Partly allowed

Ghunu Ram Gawade v. State

Chhattisgarh HC4 Sept 2008CRA/673/1990

Case brief

AI extract

What is this about?

In an appeal under Section 374(2) CrPC, the High Court held that a defect in investigation by a lower-ranking officer does not vitiate the trial if no prejudice is shown. Conviction under the Prevention of Corruption Act was upheld, but the sentence was reduced from one year to three months rigorous imprisonment.

What did the court decide?

Conviction maintained; rigorous imprisonment reduced to three months; fine increased to Rs. 3000.

Ghunu Ram Gawade Vs State — Corruption | Chhattisgarh HC (2008)

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HiGH_CQURT OF CHHATTISGAR-! AT BiLA-SPUR

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Crirninaj Appeai No. 673 of 1990

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£~^iApp^LLAMTSt iLu fanddalj'*^£'~J

NON APPLICANT

h'unnu Rs.m G^wsdo

tateofiWadhvaPradesi

!P1= »i-UOIt;! FOR PRONOUNCE1VSENT ON^L>-9-2008

SdA;, ,

T. P. Sharma

Judge

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H1GH COURT OF CHHATTISGARH AT BILASPUR

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[SB: Hon'bie Mr.T.P.Sharma.J.I

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Crimjna! Appeal No. S73 of 199Q

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Ghunnu Ram Gawade, aged about 35 years, son of Manihar Gawade, R/o vi!!age Baioda, Police Station, Daiii Rajhara, Clerk and Reader, Tehsiidar, Navagarh, DistrictDurg (M.P.)

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VERSUS

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State of Madhya Pradesh through Special Poiice Estabisihment, Lokayukt Karyaiaya, Raipur, M.P.

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Shri V.G. Tamaskar learned counsel for the appeliant. Ms. Sangita Mishra Panel La'Ayer for the rsspondenfc'State.

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:R SECTION 374(2) OF THE CODE OF

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CRiMiNAL PROCEDURE

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JUDGMENT (o ^1.9.2008)

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This appea! is directed against the judgment of conviction and order of sentencs dated 11.07.1990 passed by Additional Sessions Judge/Specia! Judge, Durg, in Specia! Case No. 1/1988 whereby the appeilant has been convicted for the offence punishable under section 5 (2) of the Prevention of Corruption Act, 1947 (forshortthe "Acf) and section 161 ofthe indian Pena! Code and sentenced to undergo rigorous imprisonment for one year and pay fine of Rs. 500/- in defautt of pavment of fine to furthsr undergo R1 for thres months u/s 5(2) of the Act and to undergo Rl for one year u/s 1 61>1 !PC.

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The judgment of the tria! Court is challenged on the ground that wlthout there being any proof of motive or reward and acceptance or recovery of the alleged i!!egal gratiflcation in breach of rnandatory provisions of Section 5 (A) (1) of the Act, learned Specia! Judge has committed an iiiegality in convictlng and sentencing the accused/appellant as mentioned^above.

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Heard Shri V.G. Tamaskar learned counse! for the accused/appellant and Ms. Sangita Mishra, Panel Lav/yer for the respondent/State and perused the material avaiiabie on record including thejudgment Impugned.

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Case of the prosecution in short is that on 16.7.1986 accused/appellant was posted as cierk in the office of Tahsildar, Navagarh. Another sccused Gotiia! \vas pos+sd as peon in the sams office. Co-accused Jaieshwar was carrying out th9 '/rork of Arj! Nsvis 'in the premises of Tshsii Office. Co-accused Lakhanial is the brother of accused Jaiesi'war. Compiainant Chandan Das vr'as an agriculturist .'esiding in viilage Manpur. As he was in need of Rin Pustika reSating to his !and, he produced the requi'ed certificate before the Naib Tehsiidar, Navagarh. On the basis of said certificate the Naib Tehsiidar directed for issuance of Rin Pustika to complainant Chandan Das. Compiainant Chandan Das went to the accused/appe'iant for coliscting the Rin Pustika where compiainant produced the sasd certificate Ex. P-1 before the accused/appellant. On receiving the certificate, accused/appellant asked the complainant as to how much money did he brino wlth him. When the complainant said that he was having ',vith him the cost of the Rin Pustika which was Rs. 21-, the accused/appeSiant toid hiti that the Rin Pustika wouid not be g'vsn for Rs. 21- and he would get the Rin Pustika after paylng Rs. 60,'-, and returned the said certlficate to him.

