Kerala High Court
S.Unnikrishnan vs The State Of Kerala on 2 December, 2024
2024:KER:90271
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 2ND DAY OF DECEMBER 2024/11TH AGRAHAYANA, 1946
CRL.A NO.1170 OF 2016
AGAINST THE CONVICTION AND SENTENCE IN C.C.NO.37 OF 2009
ON THE FILE OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM DATED 10.11.2016.
APPELLANT/ACCUSED NO.1:
S.UNNIKRISHNAN, AGED 56 YEARS, S/O.SUSEELAN,
OLIKKODU, RAMAPURAM, THENNIMOODU P.O,
BALARAMAPURAM, TRIVANDRUM DISTRICT,
(FORMERLY VILLAGE OFFICER, MANAMBOOR VILLAGE,
TRIVANDRUM DISTRICT)
BY ADVS.
SMT.ANUROOPA JAYADEVAN
SHRI.ASHRUTH NASER
SMT.ANIMA M.
SMT.UMA S.NAIR
SRI.N.SATHEESH
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADVS.
REKHA.S, SENIOR PUBLIC PROSECUTOR A.RAJESH, SPECIAL PUBLIC PROSECUTOR (VIGILANCE) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.09.2024, ALONG WITH CRL.A.1186/2016, THE COURT ON 02.12.2024 DELIVERED THE FOLLOWING:
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2024:KER:90271 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 2ND DAY OF DECEMBER 2024/11TH AGRAHAYANA, 1946 CRL.A NO.1186 OF 2016 AGAINST THE JUDGMENT AND SENTENCE DATED 10.11.2016 IN C.C NO.37 OF 2009 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM APPELLANT/A2:
A.M.SABU, AGED 53 YEARS, S/O ABDUL UDOOD, LAILA MANDIRAM, KULAMUTTAM P.O, MOONGODU, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM DISTRICT.
BY ADVS.
SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.DHANUSH SUBODHAN SRI.E.A.HARIS SRI.K.S.STEJO SRI.V.S.THOSHIN RESPONDENT/COMPLAINANT:
THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031, THROUGH DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE & ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM UNIT.
BY ADVS.
REKHA.S, SENIOR PUBLIC PROSECUTOR A.RAJESH, SPECIAL PUBLIC PROSECUTOR (VIGILANCE) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.09.2024, ALONG WITH CRL.A.1170/2016, THE COURT ON 02.12.2024 DELIVERED THE FOLLOWING:
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COMMON JUDGMENT 'C.R.'
Dated, this the 2nd day of December, 2024 A trap laid by the Vigilance and Anti-corruption Bureau missed the target as against A1, the public servant. Recovery - allegedly on behalf of A1 - could be effected only from A2, a document writer. The trustworthiness of the prosecution case and adequacy of proof in accordance with law are under challenge in these appeals.
2. These appeals impugn the judgment of the Special Court, Thiruvananthapuram, in C.C.No.37/2009, which convicted both the accused persons for offences under Sections 7 and 13(1)(d), punishable under Section 13(2) of the Prevention of Corruption Act, 1988, ('P.C. Act' for short), read with Section 120 B of the Penal Code. The accused persons were sentenced to undergo rigorous imprisonment for 18 months each; and a fine of ₹40,000/-
for offences under Section 7 of the P.C. Act, read with Section 120 B of the Penal Code. A similar term of sentence and fine was imposed on both the accused for offence under Section 13(1)(d), punishable under Section 13(2) of the Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 P.C. Act, read with Section 120 B of the Penal Code. Besides, R.I. was ordered for a period of one year along with a fine of ₹10,000/- for offence under Section 120 B of the Penal Code. Criminal Appeal first above referred is carried by the 1st accused and the second, by the 2nd accused.
3. THE PROSECUTION CASE:
The 1st accused, while officiating as the Village Officer of Manamboor village, demanded illegal gratification of ₹2,500/- from PW1/Rajila on 04.08.2008 as a reward for enabling payment of land tax in respect of 17 cents of land [which stood in the joint names of the said Rajila/PW1 and her husband], after having hatched a criminal conspiracy with the 2nd accused, a document writer. Upon a complaint made by PW1 Rajila to the Vigilance, a crime was registered and a trap was laid in compliance with all legal formalities. When the amount was paid to the 2nd accused, as instructed by the 1st accused, on 06.08.2008 at 2:20 p.m., the 2nd accused was caught red handed from the village office concerned. Recovery of the tainted currency notes Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 was effected from A2, in the presence of A1. The accused persons have thus committed offences enumerated above, according to the prosecution.
4. The evidence in this case consists of Exts.P1 to P24, supported by the oral evidence of PWs.1 to 9, on behalf of the prosecution. On the defense side, the 1 st accused offered himself as a witness and examined as DW1. Ext.P25 was marked through him. The material objects, M.O.1 to M.O.8(b) were also marked. It appears that there is some confusion regarding the marking of Ext.P25. When DW1 was re-examined, this document is seen marked on behalf of both sides, as Ext.P25. However, Ext.P25 is not seen marked through any prosecution witness. If that be so, the said document ought to have been marked as Ext.D1. Be that as it may.
5. On appreciation of the facts and circumstances, the trial court found both the accused guilty of the offences enumerated above and punished them as indicated in paragraph no.2 above.
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6. Heard Sri.N.Satheesh, learned counsel for the appellant in Crl.A.No.1170/2016 and Sri.Sasthamangalam S.Ajith Kumar, learned Senior Counsel, instructed by Sri.Dhanush Subhodan, on behalf of the appellant in Crl.A.No.1186/2016. Sri.A.Rajesh, learned Special Public Prosecutor (Vigilance) and Smt.Rekha S., Senior Public Prosecutor were heard on behalf of the respondent/State.
7. The first aspect highlighted by Sri.N.Satheesh, learned counsel for the appellant/A1 in Crl.A.No.1170/2016 is about the absence of sanction under Section 197 of the Code of Criminal Procedure (for short, 'Cr.P.C.'), inasmuch as offence under Section 120 B of the Penal Code is also canvassed. As regards sanction under Section 19 of the P.C. Act, the allegations levelled are two fold. Firstly, PW7 who gave sanction was only holding charge of the Land Revenue Commissioner and hence not competent to issue sanction. Secondly, it was urged that, PW7 (the sanctioning authority), during the course of examination, failed to depose anything about the actual incident, which led to the registration of the crime. Instead, she spoke about an Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 incident previous to the real one, based upon which only PW7 was satisfied as regards grant of sanction, which reveals complete non-application of mind, wherefore, the sanction given is bad in law.
