Madhya Pradesh High Court
Manmohan Singh vs The State Of Madhya Pradesh on 22 July, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 22nd OF JULY, 2022
CRIMINAL APPEAL No.2713 of 2021
Between:-
MANMOHAN SINGH SON OF SHRI
KASHIRAM JATAV, AGED - 33
YEARS, PATWARI HALKA NO.-9,
KISHANPUR, TAHSIL NARWAR,
DISTRICT SHIVPURI, AT PRESENT
OFFICE OF SUB-DIVISIONAL
OFFICER, KARERA, DISTRICT
SHIVPURI (MADHYA PRADESH).
........APPELLANT
(BY SHRI SANJAY GUPTA - ADVOCATE)
AND
STATE OF MADHYA PRADESH,
THROUGH S.H.O., SPECIAL POLICE
ESTABLISHMENT, LOKAYUKT-
BHOPAL, DIVISION GWALIOR
(MADHYA PRADESH).
......RESPONDENT
(BY SHRI AJAY KUMAR CHATURVEDI- ADVOCATE)
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Reserved on : 11th of July, 2022
Delivered on : 22nd of July, 2022
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2
This appeal coming on for final hearing this day, the Court passed
the following:
JUDGEMENT
1. This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the Judgment and Sentence dated 19-3-2021 passed by Special Judge (Prevention of Corruption Act), Shivpuri in Special Case No. 06/2016, by which the Appellant has been convicted and sentenced for the following offences :
Conviction under Section Sentence Under Section 7 of Prevention of 3 years R.I. and fine of Rs. 5,000/- Corruption Act, 1988 in default R.I. for 3 months Under Section 13(1)(d) read with 5 years R.I. and fine of Rs. 7,000/- Section 13(2) of Prevention of in default R.I. for 4 months Corruption Act, 1988 All sentences shall run concurrently.
2. The prosecution story in short is that on 24-12-2014, the complainant made a written complaint to S.P., S.P.E. (Lokyakut), Gwalior on the allegations that his grand mother Binia Bai has died 4 months back, therefore, his father had moved an application for mutation of his name as well as the names of his sisters in the revenue records of land situation in village Kishanpura, area 0.61 hectares. Accordingly, the Appellant, who was working as Patwari had demanded Rs. 20,000/- for preparation of map and has already received Rs. 8,000/-. The Appellant is demanding remaining amount of Rs. 12,000/- from the complainant, but the complainant doesnot want to give bribe and want that the Appellant be caught red handed. Accordingly, investigation was handed over to Inspector Alok Trivedi.
33. After verifying the contents of the complaint, a voice recorder was given to the complainant, vide panchnama Ex. P. 3 and the complainant was sent along with Constable Pramod Singh Tomar. On 27-12-2014, the constable Pramod Singh Tomar, brought the voice recorder in a closed envelop and handed over to Alok Trivedi. It was also informed by Pramod Singh Tomar that on 24-12-2013 he went to Tahsil Narwar along with the complainant, but meeting with Appellant could not take place on 24-12-2014 and 25-12-2014. On 26-12-2014, at about 4 P.M., the complainant had a talk with the Appellant regarding mutation of name of his father in respect of agricultural land and the Appellant had once again demanded Rs. 12,000/-. It was also informed that it has been decided that an amount of Rs. 3,000/- shall be paid to the Appellant on 30-12- 2014. Panchnama of receipt of sealed voice recorder was prepared. The voice recorder was kept in an almirah in a safe custody. The complainant was directed to appear in the office on 29-12-2014 at 12 P.M. and a request letter was sent to Collector for appointing Panch witnesses. Accordingly on 29-12-2014, panch witnesses R.P.S. Kushwaha, Anand Prakash Naik, and complainant Yogesh Kushwaha came to the office. The complainant gave another application and accordingly, Alok Trivedi was once again directed to take action.
4. Accordingly, both the applications were got verified from the complainant. The complainant accepted that the contents of the application are true. Accordingly, the panch witness R.P.S. Kushwaha appended his comments and also attested the photograph of the complainant affixed on the complaints. Another Panch witness also approved the same. Thereafter, the sealed voice recorder was opened in 4 the presence of the Panch witnesses and the complainant. The voice recorder containing the conversation and demand of money for partition of agricultural land was played repeatedly and the complainant also verified the same. The complainant also verified that the conversation contains the voice of his father, the Appellant and complainant himself. A transcript of recorded conversation was prepared and certificate under Section 65-B of Evidence Act was issued. Three additional C.D.s of recorded conversation were prepared and were kept separately in sealed cover.
5. Accordingly, on the basis of both the complaints, transcript of recorded conversation, Dehati Nalishi in crime no.0/14 was registered for offence under Section 7 of Prevention of Corruption Act, 1988. The Dehati Nalishi was sent to Police Station, S.P.E. (Lokayukt), Bhopal for registration. The importance of maintaining secrecy was told to the witnesses and complainant and they were asked to attend the office on 30-12-2014 at 9:00 A.M.
6. On the next day, the complainant Yogesh Kushwaha handed over an amount of Rs. 3,000/-. The serial no. of the currency notes were recorded. The currency notes were treated with phenolphthalein powder. Under the instructions of Alok Trivedi, Head Constable Ram Gopal Goyal, searched the left pocket of the shirt of complainant and the same was found empty. Thereafter, Constable Kamlesh Tiwari, kept the treated currency notes in the left pocket of the shirt of the complainant. Two packets of phenolphthalein powder were prepared by way of specimen and they were sealed in packet. The complainant was informed about the handing over of the tainted currency notes to the Appellant. The paper on 5 which the currency notes were treated was burnt.
7. Both fingers of Constable Kamlesh Tiwari were dipped in the solution of Sodium Carbonate and the colour of the solution turned pink. The said solution was sealed in a glass bottle. The demonstration was given and the Panch witnesses and the complainant were told about that. Thereafter, a trap party was constituted and the complainant was introduced to the trap party. Kamlesh Tiwari was not included in the said trap party. The fingers of the complainant and all the members of the trap party were dipped in the solution of Sodium Carbonate and the colour of the solution did not change. Accordingly, the said solution was also preserved and sealed in glass bottles. A voice recorder was also given to the complainant and a preliminary Panchnama was also prepared before the trap party left for Shivpuri.
8. All members of trap party, Panch witnesses and complainant left for the residence of the Appellant on two separate Govt. vehicles. They left Gwalior at about 10:15 A.M. and reached Bhartiya Vidyalaya Chauraha (junction) at 12:45 P.M. Both the vehicles were parked by the side of the road, and the complainant was sent. He was directed to talk to the Appellant for verifying his location. The Shadow witness Head Constable Ram Gopal and Constable Pramod Singh also followed the complainant to the residence of the Appellant in an auto. The Panch witnesses and other members of trap were also following them, by maintaining distance. The complainant Yogesh Kushwaha reached in front of a house where the Appellant was standing. He started talking to the complainant and complainant also went inside the house. Both shadow witnesses, Panch witnesses and other members of trap were 6 standing at nearby places. After about 5 minutes, the complainant gave a signal to the trap party. At that time, the Appellant also came out. After getting signal from the complainant, the shadow witnesses caught hold the hand of the Appellant and in the meanwhile all the panch witnesses and members of trap party also reached on the spot. They gave their introduction to the Appellant, and Appellant also disclosed his name as Man Mohan Singh Jatav son of Kashiram Jatav, Patwari Halka No. 9, Tahsil Narwar, Distt. Shivpuri.
9. On the instructions of Alok Trivedi, the solution of Sodium Carbonate was prepared. The fingers of shadow witnesses, panch witnesses and other members of trap party were dipped, but the colour did not change. The said solution was preserved in a sealed bottle. Thereafter, the fingers of the Appellant were dipped and the colour of the solution changed. The said solution was also preserved in a sealed bottle. On interrogation, the Appellant expressed that he is not in possession of tainted money. The complainant who was present, disclosed that initially, the Appellant called him inside the house and he handed over three currency notes of denomination of Rs. 1000/- each. Thereafter, he gave signal to the trap party. At that time, the Appellant came and said that currency notes are having some powder and had also seen him giving signal to the trap party, therefore, he returned the tainted money to him which have been kept by the complainant in his shirt. Accordingly, on the instructions of Alok Trivedi, the panch witness A.P. Naik, took out the tainted currency notes from the pocket of the complainant and counted the same. They were three currency notes of denomination of Rs. 3,000/-. The serial number of the tainted recovered currency notes were matched 7 with the serial numbers which were noted at the time of preparation of preliminary panchnama and were found to be the same. The currency notes were seized and were kept in a sealed envelop. Thereafter, the fingers of Panch witness A.P. Naik were dipped in the solution and the colour of the said solution changed. The said solution was also preserved in glass bottles. The fingers of the complainant were also dipped in the solution, and the colour of the solution also changed and accordingly, said solution was also preserved in a sealed bottle. Accordingly, offence under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act was also added. The Appellant was arrested.
