amount of Rs.10,000/- and he paid Rs.5,000/-, half of
the agreed amount under the promise that he would pay the
remaining part of the amount on being given the employment. P.W.6
Raghunath Mahto had met the appellant like the other witnesses in
search of employment in the Railways and appellant Hadi Ansari
promised him to get employment if he had been paid Rs.10,000/-.
P.W.6 was also asked to pay half of the amount of Rs.10,000/- and the
witnesses stated that for paying up the money, he had sold the land
for Rs.7200/- and in support of his claim the witness had brought on
the day of his examination, the deed of sale to the Court.
6. P.W.7 Ramchandra Chaudhary as I have already
noted was the Inspector, C.B.I. who on receipt of Ext-4, the letter
bearing no.995 dated 30.08.1991 from the General Manager,
Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 5
Vigilance North Eastern Railway, Gorakhpur had drawn up the FIR of
the case, i.e., Ext-2 which FIR was typed at the dictation of one
Rampirt Rai and which was signed by the then S.P., C.B.I., Patna.
P.W.8 Pramod Kumar Srivastava was the Chief Vigilance Inspector
posted in Gorakhpur Office of the North Eastern Railways on
01.06.1992and as per his evidence, he was called by Deputy Chief Vigilance Officer, namely, Sri R.N.Sharma into his Chamber where he was apprised by some young persons who were standing outside the Chamber about the fraud played upon them. The affected young persons were called into the Chambers of Sri R.N.Sharma where they were questioned and then P.W.8 Pramod Kumar Srivastava was asked to go into the Chamber of Sri Kanaujia (P.W.9) and accordingly the young unemployed men were taken into the Chambers of Sri Kanajuia (P.W.9) and their statements were duly recorded in question and answer form. P.W.9 Sri Kanaujia would also say the above facts besides saying that the questions were formulated by P.W.8 Pramod Kumar Srivastava and the answers were written by the defrauded persons, like, P.Ws.3 to 6 and in one particular case, i.e., of Nasruddin he was found not literate enough to right down the answers, and as such, the same were written by Sri P.K.Srivastava (P.W.8) on his behalf. The written statements of the victims of the offences have been marked Ext-3 to 3/7 and those are very much available on the record as part of it.
7. The defence also examined two witnesses in its Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 6 support. D.W.1 Salim Diwan was making statement that the appellant was a well off person having 6-7 bighas of land and he had never defrauded any one for getting an employment in the Railways. D.W.2 Md. Salim was an Amin. He stated that P.W.4 Ozair Hussain was his nephew had never paid any money to the present appellant for any purpose or at best for getting a job in the Railways.
8. After considering the evidence of the prosecution and also of the defence, the impugned judgment was passed and the sentences were inflicted upon the appellant.
9. Sri Manan Kumar Mishra, learned senior counsel appearing on behalf of the appellant was submitting that the whole prosecution was without a valid sanction as P.W.1 Sri S.N.Yadav was not competent under law to accord sanction to prosecute the appellant as required under Section 19 of the Prevention of Corruption Act. Sri Mishra further submitted that the investigating officer of the case was not examined and there was no evidence as to from whom the appellant had demanded and received different sums of money. It was, as such, submitted that the charges were not proved.
10. Sri Bipin Kumar Sinha, learned counsel appearing for the Central Bureau of Investigation has submitted that P.W.1 Sri S.N.Yadav, Senior Divisional Mechanical Engineer, Northern Eastern Railway, Samastipur was the competent authority to remove an employee of the grade of the present appellant and he had duly accorded the sanction to prosecute the appellant by Ext-1. Submission Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 7 also was that the P.Ws.3,4,5, and 6 did not have any axe to grind against the appellant so that they could be said to have falsely deposed in the case and all of them had given their statements in writing at the first instance and no sooner than the fraud has been unearthed. As regards the non-examination of the investigating officer, the contention was that it did not have any bearing upon the result of the case.
11. For prosecuting an accused and taking cognizance of an offence made punishable by the P.C. Act, 1988, sanction is necessary as per Section 19 of the P.C.Act. But, what appears is that the sanction either should be given by the Central Government if the employee was removable from his office with the sanction of that government or by the State Government similar case the employee being removable from his office by the State Government. However what appears from the consideration of clause (c) to Section 19(1) of the P.C. Act is that in case of any other person the sanction could be granted by the authority competent to removable him from his office. Further, what appears from the reading of Sub-section(2) of Section 19(1) of the P.C. Act is that sanction could be granted either by the Central Government or the State Government or by any other authority which could have been competent to remove the public servant from his office at the time when the offence had been committed by the public servant. What appears from the consideration of the above part of the provision of Section 19 of the P.C. Act is that Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 8 the legislature was making a clear distinction between the appointing authority and an authority competent sanction prosecution of a public servant. It appears that the appointing authority could be a different person and he may not be the competent authority to accord the sanction to prosecute a public servant. On the other hand, even if a person is not the appointing authority of the public servant but if he has been declared under any statute or law to be the competent authority for the purposes of according sanction under Section 19 of the P.C.Act then the sanction to prosecute the public servant must be granted by such competent authority. This clear distinction appears from the bare perusal of Section 19 of the P.C. Act and as such the contention that the sanction order(Ext-1) was not a valid sanction, which argument was framed on the suggestion given to P.W.1 in paragraph-9 of his deposition, has to be considered in the light of the above interpretation of the P.C.Act.