8. The next point canvassed is with respect to the absence of proof regarding demand and acceptance of the bribe, two essential pre-requisites to drive home an offence under Section 7 of the P.C. Act. The contention was urged in the same vein, as regards obtainment of a valuable thing or pecuniary advantage, in the context of the offence under Section 13(1)(d). No tangible evidence was adduced to show that the acceptance of money by the 2nd accused, was on behalf of and as instructed by the 1 st accused. Mere recovery of the decoy notes from the 2nd accused is of no moment, insofar as the guilt of the 1st accused is concerned, is the contention urged. After the alleged acceptance of the tainted money, none of the prosecution witness would explain as to how the 2 nd accused reached the office of the 1st accused. It was pointed out by the learned counsel that no witness, except PW1, would vouch the demand Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 alleged to have been made by the 1 st accused. PW1 is not a witness of a sterling quality, wherefore, sole reliance cannot be placed on her evidence to find the guilt. As regards the first demand allegedly made over phone, the call details were not tendered in evidence, as required by law. No proof was adduced even to show that PW1/Rajila was having a land phone connection at the relevant time. Coming to the second demand alleged to have been made on 06.08.2008, a crucial witness, who accompanied PW1 and who was allegedly present at the time when the demand was made, was not examined for reasons best known to the prosecution. Withholding a material witness would tell harsh upon the prosecution version, is the argument advanced. The phenolphthalein test turned negative, insofar as the 1st accused is concerned. It remains unexplained as to why the recovery was not effected at the office of A2, pursuant to receipt of money. It was argued that the recovery was postponed and effected from the office of A1, only to rope in the 1st accused, as well. The role of one Thajudheen, who was inimical to the 1st accused has been elicited through the cross examination of PW1, as also, spoken to by DW1. Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 PW1 would depose that the first complaint itself was preferred on the persuasion of the said Thajudheen. In the backdrop of the afore referred circumstances and pitfalls in the prosecution case, the defence version as regards the animosity of said Thajudheen to A1 assumes greater significance, according to the learned counsel. Learned counsel would finally submit that the court should be fully satisfied when the prosecution case is edificed on a trap; and any suspicion on the prosecution version should surely enure to the benefit of the accused. On such premise, the learned counsel for the appellant/A1 would seek the impugned judgment to be set aside and the 1st accused to be acquitted.
9. Sri.Sasthamangalam S.Ajith Kumar, learned Senior Counsel appearing for the appellant/A2 in Crl.A. No.1186/2016 would endorse the entire submissions made by the learned counsel for the 1st accused. It was then pointed out that, in the absence of establishing guilt as against the 1st accused/public servant, no offence would lie as against A2/the document writer. Learned Senior Counsel Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 would highlight that it was PW1/Rajila, who approached the 2nd accused, with whom PW1 and her husband had long lasting acquaintance. It was through the 2 nd accused that all matters relating to documentation in the family of PW1 was effected. The version put forward by the 2nd accused that he received ₹2,500/- towards his professional fee would also establish that the prosecution version is false, improbable and unbelievable. On such premise, learned Senior Counsel would seek the acquittal of A2, as well.
10. Refuting the above allegations, Sri.A.Rajesh, the learned Special Public Prosecutor (Vigilance) would first impress upon this Court that sanction under Section 197 Cr.P.C is not required in the given facts. It was submitted that the 1st accused, being a Village Officer, is removable from office by the orders of the Land Revenue Commissioner, for which, no sanction of the Government is required. Secondly, it was pointed out that demanding and accepting bribe cannot be construed as an act within the realm of the discharge of the official duty of the 1st accused. On the attack being made to sanction under Section 19, it was Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 first submitted that PW7, who was holding the charge of Land Revenue Commissioner, was competent to issue sanction. When the charge of a public office is given to a person due to some exigency, law should presume that such person holding the charge is competent to perform, any and every function, which the original incumbent to the public office was competent to perform, otherwise. Else, the very purpose of giving charge will be defeated. As regards the alleged failure of PW7 to speak about the present incident, and also, about her reference to a previous incident, learned Special Public Prosecutor would submit that the same cannot be fatal, inasmuch as, the crucial aspect for consideration is the satisfaction recorded in Ext.P10 Order of sanction; and not the oral evidence adduced in support thereof. If Ext.P10 Order of sanction has correctly reckoned the incident and has given sanction based on all relevant material/input, the imperfection, if any, while adducing evidence by the sanctioning authority cannot be of any serious moment, is the submission made. Above all, learned Special Public Prosecutor would rely upon the provisions of Sections 19(3) and 19(4) of the P.C. Act to contend that Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 any error, omission or irregularity in the sanction, or even the absence of sanction, cannot be a ground to reverse a sentence, unless there occurred a failure of justice, in the opinion of the court. In the instant facts, the appellants could not point out any failure of justice on account of the so called defect in the sanction. Based on Section 19(4), it is the contention of the learned Special Public Prosecutor that the irregularity alleged on account of PW7 holding only the charge of Land Revenue Commissioner was not objected to before the trial court, wherefore, the said contention is in the teeth of Section 19(4).
11. Coming to the factual grounds, learned Special Public Prosecutor would submit that PW1 is a credible witness, wherefore, conviction can be based on her sole testimony. It is to PW1 that the 1st accused made a demand on two occasions, namely 04.08.2008 (over phone) and 06.08.2008 (directly). In such circumstance, she is the competent witness to speak about the demand. Once the demand for illegal gratification made by A1 is established by the evidence of PW1, the non-examination of Zeenath, who was Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 present on 06.08.2008, is inconsequential, is the submission made. It is not the requirement of law that the decoy notes should be recovered from the public servant, who made the demand. It is enough, if such recovery is effected from a person, (A2 in the given facts), to whom the amount has been entrusted, as instructed by the public servant/A1. This fact is established by the evidence tendered by PW1. It was emphatically argued that, in a case based on a trap, which emerged successful, there involves direct evidence, pinpointing the guilt of the accused, inasmuch as the accused is caught red handed in the presence of the Vigilance officials, as also, independent witnesses/gazetted officers. Such a case cannot be thrown overboard on the basis of mere surmises, as espoused by the learned counsel for the appellants. It is not every suspicion, theoretical or fanciful, that matters; instead, only those suspicion, which are reasonable and probable, so as to throw a shadow on the prosecution version alone which matters. On proof of the first demand over phone, the entire call details were tendered in evidence, which was, however, rejected only for the technical snag of not Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 producing a certification under Section 65-B of the Evidence Act. The fact that the phenolphthalein test turned negative as against A1 is of no consequence, inasmuch as it was A2, who received the tainted money, even according to the prosecution. A mere suggestion as regards the role of Thajudheen in the cross-examination of PW1, cannot demolish the prosecution version, even if it is assumed that the initial complaint was preferred by PW1, as persuaded by the said Thajudheen. According to the learned Special Public Prosecutor, all the relevant materials were rightly taken stock by the learned Special Judge to convict the accused persons, wherefore, the judgment impugned warrants no interference from this Court.
12. Having heard the learned counsel appearing for the respective parties, this Court will now address the issues, one by one.
13. WHETHER SANCTION UNDER SECTION 197 REQUIRED IN RESPECT OF OFFENCE UNDER SECTION 120 B OF THE PENAL CODE. Section 197, to the extent it is applicable, is extracted Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 here below:
"197. Prosecution of Judges and public servants.-
(1)When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 -
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:"
14. An analysis of Section 197 would reveal the following ingredients:
i) The accused person is or was a Judge,
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Magistrate or a public servant.
ii) He is not removable from his office, save by the sanction of the Government.
iii) The offence alleged should have been committed while acting or purporting to act in the discharge of official duty.
15. The first limb of enquiry therefore is whether A1, in the given facts, is a public servant. This Court may straight away conclude so, inasmuch as he was working as the Village Officer at the time of commission of the offence. Section 21 of the Penal Code defines a public servant. A Village Officer would squarely fall within the ambit of tenthly, as also, twelfthly under Section 21. Under clause (a) of twelfthly, every person in the service or pay of the Government remunerated by fees or commission for the performance of any public duty by the Government is a public servant. Explanation (1) to twelfthly would indicate that such persons are public servants, whether appointed by Government or not. It is accordingly held that the 1st accused is a public servant.
