Karnataka High Court
State Of Karnataka vs Abdul Kareem Telgi @ Kareem Lala on 3 August, 2017
Equivalent citations: 2018 (2) AKR 721, (2018) 1 KCCR 166
Bench: Ravi Malimath, John Michael Cunha
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 3RD DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.87 OF 2011
BETWEEN:
STATE OF KARNATAKA
(MADIWALA POLICE STATION,
BENGALURU)
THROUGH CENTRAL BUREAU OF
INVESTIGATION. ... APPELLANT
(BY SRI P.PRASANNA KUMAR, SPL.PP)
AND:
1. ABDUL KAREEM TELGI @ KAREEM LALA
S/O LAD SAB TELGI,
AGED ABOUT 41 YEARS,
R/O NO.5, 1ST FLOOR, SHERIN MANZIL,
COLABA, MUMBAI.
2. BADRUDDIN
S/O KHUTBBUDDIN JAMEDHAR,
AGED ABOUT 26 YEARS,
KALE PLOT, NEW NAIK GALLI,
BACKSIDE OF BAHERGALLI, KHANAPUR,
BELAGAVI.
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3. RAFI AHMED
S/O DASTAGIR ISMAIL,
AGED ABOUT 26 YEARS,
NO.77, MUNNESWARANAGAR,
ARBIC COLLEGE, K.G.HALLI,
BENGALURU.
4. B.SADASHIVA
S/O RAMAIAH,
AGED ABOUT 32 YEARS,
NO.3/37/127, PLOT NO.26,
HANUMANTHA RAO GARDEN,
WEST MARADHAPALLI,
SECUNDRABAD,
ANDHRAPRADESH, NATIVE OF 25/578-2,
RANGAPURA PALMMANER,
CHITTOOR DISTRICT.
5. ABDUL WAHEED,
S/O ABDUL KAREEM, 31 YEARS,
R/O SANGLI ROAD, OPP. TO GULMOHAR
RESTAURANT, ICHALKARANJI, KOLHAPUR,
DISTRICT:MAHARASHTRA.
6. ABDUL KHUDDUS
S/O HUSSAIN SAB, 41 YEARS,
VETALAPET, ICHALKARANJI KOLHAPUR,
DISTRICT:MAHARASHTRA.
7. SACHIN KALGE
S/O BABU RAO KALGE, AGED ABOUT 25 YEARS,
NO.1456, VIDYANAGAR STATION ROAD,
KHANAPUR, BELAGAVI DISTRICT.
8. SARFARAZ NAWAZ
S/O MOHAMMED GHALIB
AGED ABOUT 22 YEARS,
SHIKARIKHANA, AKKAMAHADEVI TEMPLE ROAD,
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VIJAYAPURA TOWN, VIJAYAPURA DISTRICT.
9. ILLIYAS AHMED
S/O BADAMI ABDUL SATTAR,
AGED ABOUT 27 YEARS,
CHALAVADI, CHAL JAI BHIMANAGAR,
DHARWAD.
10. SADIQ IBRAHIM HUDLI
S/O IBRAHIM HUDLI,
AGED ABOUT 28 YEARS,
1454, VIDYANAGAR STATION ROAD,
KHANAPUR, BELAGAVI.
11. SIDHU @ SIDDU @ SIDDARTHA @
SIDRAMA R.KERUR @ PITER FERNANDIES,
S/O RAMGANDHI KERUR,
AGED ABOUT 28 YEARS,
R/O NO.1467/C, STATION ROAD,
VIDYANAGAR, KHANAPURA,
BELAGAVI DISTRICT.
12. JACOB CHACKO TEKETLA @ JACKOB
@ JACOB THOMAS,
S/O T.C.JACKOB,
AGED ABOUT 38 YEARS,
NO.006/18, AMARPALLI,
CO-OPERATIVE HOUSING SOCIETY LTD.,
SECTOR-13, NEW PANVEL,
NEW MUMBAI.
13. M.B.ALI ILIYAS @ ALI ILLIYAS @ ILIYAS
S/O MOHAMMED BURDAN,
AGED ABOUT 37 YEARS,
NO.57, 5TH CROSS,
WILLIAMS TOWN EXTENSION,
BENGALURU.
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14. P.N.JAYASIMHA
S/O LATE NARASIMHA MURTHY,
AGED ABOUT 47 YEARS,
R/O PRISON TRAINING,
INSTITUTE QUARTERS,
MYSURU CITY, MYSURU.
15. NANJAPPA
S/O MUDDALAGIRI GOWDA,
AGED ABOUT 54 YEARS,
NO.2, B TYPE QUARTERS,
PARAPPANA AGRAHARA,
CENTRAL JAIL QUARTERS,
BENGALURU. ... RESPONDENTS
(BY SRI M.T.NANAIAH, SENIOR COUNSEL A/W
SRI K.HEMANTH KUMAR, ADVOCATE FOR R1
SRI AMAR CORREA, ADVOCATE FOR R2,
AND AS AMICUS CURIAE, ADVOCATE FOR R7 & R11
SRI YOUNOUS ALI KHAN, ADVOCATE FOR R3, R8
SRI M.SHASHIDHARA, ADVOCATE FOR R4, R5, R6, R9 AND
R10
SRI DILRAJ ROHIT SEQUIERA, ADVOCATE FOR R12
SRI SYED KHALEEL PASHA, ADVOCATE FOR R13
SRI B.V.VENKAT RAO, ADVOCATE FOR R14 AND R15)
THIS CRL.A IS FILED UNDER SECTION 372(1) AND
(3) OF CR.P.C., PRAYING TO GRANT LEAVE TO FILE AN
APPEAL AGAINST THE JUDGMENT DATED
14.09.2010/18.09.2010 PASSED BY THE SPECIAL JUDGE,
35TH ADDL.C.C. AND S.J., BENGALURU IN S.C.NOS.643 OF
2003, 352 OF 2004 AND 353 OF 2004 - ACQUITTING THE
RESPONDENTS/ ACCUSED FOR THE OFFENCE PUNISHABLE
(i) UNDER SECTION 420 R/W 120B IPC (ii) UNDER
SECTION 3(1)(ii) OF KCOCA R/W 120B IPC (iii) UNDER
SECTION 3(5) OF KCOCA R/W 120B IPC (iv) UNDER
SECTION 3(4) OF KCOCA R/W 120B IPC (v) UNDER
SECTION 4 OF KCOCA R/W 120B IPC (vi) RESPONDENTS
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14 AND 15 (A32 AND 33) COMMITTED OFFENCE UNDER
SECTION 25 OF KCOCA R/W 120B IPC (vii) RESPONDENTS
14 AND 15 (A32 AND 33) IN CONSPIRACY WITH
RESPONDENT NO.1 (A1) AND OTHER
RESPONDENTS/ACCUSED COMMITTED OFFENCES UNDER
SECTION 7, 12, 13(1)(d) R/W 13(2) OF THE P.C. ACT R/W
120 IPC. THE APPELLANT/STATE PRAYS THAT THE ABOVE
ORDER MAY BE SET ASIDE.
*****
THIS CRL.A. COMING ON FOR ORDERS THIS DAY,
JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
JUDGMENT
The State has filed this appeal under Section 378(2) and (3) of Cr.P.C., challenging the acquittal of respondents/ accused Nos.1, 2, 3, 5 to 11, 18 , 26, 31, 32 and 33 in S.C.Nos.643 of 2003, 352 of 2004 and 353 of 2004, dated 14.9.2010, on the file of the Special Judge, 35th Addl. City Civil and Sessions Judge at Bangalore.
2. The facts leading to the appeals are as follows:
3. Accused No.1 - (Abdul Kareem Telgi) was arrested in Crime No.545 of 2000 of Upparpet Police Station, Bengaluru city for the offences punishable under 6 Sections-255 to 266, 461, 463, 468, 471, 475, 420 read with Section-120B of Indian Penal Code, on the accusation that he was involved in large scale manufacture, sale and circulation of fake stamps and stamp papers. He was lodged in Central Prison, Parappana Agrahara, Bengaluru as UTP No.4148.
4. The case of the prosecution is that despite being in judicial custody, accused No.1 - Abdul Kareem Telgi, continued his illegal activities of sale and circulation of fake stamps in different parts of the country like Delhi, Chandigarh, Chennai, Tiruchi and Hyderabad by entering into criminal conspiracy with his associates either contacting them in person in the Central Prison or through mobile phones.
