Allahabad High Court
Pooran Chandra Rastogi vs State Of U.P. on 23 January, 1991
Equivalent citations: 1992CRILJ2430
JUDGMENT S.H.A. Raza, J.
1. This is a criminal appeal against the judgment and order dated 7-12-1982 passed by Sri R. K. Khanna, Special Judge, Anti-Corruption (West), U.P., Luck-now in Case No. 11 of 1974 State v. P.C. Rastogi, convicting the appellant under Section 161, I.P.C. and under Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act and sentencing him to six months' R.I. in one count and six months' R.I. with another and a fine of Rs. 500/- under the respective counts and in default of payment of fine to a further R.I. of three months making the sentences in each count to a run concurrently and directing the sentence in default of payment of fine to run consecutively.
2. The case of the prosecution, in brief, is that in the year 1973 the appellant was working as Consolidation Officer, Upaira, Zila Meerut. A case pertaining to mutation in re : Jaiprakash v. Permanand was pending in the Court of the appellant and 3rd May, 1973 was fixed for hearing. Jaiprakash P.W. 1 came to know that the appellant decides the cases after taking bribe, hence he became apprehensive that the case would be decided against him. On 26-4-1973 the said Jaiprakash went to Hapur and met the appellant. The appellant told him that without giving bribe to him the case would not be decided and (sic) Jaiprakash to pay him Rs. 500/- as bribe. Jaiprakash promised to pay the said amount on 28-4-1973. Jaiprakash did not want to pay the amount hence on 26th April, 1973 he left for Lucknow and on the next day he preferred an application Ex. 4 in the office of Director, vigilance alleging that the appellant was demanding bribe from him. On 27th April, 1973 the authorities concerned directed Dy. S. P. Vigilance Mohar Singh P.W.5 to lay down a trap against the appellant. On the same day P. W. 1 Jaiprakash met P. W. 5 Sri Mohar Singh who directed him to meet him next day at Meerut. On 28th April, 1973 as planned out Jaiprakash P. W. 1 met P. W. 5 Sri Mohar Singh and other members of the trap party. Jaiprakash handed over to Sri Mohar Singh five currency notes of Rs. 100/-each which were marked as Ext. 5. After obtaining the signature of City Magistrate the currency note were returned to Jaiprakash. On 28th April, 1973 at about 2 p.m. P. W. 1 Jaiprakash along with the trap party reached the house of the appellant. P. W. 1 Jaiprakash entered into the house of the appellant who used to reside in the first story while the other members of the trap party stood near the stair case. The appellant P. C. Rastogi was not available at his residence and it transpired that he had gone to Delhi and would return in evening. Jaiprakash also came to know that by the night train the appellant would leave for Delhi. They waited outside the residence and about 4 p.m. Jaiprakash saw the appellant coming towards his house. Jaiprakash met the appellant on the stair case of the house. The appellant told Jaiprakash to come in the night along with Rs. 500/- but did not accept the amount at that time as some other persons were sitting inside the house.
3. On 28th April, 1973 at about 9.45 p.m. while Jaiprakash along with the persons of trap party were going towards the house of the appellant, they saw the appellant and his wife coming towards their house on a rickshaw. As soon as the appellant saw Jaiprakash, he inquired as to whether he had brought the money. Jaiprakash handed over to him five currency notes of Rs. 100/ - each to the appellant telling him that his work should be done. The appellant took the currency notes and kept it in the pocket of his bush shirt and told Jaiprakash that the case would be decided in his favour. The said incident was witnessed by all the members of the trap party including the witnesses and they also heard the dialogues between the appellant and Jaiprakash. Thereafter P. W. 5 Mohar Singh after introducing himself, made a search and recovered five currency notes from the pocket of his bush shirt. During search a sum of Rs. 4508.25 paise were also recovered from the pocket of the pant of the accused along with some papers and one revolver, one gun and one air gun was also recovered from his possession and a memo Ext. Ka-6 was prepared. P. W. 5 Mohar Singh immediately arrested the appellant and prepared the recovery memo of the currency notes which are Exts. 1/1 to 1/5. He took the appellant to the police station which was only three furlong away from the place and lodged an F.I.R. at about 11.30 p.m. On the same day i.e. 28-4-1973. The sanction Ext. 22 under Section 6 of the Prevention of Corruption Act, 1947 was given by the Commissioner, Consolidation, U.P. and after completing the investigation the appellant was challened. In support of the case prosecution examined six witnesses. P.W. 1 Jaiprakash Decoy, P. W. 2 Tej Ra, P. W. 3 Om Prakash, P. W. 4 Harkhyal P. W. 5 Mohar Singh and P. W. 6 Ganesh Lal Verma were examined.
