Delhi District Court
State vs . Ravinder Singh on 31 March, 2011
IN THE COURT OF SH. RAKESH SIDDHARTHA,
SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI
Case ID No. 02401R1154802005
CC No. 118/09
STATE Vs. RAVINDER SINGH
S/o Sh. Hari Singh,
R/o I107, MB Road,
Lal Kuan, Badarpur, Delhi.
FIR No. 34/04
U/S 7, 13(1) (d) & 13 (2) of POC Act
Date of Institution : 13.12.2005
Judgment reserved on : 31.03.2011
Judgment delivered on : 31.03.2011
JUDGMENT
1. As per prosecution, on 22.07.2004, one Baleshwar Tanwar lodged a complaint with Inspector KS Pathania, Raid Officer at AC Branch in the presence of Naveen Chander Pant, panch witness against one HC Ravinder Singh for demanding a sum of Rs.2000/ as bribe from the complainant for not arresting him in a case of a quarrel.
2. The complainant produced four GC notes in the denomination of Rs.500/ each before the Raid Officer who recorded the numbers of the same in preraid report. After getting the same checked by panch witness, State Vs Ravinder Singh Page No. 1/18 phenolphthalein powder was applied on the GC notes and right hand of panch witness was touched to the tainted GC notes and thereafter right hand wash of panch witness was taken in colorless solution of sodium carbonate which turned pink. The characteristics of phenolphthalein powder were explained to the complainant and panch witness.
3. The complainant was instructed to keep the panch witness close to him and to talk and to transact with accused in such a manner so that panch witness would be able to overhear and see the transaction. The complainant was further instructed to give the bribe money to the accused only on his specific demand.
4. The panch witness was instructed to remain close to the complainant and overhear the conversation between complainant and the accused and also observe the incident and after the demand and acceptance of money by the accused, he should give a signal to the raiding party by moving his right hand over his head.
5. Thereafter Raid officer, in the presence of panch witness, handed over those tainted GC notes to the complainant who kept the same in the right side pocket of his pants. Thereafter, hands of panch witness were got washed with the soap and water while the solution was thrown away. The RO recorded pre raid proceedings. At about 11:05am, complainant alongwith panch witness, Raid Officer Insp. KS Pathania, IO Insp. SN Pandey and other members of raiding party left AC Branch in a Government vehicle and reached near village Bhattikhurd opp. Post office at 01:45pm State Vs Ravinder Singh Page No. 2/18 where complainant made a phone call on the mobile phone of HC Ravinder Singh. Accused HC Ravinder Singh told the complainant that he would be reaching the house of his uncle within 3045 minutes and asked him to wait. The vehicle was parked at a suitable distance from the shop which was in front of the residence of the uncle of HC Ravinder Singh. Insp. SN Pandey and driver were left in the vehicle. At about 01:30 pm, the raiding party saw a maruti car coming to the house of uncle of accused and stopped in front of the shop and a hefty person got down from the vehicle and started talking with the complainant and thereafter, that person went towards his car. At about 01:45pm, the panch witness gave the preassigned signal and the raiding team rushed to the spot and apprehended the hefty person who was in civil dress and whose name was later on learnt to be HC Ravinder Singh.
6. The Raid Officer disclosed his identity as an AC Branch official to the accused Ravinder Singh and challenged him. RO also asked the accused that he was to be searched and if he wanted he could take the search of the members of the raiding party but the accused declined to do so. The RO instructed the panch witness to recover the bribe money and upon this, the accused himself extended his left hand towards the panch witness containing the GC notes of Rs.2000/. The panch witness took those GC notes and the same were tallied with the serial number recorded in pre raid report. Thereafter, the recovered GC notes were taken in possession vide seizure memo.
7. Thereafter, left hand wash of accused Ravinder Singh was taken State Vs Ravinder Singh Page No. 3/18 in the colorless solution of sodium carbonate which turned pink. The same was transferred to two clean glass bottles and sealed with the seal of KSP. Sealed bottles containing hand washes and sample seal were taken in possession vide seizure memo. Accused Ravinder Singh was arrested. Thereafter Raid Officer prepared post raid report.