5. Information was collected to the effect that his associates i.e., accused No.2 Badruddin and accused No.3 Rafi Ahmed were regularly visiting Bengaluru Central Prison on one pretext or the other and meeting accused 7 No.1 to conspire for sale and circulation of fake stamps. On collecting reliable information about the ongoing activities of accused No.1 and his associates, STAMPIT, the investigating agency obtained necessary permission from the competent authority under Section 5(2) of the Indian Telegraph Act, 1885 for intercepting clandestine communications between accused No.1 and his associates. The telephonic surveillance was mounted on various mobile numbers which were being used by accused No.1 and his associates. The audio cassettes containing the conversation together with the specimen voice samples of accused No.1 and his associates were sent to CSFL, CBI, New Delhi and it was confirmed that the voices recorded in the audio cassettes were of the same persons. The mobile phones (Samsung and Nokia) were recovered at the instance of accused No.2 Badruddin on 18.10.2002. Accused No.1 was initially using the Nokia Handset and after he had access to the Samsung handset, he handed over the Nokia handset to Badruddin for his use. During 8 investigation, it revealed that accused No.1 was exclusively using four mobile numbers from these handsets:
(i) 98453-83006
(ii) 98450-28563
(iii) 98450-30697
(iv) 98451-23568
6. The accused persons were frequently changing the SIM cards resulting in change of mobile numbers. The analysis of the intercepted conversations between accused No.1 and his associates revealed that accused No.1 was monitoring and instructing his associates for running the fake stamp circulation across the country despite his confinement in the Central Prison. It also revealed that accused No.1 was given the status of a special security prisoner in the Central Prison and accused Nos.2 and 3 used to meet him regularly. Following the lead obtained from the conversations between accused No.1 and his associates, the accused persons were arrested and at their instance, large volume of fake stamp papers and seals and 9 allied materials were seized at different parts of the country and the investigation having disclosed commission of offences punishable under Section-120B IPC r/w. Sections-256, 258, 259 and 420 of IPC and Section-63(b) of Karnataka Stamps Act 1957; Sections 7, 12 and 13(1)(d) r/w. 13(2) of Prevention of Corruption Act, 1988 and under Sections-3, 4 and 25 of Karnataka Control of Organised Crimes Act, 2000, accused Nos.1 to 33, were sent up for trial.
7. The Special Judge framed as many as 58 charges against the accused. A common charge was framed against all the accused for offence punishable under sections 120-B of IPC. In support of the above charges, the prosecution examined 146 witnesses as PWs- 1 to 146, Exihibits-P1 to P518 and M.Os. 1 to 230 were marked in evidence. Considering the above evidence and on hearing the parties, the learned Special Judge by the impugned judgment ordered as under:
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ORDER The accused Nos.1 to 3, 5 to 12, 18, 21 to 24 and 26 are convicted under Section 235(2) Cr.P.C. for the offences punishable under Section 259 IPC read with Section 120(B) IPC. In addition, the accused Nos.1 to 3, 5 to 12, 18 & 26 are also convicted under Section 235(2) Cr.P.C for the offences punishable under Section 256 IPC read with Section 120(B) IPC.The accused Nos.4, 13 to 17, 19, 25, 27
& 31 to 33 are acquitted under Section 235(1) Cr.P.C of the offences charged under Section 256, 258, 259 and 420 IPC read with Section 120(B) IPC and also for the offences under Section 63(b) of Karnataka Stamp Act, 1957 and under Section 3(1)(ii), 3(4), 3(5), 4 & 25 of the Karnataka Control of Organised Crimes Act, 2000, read with Section 120(B) IPC; and under Section 7, 12, 13(i)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 read with Section 120(B) IPC.
Holding the guilt of the accused Nos.1 to 3, 5 to 12, 18, 21 to 24 & 26 for the above 11 charge under the above specified offences and consequent effect of the detailed reasoning, it is held that they stands acquitted under Section 235(1) Cr.P.C. of the offences under Section 258 and 420 IPC read with Section 120(B) IPC; and also for the offences under Section 63(b) of Karnataka Stamp Act, 1957 and under Section 3(i)(ii), under Section 3(4), 3(5), 4 and 25 of the Karnataka Control of Organised Crimes Act, 2000, read with Section 120(B) IPC; and under Section 7, 12, 13(i)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 read with Section 120(B) IPC and in addition the accused Nos.21 to 24 stands acquitted under Section 235(1) Cr.P.C. of the offences charged under Section 256 IPC read with Section 120(B) IPC.
Since in view of the nature of the offences committed by these accused Nos.1 to 3, 5 to 12, 18, 21 to 24 & 26 as held above there is no such justifiable ground to proceed in accordance with Section 360 Cr.P.C. or under the Provisions of Probation of Offenders Act. Therefore, it is ordered to hear those accused on question of sentence to be imposed 12 for the above offences for which they have been convicted under Section 235(2) Cr.P.C.
The accused No.12 who being convicted as above is on bail now taken him to the judicial custody for a period pending consideration of the sentence to be imposed on him.
It is ordered to release the accused No.13 - C.S.Balaji, accused No.14 - Pervez Ahamad Telgi, accused No.15 - Khalid Ahamad, accused No.17 - Sri Mohammed Sohail @ Shabheer Ahmed Sheik, Accused No.19 - Sri Mohammed Ghouse Mulali Shiggavi and accused No.27 - Sirajuddin Nasipudi in case, if, they are not required for any of other cases.
The accused No.4 - Byroji Rao, accused No.16 - Jeetendar T.Madar, accused No.25 - Sajju @ Sarju, Sajjid @ Sirajuddin @ Singoti Khader Sha Mohammed @ Khader Sha Singoti, accused No.31 - M.B.Ali Iliyas, accused No.32
- P.N.Jayasimha and accused No.33 Sri Nanjappa who are on bail are set at liberty." 13
8. This appeal is directed against the acquittal of accused Nos. 1, 2, 3, 5 to 11, 18, 26, 31, 32 and 33 namely, the respondents herein insofar as acquitting them of the offences:
i) Under Section-420 read with
Section-120B of IPC;
ii) Sections-3(1)(ii)(4)(5) and Sections-4
and 25 of KCOC Act read with Section -
120B of IPC;
iii) And acquittal of accused Nos.32 and 33
for the offences under Section-7, 12,
13(1)(d), r/w Section 13(2) of P.C. Act
r/w Section 120B of IPC;
9. We have heard the learned Special Public Prosecutor Shri.P.Prasanna Kumar, and the learned counsels for the respondents Shri.Nanaiah, learned Senior Counsel appearing for Sri K.Hemanth Kumar, learned counsel for respondent No.1, Shri.Amar Correa, learned counsel for respondent no.2 and as Amicus Curiae for 14 respondent Nos.7 and 11, Shri.M.Sashidhara, learned counsel for respondents Nos.4, 5, 6, 9 and 10, Shri. Dilraj Rohit Sequiera, learned counsel for respondent No.12, Sri.Syed Khaleel Pasha, learned counsel for respondent No.13, Shri.B.V.Venkat Rao, learned counsel for respondent Nos.14 and 15, Shri.Younous Ali Khan, learned counsel appearing for respondent Nos.3 and 8.
10. In view of the contentions urged in the appeal, the questions that fall for consideration are as follows:
i) Whether the impugned judgment suffers from error of law and fact insofar as acquitting the respondents/accused Nos. Nos. 1, 2, 3, 5 to 11, 18, 26, 31, 32 and 33, for the offence punishable under Sections - 420 R/w 120B of IPC, and Sections-3(1)(ii), 3(4), 3(5), 4 and 25 of KCOC Act read with Section - 120B of IPC ?
ii) Whether the court below is justified in acquitting accused Nos.32 and 33 of the offences punishable under Sections-7, 12, 13(1)(d) read with Section-13(2) of Prevention 15 of Corruption Act,1988 read with Section-120-
B of IPC?
POINT NO.1:
11. The first contention raised by the learned Special Public Prosecutor is that the trial court has committed serious error in acquitting the respondents of the offences punishable under the provisions of the Karnataka Control of Organised Crimes Act, 2000 (hereinafter referred to as 'KCOC Act'). It is the submission of the learned Spl.PP that the material produced in proof of the offences punishable under Section-3(1)(ii), 3(4), 3(5) and Sections - 4 and 25 of KCOC Act clearly make out the ingredients of the said offences, but the Special Judge has chosen to acquit the respondents of these charges solely on the ground that the acts alleged by the prosecution were committed outside the State of Karnataka.
12. It is the submission of the learned Special Public Prosecutor that the trial court has misconstrued the 16 scope and applicability of the KCOC Act. The specific allegations against the respondents as well as the other accused persons were that in furtherance of the conspiracy hatched by accused No.1 from the Central Prison, the respondents carried on unlawful activities as members of the crime syndicate. The very nature of the allegations made against the accused presupposes that the respondents performed different role in furtherance of the conspiracy from different parts of the country. The kingpin of the conspiracy was accused No.1. He was stationed within the jurisdiction of the Bengaluru court. As per the provisions of the KCOC, 2000, whoever commits an organized crime and whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organized crime or whoever harbours or conceals or attempts to harbour or conceal any member of an organized crime syndicate, as per Section-3 of the said Act, falls within the ambit of the said Act. Therefore, the acquittal of the accused on the ground that the acts 17 alleged against the respondents were committed outside the territorial limits of the Karnataka State is legally untenable and therefore, the acquittal of the accused on the said ground is liable to be reversed.