10. On interrogation, the Appellant informed that all the papers pertaining to the partition of the agricultural land are in the office of Tahsildar, Narvar. Accordingly, telephonically, Alok Trivedi, directed the Tahsildar Narvar to send photocopy of the record. The spot map was prepared. The attested copy of case of partition of agricultural land initiated on the application of Dara Singh was also seized on production of the same by Tahsildar. The Appellant was released on bail. The Voice Recorder was found to be blank. The original FIR in crime no. 560/2014 was also received and accordingly one copy of the same was sent to Special Judge. The sealed solutions were sent to F.S.L. Sagar. As per the FSL report, the result was found to be Positive.
11. During the investigation, the Appellant was directed to give his voice sample, but the Appellant refused to give the same.
12. Thereafter, all the material i.e., ocular and documentary evidence were sent for grant of sanction for prosecution and accordingly, sanction for prosecution was received and the prosecution filed charge sheet for 8 offence under Section 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act.
13. The prosecution examined Arvind Sapate (P.W.1), Yogesh Kushwaha (P.W.2), Dara Singh (P.W.3), Anand Prakash Naik (P.W.4), R.P.S. Kushwaha (P.W. 5), Ramgopal Goyal (P.W.6), Dheeraj Naik (P.W.7), Pramod Singh Tomar (P.W.8), Alok Trivedi (P.W.9), Smt. Shailja Gupta (P.W.10), Satish Kumar Verma (P.W.11) and Kamlesh Tiwari (P.W.12).
14. The Appellant examined Sanjeet Parte (D.W.1), Kunwarlal (D.W.2), Arvind Asaiya (D.W.3), and Manoj Nigam (D.W.4) in his defence.
15. The Trial Court, by the impugned judgment and sentence convicted and sentenced the Appellant for the above mentioned offences.
16. Challenging the judgment of conviction passed by the Court below, it is submitted by the Counsel for the Appellant, that the prosecution has failed to prove that sanction for prosecution was granted after due application of mind. The complainant has turned hostile and has not supported the prosecution case. The prosecution has failed to prove the demand. No tainted currency notes were seized from the possession of the Appellant. The change of colour of solution was also explained by the complainant. Even otherwise, in absence of proof of demand, mere possession of tainted currency notes will not be of any consequence. Section 20 of Prevention of Corruption Act would not apply. Voice Recorder was not produced. The witness who had prepared the transcript was also not examined. The Appellant had no role to play in the partition proceedings which were pending before the Tahsildar, as 9 he had already submitted the Fard Batwara and Batankan.
17. Per contra, the Counsel for the State has supported the findings recorded by the Trial Court. It is submitted that the Complainant had admitted his signatures on all the documents. Even if the complainant has turned hostile, the Court can always consider the circumstances to find out as to whether the accused is guilty or not. It is incorrect to suggest that partition proceedings were already over. So far as the explanation regarding change of colour of solution after dipping the fingers of the complainant is concerned, it is submitted that there was no reason for the complainant to go from Gwalior to Shivpuri just to shake hands with the Appellant.
18. Heard the learned Counsel for the Parties.
Sanction for Prosecution
19. Section 19 (3) and (4) of Prevention of Corruption Act, 1988 reads as under :
19. Previous sanction necessary for prosecution.--(1) .....
(2) ......
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
10(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.--For the purposes of this section,--
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
20. From the plain reading of Section 19(3) of Prevention of Corruption Act, 1988, two things are clear :
(a) No finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in Appeal, unless, a failure of justice has been occasioned.
(b) Whether the objection could and should have been raised at an earlier stage in the proceedings.
21. In the present case, the submission made by the Counsel for the Appellant is that since, the authority granting sanction was not examined and Arvind Sapate (P.W.1) was examined, who has merely proved the sanction, therefore, the prosecution has failed to prove that the Sanction was granted without due application for mind. It is submitted that there are inherent contradictions in two complaints made by the Complainant, and that fact was not taken note of by the Sanctioning Authority.
1122. Heard the learned Counsel for the Appellant.
23. The Supreme Court in the case of State of Maharashtra v. Mahesh G. Jain, reported in (2013) 8 SCC 119 has held as under :
14. From the aforesaid authorities the following principles can be culled out:
14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. 14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. 14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity.
* * * *
20. At this stage, we think it apposite to state that while sanctity attached to an order of sanction should never be forgotten but simultaneously the rampant corruption in society has to be kept in view. It has come to the notice of this Court how adjournments are sought in a maladroit manner to linger the trial and how at every stage ingenious efforts are made to 12 assail every interim order. It is the duty of the court that the matters are appropriately dealt with on proper understanding of law of the land. Minor irregularities or technicalities are not to be given Everestine status. It should be borne in mind that historically corruption is a disquiet disease for healthy governance. It has the potentiality to stifle the progress of a civilised society. It ushers in an atmosphere of distrust.
Corruption fundamentally is perversion and infectious and an individual perversity can become a social evil. We have said so as we are of the convinced view that in these kind of matters there has to be reflection of promptitude, abhorrence for procrastination, real understanding of the law and to further remain alive to differentiate between hypertechnical contentions and the acceptable legal proponements.
24. The Supreme Court in the case of Nanjappa Vs. State of Karnataka reported in (2015) 14 SCC 186 has held as under :
23. Having said that there are two aspects which we must immediately advert to. The first relates to the effect of sub-
section (3) to Section 19, which starts with a non obstante clause. Also relevant to the same aspect would be Section 465 CrPC which we have extracted earlier.
23.1. It was argued on behalf of the State with considerable tenacity worthy of a better cause, that in terms of Section 19(3), any error, omission or irregularity in the order sanctioning prosecution of an accused was of no consequence so long as there was no failure of justice resulting from such error, omission or irregularity. It was contended that in terms of Explanation to Section 4, "error includes competence of the authority to grant sanction". The argument is on the face of it attractive but does not, in our opinion, stand closer scrutiny. 23.2. A careful reading of sub-section (3) to Section 19 would show that the same interdicts reversal or alteration of any finding, sentence or order passed by a Special Judge, on the ground that the sanction order suffers from an error, omission or irregularity, unless of course the court before whom such finding, sentence or order is challenged in appeal or revision is of the opinion that a failure of justice has occurred by reason of such error, omission or irregularity. Sub-section (3), in other 13 words, simply forbids interference with an order passed by the Special Judge in appeal, confirmation or revisional proceedings on the ground that the sanction is bad save and except, in cases where the appellate or revisional court finds that failure of justice has occurred by such invalidity. What is noteworthy is that sub-section (3) has no application to proceedings before the Special Judge, who is free to pass an order discharging the accused, if he is of the opinion that a valid order sanctioning prosecution of the accused had not been produced as required under Section 19(1).
23.3. Sub-section (3), in our opinion, postulates a prohibition against a higher court reversing an order passed by the Special Judge on the ground of any defect, omission or irregularity in the order of sanction. It does not forbid a Special Judge from passing an order at whatever stage of the proceedings holding that the prosecution is not maintainable for want of a valid order sanctioning the same.
23.4. The language employed in sub-section (3) is, in our opinion, clear and unambiguous. This is, in our opinion, sufficiently evident even from the language employed in sub- section (4) according to which the appellate or the revisional court shall, while examining whether the error, omission or irregularity in the sanction had occasioned in any failure of justice, have regard to the fact whether the objection could and should have been raised at an early stage. Suffice it to say, that a conjoint reading of sub-sections 19(3) and (4) leaves no manner of doubt that the said provisions envisage a challenge to the validity of the order of sanction or the validity of the proceedings including finding, sentence or order passed by the Special Judge in appeal or revision before a higher court and not before the Special Judge trying the accused.
23.5. The rationale underlying the provision obviously is that if the trial has proceeded to conclusion and resulted in a finding or sentence, the same should not be lightly interfered with by the appellate or the revisional court simply because there was some omission, error or irregularity in the order sanctioning the prosecution under Section 19(1). Failure of justice is, what the appellate or revisional court would in such cases look for. And while examining whether any such failure had indeed taken 14 place, the Court concerned would also keep in mind whether the objection touching the error, omission or irregularity in the sanction could or should have been raised at an earlier stage of the proceedings meaning thereby whether the same could and should have been raised at the trial stage instead of being urged in appeal or revision.