12. After having perused the evidence of P.W.1 as contained in sanction order (Ext-1), what appears is that P.W.1 was the Senior Divisional Mechanical Engineer, Northern Eastern Railway, Samastipur on the day of the occurrence and he was the competent authority to remove an employee of the class/grade of the appellant. The appellant was belonging to a fitter Grade-II and an employee of Loco-shed, Northern Eastern Railway, Narkatiaganj and by mis-utilizing his position, he forged and fabricated and issued letter dated 27.12.1990 under reference purported to have been issued by Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 9 the General Manager(P), of the Northern Eastern Railway, Gorakhpur to all the eight candidates requesting them to appear at the examination to be held on 29.08.1991 in the office of C.P.U, Gorakhpur. The designation of P.W.1 was Senior Divisional Mechanical Engineer, Northern Eastern Railway, Samastipur and it appears from the sanction order that he was the competent authority. P.W.1 was definitely not the appointing authority. Simply because P.W.1 was a competent authority to sanction the prosecution of the appellant he had issued the sanction order (Ext-1) for prosecution of the appellant and in that view the contention that the prosecution had been lodged without the proper sanction under Section 19 of the P.C. Act appears not tenable.
13. The argument could be considered from another angle also. Section 19(3)(a) of the P.C.Act is a provision which states that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no finding sentence or order passed by the Special Judge shall be reversed or altered by the Court of Appeal, confirmation or revision on the ground or in the absence of, or any error, omission or irregularity in, the sanction required under Sub- Section(1) unless in the opinion of that Court the failure of justice had in fact been occasioned thereby. I have already held that the sanction order was valid even by virtue of the very provision, I have just noted, i.e., Section 19(3)(a) of the P.C.Act. The argument, as such, was not available to the learned counsel for the appellant that the whole trial Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 10 and the judgment stood vitiated on account of lack of sanction or on account of an incompetent and unlawful sanction being accorded.
14. As regards the submission that it was not clear from the evidence as to for whom the appellant was demanding and receiving money from the different candidates and, as such, the necessary element of demanding and receiving bribe or illegal gratification by a public servant so as to constituting an offence under Section 13(1)(d) of the P.C. Act was not constituted. The witnesses, like, P.Ws.3,4,5 and 6 stated that they learnt that the appellant could get employment for them in the Railways and accordingly they met them. The appellant demanded different sums of money ranging from 10,000/- to 18,000/- for getting different jobs for them of different grades in the Indian Railways. As regards P.W.3 Pusha Mahto, he was asked to pay Rs.10,000/- for getting the job of Apprenticeship in the Railways whereas P.W.4 Ozair Hussain was asked to pay Rs.18,000/- for being employed in the Railways as Train Ticket Examiner. Likewise, P.W.5 S.K.Mirhussain was asked to pay Rs.5,000/-, if he was desirous for getting the job of Fitter in the Railway and lastly, P.W.6 Raghunath Mahto was asked to pay an amount of Rs.10,000/- for getting an employment in the Indian Railways and accordingly, they paid different amounts. P.W.3 Pusha Mahto, P.W.5 S.K.Mirhussain and P.W.6 Raghunath Mashto paid Rs.5,000/- each to the appellant whereas P.W.4 Ozair Hussain paid Rs.9,000/-. The definition of 'criminal misconduct' as contained in Section 13 of the Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 11 P.C.Act could not be confined to one particular act of misconduct rather they could be of multiple nature. If one could consider the relevant provision under which the appellant was prosecuted, i.e., Section 13(1)(d) of the P.C.Act one could find from the very first clause (i) that if the public servant, by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage, then it is an offence as per the definition of the term 'criminal misconduct'. On perusal of that particular definition, which refers to the act indulge into and committed by a public servant, one could find that the corrupt or illegal means of obtaining any valuable thing or pecuniary advantage should either be for himself or for any other by the public servant. Even if the procurement of any valuable thing or any advantage was for himself and the means was corrupt or illegal, then in that case also the offence of criminal misconduct by a public servant is constituted as per Section 13(1)(d) of the P.C.Act. It is not necessary in such a situation as may appear from the very plain reading of the relevant part of the provision that the demand of bribe for realization of the same should be for any other person than the public servant. The demand and realization of the bribe even for self by a public servant could be constituting an offence of criminal misconduct.