13. The learned counsels appearing for the respective respondents/accused have argued in support of the impugned judgment in so far as the acquittal of the respondents of the charges under the provisions of the KCOC Act, 2000 are concerned. Referring to the definition of "Continuing unlawful activity" and "Organized crime", as defined under Sections 2(d) and 2(e) of KCOC Act, the learned counsel for the respondents would submit that in order to attract the provisions of the KCOC Act, the prosecution is required to prove with cogent evidence that the accused persons were the members of an 'Organized crime syndicate' and they were continuing their unlawful activities as members of the crime syndicate. In the instant case, there is no material whatsoever to show that 18 the respondents were members of an organized crime syndicate. There is no evidence to show that any charge- sheet have been filed against them within the preceding period of 10 years prior to the initiation of the present proceedings as required under Section 2(d) of the KCOC Act. Therefore, the learned Sessions Judge was justified in acquitting the respondents of the offences alleged under this Act. The learned counsels further submitted that the circumstances proved in evidence indicate that the provisions of the KCOC Act were invoked by the CBI only with a view to secure stringent punishment to the respondents without there being any prima-facie evidence in support of these charges.
14. We have carefully considered the submissions in this regard and have examined the charges as well as the material produced by the prosecution.
15. In order to appreciate the above controversy, it is relevant to note that distinct charges were framed 19 against the respondents under sections 3(1) (ii), 3(4), 3(5), 4 and 25 of the KCOC Act on the specific allegations that the respondents continued their unlawful activities either as a member of 'Organized crime syndicate' or on behalf of such syndicate by sale of fake stamp/stamp papers etc., at Bengaluru and many parts of the country with the object of gaining pecuniary benefits or undue economic or other advantage for themselves or other accused. Needless to say that, in order to invoke the penal provisions under the KCOC Act, the prosecution is essentially required to establish that at the relevant time,
(i) the respondents were the members of an "Organized crime syndicate" and (ii) that they were "continuing unlawful activities" which are made punishable under the Act.
16. In this context, it may be useful to refer to the relevant provisions of the KCOC Act. The expression "Organised Crime" is defined in Section 2(e) of the KCOC Act. It reads as under:-
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"Organized Crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence or threat to violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency."
17. The expression "Continuing unlawful activity" is defined in section 2(d) of the KCOC Act. As per this definition "Continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one charge- sheet have been filed before a competent court within the 21 preceding period of ten years and that court has taken cognizance of such offence."
18. On scrutiny of the entire material on record, we do not find anything on record to show that the respondents were either members of an organized crime syndicate or that they were continuing unlawful activities within the meaning of section 2(d) and 2(e) of the KCOC Act. As already stated above, the basis of the prosecution case is that in furtherance of the criminal conspiracy hatched by accused No.1 and his associates, respondents were found in possession of fake stamps and fake stamp papers and were carrying on the circulation of the fake stamps.
19. In order to bring the acts of the respondents within this definition of 'continuing unlawful activity', the prosecution is required to establish that in respect of the very same activity, there were more than one charge- sheet filed against the respondents within the preceding 22 period of ten years. This material is lacking in the instant case.
20. Undisputedly, this is the first charge sheet against accused Nos.2 to 33 alleging possession and circulation of fake stamp papers. Though a case was registered against accused No.1 and other accused in Upparpet police station in Cr.No.545/2000 and other FIRs were registered against him and other accused in Yeshwanthpur and City Market police station, the offences alleged against them in the above crimes are for a different period. In the instant case, the charge sheet has been laid against accused Nos.1, 2, 3, 5 to 11, 18, 26, 31, 32 and 33 for the offences committed during the period between 14.07.2000 to 25.09.2002.
21. The Hon'ble Supreme Court in State of Jharkhand Through SP, CBI -vs- Lal Prasad @ Lalu Prasad Yadav, 2017 SCC online SC 551 at para 26, has held as follows:-
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"It is apparent from section 212 read with section 219 that there have to be separate trials for different years covering the period of more than one year. Same kind of offence is a different thing than the "same offence" for the purpose of sections 219, 220 or 300. The scheme of law is clear that separate charges for distinct offences must be framed separately and they cannot be clubbed together for more than one year."
22. By virtue of section 212 r/w section 219 Cr.P.C., there have to be separate trials for different years covering the period of more than one year. For the purpose of Sections 219 and 220 or 300 Cr.P.C., the scheme of law is clear that separate charges for distinct offences must be framed separately and they cannot be clubbed together if they are of more than one year. Therefore, the pendency of the other proceedings against accused No.1 and other accused persons cannot be construed as prior charge- sheet filed before the competent court in respect of cognizable offence undertaken either singly or jointly, as a 24 member of an organized crime syndicate. No documents are produced before this Court to show during the last 10 years, any other charge sheet has been laid against the respondents herein on the allegations that they are involved in unlawful activity as a member of organized crime syndicate. Therefore, the very basis for invoking the provisions of KCOC Act are not available to the prosecution. Consequently, the framing of charges and the consequent trial of the respondents for the alleged offences under KCOC Act, in our opinion, is illegal and therefore, the trial court was justified in acquitting the respondents of all the charges under the provisions of KCOC Act.
23. We however make ourselves clear that we are not in agreement with the reasoning of the trial court. The Trial Court has held that the offences alleged against the respondents were committed beyond the jurisdiction of the Bengaluru Court and therefore the prosecution of the respondents is not tenable before the Special Judge. The 25 trial court has proceeded on the erroneous impression that the respondents were found in possession of incriminating articles outside Karnataka and the recoveries were effected beyond the territorial limits of Bengaluru Courts and therefore, the provisions of the Act were not applicable. This view is contrary to the provision of KCOC Act and opposed to the basic rules of criminal trial. It is a basic principle of law that every offence is triable within the jurisdiction of the Courts where the offence is committed. The jurisdiction of the Court extends over crime as well as the offender. In the instant case, the very basis of the allegations against the respondents/accused is that all of them were party to the criminal conspiracy and in furtherance of the criminal conspiracy, they were involved in possession and sale of the fake stamp papers. Under the said circumstances, merely because the respondents were found in possession of the fake stamp papers and the incriminating material outside the State of Karnataka or that they were found circulating the same beyond the 26 territorial limits of Bengaluru Courts, it cannot be said that the jurisdiction of the Bengaluru Court to try the offenders is ousted.
24. The place of search or seizure is not a determining factor in fixing the forum or place of trial. Since the charges against the respondents are based on conspiracy and consequences arising therefore, by virtue of Section 179 of Cr.P.C. the place of trial would be the Court within whose local jurisdiction such thing has been done or such consequence has ensued. Therefore the proper place for prosecution of the alleged offences was before the Courts at Bengaluru. Hence the reasoning assigned by the trial court for acquitting the accused/respondents of the above charges cannot be sustained. However, as we have come to the conclusion that the allegations made against the respondents do not attract the ingredients of the offences, in our opinion, the respondents are entitled to be acquitted of the charges framed against them under Sections 3 (1) (ii), 3(4), 3(5), 27 4 and 25 of KCOC Act. To this extent, the appeal is liable to be dismissed.
25. The next ground pertains to the acquittal of the respondents for the offences punishable under section 420 r/w 120B Indian Penal Code. Charge Nos.38 to 46 deal with the details or particulars constituting the offences under sections 420 r/w 120B Indian Penal Code. In the impugned judgment, the trial court has observed that the main aspect of the prosecution case relates to the possession of counterfeit stamps and materials used for counterfeit stamps and sale of counterfeit stamps consequent to criminal conspiracy between accused No.1 and his associates during the period between 14.7.2000 to 25.9.2002. Whereas the allegations pertaining to cheating and deception as contained in charge Nos.38 to 46 are for a period prior to the commencement of the conspiracy in Central Prison between 14.7.2000 to 25.9.2002. In that view of the matter, the trial court was of the view that the 28 offence under section 420 Indian Penal Code are not made out.
