Punjab-Haryana High Court
Gurcharan Singh vs State Of Punjab on 4 September, 2009
Criminal Appeal No.2434-SB of 2007 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.2434-SB of 2007 (O&M)
Date of Decision:04.09.2009
Gurcharan Singh
.....Appellant
Vs.
State of Punjab
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. D.S. Pheruman, Advocate for the appellant.
Mr. T.S. Salana, Deputy Advocate General, Punjab.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment/ order of sentence dated 27.11.2007 passed by the Court of learned Special Judge, Fatehgarh Sahib, whereby he convicted and sentenced Gucharan Singh accused to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,500/- under Section 7 of the Prevention of Corruption Act, 1988 (for brevity, `the Act') and in default of payment of fine, to further undergo rigorous imprisonment for three months and also sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,500/- under Section 13 (2) of the Act or in default of payment of fine, to further undergo rigorous imprisonment for three months.
The facts in brief are that Kuldip Singh complainant was intending to keep weapon for his own safety as well as for the safety of his Criminal Appeal No.2434-SB of 2007 (O&M) -2- family members. After completing all the formalities to obtain arms licence, he submitted an application in the Office of Deputy Commissioner, Fatehgarh Sahib. He had applied for issuance of Double Barreled Gun. For his character verification, the relevant papers were sent by the Office of Senior Superintendent of Police, Fatehgarh Sahib to Police Post Peer Jain. Gurcharan Singh ASI (Accused) being In-charge of the aforesaid police post, had summoned the complainant to the Police Post. After writing the particulars on the paper, this ASI handed over the same to the complainant for getting the same verified from Sarpanch and Numberdar of the village. After verification by Sarpanch Achhar Kaur and Numberdar Karamjit Singh, the relevant papers were returned back to the aforesaid ASI. On 16.5.2005, this ASI again summoned the complainant to the Police Post and told the latter that in case he wants arms licence, then for that purpose, he will have to spend something. To the query by the complainant, it was answered by the ASI that he will have to pay an amount of Rs.3,000/-. The complainant said that he being a small farmer is unable to pay this amount. Then the amount was settled at Rs.2,000/- which being not readily available with the complainant, he was directed by the ASI to visit the Police Post on the next day afternoon with the said amount. The complainant by making a false promise to pay Rs.2,000/- as illegal gratification went back to his village. He was unwilling to pay illegal gratification. He had a talk with Jaspal Khan that the accused is demanding Rs.2,000/- as illegal gratification to make report. The latter suggested the former not to pay illegal gratification and asked him to approach the Vigilance Bureau. Then both went to the Office of Vigilance Bureau, Fatehgarh Sahib where they presented Rs.2,000/- before DSP to initiate action against the ASI. The Criminal Appeal No.2434-SB of 2007 (O&M) -3- statement of Kuldip Singh was recorded. The usual formalities were observed. The complainant as well as the shadow witness Jaspal Khan went to the office of accused. The other members of the raiding party stayed at some distance in scattered position. On demand, the complainant delivered the marked currency notes to the accused. On receipt of the appointed signal from the shadow witness, the other members of the raiding party went inside the office of the accused. Jai Pal Singh disclosed his identity as DSP Vigilance to the accused. Again certain formalities were observed. The numbers of recovered currency notes were tallied with the numbers of the currency notes already noted in the memo through an official witness. The currency notes were seized vide separate memo. On personal search of the accused, one mobile phone with one ball pen was recovered. The same were also taken into possession vide separate memo. The shirt of the accused was got removed. The right pocket of the same was washed off in the solution, colour of which changed to light pink. The solution was transferred into a nip, which was sealed with seal bearing impression `JPS'. The parcels containing the shirt as well as the nip were also seized. The relevant file concerning licence of the complainant lying on the table was also taken into possession vide separate memo. The accused was put under arrest. After completion of investigation, the charge- sheet was laid in the Court for trial of the accused.