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16. The second limb is whether he is removable from his office only with the sanction of the Government. It is regarding this limb that substantial arguments are advanced by the learned counsel for the appellant/A1. He would invite the attention of this court to the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960 (for short, 'C.C.A Rules). Rule 2(d) defines a Government servant, so as to mean a person, who is a member of the State service or Subordinate service. Schedule II to the C.C.A Rules contains a list of Kerala Subordinate Services. Going by serial no.27, the Kerala Revenue Subordinate Service is part of the Kerala Subordinate Service. The appellant/A1 being a member of Kerala Revenue Subordinate Service is thus a Government servant. Learned counsel then invited the attention of this Court to Part-III of the C.C.A Rules, where, under Rule 9, all appointments to State and subordinate services shall be made by the Government. The proviso to Rule 9 indicates that the Government can delegate to any other authority the power to make any such appointments. Thus, according to the learned counsel, the appellant/A1 being a member of the subordinate service and Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 all appointments have to be made to the State and Subordinate services by the Government, the appellant can be removed only by orders of the Government. In short, Section 197 of the Cr.P.C applies in the case of the appellant/A1, is the argument advanced.
17. This Court finds it difficult to endorse the submissions made by the learned counsel for the appellant/A1. Primarily, the concepts as employed in the C.C.A Rules cannot be automatically made applicable to the requirements of Section 197 of the Cr.P.C. Rule 9 of the C.C.A Rules is a general provision indicating that all Government servants, as defined in Rule 2(d), are to be appointed by the Government. It does not automatically mean that the appointing authority for any and every member of the State and Subordinate service is the Government. The first indication in this regard is available in the note appended to the definition of 'appointing authority' under Rule 2(a), which states that where the power of appointment is delegated to any authority, that authority will be deemed to be the appointing authority. This note, coupled Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 with the proviso to Rule 9 - which enables delegation of the power to make appointments to any other authority by the Government - would clearly indicate that such delegated authority will be the appointing authority for the class of servants, who are to be appointed by virtue of the delegated power. In the instant facts, the appellant/A1 being the Village Officer, his appointing authority is the Land Revenue Commissioner, in respect of which, there is no quarrel for any of the parties before me. Therefore, the authority competent to remove appellant/A1 from his office is also the Land Revenue Commissioner, which power, he is expected to exercise without any sanction, whatsoever, from the Government. In this regard, it is profitable to refer to the following observation of the Honourable Supreme Court in Sreenivasa Reddy A. v. Rakesh Sharma [(2023) 8 SCC 711]:
"41...Article 311 of the Constitution lays down that no person, who is a member of a civil service of the Union or State or holds a civil post under the Union or State, shall be removed by an authority subordinate to that by which he was appointed. It, therefore, follows that protection of sub-section (1) of S.197 of Cr.P.C Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 is available only to such public servants whose appointing authority is the Central Government or the State Government and not to every public servant."
(underlined, for emphasis)
18. The legal position being thus, it cannot be held - by virtue of the general provision contained in Rule 9 of the C.C.A Rules, which is to serve a different purpose altogether - that the delegated authority, who is competent to appoint, or for that matter remove the public servant, is acting only on behalf of the Government and the effective power to remove such Officer from his office vest with the Government. It is settled that being a public servant is only one among the pre-requisites to attract Section 197. That, by itself, will not make Section 197 applicable. Section 197 is attracted only in cases, where the public servant is not removable from his office, except with the sanction of the Government, which requirement is not satisfied in the given facts. For removal of a Village Officer from his office, the sanction of the Government is not contemplated anywhere. Therefore, the contention that Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 sanction under Section 197 is required, is liable to be repelled on that ground.
19. Coming to the third limb of Section 197, the question which looms large is whether the appellant/A1 was acting, or purporting to act, in the discharge of his official duty. If the answer is in the affirmative, sanction under Section 197 is required. Here, the very act, which is objectionable and which triggers the registration of the subject crime, is the demand for bribe alleged to have been made by the appellant/A1, as also, its acceptance through A2. A Constitution Bench of the Honourable Supreme Court in K.Satwant Singh v. State of Punjab [AIR 1960 SC 266], considered this issue, in the context of Section 197 Cr.P.C. The relevant findings in paragraph no.16 are extracted here below:
"16....It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence punishable under Section 161 of the Indian Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 Penal Code, is one of them and the offence of cheating or abetment thereof is another. We have no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences (vide Amrik Singh case). The Act of cheating or abetment thereof has no reasonable connection with the discharge of official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty (vide Matajog Dobey case)."
(underlined, for emphasis)
20. The above line of thought was followed by the Honourable Supreme Court in a catena of decisions. In Rajib Ranjan and Others v. R.Vijayakumar [(2015) 1 SCC 513], the Supreme Court, after referring to various judgments, held Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 in paragraph no.18, that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted.
21. In Devinder Singh v. State of Punjab through CBI [(2016) 12 SCC 87], the Supreme Court took note of almost all the decisions on the point and summarised the principles emerging therefrom, in paragraph 39 as follows:
"39. The principles emerging from the aforesaid decisions are summarized hereunder:
39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities.
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2024:KER:90271 To that extent Section 197 Cr.P.C has to be construed narrowly and in a restricted manner.
39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule.
39.4. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 Cr.P.C, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 Cr.P.C would apply.
xxxx xxxx xxxx"
22. Coming to the facts at hand, this Court is of opinion that even though bribe was demanded with reference to an act in the discharge of official duty, that is to say, for Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 enabling remittance of land tax, the very act of demand for bribe and its acceptance can, by no stretch of imagination, be held to be part of the official duty of the appellant/A1. Therefore, it cannot be construed that he was acting, or even purporting to act, in the discharge of his official duty. His official duty was merely a cloak for doing the objectionable act. It is not a case, where the public servant was acting in excess of his duty. It was also not a case, where the act constituting the offence is directly and reasonably connected with the official duty. Instead, it is a case where - as the Constitution Bench enunciated in K.Satwant Singh (supra) - the act, by its very nature, cannot be construed as one done acting or purporting to act in the discharge of their official duty. It is therefore found that the second limb of Section 197 is also not attracted.
23. Thirdly, going by Section 3 of the P.C. Act, the jurisdiction of a Special Judge is to try any offence punishable under that Act, as also, any conspiracy Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 to commit any of the offences under the Act. As per Section 4 - which starts with a non obstante clause against the provisions of the Cr.P.C. - all the offences specified in Section 3(1) [including the conspiracy to commit any offences under the P.C. Act] shall be tried by Special Judges only. It could thus be seen that, unlike in the case of an offence, which otherwise fall under the Penal Code, a conspiracy to commit an offence under the P.C. Act, has to be deemed to be an offence under the P.C. Act itself. Reckoned thus, borrowing Section 120 B from the Penal Code can only be construed as an act to define the offence, especially having regard to its ingredients. Therefore, when sanction under Section 19 of the P.C. Act, a special enactment, is obtained by the prosecution and when the sanction order specifically refers to the conspiracy to commit an offence under the P.C. Act, there exists no requirement to obtain a further sanction under the general enactment, i.e., Section 197 of the Code, more so, when no offence, other than Section 120 B of the Penal Code, is canvassed by the prosecution in the instant facts. For the above said three reasons, the argument that Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 sanction under Section 197 Cr.P.C was also required, will stand repelled.