26. The learned Special Public Prosecutor has not addressed serious argument on this point apparently for the reason that the allegations made against the respondents and the evidence produced by the prosecution do not satisfy the ingredients of Section 420 Indian Penal Code. Even otherwise, the case of the prosecution is based on conspiracy and sale and possession of stamp papers when accused No.1 was lodged in Central Prison. In order to constitute an offence of cheating, the prosecution is required to establish the following viz., a. i. deception of any person, ii. Fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property; or 29 b. Intentionally inducing that person to do or to omit to do something which he would not do or omit if he were not so deceived;
27. As the prosecution has not adduced acceptable evidence to substantiate the above ingredients and the charge-sheet itself having been levied for the offences prior to the period which is under enquiry before the trial court, we find that the trial court was justified in acquitting the respondents of the above charges. As a result, the acquittal of the respondents for the offence under Section 420 r/w 120B IPC does not call for any interference.
Point No.2 - This takes us to the next contention regarding the acquittal of accused Nos.32 and 33. It is not in dispute that accused Nos.32 and 33 were public servants at the relevant point of time. Accused No.32 was the Senior Superintendent of the Central Prison, Bengaluru and accused No.33 was the Assistant Superintendent of the Central Prison, Bengaluru during the time when accused No.1 was lodged in Central Prison. The charges 30 against accused Nos.32 and 33 are that they being Public Servants by abuse of their official position, committed criminal misconduct by demanding and accepting illegal gratification in cash and also pecuniary advantage by way of receipt of a refrigerator, uniform and shoes and also by doing various favours to accused No.1 when accused No.1 was lodged in Central Prison as an under-trial prisoner.
28. It needs to be mentioned at the outset that apart from the charges under the provisions of the Prevention of Corruption Act, 1988,(for short 'P.C. Act), accused Nos.32 and 33 were also charged for the offences under sections 256, 258, and 420 r/w 120B Indian Penal Code as well as under sections 3 (1) (ii), 3(4), 3(5), 4 and 25 of KCOC Act r/w 120B Indian Penal Code. However, on considering the material produced by the prosecution, the trial court has acquitted accused Nos.32 and 33 of these charges holding that accused Nos.32 and 33 were not participants in the main conspiracy relating to sale and possession of counterfeit stamps and stamp papers. The trial court has 31 also acquitted them of the charges under Sections 7, 13(1)
(d) of the P.C. Act. The challenge in the appeal is confined to the acquittal of accused Nos.32 and 33 in relation to the charges under the P.C. Act. Hence the discussion in this judgment is restricted only with reference to the offences charged against them under the P.C. Act.
29. The specific allegations against accused Nos.32 and 33 in so far as the offences under sections 7 & 13 (1)
(d) of the P.C. Act are that, when accused No.1 was lodged in the Central Prison, accused Nos.32 and 33 in connivance with accused No.1 Abdul Kareem Telgi and his associates accommodated accused No.1 in one of the rooms attached to the hospital. They intentionally converted the said room measuring 10ft x 10ft in the Prison hospital premises with dishonest and fraudulent intention to facilitate accused No.1 to continue his fake stamp racket and allowed to cover the windows of the said room with cardboard and curtains so that the voice of accused No.1 talking over his mobile phone could not be heard outside the prison. 32 Further, accused Nos.32 and 33 deliberately disregarded the directions of the superiors and instructed their subordinates to take care of the security of accused No.1. It is specifically alleged that on several times, accused No.1 used to have closed door meeting with accused Nos.32 and 33 and they prevented their subordinates to check the room of accused No.1. Inspite of complaint by the Warder, accused Nos.32 and 33 did not take steps to remove the wooden door with a view to facilitate accused No.1 to perpetuate his illegal activities. When PW-32 Mohan Kumar tried to remove the curtain fixed to the window, accused Nos.32 and 33 shifted the said Mohan Kumar from duty. Accused Nos.32 and 33 did not take any action even though mobile phone was found in the cell of accused No.1 by Executive Jailor PW-34. They freely allowed accused No.2 and accused No.3 to meet accused No.1 without making any entry in the visitors' book. Further, it is alleged that accused No.32 accepted gratification of Rs.1.00 lakh through accused No.2 and also 33 received a refrigerator, uniform, shoes etc., in order to provide luxurious facilities to accused No.1 in the Central Prison.
30. In support of these accusations, the prosecution has examined material witnesses viz., PW-28 to PW-36, PW-44, PW-51, PW-116 and PW-146. However, on appreciating their evidence, the trial court was of the view that even though these witnesses have deposed about certain aberrations that had taken place in the Prison, all the said acts were performed by accused Nos.32 and 33 in discharge of their official duties in good faith to provide necessary facilities to accused No.1 as he was an high security Prisoner. The trial court was of the view that accused No.1 was suffering from severe ailments and therefore, whatever facilities that have been extended to accused No.1 were intended for the safe upkeeping of accused No.1 and these acts of commission or omission on the part of accused Nos.32 and 33 do not amount to 34 misconduct so as to render them culpable for the offences under Section 7 or Section 13(1)(d) of the P.C.Act.
31. The learned Special Public Prosecutor however has vehemently opposed the findings of the trial court. He contends that the evidence produced by the prosecution clearly establishes that accused Nos.32 and 33 have acted in violation of The Karnataka Prisons Rules, 1974. Accused No.1 was not classified as a 'high security Prisoner' as wrongly understood by the trial court. He was not entitled to any additional facilities or privileges. The evidence suggest that accused Nos.32 and 33 were well aware of the fact that accused No.1 was lodged in the Central Prison, Bengaluru, on the allegation that he was the master mind behind a serious scam involving crores of rupees. Under the said circumstances, it was incumbent on accused Nos.32 and 33 to keep rigorous vigil over the activities of accused No.1, but it has turned out that accused Nos.32 and 33 facilitated accused No.1 to commit more serious offences and they assisted him to mobilize 35 huge amount by sale and circulation of fake stamp papers through his associates and co-conspirators. It is argued that the conduct of accused Nos.32 and 33 squarely falls within the mischief of Sections 7 and 13 (1) (d) of the P.C. Act. He contends that the reasons assigned by the trial court are opposed to the evidence on record. The circumstances brought out in the evidence clearly point out that accused Nos.32 and 33 have brazenly violated the Prison Rules and have acted in contravention of their official duties apparently for illegal gain and for extraneous consideration. It is the submission of the learned Special Public Prosecutor that even though there is no direct evidence in proof of the receipt of illegal consideration in terms of monetary gratification, but the circumstances proved in evidence clearly point out that for extraneous consideration, accused Nos.32 and 33 have misconducted themselves within the meaning of sections 7 and 13 (1)
(d) and 13(2) of the P.C. Act and hence they are liable to be convicted for the said offences.
36
32. The learned counsel appearing for the respondents/accused Nos.32 and 33 Sri. B.V. Venkat Rao, has argued in support of the acquittal of accused Nos.32 and 33. Learned counsel has taken us through the evidence of the witnesses relied on by the prosecution and has pointed out that none of the instances spoken to by these witnesses would lead to the conclusion that accused Nos.32 and 33 have acted in derogation of their official duties. As per the Prison Rules, accused Nos.32 and 33 being the responsible officers were required to extend necessary facilities to accused No.1 who was admittedly suffering from severe ailments. There is abundant evidence on record to show that the Court had directed the Prison authorities to provide adequate medical facilities to accused No.1. Accused No.1 was accommodated in a room close to the Prison Hospital in compliance with the orders of the Court as he was constantly required to be monitored by the Prison Doctors. Since his health was deteriorating off and on, assistance of three inmates were 37 provided to him. That apart, accused No.1 was a high security Prisoner and therefore, it was the responsibility of accused Nos.32 and 33 being the highest officers of the Prison to extend all the facilities for the safe-upkeeping of accused No.1. If for any reason accused No.1 has clandestinely involved himself in illegal activities, accused Nos.32 and 33 cannot be made answerable to the said activities which were not within the knowledge of accused Nos.32 and 33. It is the submission of the learned counsel that even though various witnesses have come forward to state about the various facilities that were availed by accused No.1 in the Central Prison, none of the witnesses have stated that the said facilities were extended to accused No.1 with the knowledge and with an intention to facilitate accused No.1 to commit any illegal activities. Therefore, none of the ingredients of the offences under sections 7, 13(1) (d) of the P.C. Act gets attracted to the case on hand. It is the submission of the learned counsel that accused Nos.32 and 33 having acted in discharge of 38 their official duties in accordance with the Prison Rules, even if there is any lapse or irregularity in the discharge of their official duties, they may render themselves liable for departmental action, but not for criminal prosecution under the P.C. Act. The learned counsel submits that the trial court has rightly appreciated the evidence of the above witnesses and therefore there is no reason whatsoever to interfere with the finding of acquittal recorded by the court below. The learned counsel has also referred to the relevant provisions of Karnataka Prison Manual, 1978 and the following authorities in support of his submission viz.,:
1. ABDULLA MOHAMMED PAGARKAR -vs-
STATE (UNION TERRITORY OF GOA, DAMAN AND DIU), (1980) 3 SCC 110.
