Madras High Court
T.S. Ramaswamy vs State Of Tamil Nadu on 19 November, 1992
Equivalent citations: 1994CRILJ545
JUDGMENT
1. The accused in S.C. No. 16 of 1985 on the file of the learned First Additional Special Judge, Coimbatore is the appellant. The accused was a Health Inspector, Southern Railway, Coimbator junction. He was prosecuted for offences under Section 161, I.P.C. and under Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act. He was found guilty by the lower court under both counts and under Section 161, I.P.C. he was convicted and sentenced to undergo rigorous imprisonment for two years and under Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act, he was convicted and sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 200/- in default to undergo rigorous imprisonment for six months. The sentences were directed to run concurrently.
2. The prosecution has examined P.Ws. 1 and 10 and marked Exs. P.1 to P.19 and M.Os. 1 to 5. The accused has examined one Manickam as D.W. 1 and marked Exs. D.1 to D.5.
3. P.W. 1 Selvan was a cleaner in the Southern Railway at Coimbatore Junction and the accused was the Health Inspector and it is the admitted case that the accused had no authority to grant leave for P.W. 1. P.W. 1 was married in the month of February 1984. It appears that P.W. 1 has requested the accused to grant him leave for ten days and he gave the leave letter also to the accused on 11-10-1984. The leave letter Ex.P. was written by a co-worker Valliammal. P.W. 1 has stated that the accused had demanded a sum of Rs. 50/- by way of bribe for granting leave. P.W. 1 told the accused that he had no money at the time and that the accused told him to give the money of some means before Tuesday. P.W. 1 was not willing to bribe the accused. P.W. 1 met Asokan P.W. 4 train clerk on 15-10-84 and P.W. 4 also told P.W. 1 that the accused would not grant leave unless P.W. 1 would pay him a sum of Rs. 50/-. At that time, two persons came that way and Asokan told something to one of the persons and one of the two persons asked Ashokan as to who was P.W. 1 and Ashokan told one of them that P.W. 1 wanted leave for 10 days and for the said purpose, the accused had demanded a sum of Rs. 50/- and on hearing this, one of the persons introduced himself as the Inspector of Police, C.B.I. and he told Ashokan that if P.W. 1 and P.W. 4 would support him, he would proceed against the accused in this regard. The Inspector of Police took P.W. 1 to Seran lodge and P.W. 4 told P.W. 1 to support the Inspector of Police in this regard and he went away. P.W. 1 went along with the Inspector of Police to Seran lodge and the Inspector asked P.W. 1 to give a report against the accused. P.W. 1 told him that he did not know to read and write and on his instructions a report was written by the Inspector of Police himself who later on read out the same and P.W. 1 admitted the same to be correct and he affixed his signature. Ex. P.2 is the report written by the Inspector of Police. P.W. 1 was asked to see the Inspector of Police at 5.15 a.m. on the next day with a sum of Rs. 50/-. P.W. 1 met the Inspector of Police at 5.15 a.m. at Seran lodge. In the meanwhile, the Inspector of Police brought two other employees from the telephone department and P.W. 1 as directed by the Inspector of Police narrated to the other official witnesses about the demand of bribe by the accused. Subsequently sodium corbonate solution was prepared and the signifiance of the phenolptheless test was explained to the official witnesses and also to P.W. 1 and the Inspector of Police instructed P.W. 1 not to touch the currency notes of Rs. 50/- and if the accused demanded money he could pay the same and after paying the amount P.W. 1 should give a signal by lifting his lunghi and wearing the same. Viswanathan, the official trap witness was also directed by the Inspector of Police to watch as to what was going on between them. Accordingly P.W. 1 and P.W. 2 went to platform No. 3 of the railway junction of Coimbatore and went to the office of the accused. The office of the accused was found locked at that time. At about 6.05 hrs. the accused came to his office. P.W. 1 was standing near the window and P.W. 2 was standing near the other window and the accused asked P.W. 1 as to what had happened to the amount so demanded and P.W. 1 replied that he had brought the money and showed his left packet where he had kept the money and the accused went inside the office and after giving some work to the other employees, the accused sent them away and again the accused asked P.W. 1 as to what happened to the amount demanded by him and P.W. 1 replied in the affirmative, took the money from his left packet and gave the same to the accused who received and counted the same and