4. P. W. 1 Jaiprakash Decoy proved the application which he had preferred to Director Vigilance which is Ext. Ka-4 as well as proved the memo regarding the completion of formalities of signing of the currency notes by the City Magistrate which is Ext. Ka-5. This witness also proved Ext. 1/1 to 1/5 currency notes which he alleged to have given as bribe to the accused. He also proved the recovery memo Ext. Ka-6 which was prepared after recovery of money from the possession of the accused. In cross-examination, he stated that at about 2 p.m. he proceeded to Hapur. He thought to give the money immediately if the appellant was available at his residence. They proceeded on jeep to the residence of P. C. Rastogi. They left the jeep one hundred yards away from the house of the accused. P. W. 1 entered into the house and the remaining persons stopped near the stair case. P. C. Rastogi used to reside on the first storey. He reached on the first story leaving behind the other persons. P. C. Rastogi was not available and it transired that he had gone to Delhi and would return in the night. He disclosed that to the Deputy Saheb (P. W. 5). It also transpired that Sri P. C. Rastogi would leave for Delhi by the night train. He told this fact to P. W. 5. Thereafter they continued to wait for the arrival of P. C. Rastogi and at about 4 p.m. he saw P. C. Rastogi coming towards his house. He entered into his house. After a while he reached to him. Then he told the P. W. 1 Jaiprakash Decoy that some important persons were sitting, hence he should come at 10 p.m. in the night. In the night at about 9.45 p.m. the Decoy along with Deputy Saheb (P. W. 5) and other people moved towards the house of the accused. Near bus stand he saw P. C. Rastogi coming along with his wife on a rickshaw. He rushed towards him and stopped the rickshaw. P. C. Rastogi inquired from him as to why he was so late, whether he had brought the money? He told that according to the promise he had brought Rs. 500/-. Accused demanded the money which he handed over to him and told him that his work should be done. The accused said that decision would be in his favour. He was wearing the bush shirt and he kept the money with him. Later on, in cross-examination, he stated that at about four and a half in the evening he met the accused. After crossing the door he reached to the stair case and said "Go away this time as some important people are sitting. Come about 10 p.m. in the night." At that time except him and the accused nobody was present there. Once he had entered into the house. He could not say anything about the valuation of the house. He talked to him (accused) at the stair case. He could not watch as to who and where other persons were sitting in the house. Immediately he offered to pay him the money but the accused said "come at about 10 p.m.". He took out the money from his pocket and raised his hand towards him and said accept that, but he refused and said "come in the night." He further stated that conversation lasted for two minutes. In the cross-examination he also stated that the recovery memo was written on a register. When he was shown diary of the Court, which was in the nature of a bounded register, he said that register was like that. He also stated that the train by which he reached to Meerut from Lucknow on 28-4-73. Mohar Singh and others also travelled. He also stated that he accompanied P. W. 5 to the police station and reached there at 11 p.m.
5. P. W. 2 Sri Tej Ram supported the case of the prosecution and stated that P. W. 6 had taken him along with him on the said date. Jaiprakash reached the house at about 2.30 p.m. and he also accompanied him there but the accused was not there and he had gone out. The accused came back at 4 p.m. As soon as he saw the accused coming, P. W. 1 Jaiprakash was again sent to the accused and he remained below the staircase. Jaiprakash called the accused and the accused came and told Jaiprakash that some guests were present in his house and he would go to Lucknow by night train at about 10 p.m. Then again at 10 p.m. he proceeded towards the house of the accused, and in the way, he saw the accused coming on a rickshaw along with his wife. The accused asked Jaiprakash in the way, that why he had come late. P. W. 1 Jaiprakash said that he had come in time, then the accused asked Jaiprakash if he had brought the money and then Jaiprakash said that he had brought the money and told Jaiprakash that the case would be decided in his favour. The accused kept the money in his pocket. A tube light was there on the road. In the meantime Mohar Singh came and introduced himself and wanted to take the search of the accused. The accused tried to run away but he was arrested and a search was taken and the bribe money was recovered from the pocket of the bush shirt of the accused. A sum of Rs. 4,506.25 were also recovered from the pocket of the pant of the accused along with some papers and one revolver. One gun and one air gun was also recovered from his possession and a memo Ext. Ka-6 was prepared.
6. P. W. 3 Om Prakash who is a rickshaw puller in Hapur and stated that he did not recognise P. C. Rastogi and P. C. Rastogi was never arrested before him. He was declared hostile by the prosecution.