25. The Supreme Court in the case of Mohd. Iqbal Ahmed Vs. State of A.P. reported in AIR 1979 SC 677 has held as under :
3....It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways;
either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it.
26. The Supreme Court in the case of State of Rajasthan Vs. Tarachand reported in AIR 1973 SC 2131 has held as under :
17. The fact that the Chief Minister was competent to accord sanction for the prosecution of the respondent in accordance with the Rules of Business has not been disputed before us but it has been urged that the prosecution has failed to prove that the Chief Minister accorded his sanction after applying his mind to the facts of this case. So far as this aspect of the matter is concerned, we find that the position of law is that the burden of proof that the requisite sanction had been obtained rests upon the prosecution. Such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based.
These facts might appear on the face of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after those facts had been placed before the sanctioning authority.
18. The question of sanction was dealt with by the Judicial Committee in the case of Gokulchand Dwarkadas Morarka v.
15The King, 75 Ind App 30 = (AIR 1948 PC 82). That case related to a sanction under cl. 23 of the Cotton Cloth and Yarn (Control) Order. 1943 which provided that no prosecution for the contravention of any of the provisions of the Order would be instituted without the previous sanction of the Provincial Government. The Judicial Committee in this context observed:
"In their Lordships' view, to comply with the provisions of cl. 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since cl. 23 does not require the sanction to be in any particular form nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority."
The principle laid down above holds good for the purpose of sanction under Section 6 of the Prevention of Corruption Act (see Madan Mohan Singh v. State of Uttar Pradesh, AIR 1954 SC 637). Let us now apply the principle laid down above to the facts of the present case. It is no doubt true that no independent evidence was led by the prosecution to prove that the relevant facts had been placed before the Chief Minister before he accorded sanction but that fact, in our opinion, introduces, no fatal infirmity in the case. Sanction P-34 has been reproduced earlier in this judgment and it is manifest from its perusal that the facts constituting the offence have been referred to on the face of the sanction. As such, it was not necessary to lead separate evidence to show that the relevant facts were placed before the Chief Minister. The evidence of Umraomal shows that the formal sanction P-34 filed in the Court bears the signature of Shri R. D. Thapar, Special Secretary to the Government. The fact that the Chief Minister signed the sanction for the prosecution on the file and not the formal sanction produced in the Court makes no material difference. It is, in our opinion, proved on the record that the sanction for the prosecution of the accused had been accorded by the competent authority after it had duly applied its mind to the facts of the case.
1627. In the present case, Arvind Sapate (P.W.1) has proved the signature of the Sanctioning Authority. He had brought the record also. He denied that the Sanctioning Authority had issued the sanction order without going through the papers. Sanction order dated 26-7-2016 is a detailed order. Even otherwise, it is clear from the order-sheets of the Trial Court, that the Appellant did not raise any objection to the examination of Arvind Sapate (P.W.1). The Appellant never claimed that since, he wants to raise the question of non-application of mind, therefore, the Authority who had granted sanction must enter in the witness box.
28. Therefore, it is held that the sanctioning authority had considered the facts and circumstances of the case, and the Appellant never raised an objection at the earliest regarding non-examination of sanctioning authority before the Trial Court as well as in the light of Section 19(3) of Prevention of Corruption Act, this Court is of the considered opinion, that not only the sanction was granted after due application of mind, and in absence of any failure of justice, the judgment/findings cannot be reversed/altered in an appeal. Hence, the objection regarding sanction is hereby rejected as misconceived.
Complainant has turned hostile and has not supported the prosecution case.
29. Yogesh Kushwaha (P.W.2) is the complainant and he has turned hostile and did not support the prosecution case. He stated that the Appellant is the Patwari of his village. His father had moved an application for partition. Tahsildar had rejected the application for partition. His father informed, that he met with a Netaji in village who informed that he would not succeed in getting the partition done in 17 Shivpuri and must go to Gwalior for getting the partition done. Since, his father was not well, therefore, he instructed his son to go to Gwalior. He went to Gwalior, where some writing work was done by the Netaji. The complainant admitted that complaint Ex.P.2 bears his signature. There one instrument like mobile was given to him. This witness also admitted that Panchnama of giving voice recorder, Ex. P.3, bears his signatures. This witness also admitted his signatures on application, Ex. P.4. This witness also admitted his signatures on envelop, Ex. P.5. He also admitted his signatures on panchnama of opening envelop Ex. P.6. He also admitted his signatures on transcript, Ex. P.7. He also admitted his signatures on FIR, Ex. P.8. He stated that he had taken currency notes with him, but Netaji had brought. However, he admitted his signatures on Panchnama of currency notes, Ex. P.9. He also his signatures on preliminary Panchnama Ex. P.10. He also admitted his signatures on seizure of notes, Ex. P.11. He also admitted his signatures on spot map, Ex. P.12. He also admitted on Trap proceedings, Ex. P.12. He claimed that he had not given any statement to Lokayukt personals. He did not give any bribe. The Appellant had never demanded any bribe. This witness was declared hostile and was cross-examined by the Public Prosecutor.
30. He claimed that he is an illiterate person but can sign. His grand mother had expired and therefore, his father was interested in getting the land partitioned amongst himself and his two sisters (Bua of this witness). The proceedings are pending in Tahsil. He denied that when he met with the Appellant for Fard Batwara and Map, then an amount of Rs. 20,000 was demanded by the Appellant. He denied all the trap 18 proceedings. However, he admitted that on 29-12-2014, Inspector Trivedi had instructed him that he has to appear in the office of S.P.E. (Lokayukt) on 30-12-22014 at 9 A.M. He admitted that on 30- 12-2014, he had come to Shivpuri from Gwalior along with the members of trap party. He admitted that he went to the house of Appellant, but claimed that he had gone all alone and not with two police personals. He admitted that he went inside the house of the Appellant. He admitted that constable Dheeraj Naik had prepared a solution of Sodium Carbonate in a clean glass and the fingers of all the members of the trap party were dipped, but the colour did not change. He denied that when the fingers of the Appellant were dipped, then the colour of the solution had changed. He admitted that he had signed documents Ex. P.2 to P.13 voluntarily. No body had pressurized him to sign documents Ex. P.2 to P.13. This witness admitted his signatures on Article A-1, A-2,A-3, A-4, A-5, A-6 i.e., sealed bottles containing solution of Sodium Carbonate. This witness also admitted his signatures on envelop, Article A/7. He also admitted his signatures on Article A-8. This witness was cross- examined by the Appellant.
31. In cross-examination by Appellant, he admitted that application for partition was given by his father Dara Singh (P.W.3). Ramabai and Vidhya bai are his Bua and partition was to take place amongst them. His father and Bua were of the view, that his father must get ¾ of the property and the remaining property in equal share would go to his Buas. He further admitted that there is no dispute in his family regarding partition. The Appellant had never demanded Rs. 20,000 and had never 19 received Rs. 8,000/-. The contents of the Applications were neither dictated by him, nor were in his knowledge. The Applications were got prepared by Netaji and only on his instructions he had signed the same. He further stated that he had not recorded any conversation and claimed that it was Netaji who had recorded the conversation and had deposited the voice-recorder with the Lokayukt Personals. The recording was never played in the Lokayukt office. He claimed that Netaji had instructed him to come with Rs.3,000/- and accordingly, he had given said amount to Netaji. Netaji had given said amount to Lokayukt personals and had kept the same in his pocket. He went on two vehicles from Lokayukt Office, however, expressed that he doesnot know the names of the police personals who were sitting in the vehicle. He admitted that on his way to Shivpuri he had touched the currency notes. He admitted that went in the room of the house of the Appellant. 2-3 more persons were sitting there. He had shaked his hand with Appellant. When he went to the house of Appellant, then he had enquired from the Appellant regarding partition, who informed that he has placed the papers in the Tahsil office and had also instructed that the complainant should hire an advocate. He claimed that no demand was made by the Appellant and he did not give Rs. 3,000 to the Appellant. He came out of the room of the Appellant, and the Appellant was sitting in the same room. After coming out of the house, the Lokayukt persons had enquired as to whether he has given money to the Appellant or not, then he replied that since, the Appellant did not demand money, therefore, he has not given the same. Even Appellant had said that he has not taken any illegal gratification. No document 20 pertaining to the partition proceedings were recovered from the possession of Appellant. He also claimed that no proceedings were pending before the Appellant and no order was to be passed by the Appellant. The order of partition was to be passed by Tahsildar. He admitted that on 30-12-2014, he had gone to the house of the Appellant to have a talk on the question of partition. The partition proceedings were pending and no final order was passed by Tahsildar. He had signed the documents Ex. P.2 to P.13 and Article A-1 to A-8 on the instructions of Lokayukt Personals. He also claimed that he doesnot know the contents of the document.