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Complsinant came back to his viSlage to arrange the money asked for but on being advised by the vi'iagers that the Rin Pustika is provided for Rs. 21-, hs went to the office of LoKayuki, Raipur and flled the v^ritSen complaint Ex. P-2. Superintendent of Polsce posted in the office of Lokayukt after receiving the complaint directed Shri B.D. Dhananjay who was posted as inspector of Poilce in the LokayuS<t office to investigate the matter. He a'so provided the complaint Ex. P-2 to the complainant for hls satisfaction. Thereafter, he calied Panch witness Sursndra Kumar Saxena (PW-5) who

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read over the contents of Ex. P-2. The complainant told him that he did not want to give the bribe on that day to the accused/appellant and requested for taking action against him. On being asked, he produced six currency notes of ten denomination number of which were taken down in the preiiminary Panchnama Ex. P-1 and applied a layer of phenoiphthalein powder thereon and kept the same in the.pocket of the shirt of the comp!ainant. They a!so asked the compisinant not to shake hand with anyone and give the said currency notes to the accused/appeliant on demand being made by him and while giving the money he shou'd give the signal to them by keeping his hand over his head.- Reaction of phenolphthalein powder and sodium carbonate was demonstrated. Preiiminary Panchnama Ex. P-3 was prepared. T'ne compiainant and the trap party proceeded for the spot. Comp!ainant went to Tehsil office and after coming backafter some time, informedthe trap party that the accused/appellant had gone to his house which is situated nearithe Tehsil office. Trap party sent the complainant io the housej of accused/appellant and whsn he was going there, co-accused Gotilai met him on the way and both of them went to the house of accused/appellant wh|ere accused/appellant demanded money from the complainant. When complainant gave money i.e. the six currency notes of 10 denomination asked for by the accused/appeltant, he counted it and asked Ch&ndan Das to remain present there. Accused/appeliant and co-accused Goti!al went inside the room, discussed the matter and after some time they came^ out. Accused/appeilant told the complainant to go to Afji Naws along with Gptilal. Complainant and co-accused Gotilal went to Arji Navis namely Jalesljiwar. While going to Arj'i Navis, complainant informed the trap party about his giving money to the accused/appeilant. Trap party went to the house of jthe accused/appeliant and oninquiry, he admitted that he had taken money from the complainant but given it to co-accused Gotilal. After some time eoaccused Gotilal and Jaleshwar also came there with Rin Pustika. AftertakiRg

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-L/-

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search ofGotila!, two currency notss of 10 denornination v/ere recovered from the pocket of his full pant and one rupee coin and a currency note of two denomination were recovered from the pocket of his s''lrt. Accused Got'la! inforrned that he gave Rs. 401- to the brother of Arji Navls Jaleshwar name'y Lakhanla! but the same were not recovered frorn any of the accussd persons. Fuil pant of accused Gotiial v/as seized vide Ex. P-10. Hands of acc^sed Ja'eshwar, Lakhaniat and Ghunuram - the oresent wers washed with Sodiym Carbonate soiution which turned pink. Panchnama Ex. P-11 was p'epared. Reaister reaardina issuance of Rin Pustika was seised vide Ex. P-0 C. Certificate Ex. P-1 wss ssized vide Ex. P-4. Statements of 1:h° witness under section 161 of ths Coc'e of Crimmal Procedurs were r&cordad, se!2 articies were sent for chemica! examination to Forensic Science Laborato:ry Raipu'r vide Ex. P-14 and on examinatlon of the same presence of p'nenolphtha!ein po'wder and sodium carbonate soiution on theseizsd arcales was confirmed vide report Ex. P-16. Sanction to prosecute the accusedi'appel'ant Vi'as obtained vide Ex. P-9. After compietio" o? investigation c'narge sheet was filed againstthe accused/appeliant

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6, I" order to prove the gullt of the accused/appsSSant the prosecutlon has examined six wltnesses. Statement of the accused/appel'ant v»"as recorded under sectlon 313 of the Code of Criminal Procedure in which he denled ths materiai appearing against him In prosecution evidence and pteaded his innocence and false implication in the case.

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After affording opportunity of hearing to the parties les'-ned Specie! Judge convicted and sentenced the accused/appeliant as mentioned above snd acquitted co-accused Goti'al, Jaisshwar and Lakhanla! of the charges ieveled againstthem.