7. P.W. 4 Sri Harkhyal, Reader, has stated that he was the Reader of the accused in Upaira, District Meerut. He remained with him from September, 1972 to March, 1973. Sri Jauvad Ali was A.C.O. Sikhara. He further stated that he had brought the misilband register of Section 12 and at serial No. 16 of that register the case of Jaiprakash v. Permanand was entered and he had made that entry on 28-4-1973 and he also filed its extract Ext. Ka-7. He further stated that the original entry was in his handwriting and its copy was filed by him. He has further stated that the file which was received in his Court was first received by Ahalmad and Ahalmad used to obtain the signature of the Presiding Officer and after obtaining the signature the file was handed over to him and he used to enter it in the aforesaid register. H6 has further stated that the dakbahi of A.C.O. Sikhera was before him and at serial No. 719 the said file was received by Abdul Siraj Ahmad on 24-4-73 and it bears his signature and he had also identified his handwriting. Siraj Ahmad was working as Ahalmad in his Court and he had seen him writing. He has further signed its extract Ext. 8A. In cross-examination he said that he had no knowledge as to whether on 28-4-73 P. C. Rastogi visited the Court or not. His statement was recovered by Investigating Officer. When he was confronted with his statement recorded under Section 161, Cr. P.C. he stated that on 28-4-73 the Consolidation Officer did not attend to his office. When he was shown the file of the case i.e. Ext. Ka-1, after perusing the same he said that neither in the order-sheet nor anywhere the accused had put in his signature. The A.C.O. had invited the objections in his report. A.C.O. had passed an order on 4-4-1973 mentioning that on 3-5-1973 objections might be filed before Consolidation Officer. The A.C.O. on the declaration had written that within a month from the date of 4-4-1973 objections might be filed in his Court. On the report both the parties had put in their signature which was marked as Ext. Kha-1. The case was of a mutation. On Ext. Ka-8 which is 'Dakbahi' at serial No. 719, the case filed under Consolidation of Holdings Act, Attar Singh and Nauratan Singh v. Permanand is entered. In this entry 24-4-1973 is mentioned. In figure 4 that is the month of Arpil there is a over writing. He could not say that instead of six, four was interpolated. P.W. 5 Mohar Singh who on 26th and 28th April, 1973 was posted as Dy. S.P. Vigilance, Meerut stated that on 27-4-1973 Jaiprakash preferred an application to Director Vigilance stating that Sri P. C. Rastogi was demanding bribe from him. He sent a letter to the Home Secretary, U.P. Government on the same day. The Home Secretary accorded permission to lay the trap. The Director Vigilance also directed Radhey Shyam Sharma S.P. and Sri Y. N. Saxena to organise the trap. Thereafter Sri Y. N. Saxena S. P. Bareilly directed him to carry out the orders. He identified the signature of Radhey Shyam, Director Vigilance, Home Secretary Sri R. N. Trivedi and Sri Y. N. Saxena S. P. Vigilance which has been marked as Ext. Ka-9 to Ext. Ka-12. The compliance report is Ext. 12.
8. On the next date i.e. 28-4-73 he met the P. W. 1 at 10 p.m. the office of Commissioner, Meerut Division Meerut. The Commissioner was informed about the trap and was requested to sign over the currency notes which was intended to be given as a bribe and he was also requested either to sign the same or to get it signed by any other officer. The Commissioner called the City Magistrate, Meerut Sri P. K. Pandey and directed him to sign over the currency notes. He also submitted a report to the City Magistrate Ext. Ka-5 containing the details of the currency notes and in this application he was requested to sign the currency notes and returning it to Jaiprakash. The City Magistrate made the signatures over the currency notes. The numbers were noted down and the notes were returned to Jaiprakash. The currency notes were marked as Exts. 1/1 to 1/5. Proceedings were written on a piece of paper Ext. Ka-5 and a memo Ext. Ka-13 was prepared which bears the signatures of Sri Y. S. Saxena, S. P. Vigilance and also Jaiprakash.
9. Thereafter he proceeded on the jeep accompanying R. S. Rawat and Jaiprakash. As soon as he reached near the gate of the Collectorate, he collected Nahar Singh and Jairam along with him to act as witnesses. They reached Hapur at 2.30 p.m. near bus stand. They left the jeep and reached near the house of the accused. Jaiprakash entered into the house of the accused. The remaining persons remained nearby. Jaiprakash was told that accused had gone to Delhi and was expected to come back a few hours later. They returned back and reached there at 4.30 p.m. when they came to know that accused had come. Jaiprakash reached the top of the staircase and called the accused. As soon as accused came out Jaiprakash informed him that he had brought the money but the accused stated that some guests were present in his house, so they might visit as about 9.30 p.m. The accused also informed that he was proceeding for Lucknow by the same night at about 9.30 p.m. They again reached towards the house of the accused and when they reached near bus stand they saw that the accused was coming along with his wife. Jaiprakash met the accused and the other witnesses remained nearby. Jaiprakash informed the accused that he had brought the money as promised and now his work should be done. He handed over the currency notes 1/1 to 1/5 to the accused who accepted it and kept it in the pocket of bush shirt. The entire incident was witnessed in the street tube light and they also heard the conversation which took place. Thereafter the said witnesses after introducing themselves made a search. The accused wanted to flee away but was arrested by the trap party. On a search, currency notes Ext. 1/1 to 1/5 were recovered from the pocket of the bush shirt of the accused. The sum of Rs. 4508.25 paise, cash memos Exts. 14 to 16 and a revolver loaded with six cartridges and a belt containing cartridges, a gun and an air gun were also recovered from his possession. The recovery memo Ext. 6 was written on the spot which bears his signatures and the signatures of the witnesses. He also lodged a written report about the incident which is Ext. Ka-17 which was written by him.
10. On 30-4-73 he took in possession file No. 16 Jaiprakash v. Parmanand and also file No. 1921 under Section 9A(2) of U.P.C.H. Act Ram Chandra v. Permanand from the office of Consolidation Officer, Upaira. He also prepared its memo Ext. Ka-18 which bears the signatures of Harkhyal Singh A.C.O.