The accused was charged under Sections 7 and 13(2) of the Act, to which he did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution examined PW1 HC Major Singh, PW2 HC Gurbhej Singh, PW3 Kuldip Singh, PW4 Jaspal Khan, PW5 Amandeep Singh, PW6 Kuljit Singh, PW7 Gian Singh, PW8 HC Criminal Appeal No.2434-SB of 2007 (O&M) -4- Satpal, PW9 Karamjit Singh and PW10 Jai Pal Singh Investigator and closed its evidence. When examined under Section 313 of Cr.P.C, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. He put forth that on 17.5.2005, Kuldip Singh along with Achhar Kaur Sarpanch and Karamjit Singh Numberdar came to the Police Post Peer Jain at 2:00 P.M. The statements of Achhar Kaur Sarpanch as well Karamjit Singh Numberdar were recorded regarding verification of antecedents of Kuldip Singh on the report regarding arms licence. The report was to be submitted to the higher officers. Illegal gratification was neither demanded nor accepted. Achhar Kaur and Karamjit Singh remained in the Police Post Peer Jain from 2:00 P.M to 5:00 P.M. Kuldip Singh is a close confident of Sadhu Singh Jathedar of Akali Dal Mann (Amritsar). Sadhu Singh had earlier made applications which after investigation by the Vigilance Department were found to be false. The case under Section 182 of IPC was registered against Sadhu Singh for filing such applications. Sadhu Singh Jathedar was inimical towards him(accused). The case was got registered by him by introducing Kuldip Singh. In his defence, he examined DW1 Achhar Kaur, DW2 Dilbagh Singh, DW3 Bhupinder Singh, DW4 HC Kashmiri Lal, DW5 Harbans Singh, DW6 Charanjit Singh and DW7 HC Jagroop Singh.
After hearing the learned Public Prosecutor for the State, the defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal.
Criminal Appeal No.2434-SB of 2007 (O&M) -5-
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
On behalf of the appellant, it has been eloquently urged that admittedly, the appellant was working as an ASI on the day of alleged occurrence, i.e., 17.5.2005. He was promoted as ASI with the approval of the DIG, Ludhiana. Any sanction obtained from SSP for prosecution of the appellant without getting any approval of DIG is illegal and cannot be sustained in the eyes of law. Thus, the Special Court could not take the cognizance of the offence unless and until, there was a legal and valid sanction to prosecute the appellant.
To tide over this submission, the learned State Counsel maintained that the SSP being the appointing authority of the appellant has accorded sanction. He further punctuated that approval of DIG was not required.
I have given a deep and thoughtful consideration to these submissions. Ex.PW7/(1-12) are the relevant entries made in the service book of the appellant. As per the same, he was initially recruited as Constable by SSP. Vide entry dated 2.12.1988 signed by SSP Ropar, the appellant was promoted to the rank of officiating HC purely on temporary and ad hoc basis with effect from 24.11.1988. In this entry, it has been mentioned that he will be reverted to his substantive rank of Constable without the formality of show cause notice. Arguendo, learned counsel for the appellant showed a copy of letter No.14536-42 dated 2.5.1993 and on the basis of it, he argued that as per this order, the appellant was promoted to the rank of officiating ASI by Deputy Inspector General of Police, Ludhiana Range, Ludhiana and that being so, approval of the said DIG was Criminal Appeal No.2434-SB of 2007 (O&M) -6- required in the matter of sanction. In this order, it has been mentioned that the name of HC Gurcharan Singh is hereby approved for his out of turn fortuitous promotion to the rank of officiating ASI. This clearly indicates that this approval was obtained merely to give out of turn fortuitous promotion to the officiating rank, but not to the permanent rank. He could be reverted back to his substantive rank of Head Constable at any moment. The Senior Superintendent of Police being the appointing authority, to the rank of Constable or Head Constable, the sanction was not required to be accorded by the D.I.G. Thus, this contention being bereft of any merit is turned down.