kept them in his packet. P.W. 1 asked the accused regarding the leave required by him and the accused seemed to have replied that he would grant the leave and that P.W. 1 need not worry about the same. M.O. 1 series are the five ten rupee currency notes and after paying the money P.W. 1 came out of the office of the accused and gave signal as instructed by the Inspector of Police. Immediately, the Inspector of Police and his party came inside the office of the accused and the Inspector of Police searched the person of P.W. 1 and found two rupees currency notes on his right packet of his shirt. P.W. 2 is the official trap witness. He supported the case of the prosecution by stating that when P.W. 1 asked the accused about his leave letter, the accused in turn asked P.W. 1 as to whether P.W. 1 had brought the money demanded by him and that P.W. 1 replied that he had brought the money and showed his left side packet where he had kept the money and that the accused went inside his office and after giving some work to two employees, the accused asked P.W. 1 to give the money to him and P.W. 2 has stated that he had seen the payment made by P.W. 1 to the accused and P.W. 2 also further added that the accused asked P.W. 1 to give money and P.W. 2 had also seen the payment of Rs. 50/- by P.W. 1 to the accused. P.W. 2 also has stated that the accused told P.W. 1 that the latter need not worry about the leave and that he would sanction the same. After this, P.W. 1 gave the signal to the police and the Inspector of Police and his party entered the office room of the accused, recovered the money from the accused. P.W. 2 has stated in cross-examination that he was standing within the sight of the accused and P.W. 1 has deposed that the P.W. 2 was smoking a cigarette within 10 ft. from the seat of the accused and the accused did not find it uncomfortable or shy on seeing P.W. 2 standing opposite to him.
4. P.W. 3 Thangaraj is the Health Inspector in Southern Railway at Othanur. He was in charge of the work of the accused when the latter was on leave and he was examined for the purpose to show that P.W. 1 was on leave for 15 days in the year 1984. P.W. 4 is the train clerk in the southern railway at Coimbatore. His evidence is that P.W. 1 told him that the accused had demanded a sum of Rs. 50/- from him as bribe for granting leave for 10 days to P.W. 1 and that P.W. 1 was not willing to pay the same. P.W. 4 has again stated that P.W. 1 told him that the police asked him to bring Rs. 50/- from him as bribe for granting leave for 10 days to P.W. 1 and that P.W. 1 was not willing to pay the same. P.W. 1 has again stated that P.W. 1 told him that the police asked him to bring Rs. 50/- on the next day. The Inspector of Police, Vijayakumar took P.W. 1 to Seran lodge and P.W. 1 met P.W. 4 in the evening and P.W. 1 also told P.W. 4 about the report given by him to the police. This witness was examined for the purpose to show that on 11-10-84 the accused had demanded bribe of Rs. 50/- from P.W. 1. P.W. 5 was the Inspector of Police, C.B.I. and Vijayakumar was the Inspector of Police C.B.I. in the year 1984 and Dakshinamurty was the Sub Inspector of Police in the same office. The evidence of P.W. 5 is that he was introduced by Vijayakumar, Inspector of Police to P.W. 4 and P.W. 4 told P.W. 5 that P.W. 1 was working as a Cleaner in the railway junction at Coimbatore, that P.W. 1 had given an application to the accused for leave, that the accused had demanded a sum of Rs. 50/- as bribe for sanctioning the leave and that P.W. 1 had no intention to bribe the accused and that P.W. 4 asked P.W. 5 as to whether anything could be done by him. It appears that P.W. 5 told P.W. 4 that proceedings under Prevention of Corruption Act could be taken and P.W. 5 took P.W. 1 to Seran Lodge and P.W. 4 left the place thereafter. P.W. 1 told P.W. 5 that P.W. 1 has studied up to 5th standard and that he did not know to read and write Tamil and on his instructions P.W. 5 had written the report Ex. P.2 and P.W. 1 admitted the same to be correct. P.W. 1 had affixed his signature in Tamil. P.W. 5 sent the report to the Central Bureau of Investigation and he asked P.W. 1 whether he would co-operate in trapping the accused red handed and P.W. 1 accepted for the same and P.W. 1 brought a sum of Rs. 50/- as directed by P.W. 5 on the next day. P.W. 5 in his secret enquiry came to understand that the accused had received bribe for certain help to be done to his subordinates previously. P.W. 5 also came to know that the accused had not granted leave to P.W. 1 till 15-10-84 and he brought two official witnesses from Divisional Engineer's office and they are P.W. 2 and Ramasubramaniam. P.W. 5 explained the significance of sodium corbonate solution test to the official