11. In his cross-examination P. W. 5 admitted that in the year 1965 he was posted at Meerut. Prior to this he was posted as Inspector at Hapur. On 26th April, 1973 he came to Lucknow from Meerut and was present in the Vigilance Office on 27th April, 1973 in the office of the Vigilance. He further stated that on 27-4-1973 he had come for some official work but does not remember as to what was the nature of work. The work of Vigilance is secret in nature. He talked to Jaiprakash for some time and it was decided as to when and in what manner they had to proceed. He did not sit in time with Jai prakash but Jaiprakash had told him that on 28-4-73 the accused had demanded money from him. He further stated that Jaiprakash did not accompany him. Sri Y. N. Saxena and Sri R. S. Rawat did not accompany him from Lucknow. He denied to have brought Jaiprakash to Lucknow on 26th April, 1973. He further said that he stayed at the site of occurrence for half an hour and the recovery memo was prepared in duplicate on the spot around 10.15, they left the place and within five or seven minutes reached to the thana. He asked the accused to sign the recovery memo but he did not consider it necessary to mention the same in the recovery memo. The notes which were recovered were not sealed as the same was not required to be sealed. He did not mention the other articles, which were on rickshaw, except the notes, in the recovery memo but the same were deposited at police station. The first information report was written at the police station. He took one hour in writing the first information report. He did not file the recovery memo in the police station as it was not considered necessary. He denied the suggestion that the same was not filed for the reason, that till the writing of the report, the recovery memo was not prepared, hence it was riot filed. He did not report the entry of the accused as well as filed the recovery memo as soon as he reached to the police station but the entry was made into the police station along with the first information report. He denied the suggestion that as the case was to be concocted hence the entry of the accused was not report and the recovered articles were not recorded deposited in the thana earlier.
12. He admitted that he knew Mahendra Singh Verma Advocate. He knew him before the trap was laid down. He did not know as to whether he practiced in Consolidation Court or not. He did not know that Jaiprakash was a man of Mahendra Singh Advocate. He denied the suggestion of the defence that they had concocted and fabricated the ease against the accused.
13. P. W. 6 Dinesh Lal Verma, who was posted as Dy. S. P. Vigilance, Bareilly in 1973 stated that he began the investigation of the case on 12-5-73. He prepared the site plan Ext. Ka-22. He also took the signatures of Jaiprakash and other witnesses. On 13-8-74 he presented the papers before Sri P. R. Vyasbhiman Consolidation Commissioner for sanction of the prosecution of the accused and after obtaining the sanction he submitted the charge-sheet Ext. Ka-21 which is his handwriting and it bears his signature. He has further stated that the Commissioner, Consolidation after perusing all the papers accorded sanction for prosecution of the accused.
14. P. W. 7 Shyam Lal who on 2.8th April, 1973 was posted as Head Moharrir in the police station stated that on the said date, Mohar Singh, Dy. S. P. Vigilance lodged the written report, deposited the case property and the accused was also produced at about 11.30 p.m. He registered the case as Crime No. 197 under Section 161, I.P.C. read with Section 5(2) of the Prevention of Corruption Act. The first information report was written by him and it is in his own handwriting. The general diary of the case was also there and he had written a general report in it which is Ext. Ka-24. In cross-examination he also admitted that Mohar Singh was earlier posted as Inspector in Hapur.
15. Mr. P. R. Vyas Bhimen who was Consolidation Commissioner at the relevant time was also summoned and examined as a Court witness. He stated that he accorded the sanction for prosecution after perusal the prosecution which was marked as Exts. Ka-22 and 23A which also bear his signature.
16. The accused in his statement stated that he was falsely implicated in the case. No case as alleged by Sri Jaiprakash was pending in this Court and he never demanded by bribe from him. He was implicated in that case on account of enmity and the bribe momey was never recovered from his possession. He did not plead guilty to the charge under Section 161, I.P.C. and also under Section 5(2) of the Prevention of Corruption Act.
17. The accused further in his statement recorded under Section 313, Cr. P.C., staled that no case of Jaiprakash was pending in his Court and he had no knowledge about the same. He has also stated that the sanction for prosecution is illegal. He had animosity with one Mahendra Singh Advocate, who used to adopt intimidatory tactics, against which he had reprimanded him. Mohar Singh was on enemical terms with him. Mahendra Singh and Mohar Singh were known to each other and belonged to the same group and thus they implicated him in the case. All the witnesses belonged to the same group and were known to each other, as such they were giving false evidence against him under the influence of Mahendra Singh and Mohar Singh. He further stated that he was forcibly taken to the police station and no money was recovered from his possession. The money and arms were taken by Mohar Singh from his house.