8. IO Insp. SN Pandey was called to the spot and exhibits / case property as well as accused Ravinder Singh, copy of raid report and related documents were handed over to him for investigation.
9. The case was registered and chargesheet filed and charges were framed.
As per the charge, on 22.07.2004, at about 01:40pm in village Bhatti Khurd opp. Post Office, Delhi accused Ravinder Singh being posted as HC at police post Bhati Mines PS Mehrauli, Delhi being a public servant demanded and accepted Rs.2000/ as a bribe from complainant Baleshwar Tanwar for not putting the complainant behind the bars in a case of quarrel between complainant and one Sunder where matter had been compromised between the parties and thereby accused committed an offence punishable u/s 7 of the Prevention of Corruption Act, 1988.
Secondly, on the abovesaid date, time and place, accused being employed as above public servant obtained Rs.2000/ from the above complainant as a pecuniary advantage for himself by corrupt or illegal means or otherwise by abusing his position as such public servant and thereby he committed an offence of criminal misconduct as specified u/s 13 (1)(d) and State Vs Ravinder Singh Page No. 4/18 punishable u/s 13 (2) of the Prevention of Corruption Act, 1988.
Accused pleaded not guilty and claimed trial.
10. In evidence, the prosecution had examined fourteen witnesses to substantiate the charge while the accused had examined one witness in his defence.
11. I have heard the arguments on behalf of prosecution wherein Sh.Abdul Aleem, Addl. PP for the State has argued that accused had been apprehended after accepting illegal gratification from the complainant and chemical wash of the hand of the accused had given positive result of touching the tainted GC notes alongwith the evidence that has come on record to the demand, acceptance and recovery of the bribe amount from the accused by the complainant as well as raid officer fully establishes the case of the prosecution whereby the accused had been held guilty.
12. On the other hand, counsel for the accused Sh.Yogesh Verma has argued that the panch witness Naveen Chand Pant had not supported the case of the prosecution whereby it is not possible to fully establish the case of the prosecution and furthermore the law in regard to the fact that where the panch witness does not support the case of the prosecution in regard to the demand and subsequent acceptance, the accused has been given benefit of doubt and discharged. Similarly, in the present case, the panch witness has not supported the case of the prosecution and as such the accused is liable to State Vs Ravinder Singh Page No. 5/18 be acquitted as both the complainant and raid officer are interested witnesses.
13. Before we delve into the complicity or culpability of the accused in the commission of offence, it is imperative to determine whether the requisite sanction u/s 19 of the POC Act had been sought and was accorded.
14. What the court has to see is whether or not the Sanctioning Authority, at the time of giving sanction, was competent to accord sanction and whether it had applied its mind. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. Therefore, the grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
15. As stated, the grant of sanction is not an idle formality but is a sacrosanct duty. Hon'ble Supreme Court in Ram Kishan Prajapati Vs. State of UP (2000) 10 SCC43 has stressed that the person according sanction should be a competent person and a sanction accorded by the person, not competent to grant, cannot be held to be a valid sanction. This fact has not been challenged by the accused.
State Vs Ravinder Singh Page No. 6/18
16. The Supreme Court further in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997) 7 SCC 622 has stressed on the ingredients that go into grant of sanction. Here is a case the court first has to determine that the person against whom sanction sought falls within the description of "public servant" as defined in the section 21 of the IPC. Once the person against whom the prosecution is to be launched is found to be covered by the definition of "public servant" and the requirement to that extent is satisfied, the next question whether he is to be prosecuted or not is considered by the authority, which was competent to remove that person from the office on the date on which the offence was committed. This rule is a departure from the normal rule under which the relevant date is the date of taking cognizance, as laid down by the Hon'ble Supreme Court in R.S. Nayak Vs. A.R. Antulay 1984 Cr.L.J.613.
17. In Basdeo Agarawalla Vs. Emperor, AIR 1945 FC 16 it was opined that sanction, under the Act, is not intended to be, nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness. The object of the provision for sanction is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden.