trap witnesses and he instructed P.W. 1 to pay the currency notes M.O. 1 series to the accused if the latter would ask for the same from P.W. 1. After the money was paid P.W. 1 gave signal as directed earlier and P.W. 5 went inside the office of the accused and seized the currency notes under a mahazar. When a question was put to this witness as to whether he could tell the names of the persons whom he examined regarding the antecedents of the accused, P.W. 5 replied that he had made secrete enquiry and that he would not tell the names of those persons. In cross-examination P.W. 5 has stated that the answer given by the accused in the affirmative when a question was put to him as to whether the accused had received the bribe, was not recorded by the Inspector of Police C.B.I. This portion of the evidence of P.W. 5 is false since the Inspector of Police, C.B.I. who recorded the statement belongs to his own department and that the omission to write the word "word in vernacular omitted" expressed by the accused when he was confronted by the police regarding the receipt of bribe is also not true. The evidence of P.W. 5 that he had made certain secret enquiries about the accused about his antecedents and that he came to know that the accused had received bribe on previous occasion from his subordinates for doing some favour is also false and he has given such evidence possibly to prejudice the minds of the court even though his evidence regarding the antecedents of the accused is also not relevant for the purpose of this case and P.W. 5 has purposely stated so possibly to prejudice the minds of the court.
5. P.W. 6 is the Inspector of Police, C.B.I. Madras and as per the orders of Superintendent of Police, C.B.I. Madras, he registered a case against the accused on 16-10-1984 on the basis of Ex. P.2 received from the Superintendent of Police, C.B.I. Madras under Section 161, I.P.C. in Cr. No. RC. 61/84. Ex. P.9 is the first information report. P.W. 1 sent Exs. P.2 and P.9 to the special Judge at Coimbatore and he took up investigation and he sent requisition Ex. P.10 to the lower court on 12-10-1984 for sending the trap solution for chemical analysis to the Forensic Science Laboratory, Madras. Subsequently the case was transferred to another Inspector for further investigation. He admitted that Ex. P.10 requisition would not show any nexus between the trap solution and the case registered since in all the cases he would send the enclosures along with the first information report. P.W. 7 was the Head Clerk in the District Court and as per Ex. P.8, he received the enclosures and also the material objects in this case on 10-10-1984 and he sent the material objects to the Forensic Laboratory for opinion. Ex. P.11 is the copy of the letter sent to the Forensic Sccience Laboratory and he received the report under Ex. P. 12 from the expert.
6. P.W. 8 is the Inspector of Police, C.B.I., Vigilance, Central Excise Collectorate, Coimbatore. His evidence in short is that at the time of alleged payment of bribe to the accused in his office, P.W. 2 was standing outside the door and P.W. 1 went inside the room and P.W. 1 came out of the room and on showing the prearranged signal, he along with the police party went inside the room of the accused and asked the accused as to whether he had received the bribe of Rs. 50/- from P.W. 1 and that the accused was found perplexed and thereafter, he prepared the solution and conducted the test and recovered the currency notes. According to him, the accused handed over M.O. 1 series to one of the two witnesses who compared the numbers of M.O. 1 series and found them to be correct. P.W. 9 Mankar was the Inspector of Police, C.B.I. Madras. on 5-11-1984, this case was transferred to him from P.W. 6 for further investigation. Accordingly, he took up further investigation and on 19-12-1984, he came to Coimbatore and applied for Ex. P.1 and got it from the court. He examined P.Ws. 1 and 4 and recorded their statements. He then examined P.W. 2 and Ramasubramaniam on 20-12-1984 and recorded their statements. He received the attendance register Ex. P.6 from the Health Inspector, Health Department, Southern Railway relating to the office of the accused. On 21-12-84, he examined P.W. 3 and recorded his statement and on 26-12-1984, he examined P.Ws. 5 and 8 and recorded their statements. He examined Valliammal on 20-1-1985 and recorded her statement. After examining some witness, he filed the charge sheet against the accused on 30-4-1985 under Section 161 I.P.C. and under Section 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act. This witness has not obtained sanction order for prosecuting the accused since, according to him, the accused had retired from service at the time of filing charge sheet.