15. Here in the present case, the evidence of witnesses, like, P.Ws.3 to 6 leave no manner to doubt that by alluring the unemployed youths of the society who were figuring eight, the Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 12 appellant had demanded from them different sums of money to obtain for them employment of different grades in the Indian Railways. The evidence of those witnesses, like, P.Ws.3 to 6 as also P.Ws.8 and 9 further indicates that after receiving the money, the appellant had sent an interview letter individually to the aspirants who had paid the bribe in part to the appellant. The aspirant, like, P.Ws.3,4,5 and 6 stated that they had by one means or the other reached Gorakhpur and had appeared at the venue of interview which was indicated in their call letter and was taken aghast when they were told that the very call letter was forged and fabricated. When they came to the Chambers of Sri R.N.Sharma, was the Deputy Chief Vigilance Officer of Northern Eastern Railway, Gorakhpur and contacted him and informed about being defrauded by the appellant, P.Ws.8 and 9 were called by Sri R.N.Sharma and both of them were requested to take down the statements of the victims. The statements which were recorded in question and answer form are available as the exhibited documents and as the part of the Lower Court Records. They have been marked Ext-3 series and I have personally perused the detailed answers given by each of the eight victims including the four witnesses as to how they had approached the present appellant and how they had been defrauded by being asked to pay different sums of money for getting employed in the Indian Railways in different grades of jobs. There does not appear any manner of doubt that it was the present appellant who had demanded and received the amount of money as bribe. The Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 13 amount of money was bribe is clearly indicated by the fact that the interview letter which had been received by the candidates, like, P.Ws.3 to 6 were all forged and fabricated and thus, they had duly been defrauded and had been forced to voluntarily pay the amount of money as stated by them to the appellant. There was no reason for any of the witnesses to come out against the appellant and allege fictitious fact. They were unemployed youths who were willing to get employment and their enthusiasm as also aspirations could be gathered from the very fact that they were not hesitating, as may appear from the evidence of P.W.5 S.K.Mirhussain as also that of P.W.4 Ozair Hussain either in selling their immovable property or their agricultural produce for paying the bribe money which ultimately landed them in utter despair of being cheated and defrauded. In the above background, the witnesses besides being trustworthy, appear coming out clearly on the facts of the case against a person against whom they did have any grudge. The offence under Section 420 IPC was duly made out on the fact of the case.
16. As regards the commission of offences under Sections 468 or 471 IPC because the appellant was the person who had promised to the victims that they would get the interview cards and that he had benefited out of the fraud, he had committed upon the innocent unemployed person, it may be presumed that he was the person who could have fabricated the forged call letters which were issued to persons, like, P.Ws.3 to 6. But the offence under Section 471 Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 14 IPC in my opinion was not constituted on facts of the case. The offence of using as genuine a forged document could be constituted only when the document had been used by a person and that use of the document had been made by the person after knowing or after having reasons to believe the same to be a forged document. The interview cards which were received by the candidates, like, P.Ws.3 and 6 had never been used by the present appellant, namely, Md. Hadi Ansari @ Hadi Ansasri though he appears to have fabricated the record, as such, the offence under Section 471 IPC, in my considered view was not committed by the present appellant and his conviction for that particular offence appears unfounded. As regards the offence under the P.C. Act, I have already considered the definition of the term 'criminal misconduct' committed by a public servant and I have also dealt with the relevant part of the evidence, there is no doubt in it that the appellant committed that particular offence defined under Section 13(1)(d) of the P.C. Act which is made punishable under Section 13(2) of the Act. In that view of the matter, what appears to me is that the appeal lacks merit.
17. While addressing me on the merit of the appeal, Sri Mishra was also making submission that the occurrence had taken place in the year 1991 and the present appeal was being heard in 2014 and the appellant has already suffered. The Court wants to note that the Prevention of Corruption Act, 1947 was updated by being amended in 1988 and one amendment which was brought in, was to Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 15 re-define the term 'public servant' and then to augment the definition of 'criminal misconduct' and then to re-set the sentence to be awarded in a case of public servant had been found guilty of criminal misconduct. The legislature had fixed minimum limit as of one year and the maximum which was to extend up to seven years as the sentence. Corruption is one aspect of the society which has affected good governance and in most of the case it could be found that the benefits of the welfare schemes of the state do not reach the beneficiaries only on account of the corrupt acts of the public servant. Some constitutional authority has noted that democracy is run by good governance, but governance is handed over to bureaucrats who are generally corrupt and, as such, the benefit of good governance does not reach the real beneficiaries. This is the reason that the sentences to be inflicted in a case of criminal misconduct committed by a public servant revised by enhancing the sentencing jurisdiction of the Special Judge. The appellant who was an ordinary fitter in one of the Divisions of the Railways was indulging in such activity which could be as serious as anything when viewed in the light of the evidence. But what I find is that the learned Special Judge, CBI, North Bihar, Patna while inflicting the sentence upon the appellant was showing unnecessary leniency and was inflicting a sentence on its lowest term and the act of the appellant was such which could have invited more severe a punishment than what was awarded to him.
18. Having said that which, I have just noted, I find no Patna High Court CR. APP (SJ) No.385 of 2002 dt.03-04-2014 16 merit in this appeal and the same is dismissed. The bond of the appellant is hereby cancelled. Let him surrender to the custody of the Court immediately to serve out the sentence. In case he does not surrender within two months from the present judgment, the court below shall take all necessary steps to ensure that the appellant is arrested and committed to custody for serving out the sentence.
Patna High Court, (Dharnidhar Jha, J) Dated 3rd April,2014 Brajesh Kumar/NAFR __ |__| U |__| T