18. Sanction lifts the bar for prosecution. It is sacrosanct act which affords protection to government servants against frivolous prosecutions. State Vs Ravinder Singh Page No. 7/18 Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. The validity of the sanction would, therefore, depend upon the material placed before the Sanctioning Authority and the fact that all the relevant facts, material and evidence have been considered by the Sanctioning Authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the Sanctioning Authority had considered the evidence and other material, placed before it. This fact can also be established by the extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the Sanctioning Authority.
19. Since the validity of "sanction" depends on the application of mind by the Sanctioning Authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever was under an obligation or compulsion or State Vs Ravinder Singh Page No. 8/18 constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
20. Further delving into the provision of Section 197 Cr.PC which is analogous provision which is not an empty formality. It is essential that the provisions which are to be observed with complete strictness. The object of obtaining sanction is that the authority concerned should be able to consider for itself the material before the IO, before it comes to the conclusion that the prosecution in the circumstances be sanctioned or forbidden. To comply with the provisions of section 197, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction. Section 197 does not require the sanction to be in any particular form. If the facts constituting the offence charged are not shown on the face of the sanction, it is open to the prosecution, if challenged, to prove before the court that those facts were placed before the sanctioning authority. It should be clear from the form of the sanction that the sanctioning authority considered the relevant material placed before it and after a consideration of all the circumstances of the case it sanctioned the prosecution. It is equally well settled that before granting sanction the authority or the appropriate government must have before it the necessary report and the material facts which prima facie establish the commission of offence charged for and that the appropriate government would apply their mind to those facts". The State Vs Ravinder Singh Page No. 9/18 order of the sanction only is an administrative act and not a quasi judicial nor a lis involved. Therefore, the order of sanction need not contain detailed reasons in support thereof . But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard. The question of giving an opportunity to the public servant at that stage does not arise. Proper application of mind to the existence of a prima facie evidence of the commission of the offence is only a precondition to grant or refuse to grant sanction. When the government accorded sanction, section 114(e) of the Evidence Act raises presumption that the official acts have been regularly performed. The burden is heavier on the accused to establish the contra to rebut that statutory presumption. Once that is done then it is the duty of the prosecution to produce necessary record to establish that after application of mind and consideration thereof to the subject the grant or refusing to grant sanction was made by the appropriate authority. At any time before the Court takes cognizance of the offence the order of sanction could be made. It is settled law that issuance of the process to the accused to appear before the court is sine qua non of taking cognizance of the offence. The emphasis of section 197 (1) or other similar provisions that "no court shall take cognizance of such offence except with the previous sanction" posits that before taking cognizance of the offence alleged, there must be before the Court the prior sanction given by the competent authority. Therefore, at any time before taking cognizance of the offence it is open to the competent authority to grant sanction and the prosecution is entitled to produce the order of sanction. Filing of charge State Vs Ravinder Singh Page No. 10/18 sheet before the court without sanction per se is not illegal, nor a condition precedent. ( State of Bihar vs. PP Sharma, AIR 1991 SC 1260).
21. For the said purpose, PW1 Anil Shukla, DCP South has been examined who has testified that he was posted as Additional DCP, South and a request has been received from the AC Branch office for granting sanction u/s 19 of the POC Act to prosecute the accused Ravinder Singh in the present case. The witness had not gone through the documents appended with the request viz. Copy of FIR, copy of raid report, copy of seizure memo etc. and after applying his mind to the facts and circumstances of the case, witness was of the view that accused should be prosecuted in the present case. Being competent authority to remove the accused from the services he had granted sanction u/s 19 of the POC Act, same is Ex.PW1/A while the covering letter was Ex.PW1/B. No substantial challenge has been made as to the competence and validity of the sanction. The fact that the witness had not mentioned the details of documents in his sanction order or not given any personal hearing to the accused before according sanction is not impediment nor omission fatal to the grant of sanction. In view of the said fact, the sanction so accorded is legally tenable and prosecution can be launched against accused.
