Madras High Court
Thulasiram vs State Through The Inspector Of Police on 9 November, 2011
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/11/2011 CORAM THE HONOURABLE MR. JUSTICE S.PALANIVELU CRL.A.(MD)No.77 of 2007 Thulasiram .. Appellant Vs State through the Inspector of Police, Vigilance and Anti Corruption Wing, Virudhunagar District. .. Respondent [Cr.No.41/1998] Appeal filed u/s.27 of Prevention of Corruption Act, 1988 and Section 374 of Cr.P.C. against the order of conviction and sentence passed against the appellant in C.C.No.1467 of 1999 by the Special Judge cum Chief Judicial Magistrate, Virudhunagar District at Srivilliputhoor. !For Appellant ... Mr.P.Daneswaran ^For Respondent ... Mr.P.Kandasamy Addl. Public Prosecutor - - - - - :JUDGMENT
This appeal challenges the order of conviction and sentence passed against the appellant in C.C.No.1467 of 1999 by the Special Judge cum Chief Judicial Magistrate, Virudhunagar District at Srivilliputhoor.
2. The following is the case of the prosecution in brief:
2.(a) The appellant was working as Village Administrative Officer of S.Mariakulam Group of villages from 1.6.1998 to 15.12.1998. P.W.1 approached him to get an endorsement on her application addressed to Tahsildar, for which the accused demanded her a sum of Rs.800/- as bribe and asked her to come on 13.10.1998 at 3.00 p.m. in his office at Kariapatti, Virudhunagar District.
Ex.P.2 is the complaint lodged by P.W.2 in which she has alleged that her father by name Masilamani, was working as constable in Police Department, who died on 10.10.1998, that she is his only daughter, in order to get monetary benefits payable on his death, she required legal heirship certificate, for which she gave a petition to the Tahsildar, Kariapatti on 28.9.1998 and the same was forwarded to the accused for enquiry and report, that she met the accused on 8.10.1998 at 11.00 a.m. in his office along with her husband and she enquired whether the petition was forwarded to him, for which he answered in the affirmative, that he demanded a sum of Rs.800/- as bribe to give recommendation in her petition, that she did not have money at that time, that on 13.10.1998 at about 3.00 p.m. she went to the office of the accused along with Ex. Panchayat President Ramaiah Thevar and her husband and asked him to do the duty for which he asked whether they brought the amount as demanded, that she told that she did not bring the amount and that the accused replied that he would not recommend without receiving money and asked her to come with amount.
2.(b) P.W.2 Bakkiyarani gave the said complaint to the Inspector of Police P.W.8 who received the same and registered a case in Cr.No.4/98 under Section 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act and lodged Ex.P.17 F.I.R. He sent the complaint and F.I.R to the Court. He gave intimations to the Deputy Director of Handloom and Assistant Director of Animal Husbandry Department, Virudhunagar, for sending witnesses. P.W.8 also conducted a secrect enquiry about the conduct of the accused. On 15.10.1988 at about 11.00 a.m. P.W.3 Tamilmani, Junior Assistant of Animal Husbandry Department and one Ramachandran, working as Inspector in Handlooms department appeared before the P.W.8 to whom P.W.8 introduced Bakkiarani/P.W.2. At the request of P.W.8., Bakkiyarani produced Rs.800/- of 8 currency notes of Rs.100/- in denomination. P.W.8 then prepared Sodium Carbonate solution in a white glass tumbler and asked Ramachandran to dip his fingers of both hands. There was no change in the colour. He asked him to smear phenolphthalein powder on the eight 100 Rupees notes and to put them in the spectacles box of Bakkiya Rani. On the direction of P.W.8, Ramachandran again dipped his fingers of both the hands into the Sodium Carbonate Solution, which turned to pink colour. He explained the importance of the phenolphthalein test to the complainant, her husband and the witnesses. He told the complainant and her husband to go to the office of the accused and if the accused demanded money, she had to pay the amount and in case if the accused received the amount she had to come out from the office and show the signal, covering her body with her saree. For the above said events Ex.P.6 Mahazar was prepared.