24. TWO OTHER CONTENTIONS BASED ON EXT.P10 SANCTION ORDER:
The first contention is that PW7, who issued Ext.P10 Order, was holding additional charge only and hence not competent to issue sanction. A five Judges Bench of the Honourable Supreme Court considered the issue in Ajaib Singh v. Gurbachan Singh and Others [AIR 1965 SC 1619]. There, the question was the sanctity of an order of detention issued by a person holding charge of the District Magistrate of Amritsar. The detention order was issued by the Additional District Magistrate, who was invested with the powers of the District Magistrate under the Cr.P.C, pursuant to the transfer of the District Magistrate. The Supreme Court held that the power was specifically vested on the District Magistrate, which could not have been exercised by an Additional District Magistrate, though he was holding charge of the District Magistrate. More or less on similar facts, the issue again fell for consideration of the Honourable Supreme Court in Hari Chand Aggarwal v. Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 The Batala Engineering Co. Ltd and Others [AIR 1969 SC 483], wherein the above legal position was reiterated. A Full Bench of the Madhya Pradesh High Court considered the issue in Girja Shankar Shukla v. Sub-Divisional Officer, Harda [AIR 1973 MP 104]. Relying upon Ajaib Singh (supra) and Hari Chand (supra), the Full Bench upheld the dictum laid down in Ramratan v. The State Of Madhya Pradesh and Others [AIR 1964 MP 114], which held that, where any action is to be taken, or an Order is to be passed by an Officer of a particular rank, that act cannot be validly performed by an Officer, subordinate in rank, discharging current duties of that post. However, on facts, the Full Bench upheld the validity of a meeting held by a person holding charge of the District Collector. In Sri.B.N.Dhotrad v. The Board of Directors/Cum-Appellate [ILR 2006 KAR 3163], a learned Single Judge of the Karnataka High Court, [S.Abdul Nazeer, J. - as his Lordship then was] specifically held as follows:
"17. From the discussions made above, it is clear that a Government servant appointed to be in-charge of current duties of an office cannot exercise any substantive powers of the office. Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 He cannot discharge the statutory functions assigned to the post. He can merely perform the day to day office duties because the powers other than substantive powers do not adversely affect the interest or rights of others...."
25. In the light of the above pronouncements, this issue has to be held in favour of the appellant/A1, holding that PW7, who was only in charge of the Land Revenue Commissioner, could not have granted Ext.P10 sanction. However, the impact of this error/irregularity will have to be considered in the light of Section 19(3) of the P.C. Act, which I will refer to in common, after addressing the second limb of attack as against Ext.P10 Sanction Order.
26. The second point raised against Ext.P10 Sanction Order is that PW7, who issued Ext.P10 Sanction Order, has not applied her mind properly, wherefore the prosecution sanction is bad in law. To substantiate this allegation, learned counsel for the appellant/A1 would invite the attention of this Court to the evidence tendered by PW7, Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 the relevant portion of which is extracted here below:
"...Before issuing sanction, I had convinced that the Village Officer had demanded and accepted ₹1,000/- as illegal gratification from Smt.Sheenabeevi..."
27. The contention urged is that the sanctioning authority/PW7 was referring to a previous incident, based upon which, she was allegedly convinced to grant sanction. The incident, which led to the registration of the subject crime, that is to say, the demand and acceptance of bribe of ₹2,500/- from one Rajila, is not referred to at all in the chief examination of PW7, which exhibits complete non- application of mind, contends the learned counsel.
28. At the first blush, the argument appears to be very attractive. It is true that PW7 has not referred to the present incident, which led to the registration of a crime in her evidence before the court. However, this Court will have to look into the application of mind at the time of issuance of sanction, vide Ext.P10 Order. In Ext.P10, PW7 has correctly taken note of the demand made by the Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 appellant/A1 to PW1/Rajila for an illegal gratification for ₹2,500/- on 04.08.2008 over telephone and regarding its acceptance through the 2nd accused on 06.08.2008. The previous incident of collecting ₹1,000/- from one Sheena Beevi by employing the same modus operandi is also taken stock of in Ext.P10 Sanction Order, but as a supporting event. It could thus be seen that Ext.P10 reflects correct application of mind, after perusing all relevant records and after having been satisfied of the necessity to grant sanction. If that be the situation, the failure of PW7 to speak about the subject incident, when she mounted the box before the special court, cannot be treated as fatal to the prosecution. Due application of mind has to be reckoned with reference to the time of issuance of sanction order; and not at the time of adducing evidence. It is also relevant to note that Ext.P10 was issued on 10.09.2009, whereas PW7 was examined before the court only on 18.10.2016. The efflux of time of 7 years, coupled with the carelessness, if any, of PW7 cannot, by itself, spoil the prosecution version, provided Ext.P10 answers all the legal requirements.
Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271
29. Above all, the dictum laid down by the Honourable Supreme Court in C.S.Krishnamurthy v. State of Karnataka [(2005) 4 SCC 81] to the effect that sanction order speaks for itself, and that only formal oral evidence is required would also come to the rescue of the prosecution, in the instant facts. The same dictum was reiterated in State of Maharashtra v. Mahesh G.Jain [(2013) 8 SCC 119].
30. More importantly, coming to Section 19(3), no finding, sentence or order passed by a special Judge shall be reversed or altered in appeal on the ground of absence of, or any error, omission or irregularity in, the sanction required under Section 19(1), unless in the opinion of the court, a failure of justice has in fact been occasioned thereby.
31. Section 19(4) provides that in determining whether the absence of, or any error, omission or irregularity in, the grant of sanction had occasioned a failure of justice, the court shall have regard to the fact that the objection could and should have been raised at an earlier stage of Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 the proceedings. In the instant facts, the objection, as to PW7 was holding only additional charge of the Land Revenue Commissioner and hence incompetent, was not raised at all before the Special Court.
32. Interpreting the provisions, the Honourable Supreme Court in Central Bureau of Investigation v. V.K.Sehgal and another [AIR 1999 SC 3706], held in paragraph no.11 as follows:
"11....If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure."
Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271
33. Thereafter, the issue finds reflection in a catena of decisions, including:
i) State by Police Inspector v. T.Venkatesh Murthy [(2004) 7 SCC 763] - paragraph nos.7 to 10, 11 and 14.
ii) Paul Varghese v. State of Kerala and another [(2007) 14 SCC 783] - paragraph no.8
iii)State of Karnataka, Lokayuktha Police v.
S.Subbegowda [AIR 2023 SC 3770] - paragraph nos.13 and 14.
iv)Central Bureau of Investigation v. Ashok Kumar Aggarwal [(2014) 14 SCC 295] - paragraph nos.18 and 19.
34. It could thus be concluded that a mere error, omission or irregularity in the sanction, or even the absence of sanction, does not offer sufficient ground to reverse or alter a finding, sentence or order passed, as per Section 19(3) of the P.C. Act, unless failure of justice was, in fact, occasioned thereby, in the opinion of the court. It was cautioned by the Honourable Supreme Court that the failure of justice should be real and not a mere camouflage. The error, omission or irregularity in the Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 sanction should be of such a nature that it goes to the root of the matter, so as to cause a serious prejudice, leading to failure of justice to the accused. Any lesser infirmity with respect to the Sanction Order cannot be fatal. As against a theoretical proposition regarding a possible failure of justice, the Section mandates failure of justice 'in fact', that too, in the opinion of the court. Gauged in the above parameters, this Court is of the opinion that neither the allegation that PW7 was only in charge of the Land Revenue Commissioner, nor her failure to speak of the specific incident before the court, are capable of causing any failure of justice or any serious prejudice to the accused, which finding is entered into on the strength of the adequacy of Ext.P10 Order, in terms of its requirements. At the cost of repetition, it has to be reiterated that the application of mind has to be at the time of issuing sanction; and not at the time of giving evidence before the court. The contentions would therefore stand repelled.