22. The case was initiated on the complaint of PW4 Baleshwar who has testified that he had had a quarrel with one Sunder of his village. The matter was compromised with the intervention of HC Ravinder, the accused State Vs Ravinder Singh Page No. 11/18 herein. Subsequent to the said compromise the said HC Ravinder demanded a sum of Rs.2000/ for settling the matter between the two. The same was objected to by the complainant and required the money to be taken from the said Sunder. But the accused insisted on taking the money from the complainant. The complainant went to the AC Branch and lodged a complaint Ex.PW4/A signed by him at point A with inspector KS Pathania. The complainant also produced 4 GC notes of Rs.500/each on which the inspector applied some powder and the same were handed over to the complainant to be kept in his pocket. Pre raid report Ex.PW4/B was drawn and thereafter the raiding team left for Sawan Public School in village Bhatti. The complainant and the panch witness were sent to the shop situated outside the school where the other members of the raiding team took their position while one inspector was left in the government vehicle. The HC was called on the phone from the PSO and in consequence thereof the accused came to the shop between 12.00pm to 1.00pm in a car driven by Ct. Ramesh. The accused was offered beverage when he came to the shop and thereafter the accused demanded the settled amount by saying 'LA BHAI PAISE DE' at which the complainant took out the GC note and handed over the same to accused Ravinder who took the same in his left hand. The panch witness gave a signal and thereafter the raiding team came to the spot and recovered the tainted GC notes. Hand wash of the accused was taken which gave positive result of phenolphthalein. Same was preserved. The numbers of the GC notes were tallied and thereafter the complainant left the spot. The complainant has identified the GC notes as Ex.P1 to Ex.P4 and the residue of State Vs Ravinder Singh Page No. 12/18 hand wash as LHWI, LHWII.
23. The complainant thereafter was cross examined by the public prosecutor in which the witness was able to recollect the demonstration of purpose of application of phenolphthalein powder being given and further the instructions in regard to the procedure that is to say the complainant was asked to keep the panch witness in his close proximity so that he would be able to hear and observe the transaction and the entire raiding team was made to wash their hands. The panch witness was instructed to give an appropriate signal on completion of the transaction. It is also testified that after apprehension of the accused the raid officer had offered his search which was declined by the accused. The complainant has maintained that a demand had been made by the accused of the bribe amount and furthermore that the accused did not accept the bribe amount.
24. Before it can be determined whether the evidence on the basis of testimony of the complainant can inculpate the accused it is incumbent to determine whether there was a semblance of corroboration of the testimony of PW4 lest the complaint had been filed in retribution. The same is sought to be derived from the testimony of PW5, the panch witness. Naveen Chander Pant. The said witness has testified that in the year 2004 the witness was on duty in the AC Branch on 21 and 22nd of July. As no raid had been conducted on 21st he had been detained for 22nd July. On 22.07.2004 Baleshwar a complainant herein lodged a complaint against HC Ravinder for State Vs Ravinder Singh Page No. 13/18 demanding Rs.2000/ as bribe. His complaint Ex.PW4/A is counter signed by the panch witness. The panch witness has testified that on production of 4 GC note of Rs.500/ each the number of same were recorded in pre raid report and a powder was applied thereafter the panch witness was made to touch the same and on dipping the hand in solution the same turned pink. The powder coated GC notes were handed over to complainant who kept the same in right pant pocket.