2.(c) At 1.15 p.m., P.W.8, his party, the complainant, her husband and the witnesses reached Kariapatty P.W.8 sent the complainant, her husband and the witnesses to the office of the accused and he was waiting with his party in a hidden place. At 1.40 p.m. the complainant came out from the office of the accused and showed the pre-arranged signal of covering her body with her saree. P.W.8 on seeing it, rushed into the office of the accused along with his police party, complainant, her husband and witnesses. He introduced himself and others to the accused. On seeing them the accused became tense. P.W.8 asked him whether he received amount from the complainant, for which he answered that he received. P.W.8 prepared Sodium Carbonate Solution in two white glass tumblers. In one tumbler of solution he directed the accused to dip his right hand fingers. The solution turned pink. The said solution was taken in an empty glass bottle, closed and sealed. In a paper pasted on the bottle P.W.8 and the witnesses signed. The said bottle is M.O.2. P.W.8 asked the accused to dip his left hand fingers in another glass of solution and on doing so it turned to pink. As done earlier, a paper was pasted on the table and P.W.8 and witnesses put their signatures. The bottle is M.O.4. In another glass tumbler Sodium Carbonate solution was prepared in which the left side pocket of the shirt worn by the accused was dipped. The solution turned pink colour. This solution also was taken in an empty glass bottle, closed sealed and signed.
2.(d) The serial numbers of the currency notes were compared with the serial numbers of the notes mentioned in the Mahazar in the office of the respondent were found correct. The above said 3 bottles and the 100 rupees notes 8 in number as well as the shirt were seized by P.W.8. At about 3.45 p.m. the accused was arrested. Ex.P.8 Athatchi was prepared narrating all the above said fact in which P.W.8, two witnesses and the accused affixed their signatures.
2.(e) P.W.8 also searched office of the accused and 4 records were seized. At 7.30 p.m. P.W.8 brought the accused to the respondent police office along with the material objects and sent him to judicial custody. He sent the records prepared by him to the Court. Thereafter he entrusted the case file to another Inspector of Police P.W.9. He sent the material objects including currency notes to the Chief Judicial Magistrate, Srivilliputhur under Form-95. He gave requisition to the Court to despatch the properties for chemical examination. He examined the witnesses and recorded their statements. The Scientific Assistant P.W.7 put the material objects to chemical examination and found three solutions contained phenolphthalein and Sodium Carbonate. He sent Ex.P.16 report. Since P.W.9 was transferred, his next incumbent P.W.10 took up the case for further investigation, perused records and on completion of investigation, he laid charge sheet against the accused.
3. Point for consideration :-
Whether the prosecution has brought home the guilt of the appellant beyond all reasonable doubt.
Point:-
4. PW2 is the husband of one Bakkiyarani who was the complainant. She died on 10.01.1998. PW1 is the RDO, Arrupukottai who accorded sanction, Ex.P1 for prosecuting the appellant. As far as the validity of Ex.P1 is concerned, his evidence goes to show that there is no reason to conclude that it is not valid. It is established that Ex.P1 sanction has been accorded by him after due application of mind.
5. PW2 is the husband of Bakkiyarani who narrated about the demand of bribe by the appellant and his request along with his wife, lodging of complaint and further proceedings of apprehending the appellant after alleged receipt of bribe. As far as his oral evidence is concerned, it is duly corroborated by PW3 who is Junior Assistant in the office of the Deputy Director of the Veterinary Department, Virudhunagar. In the cross examination, PW2 would say that father of Bakkiyarani had two wives and his wife Bakkiyarani was the daughter of second wife, that the request for issue of legal heirship certificate was rejected by Tahsildar since there was no materials nor evidence to show that mother of Bakkiyarani was living with Masilamani. It is suggested to him in his cross examination that the accused did not recommend for issue of legal heirship certificate and hence they laid a false complaint which was denied by him.
6. There is no room to discard the oral testimony of PW3 who is an official witness and he did not have any motive as against the appellant. The phenolphthalein test proved positive. Even though the receipt of the amount by the appellant is shown by phenolphthalein test and as stated by PW2 and 3, the court has to see whether there was actual demand on the part of the appellant. It is argued that the Tahsildar rejected the request of the complainant on the premise that there is no record to show that mother of Bakkiyarani was cohabiting with her father as husband and wife.
7. The learned counsel for the appellant would place reliance upon a decision of this Court reported in 2010 (3) MWN (Cr.) 51 [Sankaralingam v. Deputy Superintendent of Police] in which the learned Judge has observed that mere production of a cover and tainted money and positive result of the phenolphthalein test are not enough to establish the guilty of the appellant and that prosecution has to prove the case beyond reasonable doubt and only one circumstance is not enough to fix the guilt of the accused and that it is well settled law that demand of illegal gratification is sine qua non for constitution of the offences and the prosecution has to prove the case beyond reasonable doubt.
8. This Court, in 2011 (1) MLJ (Crl) 173 [R.Damodaran v. State represented by Inspector of Police, Vigilance and Anti-Corruption, Erode Division, Erode] has held that when the demand for illegal gratification is not proved, presumption of the same cannot be raised and that it is well settled that the accused can rebut the presumption by way of cross examination or by preponderance of probabilities.