35. Having discussed the legal issues involved, this Court Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 will now address the factual issues, especially as to whether the prosecution case has been driven home satisfactorily. As already noticed, the offences canvassed are under Sections 7 and 13(1)(d), read with Section 13(2) of the P.C. Act. It is fairly settled by a catena of decisions of the Apex Court, that to constitute an offence under Section 7, demand and acceptance of bribe has to be established. A Constitutional Bench of the Honourable Supreme Court in Neeraj Dutta v. State (Govt. of N.C.T. of Delhi) [AIR 2023 SC 330] recently held that the ingredients of demand and acceptance can be proved/established by circumstantial evidence, if direct offence could not be adduced in this regard. Now, coming to Section 13(1)(d), it has three limbs vide clauses (i), (ii) and (iii), all of which employs the term 'obtains'. The term 'obtains' also find a place in Section 7, along with the term 'accepts'. This Court is of the opinion that the ingredient of 'demand' is ingrained and implicit in the expression 'obtains' as employed in Sections 7 or 13(1)(d), for, one cannot obtain anything without seeking/asking for the same. Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271
36. On facts, it has to be noticed that, a trap was laid pursuant to a complaint made by PW1 (defacto complainant). It is the definite prosecution case that, the tainted money was given to the 2nd accused, a document writer, on the instruction of the 1st accused/public servant, who is a Village Officer, as a reward for doing the official act of permitting the defacto complainant to pay the tax in respect of a property in the joint names of herself and her husband. On the above facts, the crucial question which surfaces is, whether the prosecution could establish a demand and acceptance, in the context of the offence under Section 7, or the obtainment of a valuable thing or pecuniary advantage, in the context of offence under Section 13, by the 1st accused/Village Officer. As an offshoot, a further question arises as to whether the acceptance of the tainted money by the 2 nd accused was proved to be on behalf of, and as instructed by, the 1st accused. In other words, the live link between the accused persons and the conspiracy alleged to have been hatched by them needs to be established to prove the prosecution version. As already indicated, in the trap Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 laid, the decoy currency notes were recovered from the 2nd accused/document writer, but from the office of the 1st accused/Village Officer. This Court will now examine whether the demand and acceptance of bribe or for that matter, obtainment of the valuable thing, by the 1 st accused stands satisfactorily proved by the evidence adduced.
37. As regards demand - an ingredient ingrained in Section 7 and Section 13 - alleged to have been made by the 1st accused, the solitary evidence adduced is through the defacto complainant PW1. It may be stated at the outset that, the sole testimony of a witness can be taken stock of and acted upon for the purpose of conviction, provided the same inspires full confidence in the mind of the Court. It is also settled that, it is not the quantity, but the quality of evidence that matters. The legal position in this regard has been settled by the Supreme Court, way back in 1957, in Vadivelu Thevar v. State of Madras [AIR 1957 SC 614]. The Honourable Supreme Court categorized witnesses into three, the first being witnesses who are wholly reliable. The second category are witnesses who are Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 completely unreliable; and the third, witnesses who are neither completely reliable, nor unreliable. No difficulty arises in respect of the first two categories, for, the solitary evidence of witnesses belonging to the first category can be accepted; and of the second category, rejected. It is in respect of the third category, that the Honourable Supreme Court cautions as regards the need for corroboration, for, the evidence adduced by such witnesses are neither fully reliable, nor completely unreliable. It is not safe to place sole reliance upon the evidence tendered by such witnesses for a conviction. This Court also takes note of the fact that, a demand for bribe is usually made in secrecy and not in public, wherefore, we cannot expect too many witnesses in proof of demand for bribe.
38. Before discussing the evidence of PW1/defacto complainant, who is a crucial witness, this Court will quickly glance through the evidence tendered by other witnesses.
PW2 is one Sheena Beevi. She claims to have given bribe to Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 1st accused, through the 2nd accused, in an earlier occasion (It is this incident which was spoken to by PW7/ Sanctioning Authority during evidence). Suffice to note that PW2 has not spoken anything about the present incident, which led to the registration of the instant crime. The crime, if any, emanating from the earlier incident was neither considered as an issue by the trial court, nor was any finding entered into in that regard. That apart, such crime based on the earlier incident was not pressed into service before this Court, wherefore, I am of the opinion that, the evidence tendered by PW2, in the context of the second incident, the subject matter of the instant crime, is of little assistance. Moreover, no offence under Section 13(1)(b) is canvassed by the Prosecution.
39. PW3, a Sub-Divisional Engineer at B.S.N.L at the relevant time, made available the call details of the SIM card bearing no.9495372726. The same was given in a C.D., marked as M.O.2. PW3 would depose that the said number belongs to Sri.S.Unnikrishnan/A1, as certified in Ext.P4 Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 report. The C.D. containing the call details is not admissible, as it was not accompanied by the certificate under Section 65-B of the Evidence Act. The prosecution has no case that the said certificate was produced subsequently at any stage of the trial. As per Section 65-B(4) of the Evidence Act, the evidence in respect of an electronic record has to be accompanied by a certificate in terms of clauses (a), (b) and (c) of Section 65-B(4). The legal position that the evidence tendered vide the electronic record is not admissible, unless accompanied by a certificate in terms of Section 65-B(4), is settled by the judgments of the Honourable Supreme Court in Anvar v. Basheer [(2014) 10 SCC 473] and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others [(2020) 7 SCC 1]. In the circumstances, neither the evidence tendered by PW3, nor M.O.2 C.D. is of any assistance to the prosecution.
40. PW4 is the Village Officer, who was holding charge of the Village Office, Manamboor Village (where A1 was officiating at the relevant time). He was examined only to mark Ext.P6 scene plan.
Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271
41. PW5 was the Inspector of Police attached to V.A.C.B., Thiruvananthapuram at the relevant time, and he was a member of the trap team. He spoke about going to the Village Office on 06.08.2008 along with PW1/Rajila and one of her relatives; about PW1 and her relative Zeenath going inside the Village Office; about the said persons coming out of the Village Office and going to the Office of the Document Writer/A2; about the Village Officer coming out of the office and going out along with A2 in his motorcycle and their coming back after 15 minutes. PW5 also spoke about the defacto complainant/PW1 and the said Zeenath going to the office of the Document Writer as instructed by Dy.S.P; about A2 coming out of his office and going to the Village Office, at which point of time PW5 was there to cover A2, so as to see his actions. It is the version of PW5 that, he contacted the Dy.S.P over phone and informed him about receipt of signal indicating the payment of bribe. Thereafter, the Dy.S.P and other officials came, and the decoy notes amounting to ₹2,500/- was recovered from the person of the 2nd accused. That apart, two bundle notes of the denomination 500 totaling to 65 altogether were also Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 recovered from A2. Thereupon, PW5 spoke about the phenolphthalein test being conducted on the 2nd accused, and also about preparation of Mahazar.
42. PW6 was the independent witness/Gazetted Officer, who, along with one Sreekandan Nair, have assisted the Vigilance team in the instant trap. They were called by the Dy.S.P in connection with a complaint received against the Village Officer, Manamboor from PW1/Rajila. He initially spoke about the pre-trap formalities, as recorded in Ext.P2 Mahazar. Thereafter, he spoke about going to the Village Office; waiting there; about the recovery of the tainted notes from the 2nd accused; about the phenolphthalein test on such notes turning positive and also about the official formalities in connection with the trap. PW6 deposed in chief examination that the 1st accused denied receipt of money from anybody to the Dy.S.P, when he was confronted on the date of occurrence, 06.08.2008, immediately after recovery. He also spoke about Dy.S.P ascertaining from the defacto complainant as to whether the bribe was given, as instructed by the 1st accused, to which her answer was that, Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 the amount was given to the 2nd accused. PW6 spoke about the identity of the decoy currency notes, which were recovered from the pocket of the 2nd accused. He spoke about the preparation of Ext.P7 Mahazar, which contains the carbon copies of the tax remittance receipts. In cross examination, the following facts are elicited from PW6:
a). He was not informed by the Dy.S.P that the trap money will be given to the 2nd accused and that he was not aware that the defacto complainant is going to part with the bribe amount to the 2 nd accused, until they reached the Village Office.
b). PW6 did not see A1/Village Officer coming to the office of A2/Document Writer.
c). PW6 had not seen A1 going out in the bike with A2 and also about their return after 15 minutes.
d). He had also not seen A1 going back to the Village Office, after such return.
e). The version of PW1 that, after giving signal, she was waiting in a car parked nearby, was also not endorsed by PW6.