32. On a query by the Court, the complainant stated that he doesnot know as to whether Netaji was of B.J.P. Or Congress. Netaji had never visited his house. This witness was also unable to disclose the name of Netaji. He further stated that as he had gone to Tahsil office with his father, therefore, he met with Netaji in Tahsil office and went to Gwalior after 2-3 days. He further stated that he met with Netaji at 8 A.M. in the Tahsil office and thereafter, he went to Lokayukt Office. Although, the complainant was unable to disclose the date.
33. Dara Singh (P.W.3) is the father of the complainant. He also turned hostile. In cross-examination by defence, he admitted that his son (complainant) had never accompanied him to Tahsil office. He was interested that he should get ¾ of the property and the remaining property be divided in equal share between his sisters. He admitted that on 23-12-2014, the Patwari had produced Fard Batwara, Batankan Aks, Panchnama, affidavits of his sisters. When he came to know that partition cannot take place as per his wishes, therefore, he got restless.
21He further stated Netaji had told him that he can get his work done, therefore, he had sent his son with him.
34. It is true, that the complainant Yogesh Kushwaha (P.W. 2) and his father Dara Singh (P.W.4) have turned hostile, but their entire evidence would not stand wiped out. The relevant part of evidence of a hostile witness, which is admissible can be read either in favor of prosecution or defence, provided the same is corroborated from other evidence on record.
35. The Supreme Court in the case of Birju v. State of M.P., reported in (2014) 3 SCC 421 has held as under :
9. PWs 1 to 4 and 7 fully and completely supported the case of the prosecution. PW 1, the grandfather of the child, PWs 2, 3, 4 and 7 have depicted an eye-to-eye picture of what transpired on the fateful day. Their version is consistent and highly reliable. The eyewitnesses' version is fully corroborated with the post-mortem and FSL reports. PW 6, of course, has been declared as hostile, but the evidence of a hostile witness cannot be discarded as a whole and the relevant parts thereof, which are admissible in law, can be used, either by the prosecution or the defence. Reference may be made to the judgment of this Court in C. Muniappan v. State of T.N.
36. The Supreme Court in the case of Selvaraj v. State, reported in (2015) 2 SCC 662 has held as under :
19. It is settled principle of law that benefit of reasonable doubt is required to be given to the accused only if the reasonable doubt emerges out from the evidence on record.
Merely for the reason that the witnesses have turned hostile in their cross-examination, the testimony in examination-in-chief cannot be outright discarded provided the same (statement in examination-in-chief supporting prosecution) is corroborated from the other evidence on record. In other words, if the court finds from the two different statements made by the same accused, only one of the two is believable, and what has been 22 stated in the cross-examination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examination-in- chief. However, such evidence is required to be examined with great caution.
37. The Supreme Court in the case of Podyami Sukada v. State of M.P., reported in (2010) 12 SCC 142 has held as under :
11. As stated earlier, all the witnesses to the extra-judicial confession have been declared hostile by the prosecution. True it is that the evidence of the hostile witness is not altogether wiped out and remains admissible in evidence and there is no legal bar to base conviction on the basis of the testimony of hostile witness but as a rule of prudence, the court requires corroboration by other reliable evidence.
38. If the evidence of Yogesh Kushwaha (P.W.2) is considered, then it is clear that he has admitted his signatures on documents Ex. P.2 to P. 13 and on Article A-1 to A-8. In examination-in-chief, he admitted that he had signed the documents and Articles voluntarily, however, in cross- examination, he tried to wriggle out by saying that it was done on the instructions of Netaji or Lokayukt Personals. However, one thing is clear that he went to the office of S.P.E.(Lokayukt), Gwalior twice. He signed various documents as well as Articles i.e., sealed bottles containing solution of Sodium Carbonate. This witness was not in a position to disclose the name of Netaji. Although this witness has stated that he met with Netaji in Tahsil, when he had gone along with his father to attend the Court case, however, Dara Singh (P.W.3) has stated that he had never taken his son with him to attend the Court case. Further, Yogesh Kushwaha (P.W.2) has admitted that he went along with the team of Lokayukt from Gwalior. He further stated that he went to the house of the Appellant, in order to have talk with regard to the partition case. If 23 the complainant had not made any complaint then why, the complainant, came to Gwalior, why he went back to Shivpuri along with Trap Team, why he went to the house of the Appellant, has not been explained by the Complainant. Further, in his examination-in-chief, the complainant has admitted that on 29-12-2014, Inspector Trivedi had instructed him that he has to appear in the office of S.P.E. (Lokayukt) on 30-12-22014 at 9 A.M. He admitted that on 30-12-2014, he had come to Shivpuri from Gwalior along with the members of trap party. He admitted that he went to the house of Appellant, but claimed that he had gone all alone and not with two police personals. He admitted that he went inside the house of the Appellant. He admitted that constable Dheeraj Naik had prepared a solution of Sodium Carbonate in a clean glass and the fingers of all the members of the trap party were dipped, but the colour did not change. He has also stated in para 24 of his cross-examination by defence that after coming out of the house, the Lokayukt persons had enquired as to whether he has given money to the Appellant or not, then he replied that since, the Appellant did not demand money, therefore, he has not given the same. If he had not gone to the house of the Appellant for giving any bribe, then why replied to the members of the trap party, that since, Appellant did not demand money, therefore, he has not handed over to him. Thus, it is clear that the Complainant had gone to the house of the Appellant, knowing full well about the trap proceedings, and now in the Court in has taken a somersault.
39. Further, the evidence of Yogesh Kushwaha (P.W.2) finds corroboration from the evidence of Anand Prakash Naik (P.W.4), R.P.S. Kushwaha (P.W.5). Both the witnesses are Panch witnesses. They have 24 stated that the complaint was read over to the complainant and it was accepted by the complainant. Both the witnesses have stated in detail about the steps taken by the S.P.E. (Lokayukt). They have stated that transcript of recorded conversation was prepared. They have also proved the preliminary Panchnama as well as the proceedings which had taken place on 30-10-2014. Ramgopal Goyal (P.W.6), has stated that on 30-10- 2014, he had kept the tainted currency notes in the pocket of the complainant. He further stated that thereafter, they left for Shivpuri and the complainant went inside the house of the Appellant. Thereafter, the complainant came out and gave a signal. Thereafter, this witness caught hold of right hand and Pramod Singh Tomar caught hold of left hand of the Appellant. The Trap team also reached on the spot. The fingers of all the members of the trap team were dipped in the solution of Sodium Carbonate, but the colour of the solution did not change. However, when the fingers of the Appellant were dipped in the solution, then the colour of the solution changed. However, in cross-examination, he admitted that he had not overheard the conversation of demand of bribe nor had seen the complainant giving bribe to the Appellant.
40. It is not out of place to mention here that this witness was a shadow witness and did not go inside the house of the Appellant. Therefore, if he could not hear the conversation or could not see the giving of bribe, then it will not give any dent to the prosecution.
41. Dhiraj Naik (P.W.7), who is also one of the member of trap team has also supported the prosecution case and has also proved that panchnama of serial number of currency notes was prepared. The currency notes were treated with Phenolphthalein Powder and Ramgopal 25 Goyal kept the currency notes in the pocket of the complainant. He also proved that after following other procedure, they left for Shivpuri, where the complainant went inside the house of the Appellant and after some time, he gave a signal, and accordingly, the Appellant was caught by the shadow witnesses. The fingers of the members of trap team were dipped in the solution of Sodium Carbonate, however, the colour did not change. The fingers of the Appellant were dipped and the colour of the solution turned into pink. Similarly, when the fingers of complainant were dipped, then also the colour of solution turned into pink. He also stated that the complainant informed that he had given the tainted currency notes to the Appellant, but when he came out of the house to give signal, then the Appellant returned the currency notes, which he has kept in the pocket of his shirt. Accordingly, Panch witness Naik took out the currency notes from the pocket of the complainant and panchnama was prepared. Thereafter, the fingers of Panch witness Naik were once again dipped in the solution and the colour turned into pink. The sealed bottles containing sodium carbonate were sent to F.S.L., Sagar which were deposited in FSL Sagar on 5-1-2015.