9. In yet another case reported in 2010 (3) MLJ (Crl) 279 [G.Kaliyaperumal v. State rep. by Inspector of Police, Vigilance and Anti Corruption, Pondicherry], it is observed that when the prosecution failed to prove that illegal gratification was demanded by the accused, it is to be held that the initial burden of demand of illegal gratification so as to rise presumption under Section 7 of the Prevention of Corruption Act, 1988, was not made out. The complainant has stated in her complaint itself that on two occasions she went to meet the appellant alongwith her husband. Even though Ramu Thevar was not examined, still the evidence of PW2 is available to infer that there was demand.
10. Ex.P14 is the legal heirship certificate register maintained in the Tahsildar office of Kariapatti in which Entry No.17 pertains to Bakkiyarani. In this, it is recorded that she has not produced any satisfactory evidence to show that she was the legal heir of deceased Masilamani and it was also not proved in the enquiry that mother of Bakkiyarani is the heir of Masilamani and hence the legal heirship certificate could not be issued to her.
11. The learned counsel for the appellant would also rely upon another decision of this Court reported in 2010 (3) MLJ (Crl) 242 [N.Gunasekaran v. State by Inspector of Police, Vigilance and Anti-corruption Dept., Coimbatore] in which it is held that if infirmities and discrepancies are found in prosecution theory, there could be any reasonable suspicion regarding the prosecution version and hence the conviction could be set aside.
12. The learned counsel for the appellant places strong reliance upon a recent decision of this Court rendered by M.Sathyanarayanan.J. in Crl.Appeal (MD) No.189 of 2005 [State rep.by Inspector of Police, Vigilance and Anti- Corruption, Dindigul v. P.Paraman] on 25.04.2011 in which the learned Judge has referred and followed a decision of the Supreme Court as regards observing the settled procedures contained in the manual which is earmarked for the Departmental officials in the matter of investigation in the trap cases. It is contended that as per Rule of 47 of the Directorate of Vigilance and Anti Corruption Manual, immediate version of the accused after trap assumes great importance and non-recording of the statement of the accused immediately after trap, under Rule 47 of the DVAC Manual is fatal to the case of the prosecution. Rule 47 of the DVAC Manual reads as follows:
"47. Questioning of Accused Officer (1) Questioning of the Accused Officer and recovery of the bribe money should be after thephenolphthalein test. If the test proves positive, arrest of the Accused Officer may be made and recovery of notes effected on the basis of Accused Officer's statement, if any. In this event, the provisions of Section 27 of the Indian Evidence Act would be available to the prosecution.
(2) Immediately after recovery and seizure of the bribe money or article, the Accused Officer must be further interrogated and his detailed statement separately recorded in the case diary under section 162 of the Code of Criminal Procedure, 1973. If there is any need to examine him still further in the light of any fresh evidence that might come up later during the investigation of the case, the same can be done at a later stage and further statement of the Accused Officer recorded. [DVAC Circular Memo No.33979/VAC-4/76, dated 10th December, 1976]"
13. As per the above said Rule 47(1) and (2), after recovery and seizure of the article or bribe money i.e., after the trap was over, there shall be questioning of the accused and immediately after recovery of the bribe money and the accused must be further interrogated. His statement has also recorded in the way stated under Section 162 of Cr.P.C.
14. The learned Judge has also followed a decision of the Apex Court reported in 2008 (3) SCC 484 [Moni Shankar v. Union of India] wherein it is held as follows -
"14. While we say so we must place on record that this Court in Chief Commercial Manager, South Central Railway v. G.Ratnam [(2007) 8 SCC 212] opined that non-adherence to the instructions laid down in Paras 704 and 705 of the Vigilance Manual would not invalidate a departmental proceeding, stating: (SCC pp. 220-21, paras 17-18) "17. We shall now examine whether on the facts and the material available on record, non-adherence of the instructions as laid down in Paras 704 and 705 of the Manual would invalidate the departmental proceedings initiated against the respondents and rendering the consequential orders of penalty imposed upon the respondents by the authorities, as held by the High Court in the impugned order. It is not in dispute that the departmental traps were conducted by the investigating officers when the respondents were on official duty undertaking journey on trains going from one destination to another destination. The tribunal in its order noticed that they decoy passengers deployed by the investigating officers were RPF constables in whose presence the respondents allegedly collected excess amount for arranging sleeper class reservation accommodation, etc. to the passengers. The transaction between the decoy passengers and the respondents was reported to have been witnessed by the RPF constables. In the facts and circumstances of the matters, the Tribunal held that the investigations were conducted by the investigating officers in violation of the mandatory Manual, 1996, on the basis of which inquiries were held by the enquiry officer which finally resulted in the imposition of penalty upon the respondents by the Railway Authority. The High Court in its impugned judgment has come to the conclusion that the inquiry reports in the absence of joining any independent witnesses in the departmental traps, are found inadequate and where the instructions relating to such departmental trap cases are not fully adhered to, the punishment imposed upon the basis of such defective traps are not sustainable under law. The High Court has observed that in the present cases the service of some RPF constables and railway staff attached to the Vigilance Wing were utilised as decoy passengers and they were also associated as witnesses in the traps. The RPF constables, in no terms, can be said to be independent witnesses and non-association of independent witnesses by the investigating officers in the investigation of the departmental trap cases has caused prejudice to the rights of the respondents in their defence before the enquiry officers.