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It is argued on behalf of ths accused/appeiiant that the cnms I" question is invsstigated by Shri 3.D. Dhanaryay, Poiice Inspector, posted in

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Lokayukt Office, who was not authorized by the State Government as required under Section 5{A)(1) of the Act of 1947, Entire investigation conductsd by the Poiice Inspector beiow the rank of Deputy Superintendent of Poiice is i!!egal. !t is further argued that the prosecution has not proved the motive of the appellant and six currency notes of 10 denomination said to be given by the complainant were not recoversd from his possession. Trap has been conducted after office hours and t'nat time the accused/appeliant was not discharging his officia! duty. Rin Pustika was required to be prepared by he Naib Tehsildar who is competent to provide the sarne and not by the cls>'k. Therefore. the accused/aDDeliant cannot be said to have misused his official position. Lastly he argued that the accused/appellant is facsng tr'a! since 1938 and after a lapse of 20 years for aSlegedly taking the bribe of Rs. 60./-, no purpose wiii be served in sending hirn to jai!.

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Reliance has been placed on behaif of the accused.'appellant on the decision of Supreme Court in th.e rnatter of State of Almer (Now Raisthan) V. Shiviilal in v/hich it has been he!d by the Apex Court that a government teacher taking money for procuring job in Rai'ways is not a misconduct in t'ne discharge of his duty. Further reiiance is placed on the decision of the Apex Court In the matter of Stats of Goa V. Babu Thomas ' in which it is held that sanction accorded by fhe officer not competent to accord sanction. Reiiance is placed on the decision of the Apex Court in^the inatter^ofStateV; Narasimhacharv 's in which it has been held thst sanction authenticated by Secretary to State Government in the name of governor is a public document and can be proved in terms of sections 76 to 78 of the Evidence Act. it is further heid that the alleaed dsmand of bribe after^{signatureonthedocumsnt} by the final authority for Vi/hich demand is made creates suspicion a'oout the demand of bribe. Further rel.'ance is placed on the decision of the Apex Court

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1 AIR 1959 SC 847

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2 2C05 Cri.L.J. 4379

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'2QQ6Cri.L.J.518

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6—

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in the matter of State. inspector of Pollce, VisakhaDatnam v. Surva Sankaram Karri in which it has been held that Investlgation authorized by Superintendent of Poiice has to be in wriSing. Issuance of an orai direction is not contemplated under the Act and Investigation by such officer is not fair, and it is illegal. Yet reiiance is piacsd on the decision of the A.pex Court in the matter of V._VenkataSubbarao V. State represented bv instsector of Police.A.P. in which it has been he!d that presumption under section 20 of the Act of 1988 cannot be raised in the absence.of any proof of demand of bribe. !n the absence of demand of bribe and recover/ of money.from the house of the applicant cast doubt upon the story of the prosecution."

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On the other hand the impugned judgment is supported on behaff of the respondent.

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This is a case of criminal misconduct of demand of il!egai gratification other than lega! remuneratior! as a motivs or re'ward by the public seroant by abusing his officia! positlon and in such cases the prosecution is required to establish the following essential ingredients:

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(i) accused was a public ser/ant at the time of cornmisslon of offence;

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('") accused has misused or abused his officiai posltion; (iii) accused demanded 'ISega' grafification other than iegal remuneration as motive or reward;

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("/)

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accused accepted or received such gratification;

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(V) offence is investigated by a competent authority under section 5 (a) of the Act of 1947 or section 17 of the Act of1988;

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Va!id sanction was accorded by the Centrai Government or the

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(vi) State government or the authority competent to remove such public officer from his office after subjective satisfaction.

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4 2006 Cri.LJ. 4598 ' ao"5) 13 scc 305

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7—

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In order to establish the contention ofthe parties, ! have examinsd the materiai available on record inciuding the oral as weli as documentary' evidence adduced by the prosecution.

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It is not disputed that at the time of incident i.e. on 15.7.1386 and 16.7.1986 the appeilant was posted as Clerk in Tehsil Office, Navagaon. According to the case of the prosecution complainant Chandan Das was In need of Rin Pustika, therefore, he contacted the appellant for the same. On being contacted, appeliant demanded iliegal gratification from the complainant for issuance of Rin Pustika. Trap party was constituted, complainant along with trap party went to Tehsil office on 16.7.1986 vi/here appellant vi?as not present and then they went to the house of the appeljant. On perusal of the materiai collected by the prosecution it is reveaied that the appeilant who was a publte sen/ant at the time of commission of offence was in his house and the alleged demand and acceptance of iilegal gratffication for preparation and supply of the Rin Pustika by him or his office or the officiai authority, was made in his house itself.