7. P.W. 10 Pichairaju was examined for the purpose to sow that the accused had retired on 31-3-1985 as per Ex. P.14.
8. The accused when questioned under Section 313, Cr.P.C. denied the evidence of prosecution witnesses as incorrect and submitted that he had not received any bribe from P.W. 1 and that P.W. 1 had returned the sum of Rs. 50/- to him borrowed by P.W. 1 on an earlier occasion. D.W. 1 Manickam was examined for the purpose to show that the P.W. 1 had returned a sum of Rs. 50/- borrowed by him previously. It is his evidence that P.W. 1 told him like that after the payment of the said sum. The lower Court has not accepted the evidence of D.W. 1; but accepted the case of the prosecution, found the accused guilty, convicted and sentenced him as stated above hence this appeal.
9. Mr. K. M. Santhanagopalan, learned counsel for the appellant contended firstly that there is no sanction for the prosecution as required under S. 6 of the Prevention of Corruption Act and that the entire prosecution is illegal. There is no dispute that sanction has to be obtained before prosecuting the accused under S. 6 of the Prevention of Corruption Act. It is the case of the prosecution that the accused was a Railway servant at the time he was trapped. When the charge sheet was filed in the lower court on 30-4-1985, the accused had attained his superannuation on 31-3-1985 and it was argued that no sanction was needed. Admittedly, as seen above, no sanction was obtained at all for prosecution. The question for consideration is whether the sanction is necessary in this case.
10. It is admitted by both sides that the accused had attained superannuation on 31-3-1985 and there is no dispute that the charge sheet was filed on 30-4-1985. But the accused was suspended by an order of the Railway Department from service on 8-12-1984 on the basis of criminal offence alleged against him. I do not accept the contention of the learned counsel for the respondent that the accused had attained superannuation as on 31-3-1985 and that in spite of the suspension order, he ceased to be a Government servant from 1-4-1985.
11. Mr. K. M. Santhanagopalan, learned counsel for the appellant submitted that the accused had been suspended from service with effect from 8-12-1984 and that the accused had attained superannuation with effect from 31-3-1985. Even though the charge sheet was filed after 31-3-1985 (the date of superannuation), since the accused was kept under suspension with effect from 8-12-1984, he continued to be in a Government service and that a valid sanction is required under Section 6(1) of the Prevention of Corruption Act. Learned counsel also pointed out rule No. 5 of Railway Discipline Rules which is to the effect that a railway servant may be placed under suspension (a) where a disciplinary proceeding against him is contemplated or is pending; or (b) ........ (not relevant in this case); or (c) where a case against him in respect of any criminal offence is under investigation, inquiry or trial. Admittedly, the appellant was kept under suspension due to this criminal case, Rule 5(5)(a) of the Rules states that an order of suspension made or deemed to have been made under this rule shall continue to remain in force until is modified or revoked by the authority competent to do so. It is not the case of the respondent that the order of suspension was subsequently modified or revoked after 8-12-1984 and, therefore, on a proper reading of this rule, the suspension order continues to remain in force even now and consequently the appellant continues to be in service. To rebut this argument of the learned counsel for the appellant, learned counsel for the respondent relied upon Ex. P.18 and Ex. D.1 Ex. P.18 is a letter sent by the accused to the Senior Division Personnel Officer, Palaghat on 11-4-1985 wherein he has stated as follows :-
"I retired from service on 31-3-85. As I was under suspension till the date of retirement and since the DAR action has not been completed, I have not been settled with the payment of Gratuity and pension. As I am now without any salary, I request you Sir, to settle my accounts, as far rules in force".