18. From the side of the defence Smt. Gyan Laxmi D.W. 1 who is the wife of the accused stated that on 28-4-1973 in the night at about 9.30 p.m. she was going along with her husband on a rickshaw to Railway Station to pick up the train for Lucknow. One person rushed towards her husband, caught hold of him and pulled him out from the rickshaw and took him to police station. She protested against the said action and she got injuries, in the scuffle. Her husband never demanded any money, any bribe from Jaiprakash and the currency notes as alleged were never recovered from him. Her husband was detained at the police station. Thereafter the trap party made a search of her house and had taken away one gun, one air gun, as well as Rs. 4508.25 paise which were kept in the Almirah. Her injuries were examined by the doctor and the injury report is Ext. Ka-1. D.W. 2 Krishna Chand Agarwal was also examined as a defence witness. He deposed in the year 1971 he practiced in Meerut and since the year 1972-73 he had been practising at Hapur, in Consolidation Courts. He stated that he used to appear before the Court of Consolidation Officer, Upaira who had reputation of being a strict and honest officer. He supported the case of the defence by deposing that one Mahendra Singh Advocate who was also practising at Uparia used to intimidate and bully the accused. The accused had reprimanded him for his conduct. He stated that Mahendra Singh, Tej Ram, Jaiprakash and Mohar Singh belonged to the same group. He also stated that he was engaged as a lawyer in a case Ram Chandra v. Permanand in which he also filed his power marked as Ext. Kha-2. He was the counsel of the defendant and the case was decided ex parte in favour of the defendant. The plaintiff had preferred an application for restoration of the case on the same day the case was adjourned for 8-5-73. He also stated that he was not the counsel on behalf of any of the parties in the case of Jaiprakash v. Permand, Jaiprakash had intimated an him that his case was pending in the Court of Assistant Consolidation Officer which would come up before the Court of Consolidation Officer after fifteen or twenty days and then he would instruct him to act as his lawyer.
19. It was vehemently argued by Mr. Permeshwar Dayal Advocate counsel of the defence that no case as alleged was pending in the Court of the accused and hence there existed no occasion for him to demand any bribe from Jaiprakash. P. W. 3 Sri Harkhyal who was the Reader at the relevant time has deposed that the file which was received in his Court was first used to be received by the Ahalmad and Ahalmad used to obtain the signature of the Presiding Officer and after obtaining the signature the file was handed over to him and he used to enter it into the aforesaid register. A perusal of the file indicate that the Presiding Officer did not put his signature, anywhere on the file. It simply means, that the file was never produced before him. P. W. 4 Harkhyal, when shown the file of the case Ext. Ka-1, he after perusing the same deposed that neither in the ordersheet nor anywhere the accused had put in his signature. He also stated that the Assistant Consolidation Officer in his report had invited the objections, although in the said report or order dated 4-4-1973 the Assistant Consolidation Officer mentioned that on 3-5-1973 objections might be filed before the Consolidation Officer, but on the declaration or notice he had written that within a month from that day i.e. 4-4-1973 objections might be filed in his Court. This witness also admitted that in the entry at serial No. 719 of the dakbahi Ext. Ka-8 there is an over writing. The counsel of the defence urged that in view of the fact that the file was never produced before the accused and he never put his signatures, the entries in the register regarding the receipt of the case to the Court of the accused was fictitious.
20. Sri Anadi Banerji learned Public Prosecutor submitted that the case was a contested one and the Assistant Consolidation Officer had no jurisdiction to decide the said case and the case had to come to the Court of Consolidation Officer i.e. accused, for decision, and hence he was in a position to show an undue favour to Jaiprakash. He also stated that another case pertaining to the same land was pending in the Court of the Consolidation Officer. The ordersheet also goes to show that the Assistant Consolidation Officer directed the parties to appear before the Consolidation Officer on 3-5-1973. The learned Sessions Judge in his judgment has mentioned that there existed some interpolation regarding the date of the receipt of the file, as 24.4 has been made as 24.5. But this interpolation appears to have been made later on. Because subsequent entries in the same dakbahi are of 2.5., so 24.4. could not be read as 24.5. which goes to show that the file was received in the Court of the accused on 24.4. It was urged that in the declaration or notice the Assistant Consolidation Officer had written that within a month from the date of 4-4-1973 objections might be filed in his Court, it cannot be said definitely that the case was not pending in the Court of Consolidation Officer.
21. No doubt, in the ordersheet the Assistant Consolidation Officer has mentioned that on 3-5-73 objections might be filed before the Consolidation Officer. The question as to whether the file was received in the office of the Consolidation Officer or not is to be seen in the light of the statement of P. W. 4 Harkhyal Singh who stated that the file which used to be received in his Court was first received by Ahalmad and Ahalmad after obtaining the signature of Presiding Officer, used to hand over the file to him and he used to enter it in the aforesaid register. The perusal of the file indicate that neither in the ordersheet nor anywhere over the file the Consolidation Officer, namely accused had put in his signatures.