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For the demand and acceptance of iliegai gratjfication by a pubiic sen/ant by abusing his official position, it is not necessary that such demand and acceptance should be in the office or during office hours. Prosecution is required to establish the fact that it was in connection with the officiai work and the public sen/ant has misused or abused his officiai position. In the matter of State of Ajmer v. Shivajilal (supra), the accused was not authorized to procure a job for a person in raiiways, running shed therefors, he has not committed misconduct in discharge of his duty.

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For reconsideratlon of the case of State of Ajmsr (supra), a iarger bench consisting of five judges was constituted and whiie dealing with crimina] misconduct by public sen/ant in the matter of Dhanneshwar Narain

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Saxena V. Deihi Administration ° it has been held that it is not necessary to constitute the offence under ciause (d) of Section 5 of the Act that pubiic servant must do something in connection with his own duty and thereby obtain any vaiuable thing or pecuniaiy advantage. It is equally wrong to say that if a public sen/ant were to take money from a third person, by corrupt or iliegai means or otherwise abuslng his ofriciai position, in order to corrupt some other pubiic servant, without there being any question of his misconducting himseif in the discharge of his ov/n duty, he has not committed an offence under S. 5 (1) (d). it is aiso erroneous to hoid that the essence of an offence under S. 5 (2) read with S. 5(1) (d) js thatthe public sewant shouid do something in the discharge of his ovi/n duty and thereby obtain a valuable thing or pecuniary advantage. It is necessary that an accused person under Ci. (d) of S. 5(1) of the Pfeventson of Corruption Act while misconducting himself, should have done in the discharge of duty and thereby obtain any valuable thing or pecuniary advantage. If a public sen/ant takes money from third pariy by corrupt or iilegal means or otherwise abusing his^off'iciai position, in order to corrupt some other public sen/ant he comrnits offence In the under S. 5 (1)(d) read -with 5(2) of the Prevention of Corruption Act. matter of Datoat Sjngh and another v. State of Raisthan ' it has been heid by the Apex Court that the acts complained of need not be in discharge of officialduties.

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16 in the instant case the appellant was posted as a clerk in Tehsi. Offlce under the control of Tehsiidar. It was aiso the^{duty'ofTehsiidartoensure} issuance of Rin Pustika to the farmers. The purpose for which the il!egai gratification^{wasdemandedisnotsoremotewiththedutyoftheappeilant.} Even if it is so, thsn to constitute crimina! misconduct under ciause (d) of Section 5 of the Act of 1947, the^{oniythingnecessary'isthatv.'hether} pubiic

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SAiRSC1962 195 'AIR1969SC17

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servant abused his official position or not. The law relating to misconduct and misuse of official position has been vi/ell explained by the Apex Court in the case of Dhaneshwar Narain Saxena (supra).

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The sscond question for consideration Is whether the investigation conducted by the Police Officer below the rank of Dy. S.P. is iliegal. Placing reiiance in the matter of V. Venkata Subbarao (supra) It is submitted on behalf of the appellant that the entire investigation has beenconducted by the Inspector of Police B.D. Dhananjay who was below the rank of Dy. S.P. and he was not authorised by the State Governmenl under section 5 (1) (A) of the Actof1947.

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The third point raised by the appellant in this appeai is the competency of the officer to investigate the offence. Hsre in this cas®the offence against the appellant was investigated &y the Poiice Inspector B.D. Dhananjay (PW6). He has stated in his statement that he was directed by the Superintendent of Police to investigate the matter and he has fited the document Ex. P-2 which shows that he was authorized by the Superintendent of Police to invesiigate the offence against the appeiiant punishable under section 5 of the Act of 1947. Section 5-A of the Act of 1947 envisages thai Dy. Superintendentof Police or the poiice officer not beiow the rank of an Inspector of Police authorized by the State Government, is competent to investigate the offence. Section 5-Aof the Act of 1947 reads as under:

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"5-A. Snvestigat'mn mto Cases under this Act :- (1) Notwifhstanding anything contain.ed irs the Code of Ciiininai ProceduiB, 1898 (5 of 1898), no potice ofRcer belcw the rank: (a) in the case of the Delhi Speci'al Police Establishment, of an Snspector of Police;

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(b)^inthe presidency^{tow/nsofCalcuttaandMadras,ofan} Assistant Commissioner of Police :

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(d) elsewhere, ofa Deputy Superintendent of Poiice,

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shal! investigate any oftence punishatsle uncter Section 161. Section 165 or Section 165-A of the Indian Penal Cocte (45 of 186Q)or under Section 5 of this Act without the order of a Presidency Magistrate or a Magistrate or the First Class, as the case may be, or make any arrest therefore witiTouta warrant;

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Provided that if a poiice Offfcer not beiow the rank of an inspector ofPoiice is authorised by the State Government in this behalf by general or special order, he may also snvestigate any such offence without the order of a Pres'idency Magistrate or a Magistrate of the First Ciass, as the case may be or make arrest therefore withiout a warrant;

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Prow'ded further thaf an offence referred to in ciauae (e) of Subsection (1) of Section 5 shail not be investigated without the order of a solice officer not below the rank of a Suoerintencknt of Poiice.