The next argument having been raised by the learned counsel for the appellant is that admittedly, the draft of sanction was got prepared from the Vigilance Department, which is a prosecuting agency. This practice is required to be deprecated. It is admitted by PW6 Kuljit Singh that the draft which was sent by the Vigilance Bureau to the Department was signed as it is, by Varinder Kumar SSP without making any addition or omission therein, which clearly shows that this sanction has been obtained in a mechanical manner without application of mind. Thus, this sanction being illegal and invalid vitiates the trial of the appellant. I regret my inability to be one with the learned counsel for the appellant. Kuljit Singh (sic.) has stated in categoric terms that the aforesaid SSP granted sanction after perusing the file and after applying his mind. He further stated that I identify signatures of Shri Varinder Kumar SSP on the sanction order Ex.PW6/A. Of course, in his cross-examination, he has testified that "alongwith letter No.8776 dated 28.7.2005 which was received in our office on 3.8.2005 vide dairy No.9586/A draft of the sanction was also sent by the Criminal Appeal No.2434-SB of 2007 (O&M) -7- Vigilance Bureau with the letter and no alteration or addition was done in the draft. As ruled in re: Paul Varghese v. State of Kerala (2007) 14 Supreme Court Cases 783, the effect of Sections 19(3) and (4) of the Prevention of Corruption Act, 1988 is of considerable significance. In Section 19(3), the stress is on "failure of justice" and that too "in the opinion of the Court." In Section 19(4), the stress is on raising the plea at the appropriate time. Significantly, the "failure of justice" is relatable to error, omission, or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is not considered fatal, unless it has resulted in failure of justice or failure of justice has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of the jurisdiction. Section 19(3)(c) reduces the rigour of prohibition. Further in re: Parkash Singh Badal v. State of Punjab, (2007) 1 Supreme Court Cases (Criminal) 193, it has been observed that the sanction in the instant case related to the offences relatable to the 1988 Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former can be agitated at the threshold, but the latter is a question which has to be raised during trial.
Adverting to the facts of the instant case, a glance through the trial Court's record would reveal that it was not agitated during the trial that the said sanction suffers from invalidity on account of non-application of mind. It is worth pointing out here that as already noticed Kuljit Singh (sic.) has stated in no uncertain terms that SSP Fatehgarh Sahib had granted the sanction after perusing the file and after applying his mind. Also in re:
Romesh Lal Jain v. Naginder Singh Rana, (2006)1 Supreme Court Cases 294, it has been held that if the complainant or the accused can Criminal Appeal No.2434-SB of 2007 (O&M) -8- demonstrate such an order to be suffering from non-application of mind, the same may be called in question before a competent Court of law. In re:
Lalu Prasad v. State of Bihar, (2007)1 Supreme Court Cases 49, it has been observed that in a case where it is seen that a sanction order has been passed by an authority who is competent under the law to represent the State Government, the burden is heavy on the party who challenges the authority of such order to show that the authority competent to pass the order of sanction is somebody else and not the officer who has passed the sanction order in question.
Reverting back to the present one, a meticulous perusal of the entire record would reveal that it was not challenged before the learned trial Court that SSP was not competent to grant sanction. This is for the first time that this plea has been raised before this Court. In re: R. Sundararajan v. State, 2006(12) Supreme Court Cases 749, it has been observed that "the order granting sanction shows that all the available materials were placed before the sanctioning authority, who considered the same in great detail. Only because some of the said materials could not be proved, the same by itself, would not vitiate the order of sanction." In the present one, it has not been pointed out on behalf of the appellant as to which material was not placed before the SSP. In re: State of Karnataka v. Ameerjain, (2007)11 Supreme Court Cases 273, the sanction was given solely on the basis of report made by IG Police. The materials collected during investigation were not available before the sanctioning authority. It was held that the sanction order must be demonstrative of the fact that there had been proper application of mind on the part of sanctioning authority. The materials collected during investigation which would prima-facie establish existence Criminal Appeal No.2434-SB of 2007 (O&M) -9- of evidence in regard to commission of offence by the public servant concerned should be available before the sanctioning authority before the order of sanction is passed. In the instant one, as emanates from the evidence of Kuljit Singh (sic.), the file of this case which in fact contained the material collected during investigation was placed before SSP for according sanction. In re: Parkash Singh Badal (supra), it has been observed that the sanctioning authority is not required to speedily specify each of the offences against the accused public servant. This is required to be done at the stage of framing of charge. The law requires that before the sanctioning authority, materials must be placed so that the sanctioning authority can apply its mind and take a decision. Whether there is an application of mind or not would depend upon the facts and circumstances of each case and there cannot be any generalised guidelines in that regard.