2. C. CHENGA REDDY AND OTHERS -vs-
STATE OF A.P., 1996 Crl.L.J. 3461.
33. As the entire thrust of the argument is based on undue favours accorded to accused No.1 in the Central 39 Prison, in order to answer the rival contentions, it is necessary to analyse the evidence of the material witnesses examined by the prosecution in respect of the above charges.
34. Amongst these witnesses, PW-28 was the Warder stationed in the Central Prison, Bengaluru at the relevant time. According of this witness, no visitors were coming to the general visitor's section to talk to accused No.1, but persons by name Badruddin-accused No.2 and Rafiq Ahmed- accused No.3 were coming to visit and talk to accused NO.1(Abdul Kareem Telgi) through the main gate itself. He has identified accused Nos.2 and 3. During his evidence, he has stated he has seen accused Nos.2 and 3 going inside the Prison through the main gate to the office of accused Nos.32 and 33. This witness has further stated that on a particular day, when he was on duty at the main gate, accused No.33 told him to make entries in the register regarding the visits of accused Nos.2 and 3 and further stated that accused No.33 told him that they 40 have granted permission to accused Nos.2 and 3 to talk to accused No.1 and directed him to make entries in that regard whenever accused Nos.2 and 3 visited the Central Prison, Bengaluru.
35. In the cross-examination of this witness, it is brought out that the registers at Ex.P127 to Ex.P131 do not bear the seal of the Central Prison and there are some corrections and over-writing in the entries at Sl.Nos.1 to
77. Though in the cross-examination of this witness, some defects in maintaining the register are sought to be highlighted, yet the testimony of this witness regarding the fact that Ex.P127 to Ex.P131 were maintained in the Central Prison has not been discredited. Corrections or errors in the entries made in the said register, in our view, do not affect the credibility of the oral testimony of PW-28 regarding the fact that accused Nos.2 and 3 were regularly visiting accused No.1 and were also visiting the office of accused Nos.32 and 33. This part of his evidence, likewise the instructions given by accused Nos.32 and 33 to make 41 entries in the visitors' Book-Ex.P127 to Ex.P131 regarding the visit of accused Nos.2 and 3 deserves full credence. His evidence finds corroboration in Ex.P127 to Ex.P131.
36. PW-29 was a Jailor working in Central Prison, Bengaluru at the relevant time. According to this witness, on the last week of December 2001 and January 2002, the Superintendent (accused No.32) asked him to bring General Visitors Register pertaining to the above period.
He took them to the office of the Superintendent and on the way, he met Superintendent and he accompanied him to the office of Nanjappa(accused No.33). The Superintendent asked him to make entries regarding the interview of accused No.2 and 3 with accused No.1. This witness has also asserted in his evidence that he has seen accused Nos.2 and 3 coming to Central Prison, Bengaluru.
37. In the cross-examination of PW.29, it is elicited that there were four Assistant Superintendents in Central Prison, Bengaluru and during the year 2001-2002, there 42 were 12 Jailors and he cannot give the details of the duties carried on by each Jailor during the year 2001-2002. It is elicited that separate visitors' books were maintained for high security Prisoners, visitors and general Prison visitors. It is also elicited that two jammers were installed, one inside the interview room and another outside the interview room. The testimony of this witness regarding accused Nos.2 and 3 meeting accused No.1 has not been falsified in the cross-examination. The evidence of this witness corroborates the testimony of PW-28 on vital aspects of the prosecution case that accused Nos.2 and 3 were regularly visiting accused No.1. It also corroborates the testimony of PW-28 regarding the maintenance of separate registers for the visitors of high security Prisoners and ordinary Prisoners. No circumstances are brought out in the cross-examination to disbelieve his evidence. The evidence of PW.9 goes in support of the prosecution case that accused No.1 was not classified as a high security 43 Prisoner as contended by the learned counsel for accused Nos.32 and 33.
38. PW-30 was another Warder in Central Prison, Bengaluru at the relevant time. According to this witness, accused No.1 was kept in a room near the Prison Hospital, Bengaluru with security. Security consisted of one Head Warder and two Warders. He has stated that during general visit hour, Superintendent or in his absence, Assistant Superintendent was visiting the room of accused No.1. Generally, the officers who were visiting accused No.1, used to talk with accused No.1 inside the room or outside the room. The Superintendent or the Assistant Superintendent were visiting the room during general visiting hour or at the lockup time. The door of the room where accused No.1-Telgi was kept had a wooden door. Window of the room on the hind side had glasses and curtain was put on the window. This witness has further stated that the Superintendent had allowed three boys to 44 look after the requirements of Abdul Kareem Telgi. Anees or Abbas used to carry the food from the office of the Assistant Superintendent to the room of Abdul Kareem Telgi. According to this witness, he was on duty at the room of accused No.1 for about three weeks and during this period, he noticed that some officers after entering the room of accused No.1 used to bolt the door and some used to push the door without bolting.
39. PW-31 was the Head Warder during the relevant period. According to this witness, accused No.1 initially was kept in Jail Hospital and thereafter he was shifted to another room in the Prison Hospital. One Head Warder and three Warders were posted at the said room as security. This witness has stated that the Prisoner kept under security should be visible to the security men outside the room. But, since the room in which accused No.1 was lodged had a wooden door, movements of accused No.1 inside the room were not visible to the security men outside the room i.e., Head Warder and three 45 Warders. He has also stated that two boys and a grown up man used to be inside the room of accused No.1. They were Aneez and Abbas and the name of the another grown up man is Sayeed. He has asserted in his evidence that the persons bringing the food were accused Nos.2 and 3. This witness has also identified accused Nos.2 and 3 in the court and has stated that accused No.1 was taking the food in the room where he was lodged. According to this witness, during the interview of accused No.1 with the visitors, accused Nos.32 or accused No.33 used to be present. This witness has further stated that the room where accused No.1 was lodged consisted of one cot with bed, colour TV and a stool. Room had attached bathroom. Living room had a big window or iron bars and bathroom had a small window with iron bars. Cloth curtain was put to the window in the living room. This witness has been treated as hostile. But in the cross examination by the Special Public Prosecutor, he has stated that some times accused No.1 was called to the office of Assistant 46 Superintendent on receiving the food. Accused Nos.2 and 3 were talking to accused No.1 in the room of accused Nos.33 and at that time, accused No.33 was asking PW-31 and his staff to stand outside the room. This testimony of PW-31 is also not discredited in the cross-examination.
40. PW-32 was the Head Warder of the Central Prison, Bengaluru. According to him, during December 2001, he was in-charge of the hospital duty. He has stated that during duty hours in entire week in front of the main gate of the Prison, once he had stopped accused Nos.2 and 3 from entering the main gate without permission and when accused No.2 and 3 questioned him as to why he was stopping them, at that time, the Assistant Superintendent Nanjappa himself came and took accused Nos.2 and 3 inside the Prison. He has further stated that the Assistant Superintendent Nanjappa told him that he should not stop the visitors and he should not interfere with the jail administration. According to this witness, sometime after August 2002, while he was 47 working as Head Warder, he noticed a curtain fixed to the main door of the room where accused No.1 was lodged. He removed the said curtain and at that time, Assistant Superintendent Nanjappa took objection for removing the curtain and instructed him, saying " I do not have any duty around the hospital and I should look after wall point duty only."
In the cross-examination of this witness, it is elicited that during the visit of I.G. Prisons, he was served with a memo and based on his reply, initiation of departmental enquiry was dropped with a warning. It is elicited that he cannot give the day and dates when accused Nos.2 and 3 visited the Central Prison, Bengaluru. It is also elicited that he does not remember the Jailor who was on duty at the main gate when he prevented accused Nos.2 and 3 from entering the main gate without permission. It is also elicited that he has not recorded in the point book the fact that while discharging his duty, he noticed the curtain to the main door of the room of accused No.1 and removed 48 the curtain and that he was warned not to switch off the lights during night. This cross-examination in our view does not discredit the veracity of the testimony of PW-28 on the vital aspects spoken to by him regarding the visit of accused Nos.2 and 3 to the Prison. Merely because, he does not recall the names of the officers who were on duty on that particular day, cannot be a reason to disbelieve his testimony. Even in his cross-examination, this witness has asserted that accused No.32 warned him not to stop accused Nos.2 and 3 from coming inside the Prison. There in nothing unnatural in the evidence of this witness and no circumstances are brought out to show that he has given false evidence against accused Nos.32 or 33.