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(2) Sffrom information received or otheiwise, a police oSficer has reason to suspact the commission ofan offence vi/hich he is empcwered to investigate under sub-section (1) and considers that for the purpose of investigation or inquiry into such offsnce, it is necessary to inspect any bankers' books, t'nen noMithstanding anything contained in any law for the time besng in force, he may inspect bankers' books 'sn so far as they reSate to the accounts of the person, suspected to have committed that offence or of any other person suspected to be holding money on behalfofsuch person, and take orcause tobe taken certifiecj coples of the refevant entrias therefrom, and the bank concsrned sha!! be bound fo assist the police officer in the exerdse of hss powers^{under thissub-section:}

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, Provided that no po'vvw under fhis sub-section in relation to the accounts of any person shait be exercjsed by a police officer 'oelow the rank of a Superintendent of Police, unless 'ne is specialiy authorissd in ttiis behaif by a Poiice OSficer of or above the rank of a Supenntendent ofPolice."

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tnjhe case of V. VenKata Subbarao V. State represented by insptsctor of Police, A.P (supra) investigation was conducted by the officer not

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authorised under section 17 of the Act of 1988 (identicai provisions like section 5-A of the Act of 1947). The investigating officer has stated that he was authorised by the Superintendent of Poiice but he faiied to produce any such authorizanon, and the manner in which the investigation was conducted was condemnable and raised doubt about his bona fides. He has not examined important witnesses and not taken into consideration the documentary evidenca. After taking into consideration the factum of conciemnabte investigation and absence of the document pertaining to authorization, the Apex Court has heid that serious prejudice has been caused to the accused/appellant. Therefore, investigation was iiiega!.

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In the matter of State of Andhra Pradesh v. P.V. Naravana 8 in which whsie deaiing with the provisions of Section 5 (1) of ths Act of 1947 it has been heid by the Apex Court that in case of iiiegai investigation the court is required to see whether it has resulted in prejudice to the accused. in the matter of State of Chhattisgarh V. Harmahendra Sinflh Gandhi (Criminai Appeal No. 843 of 2001 decided on 21.9.2005L it has been held by the Apex Court that a defect or illegaiity in investigation, however serious, has no direct bearing on the competence or the procedure reiating to cognizance or trial. Whiie dealing with the provisions of Section 5-A of the Act of 1947 in the matter of H.N. Rishbud and another V. State of Deihi in which it has been held by the Apex Court that investigation by unauthorized person does not by itseif is rendered iiiegal uniess serious prejudice caused^to the^accusedor party is shown and it does not affect the competence or jurisdiction of t'ne Court. Relying on the decision in the matter of H.N. Rishbud (supra) it has been held by the Apex Court In the matter of Munnaial (In ail appeaisLv. State of Uttar Pradesh (in all appeaisi that Investigation m violation of the provision is iiiega!. Triai is however not vitiated in absence of miscarriage of

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81971(1)SCC483 ''AIR1955SC196

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'•°AIR1964SC28

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2--

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justice. 1 do not nnd force in the contention of the iearned counsel for the appellant.

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ln the instant case the accused/appeilant has not taken any such defence or objection at the time of trial or at the stage of appeal. Moreover, B.D. Dhananjay (PW-6) has specificaiiy stated that he was directed by the Superintendent of Police to investigate the matter and accordingiy, after receiving the complalnt, he conducted preliminary inquiry and arter satisfying himseif proceeded for trap and undertook the investigation of the offence. No irreguiarity in the investigation has been shown by the defence which renders it unfair, condemnabie or otherwise iiiegal.

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In the light of aforesaid iegal position, the defect or iiiegaiity of investigation, if any, does not affect the competency of the trial unless it results in serious prejudice to the accused.