Coming to the case in hand, during arguments, the learned counsel for the appellant could not demonstrate that the sanction has been accorded by the SSP in a mechanical manner without application of mind. Sequelly, this contention being bereft of any merit is jettisoned.
It is further argued that two important ingredients in corruption case are that there must be a demand for the bribe and thereafter to accept the same. As far as the demand is concerned, PW Kuldip Singh, author of the FIR has stated that he met the appellant on 17.5.2005 and the demand was raised on that very day and not prior thereto, whereas Jaspal Khan PW4 went on to say that the demand was raised on 16.5.2005 and the matter was disclosed to him by Kuldip Singh and, thereafter, on the following day, they went to the Vigilance Department. Thus, palpably both these PWs are discrepant and contradict each other on the point of demand. Criminal Appeal No.2434-SB of 2007 (O&M) -10-
I have well considered this submission. Of course, this inconsistency is very much there on the record, but it is apt to be borne in mind that this occurrence took place on 17.5.2005, whereas the aforesaid witnesses were examined on 26.9.2006. During this interregnum, their memory was bound to haze and fade with the efflux of time. Furthermore, this incongruity is too minor to take serious note of. Consequently, this contention is turned down.
It has been further pressed into service on behalf of the appellant that the recovery was got effected from the right pocket of the shirt which was white in colour and when the same was dipped in the solution, it had got turned pink and this very shirt was taken into possession by the police. When the same was opened in the Court, the same was white, which falsify the story of the prosecution that when pocket of the shirt was dipped it had turned pink. This contention again is unsustainable. The witnesses were examined after the lapse of more than one year. Firstly, the colour of the pocket had got stripped off by mixing with the water, when it was dipped in the solution. Secondly, with the passage of time, it might have faded away. So, this contention is overruled.
It has been further canvassed at the bar that PW3 Kuldip Singh complainant was a staunch supporter of President of Akali Dal, District Fatehgarh Sahib. It was specifically put to this witness, but he deliberately denied this fact. It was also put to him with specificity that Sadhu Singh Jathedar was inimically disposed towards the appellant as various prosecutions were launched against him by the appellant and he is working with him, but he denied. It is admitted by the prosecution that Karamjit Singh had accompanied Kuldip Singh to the police post on 17.5.2005 and Criminal Appeal No.2434-SB of 2007 (O&M) -11- he recommended the good conduct of Kuldip Singh which shows that Karamjit Singh and Achhar Kaur had no ill will against Kuldip Singh, rather they had good relations with him. Karamjit Singh had admitted that Kuldip Singh is a member of Shiromani Akali Dal (M) and he was closely associated with Jathedar Sadhu Singh. Karamjit Singh also admitted that various prosecutions were filed by ASI Gurcharan Singh (accused) against Sadhu Singh. DW2 Dilbagh Singh has also stated that he knew Sadhu Singh Jatehdar of his village who was a member of Working Committee, SAD(M) and that he also knew Kuldip Singth of Village Dabali, who is having close relations with Sadhu Singh. He is working under the guidance of Sadhu Singh. Kuldip Singh used to attend rally of Akali Dal Mann at the instance of Sadhu Singh. All this shows that Kuldip Singh in fact is a made up complainant against the appellant.