41. PW-33 was posted in the Central Prison as a Warder at the relevant time. According to this witness, every day Assistant Superintendent - Nanjappa namely Accused No.33, was coming to the room of accused No.1. He was talking to accused No.1 for about 30 minutes by 49 closing the door. The relevant portion of the evidence of this witness is extracted hereunder:
"A.K.Telgi was closing the door. Boys namely Anees and Abbas were staying in the room along with A.K.Telgi. ... Superintendent Jayasimha was not visiting room of A.K.Telgi every day, but he was coming to the room in case of Medical Emergency. ... Because the officers were coming to lock the door and open the same, we were not going inside to check the belongings of A.K.Telgi inside the room. ... Assistant Superintendent - Nanjappa was telling that the bag is already checked in his room. ... We are also required to make note of the check carried on in the room where security Prisoner is kept. ... At that time, Assistant Superintendent Nanjappa was telling that he has checked the room and he may write the report that the room is checked. Sometimes, I.G. Prisons and D.I.G. Prisons were visiting the room of A.K.Telgi and information of said visits was given to the staff on duty to the room of A.K.Telgi. Before the visit of I.G. or D.I.G, Asst. Superintendent or Superintendent were 50 visiting the room of A.K.Telgi and instructing the staff to keep the stove and such other articles outside the room. During my visit to the room of A.K.Telgi, I have not noticed anything, object, material coming to the room of A.K.Telgi evening after 6.00 p.m. or during night. ... All Jail officers were telling that there is no need of checking the room personally and I may write the charge report as room is checked."
There is no cross examination of this witness.
42. PW-34 was another Warder in the Central Prison, Bengaluru. The relevant portion of his evidence reads as under:
"As per jail manual, Prisoners are classified as A, B and C class Prisoners. Prisoners are classified as A class Prisoners as per the orders of the Court and generally the political Prisoners are treated as 'A' class Prisoners. ... In the month of November 2001, A.K.Telgi was brought to Central Prison, Bengaluru in fake stamp papers case. ... A.K.Telgi was treated as C class 51 Prisoner. ... General Prisoners are classified as C class Prisoners. As per the Jail manual, all general Prisoners i.e., C class Prisoners are provided with cloth, bed, plate, TV, etc.,. C class Prisoners are kept in separate barracks. About 40-50 Prisoners are kept in a barrack. At the time of admission, A.K.Telgi was kept in a room of Prison Hospital for security reason. ... The door and windows of the room where security Prisoner is kept should have iron bars with free view to observe the movements and the presence of the Prisoner inside the room. Security Prisoners cannot be kept in a room having wooden door because free view is not possible. ... Once while checking the room of A.K.Telgi in the regular course of my duty, I found a mobile on the bed of A.K.Telgi, took the same and gave it to Assistant Superintendent - Sri.Nanjappa informing that it was found in the room of A.K.Telgi. .... Assistant Superintendent Nanjappa did not take any action in respect of the mobile found in the room of A.K.Telgi. ... None of my superior officers 52 have asked me any time to report that no objectionable articles were found in the room of A.K.Telgi. ... I did not ask the head Warder or Warders on duty to the said room to write the same in the charge report. Nor I made any note of the same in writing. ... The room of A.K.Telgi had ceiling fan. ... Jammers were kept outside the room of A.K.Telgi. I do not know whether jammers were in working condition."
This witness was treated as hostile and in the cross- examination by the P.P, it is elicited:
"I have seen Assistant Superintendent - Nanjappa going to the room of A.K.Telgi 3-4 times on some days while I was on duty. ... It is not correct to say that after giving the mobile in the room of A.K.Telgi, for the first time, some days later, I found another mobile in the room of A.K.Telgi and gave it to superintendent - Jayasimha."
In the cross examination by the defence counsel it is elicited from the mouth of the witness as herebelow: 53
"I cannot give date, day or the month when I found mobile in the room of A.K.Telgi and gave it to Assistant Superintendent - Nanjappa. ... It is not correct to say that at no time, any mobile was found in the room of A.K.Telgi and I have not given any mobile to Assistant Superintendent - Nanjappa saying that it was found in the room of A.K.Telgi. ..."
43. It is elicited that a Departmental Enquiry was initiated against this witness on the charge that he had destroyed five point books in the room of A.K.Telgi. He has denied the suggestion that Assistant Superintendent - Nanjappa was the main cause for initiation of departmental enquiry against him.
44. No doubt, some circumstances are brought out in the cross examination of the above witness to suggest that the five point books relating to the room of accused No.1 was destroyed and in that respect, a departmental enquiry was initiated against this witness, but that by itself 54 cannot be a reason to disbelieve the entire testimony of this witness when the statement made by him with regard to tracing of mobile phones is seen to have been substantiated by other cogent materials. In this regard, it is relevant to note that while recording conviction against other accused persons, the trial court has held that in the course of the investigation, four mobile phones were recovered and the conversation recorded therein is proved to be the main source of information that led to unearth the conspiracy from the prison. Thus there is intrinsic corroboration to the testimony of this witness.
45. PW-35 is the Chief Superintendent of the Central Jail, Bengaluru. He has stated that he permitted A.C.P. Ganapathy to conduct the search of the quarter No.2A which was in the occupation of Assistant Superintendent - Sri.Nanjappa. Though much has been argued that the search of the prison premises without proper authorization or permission was illegal, yet, in our opinion, the illegality in conducting the search does not 55 affect the evidentiary value of the articles recovered pursuant to the search made by the investigating agency. Therefore, the evidence of the witnesses is admissible to the extent that with his permission search was conducted in the office of accused No.33.
46. PW-36 had worked as Assistant Superintendent of Central Prison, Bengaluru. Through this witness, the entries made in the visitors registers i.e., Exs.P127 to 131 are marked.
47. PW-44 was the Chief Warder, Central Jail, Bengaluru. He is the panch witness to the mahazar Ex.P69, wherein the room shown by accused Nos.26 and 27 in which they had discussion with accused No.1, has been noted.
48. PW-51 Azam was one of the under-trial prisoner, who was lodged in the Central Prison at the relevant time. According to this witness, he came in acquaintance with accused No.1 while he was taking 56 treatment in the Prison Hospital. After taking some personal details, accused No.1 requested PW-51 to come to his room to wash his clothes. This witness has deposed as under:
"Two - three days later, A.K.Telgi told me that he has obtained permission from the Superintendent to get my service and asked me to come to his room with my bed and other belonging. ... About 8 days later, Abbas was sent from the room by the Superintendent saying that he cannot allow three persons to live with Abdul Kareem Telgi. Thereafter Anees was bringing food on receiving call from the main gate. The food box received at the main gate was being kept in the office of the Superintendent or in the office of Assistant Superintendent Nanjappa. Anees used to bring the food box from the said office. I used to accompany Anees sometimes to bring the food box. Badruddin and Rafiq were introduced to me by Anees. ... Abdul Kareem Telgi was requesting the Superintendent to allow Rafiq and 57 Badruddin to come to his office to enable him to speak with them. ... They used to talk half an hour to hour in the office of Superintendent in the presence of Superintendent. Sometimes, Abdul Kareem Telgi was speaking over his mobile phone to Badruddin, Rafiq, Jitendar, Muralidhar and Akram. He used to talk regarding stamp papers. Anees was also having a mobile at that time. Both Anees and Abdul Kareem Telgi were getting calls from outside to their mobiles. Abdul Kareem Telgi was speaking in Hubli-Kannada with Jitendar. ... I started living in the room of Abdul Kareem Telgi.... I accompanied Anees to the room of Superintendent when Jitendar Madar had come. ... Sometimes, while bringing food, Badruddin was bringing money to pay the same to Abdul Kareem Telgi. Abdul Kareem Telgi was paying me Rs.30/- or Rs.40/- daily on my request. Abdul Kareem Telgi used to give money to Anees Khan also asking him to pay to Superintendent of Prisons and Assistant Superintendent - Sri.Nanjappa. Once Jailor Sridhar Murthy 58 took the mobile of Anees after checking the room. Two days after, the mobile was returned to Anees. All the Jail Officers were coming together at the time of taking rounds in the morning. ... Room of Abdul Kareem Telgi had T.V. and C.D. Player. I have seen the C.D. being played on the T.V.screen by Abdul Kareem Telgi. C.D. contained imprints of stamp papers."
This witness has identified the aforesaid Rafiq, Badruddin, Muralidhar, Jitendar Madar and accused No.1 in the witness box. In the cross examination of this witness, it is elicited that he was arrested in 8 cases and his photo was displayed in J.J.Nagar Police station as an habitual offender and it is also elicited that the Magistrate used to visit once in three months and enquire with the prisoners about the difficulties they were facing.
49. Further in the cross examination of PW-51, it is elicited that PW-51 was produced before the Court and his statement was recorded by the Magistrate for the third 59 time and ACP Ganapathy recorded his statement for correction of name. In his statement before the Magistrate, he has stated that A.K.Telgi was paying Rs.10,000/- per month to the Jailor by name Jayaramaiah. The said portion has been marked as Ex.D6. It is also elicited that he has seen accused No.1 and the Superintendent and Assistant Superintendent talking, but he did not hear their talks and understood the same. He denied all other suggestions.