25. Pre raid report was drawn up which is Ex.PW4/B on which the panch witness had appended his signatures. It is further testified that raiding team reached at Sawan Public School, Mehrauli. The complainant and the panch witness were sent outside the shop while the remaining raiding team sat inside. It is testified that complainant called HC Ravinder on his phone from a PCO located outside the shop and after 20 minutes HC Ravinder came in a Maruti car driven by his friend. After the accused had sat in the car the complainant followed him and took out the tainted GC notes from his pocket and extended his hand to the hand of accused. Believing that the amount had been transferred, pre assigned signal was given. The raiding team arrived and recovered the GC notes wherein it is stated that 2 GC notes were found on the ground while two in the car. HC Ravinder Singh was taken inside the shop and hand wash was taken which turned pink. The panch witness tallied the number of recovered GC notes and on being found identical same were taken into possession. The car was also seized and the accused was arrested. The 4 GC notes have been identified as Ex.P1 to P4 State Vs Ravinder Singh Page No. 14/18 as well as LHWi, LHWii as Ex.P5 and Ex.P6. The witness was cross examined by the prosecution wherein he has denied that the amount was demanded from the complainant or that accused had accepted the GC notes. It is further denied that the GC notes were recovered from the right hand of accused. With the panch witness PW5 vacillating in his testimony as to the recovery as well as factum of the demand. This of course is contrary to his statement which had been recorded u/s 161 Cr.PC. But nevertheless the witness has not denied that the accused had come to the place of spot and that he had come in a vehicle. It is further testified that the accused was sitting in the passenger seat on the front right seat and it was at that instance the RO was summoned who arrested the accused and took the hand wash of the accused. The same turned pink showing positive result of presence of phenolphthalein.
26. The law envisages the acceptance and subsequent turning of the hand wash pink sufficient to raise the presumption as to the demand of GC notes by the accused from complainant as PW4 has categorically stated that the HC Ravinder had demanded the settled money by saying "La bhai paise de" while he was sitting in the car and the said amount had been recovered from the dashboard of the car in which the accused was sitting. As regards the corroborative evidence is concerned, PW5 Naveen Chandra Pant had testified that while the accused was sitting in his car, he saw the complainant taking out the tainted GC notes from his pocket and extending it to the accused. The subsequent search for the GC notes led to the recovery of State Vs Ravinder Singh Page No. 15/18 same from the car in which the accused was sitting from beneath the dashboard and it cannot be said by any imagination that the complainant had extended his hand surreptitiously keeping the same beneath the dashboard from where it was recovered. The subsequent hand wash of the accused had given positive result of handling phenolphthalein coated GC notes. The recovery has also been corroborated by Insp. KS Pathania who had instructed the panch witness to recover the same.The recovery clearly places the presumption against the accused as held in: 2004 Crl. LJ 2040 "State of Andhra Pradesh v. C. Uma Maheswara Rao"
12. Before proceeding further, we may point out that the expressions "may presume" and "shall presume" are defined in Section 4 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The presumptions falling under the former category are compendiously known as "factual presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". When the expression "shall be presumed" is employed in Section 20(1) of the Act, it must have the same import of compulsion.
13. When the subsection deals with legal presumption, it is to be understood as terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its State Vs Ravinder Singh Page No. 16/18 only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act. (See M. Narsinga Rao v. State of A.P., 2001 (1) SCC 691).
14. 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. (1911 (1) KB 988) observed as follows :
"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."
15. 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 visavis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act.
16. 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 State Vs Ravinder Singh Page No. 17/18 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.
17. 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 (1998 (7) SCC 337) "A presumption can be drawn only from facts and not from other presumptions by a process of probable and logical reasoning".
27. Hon'ble Supreme Court in AIR 1956 SC 476*(1) titled as Ram Krishan & Anr. vs. State of Delhi has held that : "One may accept money that is offered or solicit payment of a bribe, or extort the bribe by threat or coercion; in each case, he obtains a pecuniary advantage by abusing his position as a public servant. The word "obtains' is used in Ss.161 and 165, Penal Code. The other word "corrupt or illegal means" find place in S.162. Apart from "corrupt and illegal means"
we have also the words "or by otherwise abusing his position as a public servant".
If a man obtains a pecuniary advantage by the abuse of his position, he will be guilty under subcl.(d). Section 161, 162 and 163 refer to a motive or a reward for State Vs Ravinder Singh Page No. 18/18 doing or forbearing to do something showing favour or disfavour to any person, or for inducing such conduct by the exercise of personal influence. It is not necessary for an offence under cl.(d) to prove all this. It is enough if by abusing his position as a public servant a man obtains for himself any pecuniary advantage, entirely irrespective of motive or reward for showing favour or disfavour.