I have well considered this submission. First of all, I take up the statement of Achhar Kaur DW1. In a nutshell, she has stated that "We remained with Kuldip Singh and in our presence accused did not demand illegal gratification from Kuldip Singh, nor Kuldip Singh gave Rs.2,000/- as illegal gratification to accused. After verification of Arms Licence, we came back from Police Post Peer Jain." In her cross-examination, she has stated in no uncertain terms that "I cannot tell whether Gurcharan Singh had prepared report before or after I signed Ex.PW9/A." Thus obviously, she has regretted her inability on the stated aspect. If she had stated that the appellant had prepared the report within her view, then the things would have been otherwise. The appellant was to charge the settled amount of bribe for making the report. As per prosecution version, he made the report against receipt of Rs.2,000/-. The appellant would have not ventured or run Criminal Appeal No.2434-SB of 2007 (O&M) -12- the risk to accept the bribe money in the presence of Achhar Kaur. Thus Achhar Kaur's testimony in no manner advances the cause of defence.
The sum and substance of the deposition of Dilbagh Singh DW2 is that Kuldip Singh (complainant) is the supporter of SAD (Mann) and is having cordial relations with Sadhu Singh. They are on visiting terms with each other and that Kuldip Singh is working in the party under the guidance of Sadhu Singh Jathedar and still they are having cordial relations and also that Kuldeep Singh attended rally of Akali Dal Mann at the instance of Sadhu Singh Jathedar. By examining this defence witness, it has been sought to be established that this case in fact has been got foisted upon the appellant by making Kuldip Singh complainant a figurehead by Sadhu Singh Jatehdar, who as alleged was on terms of enmity with the appellant. But to the utter consternation of the appellant, there is no luculent evidence on the record to prove that this case has been planted upon him at the instance of Sadhu Singh Jathedar. Furthermore, if the appellant had not demanded and accepted the bribe money, he would have not been caught red handed in the act. Thus, the defence evidence trickled from the mouth of Dilbagh Singh in no manner proves that this case has been got foisted at the instance of Sadhu Singh Jathedar.
Bhupinder Singh DW3 has stated in a nutshell that "I had gone to Peer Jain in connection with bail of my children. In my presence, accused did not demand any illegal gratification from Kuldip Singh. Kuldip Singh came to P.P. in connection with verification of Arms Licence." This evidence again fails to inspire confidence for the simple and obvious reason that the appellant would have not accepted bribe within the view of this defence witness. In his cross-examination, he has deposed that "Some Criminal Appeal No.2434-SB of 2007 (O&M) -13- persons in the white clothes came to P.P. Peer Jain in two vehicles and the accused was taken by them. I cannot tell whether the accused was arrested by the Vigilance Party on that day or not. I cannot tell whether the accused was taken away in connection with bribe case or not. My signatures were taken by Jagroop Singh after accused was taken away." Axiomatically, he has regretted his inability to tell whether the appellant was taken away in connection with the bribe case. HC Kashmiri Lal DW4 has merely proved Rapat No.6 dated 17.5.2003 scribed by him at the instance of the appellant. This evidence is also of no assistance to the appellant.