22. In view of the aforesaid statement of P. W. 4 Harkhyal as well as over writing, in the date of the receipt of the file it cannot be positively said that the case was pending in the Court of the accused. It was submitted on behalf of the State that in view of the fact that the case was contested one and a case pertaining to the same land was pending in the Court of the accused, the accused could have a reason to believe that the case would ultimately come before him and, therefore, he was in a position to show undue favour by asking bribe from Jaiprakash. This may be so but in a criminal case, it is the duty of the prosecution to prove the case beyond any reasonable doubt. It cannot be said definitely that on the relevant date any such case was pending before the Court of the accused and he had the knowledge about the same. But in view of the fact that the case was a contested one and would ultimately had to come up for disposal before the Court of the accused, it can also be said that the accused was in a position to show undue favour to Jaiprakash Dacoy. Hence the fate of this appeal hinges on the reply to the question as to whether the petitioner demanded a bribe from Jaiprakash Dacoy and received a sum of Rs. 500/- as bribe from Jaiprakash Dacoy or not.
23. In this regard statement of Jaiprakash Dacoy P. W. 1 is very material. He admitted in cross-examination that at about 4.30 p.m. in the afternoon he met the accused but as soon as the accused after crossing the door, reached the staircase, said "go away this time, as some important people are sitting. Sometime about 10 p.m. in the night." According to him at that time only he and the accused were present. At that time nobody except them were present there. He talked to the accused at the stair-case. He offered to pay him the money but he again said "come about 10 p.m." He (Jaiprakash) had taken out money from his pocket and raised his hand towards the accused and said "Accept this (amount)", but he refused and said "Come in the night." Jaiprakash further stated that the said conversation lasted for two minutes.
24. In case the appellant had demanded Rs. 500/- from Jaiprakash Dacoy as a bribe for deciding the case in his favour, there existed no reason as to why at the stair-case when nobody was present, and they remained there for two minutes, the accused did not pocket the amount. The explanation that some important people were sitting in his house so he did not accept the amount, does not appeal to reason. As the persons were sitting inside the house and bobody was present, when the dialouge between the accused and Jaiprakash at the stair-case, took place there existed no justification for the accused to have refused to accept the amount if he actually wanted to take the bribe. The prosecution has failed to explain as to why when the accused and Jaiprakash Dacoy, were alone the accused did not accept the amount but in full public view, on a public street in presence of rickshaw puller and persons standing nearby (witnesses) at about 9.45 p.m. when the accused along with his wife was going to station to catch the train for Lucknow would accept the bribe. It also does not appeal to reason as to why, while going to Lucknow the accused would be carrying a pistol, a gun and a air gun. It could be very well understood that while going to Lucknow, he would have carried a pistol but taking up of other arms along with him does not appeal to reason. In this regard the statement of Smt. Gyan Laxmi D.W. 1 that the arms were recovered by the trap party from her house after the arrest of the accused appears to be more probable.
25. It has been the case of the prosecution that the recovery memo was prepared at the spot in the street light, in presence of the witnesses including P. W. 1 who in his cross-examination at page 21 stated that recovery memo was written by Deputy Saheb but he did not know as to whether he wrote the same by pencil, pen or dot pen. P.W. 5 Mohar Singh in his cross-examination stated that he did not deposit the recovered articles in the thana as soon as he reached the police station but deposited the same after completion of the first information report. P.W. 7 Shyam Lal who was Head Moharrir at the relevant time stated that on that date Mohar Singh Dy. S. P. Vigilance along with a written report in Hindi, Pooran Chand Rastogi and the articles came were brought to thana at 11.30 p.m. and on the basis of the said report a case was registered. His statement clearly indicate that the recovery memo was not furnished or filed at that time and the recovered property was not deposited immediately. There exists no reason as to why if the recovery memo was prepared at the spot around 10.15 or 10.30 p.m. the property was not deposited to the police station at once. This omission raises a doubt that the recovery memo was not prepared at the spot but was prepared at the police station.
26. It has been admitted by Mohar Singh that in the year 1965 he was posted at Meerut and before this in the year 1965 he was posted at Hapur as Police Inspector. On 27-4-1973, the date on which Jaiprakash lodged the report in the office of Director Vigilance against the accused regarding the demand of the accused for bribe he had come to Lucknow from Meerut and was present in the Vigilance Officer on 27th April, 1973 he met Jaiprakash in the office of the Vigilance but he stated that he did not remember as to what was the nature of the work for which he had come to Lucknow. He tried to wriggle out by stating that the work of Vigilance used to be secret. He also stated that Jaiprakash did not go to Lucknow along with him. He denied that on 26th April, 1973 he had brought Jaiprakash to Lucknow. P.W. 1 Jaiprakash, in cross-examination, stated that the train from which he reached to Meerut from Lucknow on 28th April, 1973 Mohar Singh etc. also travelled. P.W. 5 Mohar Singh further admitted that he knew Mohendra Singh Advocate before the trap. If P.W. 5, Mohar Singh would have been a truthful witness, he would have very well explained to the Court the nature of the official work for which he came to Lucknow from Meerut on 27th April and admitted the fact that from Lucknow he travelled to Meerut along with P.W. 1.
27. The circumstance that Jaiprakash as well as Mohar Singh reached Lucknow from Meerut on 27th April, 1973 and returned to Meerut on the same day by the same train, as well as the admission of Mohar Singh that he knew Mahendra Singh Advocate against whom the accused alleged enmity prior to the said trap coupled with the case of the defence that the appellant was framed up by Mahendra Singh and Mohar Singh raise a suspicion and doubt about the correctness of prosecution story and the frame up of the appellant cannot be ruled out.