Ex. D.1 is an order dated 3-10-1985 issued by the Divisional Office, Works Branch Palghat, Southern Railway by which the appellant was called upon to show cause on or before 2-11-1985 as to why an order of eviction should not be made against him. In Ex. D.1 there is a reference that the appellant had retired from service on 31-5-1985. By this, learned counsel for the respondent contended that the accused himself had stated in Ex. P.18 that he retired from service on 31-3-1985 and that action was taken for eviction from the quarters under Ex. D.1 wherein there is a mention that the accused had retired from service on 31-3-1985. Ex. D.1 letter was sent by the Divisional Office, Southern Railway to the appellant wherein the Divisional Officer had himself stated that the accused had retired from service on 31-5-1985. The date of retirement, namely, 31-5-1985, is not disputed. But the question for consideration is whether the accused had retired from service on 31-5-1985. When the accused was suspended from service and was not permitted to retire, the contention of the respondent that the accused had retired from service on 31-5-1985, is untenable. The respondent cannot blow hot and cold and contend that for the purpose of eviction the accused had retired from service on 31-5-1985 and also for the purpose that no sanction is necessary for prosecution that the accused had retired from service i.e. 31-5-1985. But whether the accused was allowed to retire on 31-5-1985 pending criminal proceedings and even subsequently after that date has not been explained. The respondent has also not explained as to how rule 5 of the Railway Discipline Rules is inapplicable in the case of the appellant when the suspension order was not revoked or modified subsequent to 8-12-1984. According to the learned counsel for the appellant, the retirement of the appellant was suspended by order of suspension dated 8-12-1984.
12. Mr. K. M. Santhanagopalan, learned counsel for the appellant relied upon the decision State of Assam v. Padma Ram . In that case, the Government servant was retired from service on and from 11.1961. But on 22-12-1960, an order of suspension was passed pending departmental enquiry started against him. This had the effect of placing the servant under suspension and retaining him in service till the departmental enquiry against him was finalised. Admittedly in this case, the departmental enquiry has not been completed. The decision P. R. Nayak v. Union of India reported in 1972 (II) CR 695 is relied upon by the learned counsel for the appellant for the proposition that a Government Servant under suspension shall not be retired or permitted to retire on reaching the date of his compulsory retirement and that he shall be retained in service until the enquiry is concluded. The order of suspension means that the appellant is in service and that his services are temporarily suspended and hence no retirement could take place. In the instant case, by virtue of suspension order, the appellant was prohibited to retire from service and that his letter under Ex. P.18 cannot be taken advantage of by the respondent to show that the appellant himself had mentioned that he retired from service on 31-3-1985. In the decision H. K. Bhattacharjee v. Union of India , learned single Judge of the Calcutta High Court has observed that if a person is merely suspended, he still continues to be in service, but is in a state as it were, of suspended animation and when the period is over he has simply to be allotted a job.
13. The evidence of P.Ws. 1 and 2 is unreliable for various reasons. P.W. 2 has stated in cross-examination that he was standing within the sight of the accused. P.W. 1 has stated that P.W. 2 was smoking a cigaratte within 10 ft. from the seat of the accused and that the accused did not find it unconfortable or shy on seeing P.W. 2 standing opposite to him. This part of the evidence of P.W. 1 is most unreliable since P.W. 2 is a stranger to the accused and when P.W. 2 was standing within the sight of the accused smoking a cigaratte, the normal human conduct of the accused would be to question about the presence of P.W. 2 at that time. The Evidence of P.W. 1 that the accused did not find it uncomfortable or felt shy on seeing P.W. 2, cannot be accepted. Therefore, the evidence of P.W. 2 that he had witnessed the alleged payment of bribe to the accused is equally false and cannot be accepted.