42. Similarly, Pramod Tomar (P.W. 8) who had earlier accompanied the Complainant for the first time along with voice-recorder stated that he went to Kishanpur along with Complainant. They could not contact Appellant on 24-12-2014 and 25-12-2014. Thereafter, on 26-12-2014, the meeting of complainant and the Appellant took place and the conversation was recorded in the Voice-recorder. The father of the complainant was also accompanying them. The voice-recorder was sealed in an envelop and obtained the signatures of the complainant. He 26 brought the sealed voice-recorder. The envelop is Ex. P.5. The sealed voice-recorder was handed over by him to the Inspector Trivedi on 27- 12-2014. thereafter, this witness has also supported the prosecution case regarding proceedings of trap which were conducted on 30-12-2014.
43. Alok Kumar Trivedi (P.W.9) is the investigating officer, who has also proved the entire prosecution case.
44. Thus, it is clear that not only the Complainant accepted his signatures on documents Ex. P.2 to P.13 as well as also on Article A-1 to A-8, but he also admitted that he went to the office of Lokayukt, Gwalior and made complaint, although he took somersault and claimed in his Court evidence, that the complaints were made by Netaji and had merely put his signatures on the said documents. Further more, he also admitted that Inspector Trivedi had called him in the office on 30-12-2014. He also admitted that he left for Shivpuri from Gwalior. He also admitted that he went to the house of the Appellant. He claimed that he had enquired from the Appellant regarding status of partition case and had a hand shake with the Appellant. He also admitted in cross-examination by the defence itself that after coming out of the house, the Lokayukt persons had enquired as to whether he has given money to the Appellant or not, then he replied that since, the Appellant did not demand money, therefore, he has not given the same.
45. The complainant is the resident of Village Mayarampur, Tahsil Narwar, Distt. Shivpuri. If he was interested to have a conversation with Appellant with regard to the partition case, then he should not have come to the office of SPE (Lokayukt), Gwalior and could have gone to the house of the Appellant, directly from his house.
2746. Further, it is well established principle of Law that even if the complainant turns hostile, still the accused can be held guilty on the basis of surrounding circumstances. The Supreme Court in the case of Hazari Lal Vs. State (Delhi Admn.) reported in (1980) 2 SCC 390 has held as under :
10. From the evidence of PW 8 and that of PW 4 we may take the following facts as established: PW 3 made a report to PW
8. He produced six currency notes of the denomination of ten rupees whose numbers were noted and which were treated with phenol phthalein powder. Thereafter the notes were handed over to PW 3. PW 3, PW 6 and Kewal Krishan went inside the police station. After sometime PW 6 and Kewal Krishan came out and gave a signal. PW 8 then went inside the police station.
On seeing him the accused who was inside the police station with PW 3 took out some currency notes from the right side pocket of his trousers and threw them across the partition wall into the adjoining room. The notes which were so thrown out by the accused, were found to be the same notes which had been treated with phenol phthalein and handed over to PW 3 before the raid. The handkerchief which was taken out of the right side pocket of the trousers of the accused as well as the right side pocket itself were subjected to a test which showed that they too had come into contact with phenol phthalein powder. It may be noted that the circumstance that the handkerchief (Ex. P-4) recovered from the right side pocket of the pant on the person of the accused was subjected to the colour test which indicated the presence of phenol phthalein powder on that handkerchief was put to the appellant in his examination under Section 313 of the Criminal Procedure Code. Instead of giving any explanation as to how this phenol phthalein powder came on the handkerchief lying in his pocket, the appellant replied: "I know nothing about it". From these facts the irresistible inference must follow, in the absence of any explanation from the accused, that currency notes were obtained by the accused from PW 3. It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events which 28 followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from PW 3. Under Section 114 of the Evidence Act the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. One of the illustrations to Section 114 of the Evidence Act is that the court may presume that a person who is in possession of the stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. So too, in the facts and circumstances of the present case the court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from PW 3, who a few minutes earlier was shown to have been in possession of the notes. Once we arrive at the finding that the accused had obtained the money from PW 3, the presumption under Section 4(1) of the Prevention of Corruption Act is immediately attracted. The presumption is of course rebuttable but in the present case there is no material to rebut the presumption. The accused was, therefore, rightly convicted by the courts below.
11. We will now refer to the two decisions of this Court on which Shri Frank Anthony relied. In Sita Ram v. State of Rajasthan the evidence of the complainant was rejected and it was held that there was no evidence to establish that the accused had received any gratification from any person On that finding the presumption under Section 4(1) of the Prevention of Corruption Act was not drawn. The question whether the rest of the evidence was sufficient to establish that the accused had obtained the money from the complainant was not considered. All that was taken as established was the recovery of certain money from the person of the accused and it was held that mere recovery of money was not enough to entitle the drawing of the presumption under Section 4(1) of the Prevention of Corruption Act. The Court did not consider the further question whether recovery of the money along with other circumstances could establish that the accused had obtained gratification from any person. In the present case we 29 have found that the circumstances established by the prosecution entitled the court to hold that the accused received the gratification from PW 3. In Suraj Mal v. State (Delhi Admn.), also it was said mere recovery of money divorced from the circumstances under which it was paid was not sufficient when the substantive evidence in the case was not reliable to prove payment of bribe or to show that the accused voluntarily accepted the money. There can be no quarrel with that proposition but where the recovery of the money coupled with other circumstances leads to the conclusion that the accused received gratification from some person the court would certainly be entitled to draw the presumption under Section 4(1) of the Prevention of Corruption Act. In our view both the decisions are of no avail to the appellant and as already observed by us conclusions of fact must be drawn on the facts of each case and not on the facts of other cases. In other words there can be no precedents on questions of facts. The appeal is, therefore, dismissed.
47. Further, the complainant Yogesh Kushwaha (P.W.2) has admitted that the documents Ex. P.2 to P. 13 and Articles A-1 to A-8 contains his signatures. The Supreme Court in the case of Ramesh Harijan v. State of U.P., reported in (2012) 5 SCC 777 has held as under :
22.4. The recovery of part of the sheet and white clothes having blood and semen as per the FSL report has been disbelieved by the trial court in view of the fact that Ram Prasad alias Parsadi (PW 5) and Bhikari (PW 10) did not support the prosecution case like other witnesses who did not support the last seen theory. The trial court failed to appreciate that both the said witnesses, Ram Prasad alias Parsadi (PW 5) and Bhikari (PW 10) had admitted their signature/thumb impression on the recovery memo. The factum of taking the material exhibits and preparing of the recovery memo with regard to the same and sending the cut out portions to the serologist who found the blood and semen on them vide report dated 21-3-1996 (Ext. Ka-21) is not disputed. The serological report also revealed that the vaginal swab which was taken by the doctor was also human blood and semen stained.30
23. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examine him.
"6. ... The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof."
[Vide Bhagwan Singh v. State of Haryana; Rabindra Kumar Dey v. State of Orissa; Syad Akbar v. State of Karnataka and Khujji v. State of M.P. (SCC p. 635, para 6).]
24. In State of U.P. v. Ramesh Prasad Misra (SCC p. 363, para
7) this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, Gagan Kanojia v. State of Punjab; Radha Mohan Singh v. State of U.P., Sarvesh Narain Shukla v. Daroga Singh and Subbu Singh v. State.
"83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence."
[See also C. Muniappan v. State of T.N. (SCC p. 596, para 83) and Himanshu v. State (NCT of Delhi).]
25. Undoubtedly, there may be some exaggeration in the evidence of the prosecution witnesses, particularly that of Kunwar Dhruv Narain Singh (PW 1), Jata Shankar Singh (PW
7) and Shitla Prasad Verma (PW 8). However, it is the duty of the court to unravel the truth under all circumstances.
26. In Balaka Singh v. State of Punjab, this Court considered a similar issue, placing reliance upon its earlier judgment in Zwinglee Ariel v. State of M.P. and held as under: (Balaka Singh case, SCC p. 517, para 8) "8. ... the court must make an attempt to separate grain from 31 the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply."
27. In Sukhdev Yadav v. State of Bihar this Court held as under:
(SCC p. 90, para 3) "3. It is indeed necessary, however, to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment
--sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness box detail out an exaggerated account."
28. A similar view has been reiterated in Appabhai v. State of Gujarat (SCC pp. 246-47, para 13) wherein this Court has cautioned the courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
48. Thus, it is held that although the complainant Yogesh Kushwaha (P.W.2) and his father Dara Singh (P.W.3) have turned hostile, but the evidence of Yogesh Kushwaha (P.W.2) which is corroborated by other evidence on record, can be relied upon so far as it supports the prosecution case. Accordingly, it is held that Dara Singh (P.W.3) had moved an application for partition and was interested to get more share 32 in comparison of his sisters. The proceedings were pending before the Court of Tahsildar. The Petitioner is the Patwari of the village.