28. PW6 HC Satender and PW7 HC Jai Singh have vouched that the case property while in their custody had not been tampered with and as such it cannot be said that the residue of the hand wash of the accused was in any way fabricated or tampered with.
29. The evidence that has come forth is that there had been a demand which clearly manifests from the testimony of PW4 and corroborated by PW5 the panch witness. The requirement of provisions of section 7 of POC Act can therefore be said to have been fulfilled. The fact that the accused had accepted illegal gratification in contravention to provision of Section 13(1)(d) of POC Act the evidence has cumulatively been brought on record that on the date of the raid the accused was called on the phone and in consequence he came on a car. It is testified that accused had infact stated 'LA BHAI PAISE DE". This itself manifests the demand and subsequent acceptance of the tainted GC notes had committed an offence u/s 13(1)(D) of POC Act.
30. The panch witness PW5 had seen the complainant extending his State Vs Ravinder Singh Page No. 19/18 hand containing 4 GC notes. On the preassigned signal when the accused was apprehended it is then testified that some portion of the amount was found outside the vehicle. But that is not material as some portion of the bribe amount was also found within and under the dash board of the car and by no stretch of imagination could the complainant extend his hand to place it there. The presumption is that at the stage when the raiding team had apprehended the accused he had dropped the GC notes. The evidence is clear in regard to the demand, acceptance and consequential recovery albeit not from the person of the accused. But from the vicinity of the accused.
31. Evidence in regard to the acceptance has been brought on record where the panch witness has sought to vacillate but the positive hand wash raises the presumption of acceptance as held by The Hon'ble High Court in OP Chhabra Vs. State through CBI has held that : "The necessity for court to search for independent witness in case of charges for corruption cannot be insisted upon. Such crimes are committed in secrecy and normally bribe are not taken openly (although there are bold public servants who do even that). In case of trap where accused has not been lured and goaded in some form to accept bribe but the accused himself has created a situation so that he gets bribe money or the accused indulges in the harassment of the complainant to compel the complainant to give bribe and the complainant reports the matter, the absence of independent witnesses to support the version of the complainant cannot be a ground to acquit the accused." State Vs Ravinder Singh Page No. 20/18
32. An argument has been raised that the accused did not accept the GC note but the hand wash of the accused when taken i.e LHWi and LHW ii, the same had turned pink as per sight test as well as chemical examination of the residue of hand wash signify the presence of phenolphthalein on the hand. The law also permits the testimony of the complainant by itself being credible to inculpate the accuse as held in
33. The hand wash tested positive and as per SC in AIR 1992 SC 1201 B.Hanumant Rao vs. State of Andhra Pradesh it has been proved that accused had handled the bribe money. This is of course rebuttable presumption for the accused to show the acceptance of bribe money was not intentional and voluntarily.
34. Hon'ble Supreme Court in AIR 1976 SC 294 titled Satpaul Vs. Delhi Administration has held that:
"The discretion had been conferred on the court u/s 154. The witness was cross examined and it is in the cross examination that he has supported the prosecution case in regard to the demand and the recovery of the tainted GC notes from the accused."
It was also held that :
"There is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. But where the witnesses have poor moral fibre and have to their discredit a load of bad antecedents which indicates their having a possible motive to harm the accused who was an obstacle in State Vs Ravinder Singh Page No. 21/18 their immoral activities, it would be hazardous to accept the testimonies of such witnesses without corroboration on crucial points from independent sources".
35. Learned counsel for the accused has argued that the accused did not accept the money voluntarily and has cited 2010 (2) C.C. Cases (SC)181 Banarsi Das Vs State of Haryana. But the said case is not applicable as it is evident from the testimony of complainant Pw4 Baleshwar wherein it is explicit that a demand had been made as per the testimony of witness in whose testimony credence can be placed. The law also permits the presumption u/s 20 in regard to Section 7 of POC Act where the money recovered is the bribe amount. Consequently demand can be presumed. In Madhukar Bhaskar Rao Joshi vs. State of Maharashtra (2000) 8 SCC 571 the Hon'ble Supreme Court has held that : "The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for State Vs Ravinder Singh Page No. 22/18 giving satisfaction to be public servant who received it".