The tenor of the statement of Harbans Singh DW5 is that he had inquired into the application of Harkaranjit Singh son of Rajinder Singh and Harkirat Singh son of Ranjit Singh and he had submitted his report to DSP Paramjit Khaira, the then DSP Vigilance Bureau Fatehgarh Sahib and that the allegations which were levelled by aforesaid persons were found false. A meticulous perusal of the evidence tendered by this witness would reveal that any document has not been got exhibited in his statement and that being so, it is very difficult to say as to for what purpose, this witness has been examined. If the defence has sought to prove that the application moved by Harkaranjit Singh and Harkirat Singh against the appellant was found to be false, then in the absence of such application or the inquiry report, it cannot be said that such application was made against the appellant. Charanjit Singh DW6, Record Keeper, District Records Room, Fatehgarh Sahib has merely proved Ex.D2, the report submitted under Section 173 of Cr.P.C. HC Jagroop Singh DW7 has deposed that "In my presence, accused did not demand or accept illegal gratification." Under the stress of cross-examination, he has admitted that on 17.5.2005, the accused Criminal Appeal No.2434-SB of 2007 (O&M) -14- was arrested by the Vigilance, while present at Police Post Peer Jain. In his next breath, he deposed that "I cannot tell whether accused had demanded and accepted Rs.2,000/- as illegal gratification from Kuldip Singh." Thus, he has given an evasive reply on the aforesaid aspect. His evidence too in no manner is helpful to the appellant.
It has been further canvassed at the bar that the learned trial Court has not considered as to how Karamjit Singh PW9 and his wife Achhar Kaur were not present in the Police Post from 4:00 P.M to5:00 P.M while they have admitted that they were present. They were prosecution witnesses. The prosecution has relied upon the statement of Karamjit Singh, but the learned trial Court did not give any reason for disbelieving his statement. This contention is unacceptable. This witness Karamjit Singh has deposed that I along with my wife Achhar Kaur went to Police Post Peer Jain alongwith Kuldip Singh for verification of antecedents and I verified the antecedents of Kuldip Singh. I have seen verification report which is Ex.PW9/A, which bears my signatures. I identify signatures of my wife Achhar Kaur and she signed as Sarpanch of our village. Of course, in his cross-examination he has deposed that Gurcharan Singh (referring to the appellant) who was ASI in PP Peer Jain on 17.5.2005 did not demand any illegal gratification from Kuldip Singh when we went to Police Post to him on 17.5.2005 nor he paid any illegal gratification to accused in my presence but it deserves to be pointed out here that Achhar Kaur DW1 in her cross- examination has stated that "I cannot tell whether Gurcharan Singh had prepared report before or after I signed Ex.PW9/A. It is apt to be borne in mind that indeed the appellant was to charge the settled amount at the time of preparing the report. When Achhar Kaur and her husband Karamjit Criminal Appeal No.2434-SB of 2007 (O&M) -15- Singh had recorded the necessary verification on the relevant papers, they were not supposed to stay back for any longer. The appellant was not to receive the bribe money in their presence. As soon as their job was over, the appellant being a police officer would have certainly asked them to go. It might have been in his mind that if he detained Achhar Kaur as well as Karamjit Singh, he won't be able to receive the amount of illegal gratification from the complainant. More to the point, from the afore- extracted examination of Achhar Kaur DW1, it emerges out that she could not recollect as to whether the report was prepared after or before she signed. Thus, this contention cuts no ice.