49. Further, the complainant Yogesh Kushwaha (P.W.2) and Dara Singh (P.W.3) have claimed that the complaints were made at the instance of one Netaji. But none of the witness has disclosed the name of Netaji. The defence of the Appellant that he had made complaints against Kaptan Singh, therefore, he was annoyed, cannot be accepted for the reasons, that this Court has already come to a conclusion that the complaints were made by the complainant Yogesh Kushwaha (P.W.2) and has also accepted his signatures on documents Ex. P.2 to P.13 and Article A-1 to A-8. Certain admissions made by the complainant have also been considered in detail.
50. The fact that the complainant Yogesh Kushwaha (P.W.2) had made complaints to the S.P.E. (Lokayukt) Gwalior stands proved. Whether complainant had come in contact with tainted currency notes or not and if yes, then its effect 51 According to Anand Prakash Naik (P.W.4), the complainant went inside the house of the Appellant and he and others were standing at nearby places by hiding their presence. After some time, the Complainant came out of the house of the Appellant and gave a signal. The Appellant also got suspicious and he too came out of the house. The shadow witnesses caught hold of his hands. The solution of Sodium Carbonate was prepared and the fingers of all the members of the trap party were dipped and the colour of the solution remained unchanged. Thereafter, the fingers of the Appellant were dipped in the solution and the colour of the solution turned into pink. The solution was preserved in 33 sealed bottles. The Appellant expressed he is not in possession of any money. However, the complainant informed that the Appellant had returned the tainted currency notes, after realizing that the currency notes were having some powder on them. Thereafter, the currency notes were also recovered from the pocket of the complainant. Thus, the fact that after the fingers of the Appellant were dipped in the solution, the colour changed into pink, clearly shows that the Appellant had come in contact with the tainted currency notes. Similar evidence has been given by R.P.S. Kushwaha (P.W.5). Ram Gopal Goyal (P.W.6), Dheeraj Naik (P.W.7), Pramod Singh Tomar (P.W.8) and Alok Trivedi (P.W.9) have also proved that after the fingers of the Appellant were dipped in the solution, then the colour of the solution had changed. Thus, it is clear that trap was laid and when the fingers of the Appellant were dipped in Solution of Sodium Carbonate, then its colour turned pink, which clearly means, that he had come in contact with tainted currency notes. The evidence of Yogesh Kushwaha (P.W.2) that he had a hand shake with the Appellant cannot be accepted.
Possession without formal proof of Demand
52. It is submitted by the Counsel for the Appellant that since, the complainant has turned hostile, and no other witness had heard the conversation regarding demand of illegal gratification, therefore, even if it is held that the Appellant had accepted the tainted currency notes, still no adverse inference can be drawn against the Appellant in absence of demand.
53. Considered the submissions made by the Counsel for the Appellant.
3454. It is true that question as to whether in absence of proof of demand, the possession of tainted currency notes can be said to be acceptance of illegal gratification or not has been referred to a larger bench, but it is also well established principle of law that unless and until a judgment is set aside, it would hold field.
55. The Supreme Court in the case of M. Narsinga Rao v. State of A.P., reported in (2001) 1 SCC 691 has held as under :
15. The word "proof" need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word "proved" in the Evidence Act. What is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. observed like this:
"Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion."
16. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis-à-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence 35 Act.
17. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled.
18. For the purpose of reaching one conclusion the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra: (SCC p. 339, para 5) "A presumption can be drawn only from facts -- and not from other presumptions -- by a process of probable and logical reasoning."
19. Illustration (a) to Section 114 of the Evidence Act says that the court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession". That illustration can profitably be used in the present context as well when prosecution brought reliable materials that the appellant's pocket contained phenolphthalein-smeared currency notes for Rs 500 when he was searched by PW 7 DSP of Anti-Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else because there is a possibility of somebody else either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other circumstances which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the 36 court to draw a factual presumption that the appellant had willingly received the currency notes.
20. PW 7 DSP said that PW 1 approached him on the previous day and lodged Ext. P-2 complaint stating that the appellant was persistently demanding Rs 500 from him. The currency notes were actually prepared by PW 7 by smearing them with phenolphthalein powder. When the appellant was caught red- handed with those currency notes he never demurred to PW 7 that those notes were not received by him. In fact, the story that such currency notes were stuffed into his pocket was concocted by the appellant only after lapse of a period of 4 years and that too when the appellant faced the trial in the court.
21. From those proved facts the court can legitimately draw a presumption that the appellant received or accepted the said currency notes on his own volition. Of course, the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence. But if the appellant fails to disprove the presumption the same would stick and then it can be held by the court that the prosecution has proved that the appellant received the said amount.
56. After noticing the conflicting views, the Supreme Court in the case of Neeraj Dutta Vs. State (Govt. of NCT of Delhi) reported in (2019) 14 SCC 311 has held as under :
14. On behalf of the respondent, it was submitted that under Section 20 of the PC Act, the Court is bound to draw presumption mentioned therein and the presumption in question will hold good unless the accused proves the contrary.
It was contended that the purpose of presumption under Section 20 of the Act is to relieve the prosecution from the burden of proving a fact and while so, insistence upon primary evidence for proving demand is not in consonance with the view taken by the Supreme Court in the line of judgments.
15. The learned Senior Counsel for the respondent submitted that the court must take into consideration the facts and circumstances brought on record and may draw inference to arrive at the conclusion whether demand and acceptance of the 37 illegal gratification has been proved or not. Insistence of direct proof or primary evidence for proving the demand may not be in consonance with the view taken by this Court in number of judgments. The learned Senior Counsel has drawn our attention to other cases to substantiate her contention that Satyanarayana had not taken note of the consistent view taken by the Supreme Court. We are not delving into the controversy any further.
16. We are of the opinion that the following issue requires consideration by the larger Bench:
"The question whether in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution."
17. In the light of the consistent view taken by this Court in various judgments, we have some reservation in respect of the observation and findings recorded by this Court in P. Satyanarayana Murthy v. State of A.P. The matter be placed before the Hon'ble Chief Justice for appropriate orders.
57. Section 20 of Prevention of Corruption Act, 1988 reads as under :
20. Presumption where public servant accepts any undue advantage.--Where, in any trial of an offence punishable under Section 7 or under Section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under Section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under Section 11.
58. In the present case, this Court has already come to a conclusion 38 that the complainant Yogesh Kushwaha (P.W.2) had given complaints to the S.P.E. (Lokayukt), Gwalior, alleging demand of illegal gratification. Further, the prosecution has also relied upon the transcript of the recorded conversation, Ex. P.7. This transcript also bears the Signatures of the complainant Yogesh Kushwaha (P.W.2) and he has also admitted his signatures on this transcript. It is submitted by the Counsel for the Appellant that recorded conversation was not played in the Court. There is no scientific evidence that the recorded conversation was in the voice of the Appellant.
59. Considered the submissions made by the Counsel for the Appellant.
60. Shailja Gupta (P.W.10) had also done some part of investigation. She has stated that by letter dated 26-2-2015, Ex. P.44, the Appellant was called upon to give sample of his voice. However, by reply dated 4-3- 2015, Ex. P.45, the Appellant refused to give sample of his voice.
61. The reply given by Appellant reads as under :
fo"k; %& vkokt dk uewuk nsus gsrq mifLFkr gksus ckcr~ lanHkZ %& i= dzekad 875 @ fo-iq-LFkk- @ 2015 egksn;] fo"k;karxZr ys[k gS fd eq>s mDr lanfHkZr i= ds ek/;e ls vkids dk;kZy; es fnukad -03-2015 dks vkokt dk uewuk nsus gsrq mifLFkr gksus dks dgk x;k FkkA esjk fuosnu gS fd eS vkids le{k vkokt dk uewuk ugh nsuk pkgrk gwaA izfrosnu Jheku th dh vksj lknj izsf"kr gSA Hkonh;
eueksgu tkVo
62. The Supreme Court in the case of Ritesh Sinha v. State of U.P., reported in (2019) 8 SCC 1 has held as under :
3926. Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy under Article 20(3) of the Constitution, is the next question.
The issue is interesting and debatable but not having been argued before us it will suffice to note that in view of the opinion rendered by this Court in Modern Dental College & Research Centre v. State of M.P., Gobind v. State of M.P. and the nine-Judge Bench of this Court in K.S. Puttaswamy (Privacy-9J.) v. Union of India the fundamental right to privacy cannot be construed as absolute but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us.
27. In the light of the above discussions, we unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. We order accordingly and consequently dispose of the appeals in terms of the above.