14. The evidence of P.W. 1 is that he was standing near a window and that P.W. 2 was standing near the other window. In this case, the prosecution has also not filed any sketch showing the places where P.Ws. 1 and 2 were standing in order to find whether it would be possible for P.W. 2 to watch the conversation between P.W. 1 and the accused. We do not know the distance between the two windows and the places where P.Ws. 1 and 2 were standing. In the absence of sketch also, it is difficult to appreciate the evidence of P.Ws. 1 and 2 and to find out whether P.W. 2 could have witnessed the alleged payment of bribe by P.W. 1 to the accused. In all trap cases like this, it is necessary for the prosecution to file a sketch also showing the office or the place where the accused was trapped. Otherwise, it would be difficult, and unsafe to accept the mere oral evidence of Official trap witnesses when they give evidence that they witnessed the payment of bribe especially in this case when P.W. 2 went along with P.W. 1 to the office of the accused. The rough sketch would also help the court to find out whether official trap witness could actually hear the conversation and see the payment of bribe of P.W. 1 to the accused. Therefore, in cases of this nature, it is necessary for the prosecution to file a sketch also showing the places where P.W. 1, the official trap witness and the accused were found at the time of alleged trap and payment of bribe amount. If P.W. 2 was standing within the sight of the accused smoking a cigatette at about 10 ft. away from the seat of the accused, the accused would have naturally asked about the presence of P.W. 2. But the evidence of P.W. 1 is that the accused did not find it uncomfortable on seeing P.W. 2 standing opposite to him and smoking a cigatette. The evidence of P.W. 1 is that he was standing near a window and P.W. 2 was standing near the other window, when the accused asked P.W. 2 as to what had happened to the amount he demanded.
15. I have already pointed out that the evidence of P.W. 5 also cannot be accepted since P.W. 5 has stated that the answer given by the accused in the affirmative when a question was put to him as to whether the accused had received the bribe was not recorded by the Inspector of Police, C.B.I., and that the Inspector of Police, C.B.I. who recorded the statement belongs to his own department and that the omission to write the word "word in vernacular omitted" expressed by the accused when he was confronted by the police regarding receipt of bribe is also not true. As pointed out earlier, I am unable to accept the evidence of P.W. 5 also.
16. The evidence of P.W. 8, the Inspector of Police, C.B.I., Vigilance is that P.W. 2 was standing outside the door and that P.W. 1 went inside the room and came out of the room by giving the pre-arranged signal. The evidence of P.W. 8 does not confirm to the evidence of P.Ws. 1 and 2. According to P.W. 8, P.W. 2 was standing outside the door and P.W. 1 went inside the room. If P.W. 2 was standing the alleged payment of bribe by P.W. 1 to the accused (sic). In view of the above discussion of the evidence of prosecution witnesses, I am unable to accept the case of the prosecution that P.W. 1 paid a sum of Rs. 50/- as bribe to the accused. The defence version that he had received Rs. 50/- by way of repayment of the loan from P.W. 1 is reasonable and probable and it is sufficient if the accused showed preponderance of probability of his defence and it need not be proved beyond reasonable doubt as in the case of the prosecution. The evidence of D.W. 1 Manickam that P.W. 1 had returned a sum of Rs. 50/- borrowed by him previously, is accepted. In the circumstances, the initiation of prosecution itself is not proper and the prosecution has failed to make out the case itself as against the accused. The evidence of P.Ws. 1 and 2 is unreliable and the prosecution is illegal and false.
17. In view of the abovesaid decision and also rule 5 of the Railway Discipline Rules, the accused continues to be in service as the order of suspension was not modified or revoked till now. In the circumstances, sanction order Section 6(1) of the Prevention of Corruption Act, 1947 is mandatory. The contention of the learned counsel for the respondent is that no sanction order is necessary since the accused had attained superannuation as on 31-5-1985. This contention is untenable and so, it is not open to the respondent to argue that no sanction is necessary. In the absence of valid sanction for prosecution, the entire prosecution is vitiated.
18. In the result, the findings of the lower court cannot be upheld and so, the conviction and sentences are liable to be set aside and accordingly, they are set aside. The accused is acquitted and the fine amount if paid, is directed to be returned to the accused. The appeal is allowed.
19. Appeal allowed.