It has been further argued on behalf of the appellant that from the evidence of the prosecution as well as defence on the record, it has been established that Kuldip Singh PW3 and Jaspal Khan PW4 were made up witnesses at the instance of Sadhu Singh. The DSP Vigilance manipulated the raid against the appellant after 5:00 P.M knowing fully well that till 5:00 P.M., Kuldip Singh and two other public witnesses were present at the Police Post. This contention carries no substance. Kuldip Singh PW3 has stated in categoric terms that "accused asked about the bribe money of Rs.2,000/-. I told the accused that I had brought the money. Accused summoned the file. Accused made a verification and I handed over Rs.2,000/- only." It is in the evidence of Jaspal Khan PW4, shadow witness that "accused asked the complainant about the bribe money and the complainant answered in the affirmative that he had brought Rs.2,000/-. Accused took up the file from the drawer of the table and made his verification report. Kuldip Singh handed over Rs.2,000/- to the accused and the accused kept the currency notes in the pocket of his kurta on the right Criminal Appeal No.2434-SB of 2007 (O&M) -16- side. As testified by Amandeep Singh Panchayat Secretary Block Sanaur Patiala, PW5 "Rs.2,000/- were recovered from the right pocket of the kurta of the accused. I tallied the number of the currency notes with memo Ex.PW3/B. Numbers tallied. Currency notes MO-4 to MO-23 were taken in possession vide memo Ex.PW3/E." As surfaces in the testimony of Jai Pal Singh DSP (Crime) Patiala PW10 Investigator "Then accused produced before me 20 tainted currency notes of the denomination of Rs.100/- each from right side pocket of his shirt. The numbers of the notes were got tallied from the officical witnesses with the number mentioned on Ex.PW3/B and the numbers tallied. The above said notes were taken into police possession vide memo Ex.PW3/E, which was attested by above said PWs." It is discernible from this evidence that the bribe money was demanded by the appellant from the complainant and the same was tendered by the latter after recording the necessary verification report and then the same was accepted by the former. This amount was recovered from the right side pocket of the shirt worn by the appellant. Thus palpably, all the three ingredients constituting the charged offences are satisfied. Section 13 of the Act provides for criminal misconduct by the public servant. Such an offence of criminal misconduct by a public servant can be said to have been committed if in terms of Section 13 (1)(d)(ii-iii) a public servant abuses his position and obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. In re: State of Madhya Pradesh v. Sheetla Sahai and others, 2009(5) Recent Apex Judgments 110, it has been observed that "Even under the Act, an offence cannot be said to have been committed only Criminal Appeal No.2434-SB of 2007 (O&M) -17- because the public servant has obtained either for himself or for any other person any pecuniary advantage. He must do so by abusing his position as public servant or holding office as a public servant. In the latter category of cases, absence of any public interest is a sine qua non.
Adverting to the present one, the appellant has received the recovered tainted currency notes for making report in favour of the complainant, so that the Arms Licence could be issued in his favour. Thus, it is crystal clear that he had obtained the tainted currency notes by abusing his position as a public servant. In routine, it was his official duty to make such report, whereas he did so against receipt of the afore-mentioned bribe money.
At this juncture, learned counsel for the appellant pointed out that PW Amandeep Singh has stated in his cross-examination that "It is correct that the accused never demanded any illegal gratification from the accused nor same was recovered from accused in my presence." This evidence nullifies his examination-in-chief with regards the recovery of tainted currency notes from the possession of the appellant.
I have given a deep and thoughtful consideration to this submission. Doubtless that this witness has stated so, but it is pertinent to point out here that Kuldip Singh, Jaspal Khan, Jai Pal Singh PWs are in unison on the point that the tainted currency notes were recovered from the right side pocket of the kurta, which the appellant was wearing at the time of recovery. May be that this witness could not understand the question properly while under cross-examination. In his examination-in-chief, he has said in no uncertain terms that "Rs.2,000/- were recovered from the right pocket of the kurta of the accused." It shall further appear in his evidence Criminal Appeal No.2434-SB of 2007 (O&M) -18- that it was he who had tallied the number of the currency notes with memo Ex.PW3/E and the same had tallied. So, the prosecution case cannot be thrown out of hand, merely because of the fact that this witness has stated that "nor the same was recovered from the accused in my presence." May be that due to slip of tongue, he happened to state so. There can be hardly any criminal case free from minor infirmities here or there.
No other material point has been urged or agitated by either counsel.
On scrutinising and anylsing the entire prosecution evidence, it transpires that no interference is warranted in the impugned judgment. Sequelly, this appeal being devoid of any merit is dismissed.
In view of the dismissal of main appeal, all the pending CMs are dismissed as infructuous.
The Chief Judicial Magistrate, Fatehgarh Sahib is directed to take necessary steps to procure the presence of the accused- appellant Gurcharan Singh and to send him to the prison to serve out unexpired portion of his sentence. The Registry is directed to send a copy of this judgment to the learned trial Court as well as the learned Chief Judicial Magistrate, Fatehgarh Sahib for further necessary action.
September 04, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No