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According of sanction Is an officiat act of the authority- v/ho accords sanction and the Court may presume the fact that judicial and official acts have been regulariy performed in terms of clause (e) of Section 114 of the Evidence Act. Sanction order is a oubiic document within the meanin of Section 74 of the Evidence Act and it may be proved on its production. This should be done in two ways; (i) by producing the original sanction vvhich itseif contains the facts constituting the offence and the grounds of satisfaction and (ii) by adducing evidence aliunde to show the racts piaced before the Sanctioning Authority and the satisfaction arrived at by it. In the matter of State of Goa (supra) it is held that the sanction accorded by the authority not competent to accord it, is no sanction. In the matter of State V. K. Narasimhachary (supra) it has been held that sanction order is a pubiic document ynder section 74 and it cannot be asked to be proved as per S. 47 of the Evidence Act and authenticationof the signature on the sanction order is sufficient to prove the same. ]n the matter of^IVSohd. Sabat Aahmed^v.State

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of Andhra Pradesh in which it has been held by the Apex Court that it is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This shouid be done in tvi/o ways: (1) by producing the origina! sanction which itseif contains the facts constltuting the offence and ths grounds of satisfaction and (2) by adduclng evidence aiiunde to show the facts piaced before the Sanctioning Authority and the satisfaction arrived ai by it. Any case jnstituted without a proper sanction must faii because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. What the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was avvare of the facts constituting the offence and appiied its mind for the same; any sufasequent fact which may come into existence after the grant of sanction is whoily irrelevant. The grant of sanction is not an id!e formaiity or an acrimonious exercise bu{ a soiemn and sacrosanct act which affords protection to Govemment servants against frivolous prosecution and must therefore be stricily compiied with before any prosecutlon can be iaunched against the public servant concerned.

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Ex. P-9 is a public document and the prosecution has produced the original sanction order Ex. P-9 containing the details of the case of the prosecution. According section aftsr subjective satisfaction by the Sanctionini Authority and the same does not suffer from any illegaiity or infirmity and thus the same is a vaiid sanction under the iaw.

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The next question for consideration is that vvhether vaiid and proper sanction was accorded by the sanctioning authority under section 6 of the Act of 1947 for prosecution of the accused/appellant? Sopan Sinde PW-4 who

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"A!R 1979 SC 677

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was posted as Upper Division Clerk in the Secretariat, Revenue Department has stated that the sanction order of prosecution bears the signature of Shri Bhave, Principal Secretary. In the cross examination this witness has denied that the sanction order Ex. P-9 does not bear the signature of Shri Bhave. He has admitted that there is some c&rrection in Ex. P-9 and nobody has put his signature after making correction, but that ss a clerical mistake.

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As regards question of demand and acceptance of gratification other than iega! remuneration by the accused/appellant, Chandan Das (PW-1) has stated in his evidence that he was in need of Rin Pustika relating to his iand, he produced the required certificate before the Naib Tehsildar, Navagarh. On the basis of said certificate the Naib Tehsildar directed for issuance of Rin Pustika to complainant Chandan Das. Thereafter, compiainant Chandan Das went to the accused/appeiiant for coilecting the Rin Pustika vvhere complainant produced the said certificate Ex. P-1 before the accused/appellant. On receiving the certificate, accused/appeiiant asked the complainant as to how much money did he bring with him. When the complainant said that he was having with him the cost of the Rin Pustika which was Rs. 2/-, the accused/appeiiant told him that the Rin Pustika wouid not be given for Rs. 21- and he would get the Rin Pustika after paying Rs. 60/, and returned the said certificate to him. Thereafter, the compiainam carne back to his viliage to arrange the money asked for but on beang^advisedby the viliagers that the Rin Pustika is provided for Rs. 11-, he went to the office of Lokayukt, Raipur and flled the written compiaint Ex. P-2 before the Superintendent of Police. Offjcer of the Vigiience Department demanded the money from the compiainant and appiied phenolphthalein powder over tlie currency notes and same •<vere kept in the pocket of the shirt of the complainant with a direction that he wouid give t'ne money to the accused at the moment he demands it. Thereafter, the compiainant and the trap porty proceeded for the spot. Complainant went to Tehsii office and after coming

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back after some time, informed the trap party that the accused/appel!ant had gone^{tohishousewhichissituatedneartheTehsiloffice.Trap} pariy^sentthe complainant to the house of accused/appeliant and when he was going there, co-accused Gotilal met him on the way and both of them went to the house of accused/appeliant where accused/appellant demanded money from the complainant. When compiainant gave the money askedi for by the accused/appeilant, he counted it and asked .Chandan Das to rernain present there. Accused/appellant and co-accused Gotlial went inside the room and after some time they came out. Accused/appellant told the compiainant to go to Arji A/aw's along with Gotilai. Complainant and co-accused Gotilai went to Arjl Navis namely Jaleshwar. While going to Arji Navis, Gomplainant informed the trap party about his giving money to the accused/appeiiant. Trap party went to the house of the accused/appellant and on inquiry, he admitted that he had taken money from the complainant but given it to co-accused Gotiial. After some time co-accused Gotilai and Jaieshwar also came there with certificate Ex. P-1. Gotila! was produced before the trap party and Rs. 20 or 30 were found in his possession. Certificate Ex. P-1 Vi/as seized vide Ex. P-4.