36. The Hon'ble Apex Court has further delved into the said instance in B Noha vs. State of Kerala & Anr. in Crl. Appeal no.1122/06 (Arising out of SLP (Crl.) No.952/06) where it was held that :
"When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or the motive''.
This decision was followed by M.Narsinga Rao. vs. State of AP MANU/SC/0802/2000. It is not the case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW1.
37. In State of AP Vs. Kommaraju Gopala Krishna Murthy 2000(9)SCC 752, that :
"when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. The accused has not discharged the burden''.
38. As regards the contention that the complainant had had a number of cases against him for illegal mining, the Hon'ble Bombay High Court in Shivdass Dashrath Jadhav Vs. State of Maharashtra, 2008, Crl,. LJ, 3234, has held that:
"merely because the complainant was involved in many cases, it is no ground to reject his testimony."State Vs Ravinder Singh Page No. 23/18
"His testimony must be scrutinized on its own merit, of course, keeping in view and paying due consideration of the fact of his being involved in certain criminal proceedings. There is no suggestion on the record or at the bar that he has any enmity with the accused which may have induced him to falsely charge him with the present offence."
39. Taking a lenient view in the proof of corroboration where the panch witness had vacillated in his testimony ,the Supreme Court in AIR 1998 SC 1474 State of UP vs. Zakaullah has held that :
" the evidence of raid officer can be relied upon for corroboration. PW10 has infact supported the case of prosecution whereas he has stated that GC notes were recovered from the right hand side pant pocket of the accused. The hand wash as well as handkerchief was taken and the same were tested positive. The contention of the accused is that the amount had been kept by the accused intentionally and forcibly as narrated from the fact that had the same be done so the accused could have expelled the amount from his pocket or had thrown the money on the floor or elsewhere. But the very fact that the GC notes were recovered from the pocket of the accused denotes that there was an approval on the part of the accused to retain the illegal gratification and had therefore voluntarily accepted the said amount. Once the amount is recovered from the person of accused, it is the accused who has to establish that it was not by way of illegal gratification. That burden was not discharged."
40. The raid officer Insp. KS Pathania has also been examined as State Vs Ravinder Singh Page No. 24/18 PW9. The said witness has testified as to the procedure and purpose of applying chemical on the GC notes prior to giving out the bribe amount to the accused. The witness has testified that all the members of the raiding team went to the spot near Bhatti Khurd from where the complainant made a phone call to HC Ravinder Singh. It is testified that about 01.30pm a Maruti car approached the shop of the complainant where a hefty person identified as accused got down from the vehicle and there was a talk between complainant and said person and at 1.45pm the raid officer received preassigned signal from panch witness and the accused was arrested. And immediately after apprehending the accused hand wash was taken which gave positive result of presence of phenolphthalein, corroborating that the accused had received the tainted GC notes. The said fact is sufficient to inculpate the accused in regard to the acceptance of bribe amount from the accused subsequent to the recovery as is clear from the testimony of PW4. Law in regard to recovery and the presumption of the demand in conjunction with the evidence led is sufficient to prove the case against the accused. Hence the prosecution has been successful in proving the case against the accused beyond reasonable doubt and as such, I hold him guilty u/s 7 and 13(1)(d) of POC Act.
41. To come up for arguments on the quantum of sentence.
Announced in the open court
today on 31.03.2011 (RAKESH SIDDHARTHA)
SPECIAL JUDGE (PCACT)06
TIS HAZARI, DELHI
State Vs Ravinder Singh Page No. 25/18
IN THE COURT OF SH. RAKESH SIDDHARTHA,
SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI
Case ID No. 02401R1154802005
CC No. 118/09
STATE Vs. RAVINDER SINGH
S/o Sh. Hari Singh,
R/o I107, MB Road,
Lal Kuan, Badarpur, Delhi.