63. Thus, an adverse inference can be drawn against the Appellant on his refusal to give sample of his voice.
64. Thus, in the light of the fact that the colour of the Sodium Carbonate had changed after the fingers of the Appellant were dipped, coupled with the transcript, Ex. P.7 as well as the Appellant had refused to give voice sample, this Court is of the considered opinion, that the prosecution has succeeded in establishing that the Appellant had demanded the illegal gratification of Rs. 3,000/-. Competence of Appellant as well as impression in the mind of bribe giver
65. It is submitted by the Counsel for the Appellant, that the matter 40 was pending before the Tahsildar and nothing was to be done by the Appellant, therefore, there was no occasion for him to demand and accept illegal gratification.
66. The file of the Partition initiated on the application by Dara Singh (P.W. 3) is Ex. P. 38. From this file, it is clear that on 7-10-2014, an application under Section 178 of M.P.L.R. Code was filed by Dara Singh (P.W.3). On 21-11-2014, the applicant, Dara Singh and non-applicants were present and Patwari was directed to file Fard Batwara. Although this order sheet contains the signature of Dara Singh (P.W.3), but doesnot contain the signatures of his sisters. Further, in the light of admission made by Satish Kumar Verma (P.W.11) that the sisters of Dara Singh (P.W.3) never appeared before him, clearly shows that the presence of non-applicants was wrongly mentioned in the order-sheet. Ultimately on 23-12-2014, the Appellant filed Fard Batwara. However, by order dated 20-1-2015, the Tahsildar rejected the Fard Batwara.
67. From the ordersheets of the Tahsildar, it is clear that the partition proceedings were already pending. The Appellant had submitted the Fard Batwara and an order on this was yet to be passed by the Tahsildar. Dara Singh (P.W. 3) was demanding more share in partition, which was not possible. The application which was filed by Dara Singh (P.W. 3) and his sisters for partition reads as under :
U;k;ky; Jheku rglhynkj egksn; rg- ujoj nkjk flag iq= xksih] jkeckbZ fo?kk iqf=;ka xksih tkfr dq'kokg fu- xzke fd'kuiqj rg ujoj ---vkosnd cuke e iz 'kklu ----vukosnd fo"k; caVokjk fd;s tkus ckcr~ egksn;] 41 mijksDr fo"k; es fuosnu fuEu gSA 1- ;g fd vkosnd xzke fd'kuiqj rglhy ujoj dk ewy fuoklh gSA 2-;g fd vkosndks ds LoRo ,oa LokfeRo dh d`f "k Hkwfe losZ uEcj 428] 429] 460 ] 471 @ 1] 474] 660 @ 4 fdrk 6 jdck 0-91 gS Hkwfe 'kklu vfHkys[k es nTkZ gS A 3- ;g fd vkosnd vius LoRo dh Hkwfe dk 'kklu vfHkys[k es caVokjk djkus gsrq ;g vkosnu izLrqr gS ftlls fd vkosnd vius LoRo dh Hkwfe ij esM Mky ldsA vr% Jheku gh ls fuosnu gS fd cVokjk fd;s tkus dh d`ik djsA vkosnd 7-10-2014 nkjk flag
68. In the complaint, Ex. P.2, it was alleged that the Appellant had demanded Rs. 20,000/- and an amount of Rs. 8,000/- has already been paid. If the partition proceedings are considered then it is clear that the allegations of demand Rs. 20,000/- and payment of Rs. 8,000/- by way of first installment is correct.
69. The application filed by Dara Singh (P.W. 3) has already been produced and in the said application, it was no where mentioned that Dara Singh (P.W.3) wants 0.41 hectare in the property.
70. As per partition proceedings, the Tahsildar by order dated 21-11- 2014, directed the Appellant to file Fard Batankan. Thereafter, an affidavit of Ram Bai and Vidhya dated 20-11-2014 was accepted by the Appellant. In the said affidavit it was mentioned that Ram Bai and Vidhya have no objection in case, only 0.20 hectares out of 0.61 hectares of land is given to them. Accordingly, the Appellant prepared the Fard Batankan and proposed 0.41 hectares of land to Dara Singh (P.W.3) and 0.20 hectares of land to Ram Bai and Vidhya. Thus it is clear that the Appellant had prepared a faulty and unequal Fard Batankan with a solitary intention to give undue advantage to Dara Singh (P.W.3). The 42 Appellant had no jurisdiction to accept any affidavit, but that was done. He had no jurisdiction to prepared Fard Batanakan, thereby giving unequal share to the parties, but it was done by him.
71. Further Satish Kumar Verma (P.W.11), who was posted as Tahsildar has stated in his cross-examination that affidavit of Vidhya and Ram bai was produced by Dara Singh (P.W.3). He further stated that during the partition proceedings, Vidhya and Ram bai never appeared before him. The Fard Batankan was prepared on the basis of affidavit only. Even on 23-12-2014, only Dara Singh (P.W.3) had appeared before him and Vidhya and Rambai had not appeared. He also stated that he had informed Dara Singh (P.W.3) that partition cannot be done on the basis of affidavit and Ram bai and Vidhya will have to come to Court for giving their statement. He also admitted that when above information was given to Dara Singh (P.W.3), then he got annoyed. Thus, it is clear from the cross-examination of this witness done by the Appellant himself that Dara Singh (P.W.3) was trying to grab more land and on the basis of affidavit produced by Dara Singh (P.W.3), the Appellant prepared unequal Fard Batankan, which according to the Tahsildar also, was not correct. Thus, it is clear that after having paid first installment of Rs. 8,000/-, when Dara Singh (P.W.3) found that he will not get excess land as desired by him, then he got annoyed. Dara Singh (P.W.3) has also admitted that when he came to know that he cannot get an excessive share, then he became restless. Further more, unequal share could not have been proposed by the Appellant. Thus, it is clear that in lieu of first installment of Rs. 8,000/-, the Appellant accepted affidavit and prepared incorrect Fard Batwara and Batankan.
4372. Further more, if the role of the Appellant had already come to an end, then there was no reason for the complainant Yogesh Kushwaha (P.W.2) to go to the house of the Appellant and to enquire about the partition proceedings. Thus, it is clear that the complainant Yogesh Kushwaha (P.W.2) was still under the impression that the role of the Appellant had not come to an end.
73. Whether the accused had a competence or not cannot be an important aspect. The impression in the mind of the bribe-giver that the accused would be some help is sufficient. The Supreme Court in the case of Chaturdas Bhagwandas Patel v. State of Gujarat, reported in (1976) 3 SCC 46 has held as under :
21. The proof of the foregoing facts was sufficient to establish the charge under Section 161 of the Penal Code. The mere fact that no case of abduction or of any other offence had been registered against Ghanshamsinh in the police station or that no complaint had been made against him to the police by any person in respect of the commission of an offence, could not take the act of the appellant in demanding and accepting the gratification from Ghanshamsinh out of the mischief of Section 161 of the Penal Code. The section does not require that the public servant must, in fact, be in a position to do the official act, favour or service at the time of the demand or receipt of the gratification. To constitute an offence under this section, it is enough if the public servant who accepts the gratification, takes it by inducing a belief or by holding out that he would render assistance to the giver "with any other public servant"
and the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing. This is clear from the last explanation appended to Section 161, according to which, a person who receives a gratification as a motive for doing what he does not intend to do, was a reward for doing what he has not done, comes within the 44 purview of the words "a motive or reward for doing". The point is further clarified by Illustration (c) under this section. Thus, even if it is assumed that the representation made by the appellant regarding the charge of abduction of Bai Sati against Ghanshamsinh was, in fact, false, this will not enable him to get out of the tentacles of Section 161, although the same act of the appellant may amount to the offence of cheating, also (see Mahesh Prasad v. State of U.P.; Dhaneshwar Narain Saxena v. Delhi Admn.).
74. Further more, the partition proceedings were pending before the Court of Tahsildar. The incorrect Fard Batwara and Batankan was yet to be accepted. Thus, it is incorrect to say that by submitting incorrect Fard Batwara and Batankan the role of the Appellant had come to an end. Further, the evidence of Yogesh Kushwaha (P.W.2) that he had gone to the house of the Appellant to enquire about the partition proceedings, clearly establishes that the bribe-giver was aware that the partition proceedings have not come to an end and still the Appellant has a role to play. Thus, it cannot be said that there was no motive on the part of the Appellant to demand illegal gratification. In fact, after receiving first installment of Rs. 8,000/- he had prepared a false Fard Batwara and Batankan by unauthorizedly accepting the affidavit, without realizing that in case if the affidavit is acted upon, then it would result in relinquishment of pre-existing right which cannot be done without registered deed.
75. Thus, considering the evidence which has come on record, this Court is of the considered opinion, that the prosecution has succeeded in establishing the guilt of the Appellant beyond reasonable doubt. Accordingly, his conviction under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act is Upheld.