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8.D. Dhananjay (PW-6) who conducted the trap has categoricaily stated the entire story of the trap and proved the documents of Ex. P-2 to P-16. According to his statement, after recelving written compiaint from ihe Superintendent of Police he asked the complainant about the comptaint and called Panch witness Surendra Kumar Saxena (PW-5). He asked the compiainant to produce the currency notes on which he produced six currency notes of 10 denomination numbers of which were recorded in Panchnama Ex. P-3 and after coating phenolphthalein powder they were kept in the pocket of the shirt of the compiainant with a^{directionthathewould} give the same to the accused as.and when he so demanded and after giving money he would give signal by putting his hands over his head. Reaction of phenolphthalein powder and Sodium Carbonate was demonstrated.

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ffo

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Thereafter, they went to the Tehsil office where appiicant was posted but as the office was closed they went to the house of the appeliant and on enquiry the appeiiant admitted to have taken Rs. 60/- and gave it to Gotiia! Tor receiving the Rin Pustika. Hands of the accused/appellant were washed with the solution of sodium carbonate which turned plnR in colour. !V1ean',vhile, Gotilal and Jaleshwar also came there. Their hands were washed in the soiution of Sodium carbonate which turned biue. On search two currency notes of Rs. 10/- denomination were found i'n the possession of Gotiiai. Number of the currency notes vvere taliied with the Panchnama Ex. P-3. Currency nofes, one pant, and other documents vve wers seized vide Ex. P- 10, details of proceedings were recorded in the final Panchnarna £x. P-11. Dehati Nalisi Ex. P-12 was recorded and based on that FiR Ex. P-13 was registered. Ali the seized articles were sent for chemicai examination and that being done presence of phenolphthalein powder on those articles was confirmed vide Ex. P-16.

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Sursndra Kumar Saxena (PW-5) has also corroborated the statements of Chandan Das (PW-1) and B.D. Dhananjay (PW-6). Ranjit Singh (PW-2) has supported the seizure of register Ex. P-6 vide Ex. P-5. M.R. Tirkey (PVV3) has stated in his evidence that he had jssued the certificate Ex. P-7 and the entry in the said register was rnade by the appeiiant. He has also stated that the appeilant used to make the entry regarding distribution of Rin Pustika in the register Ex. P-6. He has admifted that no ree for Issuing the Rin Pustika is required from the persons belonging the scheduled caste categon/.

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The statement of the complainant Chandan Das and Investigating Officer is corroborated by the statement of Surendra Kumar Saxena (PW-5). The defence has cross examined Chandan Das (PVV-1), Surendra Kumar Saxena (PW-5) and B.D. Dhananjay (PW-6) at length. Chandan Das (PVu'-1) has stated in paragraph 9 of his evidence that when accused/appeliant

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demanded Rs. 60/- from him in stead of Rs. 2/-,he did not go to the Tehsildar because of the fear that he might demand more money. The suggestion that the accused/appellant did not ask for money, has been denied by this witness. Surendra Kumar Saxena (PW-5) has stated in his cross exarnination that complaint Ex. P-2 was not written before him. B.D. Dhananjay (PVV-6) has admitted in his cross examination that if a powder quoted note is given to some other person or if someone with powdered hands, shakes hands with the other person then $he presence of powder is very much there with such person to whom such note is given or who is made to shake hand. But in this case, the complainant or any witness has not stated that he gave the powder quoted notes to any person other than the accused/appeiiant. The accused/appeliant himself has not stated that his hands came inio contact Vi/ith the complainanf or any member of the trap party. The defence has not asked any question to B.D. Dhananjay (PW-6) that hand v/ash solution of the appeiiant did not turn pink and the presence of phenolphthaiein was not confirmed. The appeliant has not taken the piea of enmity or any other circumstance to shov/ that the compiainant or the trap party has falsely implicated him. In this case, ihe powdered quoted notes were not recovered from the appellant. However, complainant Chandan Das has specificaiiy stated that the appellant demanded Rs. 60/- as gratification and he gave the six powdered quoted currency notes of ten denomination to the appeiiant vi/ho after taking the money went inside the room along with Gotiia! and after having discussion they both came out and appeilant asked Gotilai to accompany the complainant to the house of Arji Navis Jaieshwar for takin; Rin Pustika. Whiie the complainant was going to the house of Jaleshwar along with Gotilai, on the way he informsd the trap party that he had glven the money to the appellant. After sometime Jaleshwar and Gotilal came to the house of the accused/appellant. No currency notes were found 'with the accused/appellant but two currency notes of ten denomination were found in