50. What emanates from the evidence of PW-51 is that, he was one of the under trial prisoner who was permitted to stay in the room occupied by accused No.1. Even though it has been elicited that he was not coming to the room of the Jailor, the fact that he was residing in the very same room where accused No.1 was lodged and that he was well acquainted with the activities going on in the prison has been established from his evidence. We do not find any reason to disbelieve his evidence. 60
51. PW-116 was the D.I.G., of the Prisons at the relevant time. According to this witness, during his visit to the Central Prison, accused No.1 was an inmate of the Central Prison and he was kept in a room which was separate from the other rooms of the prison. Two other accused were also kept in the room where A.K.Telgi was kept. These two accused persons used to look after all the requirements of A.K.Telgi, as he was suffering from serious ill-health. He has specifically stated that the room where accused No.1 was lodged did not have see through iron bar doors and the bathroom-cum-toilet had a ventilator of iron bars at the roof level and the window had a curtain. In his evidence, he has stated that A.K.Telgi was an ordinary prisoner. He asked the Superintendent as to why the said room alone had wooden door quite contrary to the requirement of the jail rooms, for which he was told that there was a threat to the life of A.K.Telgi. He further deposed that in the month of February 2002, news were published in the paper that accused No.1 is using mobile 61 phone from the prison and therefore, he along with Jail Superintendent searched the room of A.K.Telgi, but did not find any mobile.
52. In the cross examination of this witness, it is elicited that till date, departmental action has not been initiated against accused Nos.32 and 33. It is further elicited that since the lapses on the part of Jail Officers continued to appear in the media, Superintendent Jayasimha was transferred to P.T.I, Mysuru and in his place D.I.G., Belgaum Range, Sri.Abhaya was posted to Central Prison, Parappana Agrahara, Bengaluru. It is also elicited that there was an order from the Court to provide medical assistance to A.K.Telgi as and when required.
53. PW-146 was the Secretary to the Government of Karnataka, Home Department, who has spoken about the sanction accorded for the prosecution of accused Nos.32 and 33 as per Ex.P578.
62
54. What emanates from the evidence of above witnesses is that accused No.1 was lodged in Central Prison as an under-trial Prisoner. He was a "C" class prisoner and was not classified as a high security prisoner. The D.I.G., Prisons who has been examined as PW.116 has unequivocally stated that he did not issue any order classifying accused No.1 as 'high security prisoner'. Therefore, as "C" class prisoner, accused No.1 was entitled to be kept in a common barrack and was required to share the common accommodation along with 40 to 50 other prisoners. Being an ordinary prisoner, the visitors to accused No.1 were supposed to be restricted and he was not entitled to any additional facilities. But, it has transpired in evidence that contrary to rules, accused No.1 was not only provided with the facilities of 'A' class prisoner, but various other arrangements and contrivances were provided to him so as to facilitate him to carry on his illegal activities from the precincts of the Central Prison. 63
55. The argument of the learned counsel that accused No.1 was a 'high security prisoner' and therefore, additional facilities were provided to accused No.1 cannot be countenanced for the reason that PW-116, D.I.G., himself has stated that accused No.1 was not an 'A' class prisoner. Further, PW-146, the sanctioning authority has also reiterated that accused No.1 was not entitled to any facilities, inspite of which, accused Nos.32 and 33 have granted him facilities contrary to the Prison Rules which necessitated PW-146 to accord sanction for prosecution of these accused. This evidence goes against accused Nos.32 and 33.
56. Even assuming for the sake of argument that accused Nos.32 and 33 thought it necessary to treat accused No.1 as 'high security prisoner', but by permitting accused Nos.2 and 3 to visit accused No.1 and allowing three other convicts to stay in the room of accused No.1 in our opinion, by this act, accused Nos.32 and 33 themselves have committed breach of security. Needless 64 to say that, in view of the strict Prison Rules, accused Nos.32 and 33 were required to ensure that no visitors, much less, the co-accused came in contact with accused No.1. But unfortunately, the facts and circumstances brought out in evidence clearly indicate that knowing fully well that accused No.1 was involved in serious offence, accused Nos.32 and 33 allowed free access to accused Nos. 2 and 3 and other accused in the room of accused No.1. By providing a closed room to accused No.1 and permitting co-prisoners to come in contact with him, accused Nos.32 and 33 have created a conducive atmosphere to help accused No.1 to carry on his illegal activities. The evidence brought on record clearly establishes that accused Nos.32 and 33 intentionally provided a cover and patronage to accused No.1 to pursue his illegal acts.
57. The argument of the learned counsel for the appellants that accused No.1 was suffering from serious ailment which prompted accused Nos.32 and 33 to provide 65 him a room adjacent to the Prison Hospital and hence the acts of accused Nos.32 and 33 in providing him some additional benefits and the assistance of three co-prisoners to attend the medical emergency of accused No.1 cannot be considered as a violation of Prison Rules, does not appeal to us. Though it has been vehemently argued that accused No.1 was suffering from serious ailments, no material has been brought to our notice which necessitated a separate room for the treatment of accused No.1. The evidence reproduced above indicates that except carrying on conspiracy from the special room provided to him, accused No.1 was not given any treatment in the said room. There is no such evidence. It is seen from the records that the Court directed the Prison Authorities to provide necessary medical aid to accused No.1. There was no direction either by the Court or by the D.I.G., to provide a separate room with closed door and windows with curtains to accused No.1. The very fact accused No.1 was provided with such facilities would go to show that 66 accused Nos.32 and 33 have acted in violation of the Court order. It has come in evidence that even when the above illegalities were brought to the notice of accused Nos.32 and 33, they failed to take remedial action, instead the prisoners who complained about it were instructed not to talk about the same. All these circumstances therefore would go to show that knowing fully well that accused No.1 was not entitled for any such benefits, accused Nos.32 and 33 have provided these facilities to accused No.1 solely with a view to enable him to carry on his illegal activities from the Central Prison.
58. It has been proved in the evidence that accused Nos.32 and 33 not only provided luxurious facilities to accused No.1 contrary to rules, but also allowed co-accused to visit him regularly. The fact that accused Nos.2 and 3 had frequent and regular meetings with accused No.1 and that they were having conversations over phone has been established by the evidence of the above witnesses and by the seizure of the 67 mobile phones as well as the call records and the recording of the conversations in the CDs which have been duly proved in evidence. As a matter of fact, on the basis of this evidence, the trial court has recorded a clear finding that pursuant to the conspiracy that originated in the Central Prison, the other co-accused carried on the activities of circulation of fake stamps running to crores of rupees. This finding pre-supposes that solely on account of the facilities provided to accused No.1, the conspiracy has been fructified.
59. The facts and circumstances proved in evidence clearly indicate that accused Nos.32 and 33 had full knowledge that accused No.1 was lodged in the Central Prison with the allegation of committing serious offences involving manufacture and sale of fake stamp papers. The facts and circumstances discussed above point out that accused Nos.32 and 33 were very much aware of the illegal racket carried on by accused No.1 from the prison. In the said context, the acts of omission and commission 68 proved against accused Nos.32 and 33 lead to inevitable conclusion that with intent to facilitate the illegal activities of accused No.1, accused Nos.32 and 33 have acted beyond their duties, thereby aiding and abetting the commission of cognizable offences by accused No.1 from the Central Prison.
60. No doubt, the evidence produced by the prosecution is not sufficient to convict accused Nos.32 and 33 for the offences under Sections 256 and 259 of IPC for which they were charged, yet the facts and circumstances discussed above which are duly proved in evidence, in our opinion, squarely attract the offence under Section 13(1)(d) of the Prevention of Corruption Act. The Section reads as under:
13. Criminal misconduct by a public servant.--
(1) A public servant is said to commit the offence of criminal misconduct,--
(a) xxxxx
(b) xxxxx 69
(c) xxxxx
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;
61. In the case on hand, though there is no direct evidence to show that accused Nos.32 and 33 have received any cash or monetary gratification from accused No.1 or his associates, but there is convincing evidence which establishes that accused Nos.32 and 33 have aided and abetted accused No.1 to pursue his illegal business of sale and circulation of fake stamps running to crores of rupees from the Central Prison while he was under their 70 care and custody. It is proved in evidence that by their intentional acts of omission and commission, accused Nos.32 and 33 enabled accused No.1 to derive pecuniary advantage to the tune of crores of rupees. But, for the patronage and benevolence of accused Nos.32 and 33, neither accused No.1 nor his associates would have derived pecuniary advantage running to crores of rupees by sale and circulation of fake stamp papers pursuant to the conspiracy hatched by accused No.1 from the prison.