FIR No. 34/04
U/S 7, 13(1) (d) & 13 (2) of POC Act
Judgment delivered on : 31.03.2011
Order on sentence announced on : 26.04.2011
Order on Sentence
1. It is never too simple and easy to incarcerate a person for his offence and be certain as to whether the sentence so given is commensurate with his act. An overview and humane touch is required when a plea of the plight of the family and the dependents is taken before the court. It is true that we are answerable for our own acts but it is seldom that others are not effected by it. Be it the offence or punishment.
2. The convict little did he realise the enormity of his offence when he had demanded the bribe amount from the complainant as he was subscribing to a vast populace who believe in aggrandizement through illegal State Vs Ravinder Singh Page No. 26/18 means. Even though the practice may be prevalent but cannot be subscribed by the society. The probity in public service requires many sacrifices and complacence. The fact that some unscrupulous public servants have made their office as a source of illegal gratification requires a public chastisement. The courts have to do their bit in an endeavour to cleanse the society of this ill.
3. Learned counsel for the convict submits that convict Ravinder Singh is of mature age and has aged parents and grown up children to look after. It is stated that even though the convict has been held guilty yet he has maintained he is innocent and has also maintained that the present case was foisted on him. He is the sole breadearner of the family and grave deprival would be caused if the convict is incarcerated. Furthermore, the convict has had impeccable service record and there is nary a blemish on his character barring the incident in which he has been convicted. In this regard lenient view be taken.
4. Learned PP for the State Sh.Abdul Aleem submits that convict Ravinder Singh does not deserve any leniency being a public official, he had to manifest probity in his functioning, he had misused his official position for personal gain.
5. After hearing both the sides and upon perusal of the record, I find it difficult to accept the prayer of the convict that he deserves any leniency in State Vs Ravinder Singh Page No. 27/18 this case.
6. In words of Justice I. D. Dua in Ram Sarup Charan Singh Vs. The State AIR 1967 DELHI 26 it has been held that : "I may before closing draw the attention of the authorities and all concerned to the grave danger to our very existence as a free, honest democratic welfare society when we became indulgent to our police personnel getting habitual to taking bribes."
7. The Hon'ble Supreme Court in Swtantar Singh Vs. State of Haryana 1997 4 SCC 14 observed as under : "Corruption is corroding like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralizing the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently truthfully honestly and devotes himself assiduously to the performance of the duties of his post".
8. Corruption has pervaded all public services but it has colossal manifestation in services where public interaction is involved. For each and every need it has become necessary for ordinary citizen to bribe his way to get his work done. This is a sorry state of affair and the authorities more particularly judiciary has to quell this menace to send a message that society shall not endure this degeneration in public life.
9. The police has certain role to play as a protector and savior of the society and if they themselves turn unscrupulous and dishonest and resort to illegal exploitation, then the society is heading towards chaos. The society State Vs Ravinder Singh Page No. 28/18 should not allow it and it should be quelled with exemplary force.
10. Consequently, the convict does not deserve any indulgence or clemency from the court of law and as such custodial sentence of Rigorous Imprisonment alone would serve as a real deterrent.
11. Keeping in view the fact and circumstances of this case, I sentence convict Ravinder Singh to undergo RI for a period of two years with a fine of Rs.5,000/ u/s 7 of POC Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of three months. The convict is further sentenced to undergo RI for a period of two years with fine of Rs. 5,000/ U/s 13(1)(d) punishable U/s 13(2) of POC Act and in default of payment of fine, convict shall undergo SI for a period of three month. Both the sentence shall run concurrently and the convict shall be entitled to benefit u/s 428 Cr.PC.
12. A duly attested copy of the judgment and this order be supplied to the convicts free of costs and thereafter file be consigned to record room.
Announced in the open court (RAKESH SIDDHARTHA)
today on 26.04.2011. SPECIAL JUDGE (PCACT)06
TIS HAZARI, DELHI
State Vs Ravinder Singh Page No. 29/18