28. It has come in the evidence that the relevant time when the trap was laid a large number of persons assembled. None of persons, present on spot were cited as witnesses. Even in the recovery memo only the name of P.W. 5 Mohar Singh, Nahar Singh who was not produced, P.W. 1 Jaiprakash and P.W. 2 Tejram and another find mention.
29. P.W. 1 Jaiprakash, P.W. 5 Mohar Singh are clearly interested witnesses, as they were responsible for laying the trap. As far as testimony of P.W. 2 Tejram is concerned, who was picked out from near the Collectorate, by P.W. 5 Mohar Singh at the instance of one Nahar Singh, who was not produced, does not inspire confidence. In cross-examination he stated that (near Collectorate) Nahar Singh asked him that C.O. Saheb belonged to his circle, tell him (P.W. 5) about him (The C.O.). He (P.W. 2) stated that without taking something he did not do any work. He (The C.O.) enjoyed such a reputation in the circle. He admitted that he had come to Collectorate to obtain a copy from the record room. When Dy. S. P. (P.W. 5) told him the story (regarding the accused) and said that the accused was to be arrested while taking bribe, he (P.W. 2) believed the same. Hence he did not go to attend his work and proceeded along with Dy. S. P. Saheb. He further stated that he did not recollect, as to who had told him the fact regarding the dishonesty of the C.O, Saheb. This part of his statement shows that he (P.W. 2) went to spot at the behest of P.W. 5 Mohar Singh and Nahar Singh, with a preconceived notion that the accused was a dishonest officer who never did any work without taking bribe. He, although, had denied that he knew the Dacoy Jaiprakash from before but he admitted that Jaiprakash had told him that he belonged to village Vankheda. He stated that he (P.W. 2) belonged to village Mubarakpur, which is at a distance of five miles from village Vankheda. He also admitted that there is a bazaar between the two villages. In view of his statement mentioned above he cannot be said to an independent and reliable witness. He was specially picked out by the Dy. S. P. Vigilance to be a witness of the trap and this he cannot be said to be a natural witness of the occurrence.
30. The case of the prosecution, entirely rests on the evidence of the witnesses, who are either police witnesses or interested witnesses. The prosecution has failed to produce independent and respectable witnesses to prove its case beyond any shadow of doubt. The prosecution has admitted that a large number of persons assembled on the spot at the time of the search. At least one or two could have been asked to be a witness to the search. But the prosecution did not even avail this opportunity. This Court cannot rely on the interested evidence of P.W. 1, P.W. 2 and P.W. 5 for purposes of holding that a sum of Rs. 500/- was paid by the Dacoy to the appellant by way of bribe.
31. In the case of Raghbir Singh v. State of Punjab, AIR 1976 SC 91 : (1976 Cri LJ 172) Hon'ble Mr. Justice P. N. Bhagwati speaking on behalf of Bench held as under :
The Officers functioning in the anti corruption department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the Court is not left in any doubt as to whether or not, any money was paid to the public servant by way of bribe. They should insist on observing this safeguard for the protection of public servants against whom a trap may have been laid. In the present case the search witnesses were interested witnesses and, therefore, their evidence with regard to the giving of bribe and the recovery of the amount from the person of the accused was not relied upon.
32. The prosecution story as well the statement of prosecution on witnesses does not inspire confidence in the mind of this Court also for the reason of the fact that on the appointed date, to receive the bribe the accused in spite of the fact that he was all alone at about 4.30 p.m. at the stair-case of his house when P.W. 1 Jaiprakash came to him, would refuse to accept the bribe but in full public view on a public street in presence of the rickshaw puller and persons standing nearby, while he was going to board the train along with his wife he would have accepted the bribe.
33. In an era of scientific investigation, the prosecution has failed to show any reason as to why chemical process was not utilised by it. It is a common knowledge that upon application of phenolphthalein powder, on the currency notes the finger prints of an accused could easily be found. In this case if the same test would have been applied it would have been a conclusive proof of the fact as to whether the accused accepted the bribe or not. But instead of applying this chemical test, the prosecution has mainly rested his case only upon the oral testimony of the witnesses. In a similar situation, Hon'ble Supreme Court in the case of Raghubir Singh, (1976 Cri LJ 172 at P. 179) (supra) indicated as under after relying upon the case of Som Prakash v. State of Delhi, (1974) 3 SCR 200 : (1974 Cri LJ 784) :--
We may take this opportunity of pointing out that it would be desirable, if in cases of this kind where a trap is laid down for a public servant, the marked currency notes, which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the Court does not have to depend on oral evidence which is sometime of a dubious character for the purpose of deciding the fate of the public servant. It is but meet (sic) that science-oriented detection of crime in made a massive programme of police, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only, thereby discouraging liberal use of scientific research to prove guilt.