Pertinently, PW6 would categorically deny that he has not Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 seen anybody demanding or receiving bribe at the Village Office. A specific question was put to PW6 as to whether A2 had admitted that ₹2,500/- was received towards bribe, the answer was there was no such statement from A2. PW6 would state that no Mahazar was prepared in the Office of A2. In cross examination on behalf of A1, PW6 would state that he had not seen the defacto complainant going to the Village Office. It has also been elicited that the local people had protested when the Village Officer was arrested.
43. The evidence tendered by PW7, the Sanctioning Authority, has already been discussed and hence not repeated.
44. PW8 was the Village Assistant of Manamboor Village. He was examined in proof of three records being produced before the Vigilance. Ext.P11 inventory prepared at that time was marked through PW8. Exts.P12 and P13 are Thandaper Registers. He also made available Ext.P14 counterfoil of receipt book no.405, which contains the carbon copies of tax remittance in favour of Smt.Sheena Beevi, marked Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 as Ext.P14(a), and also Smt.Rajila (PW1), marked as Ext.P14(b). He identified his signature contained in Ext.P8 receipt. In cross examination, PW8 would depose that Thajudheen, who accompanied PW1 to the Vigilance team, used to come to the Village office for remittance of tax of others. PW8 is also aware of Thajudheen approaching the Village Office in connection with issues pertaining to surplus land.
45. PW9 is the Dy.S.P, the Investigating Officer, who registered Ext.P15 F.I.R. He also spoke about the pre-trap formalities and about the materialization of the trap and the formalities in connection therewith. He spoke in tune with the prosecution version in the chief examination. In cross on behalf of the 1st accused, PW9 would state that it was not revealed in the investigation that remittance of tax was not in the name of Pattadar. PW9 was also not aware as to when an application for paying the tax as Pattadar was given.
46. On behalf of the defense, the 1 st accused himself was Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 examined as DW1. In chief examination, he would depose that he has no acquaintance with PW1/defacto complainant; that in Ext.P14(b), tax is not received in the name of the Pattadar. He would state that mutation was effected and tax was remitted in the name of PW1/defacto complainant on 30.07.2008. Ext.P8(b) contains handwriting of S.V.O., Prasanna Kumari. In Ex.P8(a) tax receipt, the handwriting is that of PW8. PW1 had not contacted A1 and that he had not met her on 06.08.2008. DW1 would state that he knows Thajudheen, who used to come for various issues, including surplus land issue at Bhaskar Colony. That application was given to the Village Assistant, Jeevan Kumar, as usual. He, upon inspection of records, found that mutation cannot be effected, since there is surplus land. Upon informing the same, the said Thajudheen threatened A1 and created a ruckus in the Village Office. A complaint was given in this regard to the Kadakavoor Police Station. Similarly, in another incident, DW1/A1 had issued a stop memo, as instructed by the Tahsildar, in respect of the quarrying activities at the Valakottu hills. Then also, the said Thajudheen threatened A1 and demanded withdrawal of stop Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 memo. Thajudheen had gone around saying that A1 will not be permitted to embark the bus from Varkala, and to alight at Manamboor. The said Thajudheen had given a complaint against A1 to the District Collector as well. DW1 would depose that the defacto complainant/PW1 Rajila is a relative of the said Thajudheen and the case has been foisted against him out of his animosity to A1. Prior to the incident, A1 had 12 years of service, during which time there was no case or complaint against him. In cross examination, it was elicited that the complaint preferred by DW1/A1 against Thajudheen has not been produced before the Court. He cannot precisely say the relationship between the defacto complainant and the said Thajudheen. The said information is hearsay. He denied the suggestion that he demanded bribe from PW1 Rajila and that he received the same through the 2nd accused.
47. An analysis of the evidence tendered by PW1 to PW9 would not lend any substantive support in proving the crucial ingredients of demand and acceptance of the bribe, especially of demand. Pertinent enough to point out that Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 none of the official witnesses, including the independent witness/Gazetted Officer, have not heard any conversation between the 1st accused and PW1/Rajila in the Village Office, either at the time when Rajila first entered the Village Office on 06.08.2008, or at the time when the decoy notes were recovered from the 2nd accused at the Village Office. The same is the case with respect to any conversation between PW1/Rajila and the 2nd accused. These witnesses have only deposed about the pre-trap formalities and the trap formalities, including recovery of tainted notes from the 2nd accused. In short, the evidence tendered by PW2 to PW9 would not vouch any demand on the part of the 1st accused for illegal gratification to do the official act. This makes the evidence of PW1 all the more crucial in ascertaining whether the vital ingredients to constitute an offence under Section 7, or for that matter under Section 13, have been driven home, satisfactorily.
48. PW1, the defacto complainant, would depose in chief examination that, 17 cents of land stands in the joint Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 names of herself and her husband in Manamboor Village and that she went to the Village Office for paying the land tax in the month of April, 2008. PW1's version is that, she went to the 2nd accused, Sabu @ Babikka, voluntarily and entrusted ₹500/-, along with the document, to him for paying the land tax. PW1 made several calls to the Village Officer, but she was informed that there would be delay.
49. As regards the remittance of land tax, PW1 again made a call to the 1st accused/Village Officer on 04.08.2008. Then, she was instructed to come to the Village Office on 06.08.2008, with ₹2,500/-. It is the version of the PW1 that she was not interested to pay bribe and hence she made a complaint to the Vigilance, through one of her distant relatives, by name Thajudeen. She identified Ext.P1 complaint and also spoke about the formalities of the trap, including preparation of Ext.P2 pre-trap Mahazar at the Vigilance Office. Pertinent in this regard to note that, PW1 went to office of the Vigilance along with the said Thajudheen and her sister Zeenath Beevi, a significant witness in the given facts, but was not examined by the Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 Prosecution. PW1 spoke about the preparation of the trap and instructions given in the presence of two independent Gazetted Officers of the Agricultural Department. On 06.08.2008, by about 10:00 a.m., PW1 (defacto complainant) along with her sister Zeenath Beevi and two officers of the Agricultural Department, went in an Alto Car and they reached Village Office, Manamboor by about 11:30 a.m. The car was parked a bit away from the Village Office. PW1 would later correct that, they commenced the journey by 11:30 a.m. and reached Village Office by 1:00 p.m. Thereafter, PW1 and her sister Zeenath Beevi went to the Village Office, where there was heavy rush. After some time, PW1 and her sister Zeenath met A1 Village Officer and asked for land tax receipt. The following version of PW1 is important and extracted here below:
"അപപപ്പോൾ Village Officer പചപ്പോദദിച ഞപ്പോൻ പറഞ പപസ കകപ്പോണ്ടുവകന്നെങദിൽ പബേബേദികപ്പോകയ പപപ്പോയദി കപ്പോണപ്പോൻ പറഞ . അവദികട പപസ കകപ്പോണണ കകപ്പോടുകപ്പോൻ പറഞ. അങ്ങകന പബേബേദികപ്പോയുകട ഓഫഫീസദിൽ ഞപ്പോൻ പപപ്പോയദി. Village office കന പനകര എതദിരപ്പോണണ പബേബേദികപ്പോയുകട ആധപ്പോരര എഴുതപ്പോഫഫീസണ. എഴുതപ്പോഫഫീസദികന അവദികട ഞപ്പോൻ നദിൽക്കുപമപ്പോൾ Baby കയുകട പബേകദിൽ Village Officer കയറദി പുറത പപപ്പോയദി 15-20 മദിനദിറണ ആയദി അവദികട ഞങ്ങൾ wait കചയ . ഇവർ '2' പപരര മടങ്ങദി ആധപ്പോര എഴുതപ്പോഫഫീസദിൽ വന. Village Officer, office Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 നകപതകണ പപപ്പോയദി. ആധപ്പോരര എഴുതപ്പോഫഫീസദിൽ Baby ഇകപ്പോ നദിന Baby കപ്പോയുകട കയദിൽ ഞപ്പോൻ 2500/- രൂപ കകപ്പോടുത. അപപപ്പോൾ പ്രമപ്പോണവര കരര തഫീർത രസഫീതര എനദികണ തന."