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the pocket of Gotilal. On inquiry Gotilal to!d that rest of the currency notes he had given to one Lakhanlal, brother of Jaleshwar.

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ln the case of V. Venkata Subbarao (supra) the prosecution has failed to prove the demand of gratification. Prosecution has adduced evicience that money was paid by the accused and he counted the same with both hands but when the fingers of his one hand vvere dipped in the Sodium Carbonate soiution, and.then t'ne soiution turned pink. A lot of improvements vi/ere made in the evidence by ths comptainant and other witnesses and after taking into consideration the evidence in detail, the demand was not found proved.

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In this case, the complainant has stated that the appeiiant demanded bribe of Rs. 60/- for preparation of Rin Pustika, he reported the matter to the Vigiiance Department and on the date of incident aiso he demanded Rs. 60/from him. After taking the money the accused/appellant and co-accused Gotilal went inside the room and after some time when they came out, appellant asked Gotilal to take the complainant to Jaleshwar for coltecting Rin Pustika. Thereafter, two currency notes of ten denomination were found in the possession of Gotilal and rest he told to have given to Lakhanlai, brother of Jaleshwar.

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Defence has cross examined these witnesses at iength but nothin; has been brought anything in the cross examination to discredit ths above mentioned facts that the appeilant was posted as clerk in the office of Tahsildar and it was his duty to issue Rin Pustika to the farmers and that he demanded and accepted Rs. 60/- from the complainant for preparation of the Rin Pustika and immediately thereafter he along with Gotiiai went inside the room and after some time they came out and appellant asked Gotilai to accompany the complainant to the house of Jaleshwar for collecting the Rin pustika and out of the amount of Rs. 60, Rs. 20/- were recovered from

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Gotilal. Prosecution has obtained sanction vide Ex. P-9 to prosecute the accused/appellant according to the provisions of Section 6 of the Act of1947.

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After appreciating the evidence avaiiable on record iearned trial Court has convicted and sentenced the accused/appeliant as mentioned above.

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in the present case the investigation was conducted by the person who was not competent to investigate the offence. But no prejudice has been shown to have been caused to the accused/appellant if the investigation has been conducted by an officer not competent to do so. The defect in the investigation will not affect the competence of trlal. Sanction accorded by the competent authority is also a valid sanction and fulfills the requirement of section 6 of the Act of 1947. Statement of complainant Chandan Das and B.D. Dhananjay (PW-6) is trustworthy and inspire confidence. Their statements can be safeiy relied upon.

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Conviction is based on reliabie and credible evidence. i do not find any illegality or irregularity in the judgment impugned. As regards sentence, the accused has been found guiity of the offence punishable under section 5(2) of the Act and u/s 161 of the Indian Penai Code and he has been sentenced to undergo rigorous imprisonment for one year and pay fine of Rs. 500/-, in defaulS of payment of fine to further undergo Ri for three months u/s 5(2) of the Act and to undergo Rl for one year u/s 161 of the indian Penal Code. The accused/appeilantdemanded and accepted Rs. 60 in the year 1986 and he is facing trial since then. Taking into consideration the amount demanded and accepted as illegal gratification'and the period of pendency of the proceedings i am of the opinion that rigorous imprisonment for three months and fine of Rs. 3000/- would reasonably meet the ends of justice.

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Accordingiy, the appeal is partiy aliov/ed. Conyiction imposed on the appellant under section 5(2) of the Act and 161 of the Indian Penal Code is

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maintained. However, the accused/appellant is sentenced to undergo • • • ^- • •—3 . :. ." . rigorous imprisonment for three months and pay fine of Rs. 3000/-, under section 5 (2) of the Act and to undergo rigorous imprisonment for three months under section 161 of the Code of Criminal procedure. Both the

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sentences shail run concurrently.

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SdA; ri>S^r$ S_^_ Judge

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•4

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Ghunu Ram Gawade v. State

Case brief

What is this about?

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Ghunu Ram Gawade v. State

Case brief

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