18. We are not inclined to agree that non-adherence of the mandatory instructions and guidelines contained in Paras 704 and 705 of the Vigilance Manual has vitiated the departmental proceedings initiated against the respondents by the Railway Authority. In our view, such finding and reasoning are wholly unjustified and cannot be sustained."
15. It has been noticed in that judgment that Paras 704 and 705 cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. This Court proceeded on the premise that the executive orders do not confer any legally enforceable rights on any person and impose no legal obligation on the subordinate authorities for whose guidance they are issued.
16. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the Department has been able to prove the charges against the delinquent official.
26. The High Court has only noticed Para 704 of the Manual and not Para 705 thereof. Para 705 was very relevant and in any event both the provisions were required to be read together. The High Court, thus, committed a serious error in not taking into consideration Para 705 of the Manual. The approach of the High Court, in our opinion, was not entirely correct. If the safeguards are provided to avoid false implication of a railway employee, the procedures laid down therein could not have been given a complete go-by."
15. In 2007 (1) SCC 630 [Shashikant v. CBI and others] the Supreme Court has dealt with the provisions contained in the CBI Manual and the duty of the officials to follow them. The relevant portion of the judgment goes thus-
"8.Mr.Vikas Singh, the learned Additional Solicitor General, appearing on behalf of the respondents, on the other hand, would submit that the first respondent having been constituted in terms of Section 2 of the Delhi Special Police Establishment Act, 1946 (for short "the said Act") and the Central Government having laid down the procedures for conducting investigation including the mode and manner in which the preliminary inquiry should be conducted (known as CBI Manual) which received the approval of this Court in Vinnet Narain v. Union of India [(1998) 1 SCC 226] the impugned judgment of the High Court should not be interferred with.
9. The said Act was enacted to make provision for the constitution of a special police force in Delhi for the investigation of certain offences in the Union Territories for the superintendence and administration of the said force and for extension to other of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. Section 2 empowers the Central Government to constitute a special force. Indisputably, the first respondent has been constituted in terms thereof. Sub-section (2) of Section 2 provides that subject to any orders which the Central Government may make in this behalf, members of the said police establishment shall have throughout any Union Territory in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers of that Union Territory have in connection with the investigation of offences committed therein. The said Act indisputably applies in regard to charges of corruption made against the employees of the Union of India. It is also not disputed that the CBI Manual was made by the Central Government providing for detailed procedure as regards the mode and manner in which complaints against public servants are to be dealt with.
10. In Vineet Narain's case [(1998) 1 SCC 226] it was held: (SCC p.270, para 58) "58.I.12. The CBI Manual based on statutory provisions of the Cr.PC provides essential guidelines for the CBI's functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned."
16. The provisions of the said Act indisputably are applicable to the fact of the present case. The jurisdiction of the first respondent, in this behalf, is not in question.
16. The learned Judge of this Court has drawn the analogy from the above said decisions to the circumstances of this case before him and held that the officials of DVAC are bound to observe the procedures contained in the DVAC Manual. In the case on hand also, the investigating officer has not recorded the statement of the accused immediately after the trap and as per the above said decisions, it is fatal to the prosecution. PW8 has not stated in his evidence about the reason for non-recording of statement from the accused immediately after he was apprehended. Such statement assumes much importance because the accused may give some explanation for the amount in his possession and the absence of recording his statement would deprive an opportunity to him to prove his innocence. In view of the above said decision, this Court is of the considered view that since no opportunity was extended to the appellant immediately after the trap, he was not in a position to explain about the possession of money and these circumstances would entitle him to get acquitted of all the charges.
17. In such view of this matter, the judgment of conviction and sentence passed by the trial court is liable to be set aside and it is accordingly set aside. The appellant has to be acquitted of all the charges. This point is answered as indicated.
18. In the result, the appeal is allowed acquitting the accused of all the charges framed against him. The bail bond executed by him shall stand cancelled.
ggs/rgr
1. The Special Judge-cum-
Chief Judicial Magistrate, Virudhunagar District at Srivilliputhoor.
2. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.