50. It is the further version of PW1 that, she gave signal to the Vigilance party, whereafter, she went to car and waited therein. Upon being informed by a Policemen that she is summoned by the Dy.S.P, PW1 and her sister Zeenath Beevi, went to the Village Office, where both the accused persons A1 and A2 were present. PW1 would state that some procedures took place in the Village Office, the particulars of which PW1 was not aware. Her version is that, she went back to the car. She identified the accused persons, document and the land tax receipts issued pursuant to the bribe.
51. In the cross on behalf of the 1st accused, it is elicited that, Thajudheen used to enable remittance of land tax and other services at the Sub-Registrar Office. PW1 would deny that there was an enmity between A1 Village Officer and the said Thajudheen. It has been elicited that, Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 PW1 signed Ext.P2 pre-trap Mahazar at her house; and not at the Vigilance Office. It has been further elicited that, PW1 was called to the Vigilance Office two days before adducing evidence before the court and that she has been instructed to depose in the manner, she gave evidence. However, PW1 would explain that the facts spoken to by her are within her knowledge. PW1 would state in cross that, she went to the Vigilance Office as instructed by Thajudheen and that she gave the complaint only as persuaded by him. Of course, the same is stated by way of an answer to a suggestive question. In the cross on behalf of A2, it is elicited that the PW1/defacto complainant has connection with the 2nd accused and that all her matters pertaining to documentation were done by the 2 nd accused. It is elicited in the cross examination that, PW1 has not informed A2 about A1's demand for bribe made over phone on 04.08.2008. PW1's version is that, she went to the office of A2 as instructed by A1 Vigilance Officer is contradicted, for absence of such a version in her former statement. So also, PW1's version that, A2 told her to entrust ₹2,500/- to A1, is also contradicted with her Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 former statement. Importantly, it is elicited that, PW1 had not seen A2 going to the Village Office from his office on the crucial date, 06.08.2008, and that she does not know as to how A2 reached the Village Office. A suggestion that Dy.S.P and the Vigilance party forcibly took A2 to the Village Office is seen answered by stating that she had not seen it. Another suggestion was made to the effect that, in connection with the documentation work, A2 had demanded ₹5,000/- from PW1 and that the amount was later negotiated to ₹2,500/-. Simultaneously, it is seen suggested that, A2 will give the document and the land tax receipt only if the remaining ₹2,500/- is also paid. All these suggestions are denied by PW1. Finally, PW1 would state that, she had not seen the hands of A2 being dipped in phenolphthalein solution, as also, recovery of the tainted currency notes from the pocket of the A2.
52. From the above discussion of the evidence tendered by PW1, a few primary aspects are worth noticing.
i). The first is that, PW1 had not seen the 2 nd accused Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 coming from his office to the Village Office on the crucial day, at or about the time of incident. PW1 specifically deposed that, she entrusted the money to A2 at his office, whereafter, she came back to her car and waited there. She is not in a position to say as to how and when the 2nd accused reached the Village Office.
ii). The recovery is effected from A2 at the Village Office. The phenolphthalein test as against A1 is negative, but positive as against A2. PW1 had not witnessed the trap procedures, which took place in the Village Office. She had not seen the phenolphthalein solution turning pink upon dipping the fingers of A2.
iii). The facts elicited in the cross examination indicates the important role of Thajudheen, on whose persuasion and presence, PW1 gave the complaint before the Vigilance.
iv). PW1 was instructed by the Vigilance personnel two days before the date of examination.
53. As regards demand, the version of PW1 is that, the first demand is made by A1 over phone, when she contacted Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 him on 04.08.2008. Nothing is produced to show that there was a telephone (landline) connection in the name of PW1, from which the call was allegedly made. The call data records, though produced, was not accepted in evidence for want of certification under Section 65-B of the Evidence Act. Thus, there is no proof recognizable in law to show that a call was in fact made by PW1 from the landline number to the 1st accused. Profitable reference in this regard may be made to the dictum laid by the Honourable Supreme Court in Rakesh Kapoor v. State of Himachal Pradesh [(2012) 13 SCC 552 - see paragraph 11], which enures to the benefit of the accused. The second demand, alleged to have been made by A1, when PW1 met him at the Village Office on 06.08.2008, is to the effect that, if the money, as specified by A1, is brought, the same be entrusted to A2. In her previous statement (additional statement given on 06.08.2008), the content of 'amount as specified by A1' (ഞപ്പോൻ പറഞ പപസ) is conspicuously absent. There, the statement is to the effect that the amount brought be handed over to A2.
Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271
54. Suffice to note that a clear proof of demand by A1 cannot be taken as proved fully by the sole testimony of PW1, especially when recovery of the tainted notes were not effected from A1 and that, the phenolphthalein test proved negative as against A1. The upshot of the above discussion is that the evidence of PW1, by itself, in the absence of corroboration, cannot be regarded as one of sterling quality, so as to place sole reliance upon the same for the purpose of proving demand and acceptance.
55. NON EXAMINATION OF ZEENATH BEEVI - IMPACT OF :-
The second aspect which needs to be discussed along with the first aspect is the failure of the prosecution to examine Zeenath Beevi, the sister of PW1, who had accompanied PW1 to the Village Office on the date of incident, 06.08.2008, and who was present along with PW1, when 1st accused directed PW1 to entrust the money to A2, if the same is brought as demanded. This Court is of the opinion that, Zeenath Beevi is a crucial witness, as could be seen from the attendant facts and she was rightly cited Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 as a witness by the prosecution, but not examined, for reasons best known to it. It is true that the prosecution has the liberty to decide, who among the witnesses cited should be examined in proof of its case. It is also true that, if the evidence tendered by PW1 is one which inspires complete confidence in the mind of the Court, non-examination of this witness would not have been consequential. However, in the given facts, non-examination of Zeenath Beevi is more or less fatal to the prosecution case, inasmuch as, it has already been found that PW1 is not a witness of a sterling quality, so as to rest a conviction on her sole testimony. The first demand, which was allegedly made over phone is not established in accordance with law. The version of PW1 in this regard is not corroborated by any documentary evidence like call records etc. Coming to the second demand, it is the definite prosecution case that the same was made to PW1, in the presence of Zeenath Beevi. When demand is an important ingredient to be established for an offence under Section 7, as also under Section 13 as ingrained in the Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 term 'obtains', it can only be taken as a critical failure on the part of the prosecution in not examining Zeenath Beevi. Withholding the evidence of a material witness will tell harsh upon the prosecution evidence, as settled by the Honourable Supreme Court in Takhaji Hiraji v. Thakore Kubersing Chamansing and Others [(2001) 6 SCC 145], in paragraph no.19 as follows:
"19....It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself - whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses...."