4576. So far as the question of sentence is concerned, the Appellant had tried to deprive the sisters of Dara Singh (P.W.3) from their legitimate claim and further, he accepted the affidavit on his own, without realizing that relinquishment of pre-existing right requires registered deed, the sentence awarded by the Trial Court doesnot call for any interference.
77. Ex-consequenti, Judgment and Sentence dated 19-3-2021 passed by Special Judge (Prevention of Corruption Act), Shivpuri in Special Case No. 06/2016, is hereby affirmed.
78. Before concluding the judgment, this Court thinks it appropriate to consider as to whether Yogesh Kushwaha (P.W.2) and Dara Singh (P.W.3) are liable to be prosecuted for giving false evidence or not?
79. The first question for consideration is that whether, a preliminary enquiry as envisaged under Section 340 of Cr.P.C. is necessary or not and whether any opportunity of hearing is to be given to the witnesses, before directing for their prosecution for giving false evidence before the Court or not?
80. Section 340 of Cr.P.C. reads as under :
340. Procedure in cases mentioned in Section 195.--(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,--
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;46
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-
bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195.
(3) A complaint made under this section shall be signed,--
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court 1[or by such officer of the Court as the Court may authorise in writing in this behalf.] (4) In this section, "Court" has the same meaning as in Section 195.
81. The Supreme Court in the case of K.T.M.S. Mohd. v. Union of India reported in(1992) 3 SCC 178 has held as under :
35. In this context, reference may be made to Section 340 of the Code of Criminal Procedure under Chapter XXVI under the heading "Provisions as to Offences Affecting the Administration of Justice". This section confers an inherent power on a court to make a complaint in respect of an offence committed in or in relation to a proceeding in that court, or as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, if that court is of opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in clause
(b) of sub-section (1) of Section 195 and authorises such court to hold preliminary enquiry as it thinks necessary and then make a complaint thereof in writing after recording a finding to that effect as contemplated under sub-section (1) of Section
340. The words "in or in relation to a proceeding in that court"47
show that the court which can take action under this section is only the court operating within the definition of Section 195(3) before which or in relation to whose proceeding the offence has been committed. There is a word of caution inbuilt in that provision itself that the action to be taken should be expedient in the interest of justice. Therefore, it is incumbent that the power given by Section 340 of the Code should be used with utmost care and after due consideration. The scope of Section 340(1) which corresponds to Section 476(1) of the old Code was examined by this Court in K. Karunakaran v. T.V. Eachara Warrier and in that decision, it has observed: (SCC pp. 25 and 26, paras 21 and 26) "At an enquiry held by the Court under Section 340(1), CrPC, irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action. ... The two per-conditions are that the materials produced before the High Court make out a prima facie case for a complaint and secondly that it is expedient in the interest of justice to permit the prosecution under Section 193 IPC."
36. The above provisions of Section 340 of the Code of Criminal Procedure are alluded only for the purpose of showing that necessary care and caution are to be taken before initiating a criminal proceeding for perjury against the deponent of contradictory statements in a judicial proceeding.
82. The Supreme Court in the case of State (NCT of Delhi) v. Pankaj Chaudhary, reported in (2019) 11 SCC 575 has held as under :
49. There are two preconditions for initiating proceedings under Section 340 CrPC:
(i) materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-section (1) of Section 195 CrPC, and
(ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence.48
50. Observing that the court has to be satisfied as to the prima facie case for a complaint for the purpose of inquiry into an offence under Section 195(1)(b) CrPC, this Court in Amarsang Nathaji v. Hardik Harshadbhai Patel held as under: (SCC pp. 117-18, paras 6-8) "6. The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred to as "IPC"); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in Section 340(1) CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See K.T.M.S. Mohd. v. Union of India.) The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case.
7. In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. (See Pritish v. State of Maharashtra.) 49
8. In Iqbal Singh Marwah v. Meenakshi Marwah, a Constitution Bench of this Court has gone into the scope of Section 340 CrPC. Para 23 deals with the relevant consideration: (SCC pp. 386-87) '23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)
(b), as the section is conditioned by the words "court is of opinion that it is expedient in the interests of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint.' "
The same principle was reiterated in Chintamani Malviya v. High Court of M.P.
51. It has been consistently held by this Court that prosecution for perjury be sanctioned by the courts only in those cases where perjury appears to be deliberate and that prosecution ought to be ordered where it would be expedient in the interest of justice to punish the delinquent and not merely because there is some inaccuracy in the statement. In Chajoo Ram v.50
Radhey Shyam, this Court held as under: (SCC pp. 779-80, para 7) "7. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The approach of the High Court seems somewhat mechanical and superficial: it does not reflect the requisite judicial deliberation...."
83. Thus, it is clear that before taking action under Section 340 of Cr.P.C., the Court is required to see as to whether :-
(i) materials produced before the court makes out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-section (1) of Section 195 CrPC, and
(ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence.
84. When this Court has already formed a prima facie opinion, and both the above mentioned ingredients are present, then it is not necessary to conduct any other preliminary enquiry as envisaged under Section 340 51 of Cr.P.C. By proceeding under Section 340 of Cr.P.C., a Court does not record the guilt of an accused, but it is merely of a prima facie opinion that it is expedient in the interests of justice that an inquiry should be made into the alleged offence. Therefore, where a Court is otherwise in a position to form an opinion regarding making of complaint, then the Court may dispense with the preliminary inquiry.
85. The Supreme Court in the case of Amarsang Nathaji v. Hardik Harshadbhai Patel, reported in (2017) 1 SCC 113 has held as under :
7. In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. (See Pritish v. State of Maharashtra.)
86. The Supreme Court in the case of State of Goa v. Jose Maria Albert Vales, reported in (2018) 11 SCC 659 has held as under :
31. It is no longer res integra that the preliminary enquiry, as comprehended in Section 340, is not obligatory to be undertaken by the court before taking the initiatives as contained in clauses (a) to (e) while invoking its powers thereunder. Section 341 provides for an appeal against an order either refusing to make a complaint or making a complaint under Section 340, whereupon the superior court may direct the making of the complaint or withdrawal thereof, as the case may be. Section 343 delineates the procedure to be adopted by the Magistrate taking cognizance. This provision being of determinative significance is quoted hereinbelow:52
"343. Procedure of Magistrate taking cognizance.--(1) A Magistrate to whom a complaint is made under Section 340 or Section 341 shall, notwithstanding anything contained in Chapter XV, proceed, as far as may be, to deal with the case as if it were instituted on a police report.
(2) Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided."
(emphasis supplied)
87. The next question for consideration is as to whether it is necessary for this Court to give an opportunity of hearing to the Complainant Yogesh Kushwaha (P.W.2) and Dara Singh (P.W.3) or not?
88. The question is no more res integra.
89. The Supreme Court in the case of Pritish v. State of Maharashtra, reported in (2002) 1 SCC 253 has held as under :
18. We are unable to agree with the said view of the learned Single Judge as the same was taken under the impression that a decision to order inquiry into the offence itself would prima facie amount to holding him, if not guilty, very near to a finding of his guilt. We have pointed out earlier that the purpose of conducting preliminary inquiry is not for that purpose at all. The would-be accused is not necessary for the court to decide the question of expediency in the interest of justice that an inquiry should be held. We have come across decisions of some other High Courts which held the view that the persons against whom proceedings were instituted have no such right to participate in the preliminary inquiry (vide M. Muthuswamy v. Special Police Establishment).
90. In view of the fact that initially Dara Singh (P.W.3) tried to grab the share of his sisters Vidhya and Ram bai by claiming 0.41 hectares for himself and gave only 0.10 hectare to each of his sister, and when he 53 could not succeed, then not only he got annoyed but also lodged the Complaint through his son, and thereafter, he and his son Yogesh Kushwaha (P.W.2), turned hostile. Under these circumstances, this Court is of the considered opinion, that it would be in the interest of justice that Yogesh Kushwaha (P.W.2) and Dara Singh (P.W.3) should be prosecuted for giving false evidence before the Court. Therefore, the Trial Court is directed to make a complaint as required under Section 340 of Cr.P.C.
91. The Appellant is in jail. He shall undergo the remaining jail sentence.
92. Let a copy of this Judgment be immediately provided to the Appellant, free of cost.
93. The record of the Trial Court be returned back along with copy of this Judgment for necessary information and compliance.
94. The appeal fails and is hereby Dismissed.
(G.S. AHLUWALIA) JUDGE ARUN KUMAR MISHRA 2022.07.22 16:57:33 +05'30'