34. As the currency notes which were alleged to have been given to the appellant as bribe were not treated with the phenolphthalein in powder and the oral evidence as indicated above does not inspire confidence, it is not proved that the appellant asked and accepted the bribe from Dacoy.
35. It was next submitted by the Counsel Mr. Permeshwar Dayal for the appellant, that no proper sanction was accorded for the prosecution of the accused. The thrust of his argument is that admittedly the sanction was accorded by Mr. P. R. Vyas Bhimen who was Consolidation Commissioner at the relevant time but as the petitioner was not removeable from his office by or with the sanction of the State Government the sanction accorded by Mr. P. R. Vyas Bhimen is non est. It is pertinent to state here that the sanction for prosecution was accorded under Section 6 of the Prevention of Corruption Act, 1947.
36. The question, as to whether the accused could be removed from his office by the Commissioner Consolidation was also a subject matter of a claim petition No. 515(1) of 1980 preferred by the accused before the U. P. Public Services Tribunal.
37. It was averred on behalf of the Additional Public Prosecutor that against the order of the sanction passed by the Commissioner Consolidation the appellant preferred an application before the Special Judge Anti-Corruption (West), U. P., Lucknow in Case No. 11 of 1974 which was dismissed on 18-3-1978. Aggrieved against the aforesaid order the appellant preferred a criminal revision bearing No. 157 of 1978 before the Hon'ble High Court. In the said revision the appellant challenged the sanction for the prosecution more or less of the same ground. On March 7, 1979 Hon'ble Mr. Justice Mahavir Singh, as he then was, dismissed a revision preferred by the appellant. The Additional Public Prosecutor contended that now it is not open for the appellant to challenge the sanction as the controversy has been set at rest by the High Court.
38. I have perused the judgment and order dated March 7, 1979 passed by Hon'ble Mr. Justice Mahavir Singh. The operative portion of the order indicated as under:--
The contention of the applicant is that the termination and fresh appointment by the Commissioner was invalid and he would continue to remain appointed by the previous order dated 15-1-1957. This contention cannot be accepted. So long as these orders are not. set aside, they will have a force.
39. In view of the fact that the order of termination of service of the petitioner passed by the Consolidation Commissioner was declared as non est by the U. P. Public Services Tribunal and the Tribunal declared that the appellant shall be deemed to have continued in service, it cannot be said that the appellant was removeable by Commissioner Consolidation, U. P.
40. The accused was initially appointed as Assistant Consolidation Officer by the Consolidation Commissioner, U. P. vide order dated 14-3-1955. He was later on appointed promoted to the post of Consolidation Officer by the State Government under Notification dated 15-1-1957. On 13-1-1955 his services were terminated by the Consolidation Commissioner. Thereafter he was again appointed as Consolidation Officer by the Consolidation Commissioner, U. P. vide his order dated 8-9-1966. The contention of the petitioner in that claim petition was that the Consolidation Commissioner, U. P. had no authority to pass an order of termination as his appointment was made by the State Government; the Consolidation Commissioner was a lower authority and was not competent to terminate his services. The order of termination dated 13-1-1965 passed by the Consolidation Commissioner was declared void ab initio by the Tribunal in the said claim petition and it was directed that the petitioner shall be deemed to be continued in service with all service benefits including pay and allowances etc.
41. Against the order of the Tribunal the State of U. P. preferred a writ petition bearing Writ Petition No. 1984 of 1984. In the said writ petition it was averred that in partial modification of Notification No. 3507/1-A-254/56 dated November 1, 1957 and in exercise of the powers conferred by Section 44 of the U. P. Consolidation of Holdings Act the Governor of Uttar Pradesh was pleased to delegate the powers of the State Government to appoint Consolidation Officers under Section 3(3) of the aforesaid Act, to the Consolidation Commissioners and power under the said Act to exercise the power of Director of Consolidation by means of the Government Order dated 6th January, 1960. A perusal of the said notification which has been annexed along with the writ petition is Annexure 6 which indicates that this delegation was limited to the extent that Consolidation Commissioner, U.P., Lucknow will not inflict upon the punishment over those who were appointed by the Board. It was also indicated in the Government Order that the cases of such persons would be referred to the Government for orders. Thus it is clear that by means of the notification dated January 6, 1960 the petitioner was not removeable from his office say by Consolidation Commissioner. The aforesaid writ petition was also heard along with this criminal appeal by this Court. The writ petition filed by the State of U. P. was dismissed and the order of the U. P. Public Services Tribunal was upheld. It was also held in the aforesaid writ petition that by means of a subsequent notification the delegation and authorisation in favour of Consolidation Commissioner in order to make appointment cannot confer upon him the power to terminate.
42. In this view of the matter the sanction accorded by Consolidation Commissioner for prosecution is non est as the petitioner was not removeable from his office, say by Consolidation Commissioner.
43. In the result the appeal succeeds and is allowed. The impugned order dated 7-12-1982 passed by Special Judge, Anti-Corruption (West), U. P., Lucknow is set aside, and the conviction and sentences against the appellant are quashed and the appellant is acquitted of the offences levelled against him. He is on bail. He need not surrender. His bail bonds are discharged.