56. LIVE LINK/CONSPIRACY BETWEEN A1 AND A2 - WHETHER PROVED? The phenolphthalein test turned negative against A1, which made it imperative for the prosecution to establish the conspiracy alleged to have been hatched between A1 and A2 in obtaining illegal gratification or pecuniary advantage from PW1. Here again, the prosecution essentially relies on the evidence tendered by PW1, in respect of which this Court already found that sole reliance cannot be placed. It Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 is true that PW1 spoke of the alleged instruction given by the 1st accused to entrust the money brought to the 2nd accused. She also spoke about accused nos.1 and 2 going out in a bike and coming after 15 minutes. However, the above version of PW1 is not corroborated by any independent witness. In cross examination, PW6 would state that he had not seen PW1 and PW2 going out in a bike and coming back. Of course, the other witnesses who are members of the trap team have deposed to that effect. However, what lacks is an independent corroboration. On facts, this Court finds a crucial flaw in the prosecution version. The tainted money, which was allegedly paid by PW1 to the 2 nd accused, was not recovered from the office of the 2 nd accused. Nor was the tax receipt, which was issued by the 2 nd accused immediately upon payment of money at his office recovered by the investigating agency. No Mahazar in that regard is prepared at the office of the 2nd accused. If this was done, a clear conspiracy would have been spelt out. The land tax receipt, which is not expected to be kept in the office of a Document Writer, if recovered would have lend substantial support to the conspiracy theory. However, the prosecution Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 had effected the alleged recovery of the decoy notes from the Village Office concerned, which aspect is also not in support of the conspiracy alleged. In short, the shortcoming which this Court found in the evidence of PW1 as regards its credibility so as to place sole reliance, would equally apply in the context of the evidence under Section 120 B as well.
57. That apart, it is significant to note that the original land tax receipts, which were allegedly handed over by the 2nd accused to PW1 upon payment of the bribe money, were neither seized, nor produced before the court. This Court notice that, the Investigating Agency had absolutely no difficulty, whatsoever, to seize the original of the said land tax receipts from the office of A2 and to produce it. Instead, they chose to recover the receipt book containing the carbon copy of the receipts issued from the Village Office concerned. Similarly, the application based upon which mutation was effected in the name of PW1 (the existence of which is brought out by a court question during cross of DW1) is also neither seized nor produced. Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 As already held, the conspiracy theory suffers a serious impact on account of the above fatal failures.
58. The next aspect which requires to be noted is the absence of a clear explanation by the prosecution, as to how the 2nd accused, after receiving the tainted money, reached the office of the 1 st accused. Apart from PW1, PW6 - an official witness - also deposed that they have not seen A2 coming to the office of A1, after PW1 allegedly entrusted the tainted money to A2.
59. DOCUMENT WRITER (A2) ISSUING ORIGINAL TAX RECEIPTS - WHETHER BELIEVABLE?
Yet another important aspect which cast suspicion on the prosecution version is with respect to Exts.P8(a) and P8(b) land tax receipts, both of which form part of the same receipt book. Ext.P8(a) is one where remittance of land tax is acknowledged in the names of PW1 and her husband as 'Pattadars'; and Ext.P8(b) is one which merely acknowledges receipt of the land tax amount, but not recognizing the Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 status of PW1 and her husband as Pattadars. Curiously, both these are seen dated 30.07.2008. The conduct does not stand to reason, as to how both receipts were kept prepared on the same receipt book, on the same date. One another aspect offshoots from this. Going by the prosecution version, the first demand was made by A1 on 04.08.2008. If that be so, how can Ext.P8(a) showing the names of PW1 and her husband as Pattadars can be prepared and kept ready for issuance on 30.07.2008, when the 1st accused is completely unsure as to whether his alleged demand for bribe is going to be obliged or not. Yet another aspect, which springs from this is, how the 2nd accused, a document writer, could hand over the land tax receipts and document to PW1, immediately upon payment of the bribe amount, that too, at his office. Are we to conceive that these land tax receipts are prepared by A1 and entrusted to A2 for issuance? Is it the prosecution version that the original land tax receipts, along with the Receipt book containing Ext.P8(a) and P8(b) carbon copies, were prepared by A1 and entrusted to A2 for the purpose of issuance? These hard facts are irreconcilable, in the absence of cogent evidence, for, usually a land tax receipt Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 will only be issued from the Village Office; and not from the office of a document writer.
60. In the light of the above glaring circumstances, the only possible conclusion is that, the vital ingredients of demand and acceptance for the purpose of offence under Section 7 and also under Section 13(1)(d) of the P.C. Act, are not satisfactorily proved in accordance with law. At the cost of repetition, this Court may iterate that the evidence of PW1, by itself, is not sufficient to prove the prosecution case, beyond doubt. This Court is not, for a moment, saying that the evidence of PW1 is not reliable at all. However, as expatiated in Vadivelu Thevar (supra), the witness belongs to the third category, for, she is neither wholly reliable, nor completely unreliable, which necessitates the requirement of corroboration of her version. No corroboration as regards demand and acceptance is forthcoming. Non-examination of Zeenath, PW1's sister, who admittedly witnessed the demand alleged to have been made by A1 to PW1, prove to be fatal in the given facts. Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271
61. Before concluding, this Court may also take note of the peculiar attributes of a case being proved by a trap, in contra distinction with other cases. The most telling aspect in support of the prosecution in a trap is that, the accused is caught red-handed during the course of acceptance of the bribe amount, which goes a long way in proving the prosecution allegations. As the name indicates, it has all the trappings of a 'trap', in the literal sense; and the accused is being trapped, virtually. Law recognizes such a trap being laid to stamp out the venom of corruption. However, because of the peculiar vulnerability of a trap and the immediate prejudice which is likely to be precipitated against the accused by virtue of a successful trap, the Apex Court have cautioned the courts to ascertain the veracity of the trap, with reference to the ingredients of the offences canvassed and to be sufficiently cautious, while convicting a person based on trap. It is only on this premise that the Honourable Supreme Court went on to hold that mere recovery of tainted notes will not tantamount to proof of offence under Section 7, or for that matter, under Section 13(1)(d) of the P.C. Act. The possibility of an Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 innocent public servant being wrongfully trapped for not falling in line with the varied and diverse demands of the general public also has to be borne in mind, while dealing with trap cases. In the instant case, as already found, the recovery of the tainted notes is not effected from the public servant/A1. Instead, it is from A2, a document writer. Unless and until the link, as also, the conspiracy alleged to have been hatched by and between A1 and A2 is established, the recovery of the currency notes from A2, followed by phenolphthalien test turning positive as against A2, is of no moment, whatsoever. The best evidence rule would still apply even in the case of successful trap and it is the bounden duty of the prosecution to satisfy the concerns of the court, that the trap laid was genuine, pursuant to a demand for bribe made by a public servant, which observation is made in the context of withholding the evidence of a crucial witness, Zeenath Beevi, in the given facts.
62. In the light of the above discussion, this Court Crl.A.Nos.1170 and 1186 of 2016
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2024:KER:90271 concludes that the offence as against the public servant/A1 is not established by proving the demand and acceptance. Once the offence against the 1st accused is not satisfactorily established, the 2nd accused, a private individual, is also entitled for the benefit, for, there cannot be any conviction under the Prevention of Corruption Act of a private individual, except along with a public servant. An offence under the P.C. Act cannot lie against A2 alone.
63. In the result, these appeals succeed and the impugned judgment cannot be sustained. Both the accused persons are acquitted of the offences under Section 7 and 13(1)(d), punishable under Section 13(2) of the P.C. Act and also of the offence under Section 120 B of the Penal Code. The bail bonds of the accused persons shall stand cancelled and both the accused are set at liberty forthwith.
Sd/-
C.JAYACHANDRAN, JUDGE ww/TR