62. The use of expression "obtains for himself or for any other person" in the definition clause means that by the act of commission or omission by a public servant, if any person obtains for himself or for any other person any valuable thing or pecuniary advantage, such public servant could be made answerable to the charge of criminal misconduct within the meaning of Section 13(1)(d) of the Act.71
63. The expression "obtains" has a wider connotation. This expression denotes not only the acceptance of bribe or illegal gratification for himself, but also for other persons.
64. The Hon'ble Supreme Court in the case of SUBASH PARBAT SONVANE vs. STATE OF GUJARAT, AIR 2003 SC 2169 has held that in case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act unlike an offence under Section 161 IPC, which as noticed above, can be, established by proof of either 'acceptance' or 'obtainment'.
65. Thus on a plain reading of the expression "to obtain" pecuniary advantage for any other person would clearly mean that by abusing his position as Public Servant, allowing the other person to get the benefit or pecuniary advantage, he would be answerable to the 72 charge under Section 13(1)(d) of the Prevention of Corruption Act.
66. In the instant case, the evidence on record clearly establish that accused Nos.32 & 33 rendered every conceivable help and assistance within their powers to enable accused No.1 to obtain pecuniary advantage. They provided him a special room contrary to the Prison Rules.
They ensured that the said door was fitted with a wooden door and a window with a curtain so as to block visibility of outsiders. They also facilitated regular meetings between accused Nos.2 and 3 with accused No.1. Accused Nos. 32 & 33 also allowed the visitors to meet accused No.1 at his whims and fancies and even permitted the use of mobiles from the prison precincts. It is proved in evidence that by the use of these facilities, accused No.1 materialised his conspiracy and carried on his illegal activities from the prison. Thus the evidence on record clearly establish the commission of offence under Section 13(1)(d) of the Act. 73
67. Accused Nos.32 and 33 were both Public Servants. By granting illegal favours and advantage to accused No.1 and his associates, they have misused their official position. Their only object was to help accused No.1 to pursue his illegal acts. The above acts cannot be construed as stray instances of humanitarian concern shown by accused Nos.32 and 33 as argued by the learned counsel, rather, the records reveal that they have gone out of the way to help accused No.1. The assistance rendered by these accused to accused No.1 is substantial, continuous and deliberate. They have helped accused No.1 beyond the provisions of law. Undue favours were shown to accused No.1 on a regular and continuous basis. The duty of these accused was to ensure proper custody of the prisoners therein. Not only they have miserably failed to do so, but it is proved in evidence that they have gone a step ahead in abusing their position and granting favours to accused No.1 and his associates. In our view, the acts of accused Nos.32 & 33 are nothing but a fraud committed 74 by them within the four corners of the prison wall. Even the departmental enquiry sought to be initiated against these accused was hushed up and closed by issuing a censure.
68. The accused have taken up a plea that they have extended the benefits or facilities to accused No.1 in discharge of their official duties and therefore they cannot be proceeded against for criminal action; but the evidence speaks otherwise. The facts and circumstances proved through the above witnesses who are none other than the officers or the inmates of the jail clearly indicate that accused Nos.32 and 33 have flouted the Prison Rules with impunity. Not a single rule or circular has been brought to our notice justifying the action of accused Nos.32 and 33.
Rule 22 of the Karnataka Prison Manual, 1978, reads thus:
"22. Under section 4 read with Section 10 of the Karnataka Prisons Act, 1963 (Karnataka 75 Act of 33 of 1963) there shall be for every Prison a Superintendent who shall manage the Prison in all matters, as required under Rule 5 of the Karnataka Prisons Rules, 1974. Superintendent of a Prison other than a Central Prison, shall obey the lawful orders of the District Magistrate respecting the Prison. The Superintendent is the Officer in charge of a Prison within the meaning of the Provision of the Karnataka Prisons Act, 1963 and other enactments."
69. Rule 51 of the Karnataka Prison Manual, 1978 debars the employment of any Prisoners in any capacity. It reads:-
"Employment of Prisoners as Prison
Servants:-
51. The Superintendent shall see that no more than the authorized percentage of prisoners are employed as Prison servants and shall not permit any prisoner to be employed in any private capacity either for himself or for any other person except as provided by rules." 76
70. Likewise Rule 102 of the Karnataka Prison Manual, 1978 requires the Prison Officers to prevent any communication between prisoners and outsiders. The said Rule reads as under:-
Officers to Prevent Escapes and Introduction of Prohibited Articles:-
102. (a) Every Officer of Prison shall-
(i) exert the utmost vigilance to prevent escapes.
(ii) prevent any communication between prisoners and outsiders; except as permitted by rules.
(b) Under Section 43 of the Karnataka Prisons Act of 1963 any Prison Officer may arrest any person committing in his presence any offence specified in Section 42 of the Act and on his refusing to give his name address make him over to a Police Officer without delay.
77Further Rule 112 mandates that:-, "112. No Prison Officer shall unnecessarily converse with a Prisoner, or treat him with familiarity or allow him any familiarity between a Prisoner and any other officer of the Prison. Nor shall he discuss matters of discipline of Jail duties or arrangements within the hearing of Prisoners."
71. The prosecution has proved beyond pale of doubt that the various acts of commission and omission by accused Nos.32 and 33 were exfacie contrary to the above rules and in stark violation of the Court orders. Therefore it cannot be said that accused Nos.32 and 33 were acting or purporting to act in the discharge of their official duty.
72. Undeniably accused Nos.32 and 33 were holding the office of trust. The persons accused of criminal offences were put in the care and custody of accused Nos.32 and 33. Accused No.1 was confined in judicial custody, therefore, virtually, he was in the custody of the 78 Court. The duties entrusted to accused Nos.32 and 33 therefore called for integrity of highest order. But unfortunately, by their acts and conduct, accused Nos.32 and 33 have betrayed the trust and confidence reposed on them by the Court by joining hands with the accused. The conduct of accused Nos.32 and 33, in our opinion, tantamount to an aggravated form of criminal misconduct. The mischief played by accused Nos.32 and 33 is unpardonable. It is a misconduct of the worst type. It is a case of fence eating the crop. When it is proved that the officers who are entrusted with the care and custody of the prisoners, themselves misuse their official position and allow the prisoners in their custody to indulge in illegal activities, in our view, the offence proved against accused Nos.32 and 33 call for stringent punishment. As the evidence discussed above clearly establish the ingredients of the offence under section 13(1)(d) of the Act, we hold that accused Nos.32 and 33 are liable to be convicted for the said offence.
79
73. In the light of the above discussion and in view of the conclusion arrived at by us as above, the finding of acquittal recorded by the trial court against accused Nos.32 and 33 for the offence under section 13(1)(d) of P.C. Act cannot be sustained. However, as the prosecution has not proved the ingredients of the offences under sections 7 and 12 of P.C. Act r/w section 120 of Indian Penal Code, the order passed by the trial court in this regard deserves to be confirmed.
74. Accordingly, we proceed to pass the following order:
a) Criminal Appeal No.87 of 2011 is allowed-in-part.
The impugned order in so far as acquitting accused Nos.1, 2, 3, 5 to 11, 18, 26, 31, 32 and 33 in respect of offences under section 420 r/w. 120-B of Indian Penal Code; sections 3(1)(ii), 3(4), 3(5), 4, 5 and 25 of KCOC Act r/w. section 120-B of Indian Penal Code is hereby confirmed. 80
b) The order of acquittal of accused Nos.32 and 33 for the offences under sections 7 and 12 of P.C. Act is also confirmed.
c) Accused Nos.32 and 33 are held guilty of the offence punishable under section 13(1)(d) r/w. section 13(2) of P.C. Act. Having regard to the manner in which the said offence has been committed by accused Nos.32 and 33 by abusing their official powers and thereby facilitating accused No.1 and his associates to commit cognizable offences from the prison and to derive pecuniary advantage running to more than 165 crores of rupees, accused No.32-Sri. P.N. Jayasimha and accused No.33- Sri. Nanjappa are sentenced to simple imprisonment for five years and a fine of Rs.50,000/- (Rupees Fifty Thousand) each for the offence under section 13(1)(d) r/w. section 13(2) of P.C. Act. Accused Nos.32 and 33 are entitled for the benefit of set off for the period of detention already undergone by them against the sentence of imprisonment awarded herein. 81
The bail bonds of accused Nos.32 and 33 stand cancelled. They shall serve the remaining period of sentence as directed.
Registry is directed to pay the honorarium of Rs.10,000/- to Sri.Amar Correa, the learned Amicus Curiae for respondent Nos.7 and 11 for the services rendered by him.
SD/- SD/-
JUDGE JUDGE
JJ/MN/GH/RSK/BNV