Gandhi Baitha Vs the State of Jharkhand through CBI

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Criminal Appeal (S.J.) No. 614 of 2012

[ Against the judgment of conviction and order of sentence dated 29.05.2012, passed by learned Special Judge, CBI, Ranchi, in R.C. Case No.17(A)/04-R]

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Gandhi Baitha .... .... …. Appellant --Versus-The State of Jharkhand through C.B.I., Ranchi …. …. …. Respondent

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For the Appellant : Mr. Rajesh Kumar, Advocate For the CBI : Mr. Anil Kumar, ASGI Ms. Chandana Kumari, A.C. to ASGI Mr. Nitish Parth Sarthi, A.C. to ASGI

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PRESENT

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HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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By Court Heard the parties.

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This Criminal appeal is directed against the Judgment of conviction and order of sentence both dated 29.05.2012, passed by learned Special Judge, CBI, Ranchi, in R.C. Case No.17(A)/04-R, whereby the appellant has been convicted under Section 7 read with Sections 13(1)(d) & 13(2) of the P.C. Act.

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As per the case of prosecution lodged on 15.09.2004, the Appellant was posted as Assistant Superintendent of Post Office, Jamshedpur and one Shiv Ram Mandal in Tata Nagar Sub Post office was serving as Post-man at the relevant time. As per the complaint, it is alleged that on 28.04.2004, false allegation was levelled against the Postman (Complainant)- Shiv Ram Mandal that he was not distributing the letter. When the postman approached the appellant that why such false allegation has been levelled against him 14.09.2004, demand of illegal gratification for a sum of Rs.2,000/- was made and was threatened with initiating disciplinary proceeding against him and was asked to make the payment in the morning at 7:30 on 16.09.2004.

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The complaint was verified under the direction of the S.P., CBI, by one Vikash Gupta, Inspector of Police and after verification, Ranchi SPE/CBI/Ranchi, R.C. Case No.17(A)/04-R was registered on 15.09.2004.

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Further on the information of the complainant, Sri Shiv Ram Mandal, the pretrap formalities were conducted on 16.09.2004 and trap was laid in the morning in which the appellant was caught red-handed with the said bribe amount of Rs.2,000/when the complainant went to give the amount at his residence.

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After investigation, charge-sheet was submitted and the appellant/accused was put on trial, in which altogether ten witnesses were examined on behalf of the prosecution and the relevant documents have been marked into exhibits as Exhibits1 to 15. The currency notes of denomination of Rs.500 X 2 and Rs.100 X 10 were seized and have been made material Exhibit VII to VII/II.

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The impugned Judgment of conviction and order of sentence has been assailed on the ground that it is a case of motivated and false allegation made because of a grudge, because the appellant had served the show cause to the complainant on 28.08.2004 for dereliction of his duty. After service of the show cause on 28.08.2004, the complaint filed.

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ARGUMENT ON BEHALF OF THE APPELLANT

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Appellant was constrained to enquire and serve show cause in view of the complaint dated 26.07.2004 received from the Senior Superintendent of Post Office, Jamshedpur Division (Exhibit-A) regarding illegality in service of post in Kadma arear. In the said letter, a reference has been made to a complaint received from Sri J. C. Das, Upbhokta Kalyan Samittee, Kadma about non-delivery of telephone bill and other postal consignments in the Kadma Area, and the appellant was asked to enquire into such irregularities and take appropriate action. D.W. 3- Shankar Das, who had addressed the letter to the appellant (Exhibit A) and was Senior Superintendent of Post Office, Jamshedpur at the relevant time, has stated in para 2 that the complaint had been received regarding irregularity in delivery of post to the people of Kadma area. He had directed the appellant to conduct an enquiry. He had complained about dereliction of duty on the part of Shiv Ram Mandal. On enquiry, when it was found that the Complainant was responsible for dereliction of duty, he served show cause notice upon him and immediately on receipt of the said notice, false complaint was filed against the Appellant.

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Against this background, it was incumbent on the part of the verifying Officer, to properly hold preliminary enquiry in terms of the mandate of Clause 9.1 of the CBI manual, and only then the FIR should have been registered. In the present case, verification of the complaint was made in a most perfunctory manner. From Exhibit-12, it will be evident that the complaint was received at Ranchi CBI Office on 15.09.2004 and on the same day, the Inspector (Vikash Gupta) was authorized to hold verification at Jamshedpur, and after the completion of the verification, report was submitted on the same day at Ranchi. Thereafter, the FIR was lodged on the same. Everything proceeded at a lightening speed, which was physically not possible. Normal time for commuting from Ranchi to Jamshedpur at that time by bus could not have been less than 3 to 4 hours, and the to and fro road journey itself should have consumed 7 to 8 hours at least. Surprisingly enough despite, the entire thing has been conducted and the FIR was lodged on the very same day. Preliminary enquiry was nothing but table work.

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Further, Verification Officer has been examined as P.W.9 and he has deposed in Para-10 and has stated that the travel expense of himself as well as that of the complainant incurred, but T.A. was not claimed, nor bus ticket was produced for the journey as if the officer was serving pro bono. At Para-16, he deposed that the

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verification was conducted in Jamshedpur Post office in the house of the appellant at 4 O’clock. Testimony of D.W.4 will go to show that Appellant was conducting office inspection at Patamda post office and could not have returned home before 5.30 pm. This is further corroborated by P.W. 9 who has deposed in para 12 that the appellant was on official duty on that day and had gone to Patamda. This falsifies the verification having been done at 4 p.m. at his residence on 15.09.2004.

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Vikash Gupta was verifying officer as well as part of the trap team and was also Investigating Officer in this case. 11. It is further argued that the complainant in para 27, in the cross-examination, has deposed that they had collected for the trap at 2.30 whereas P.Ws.3 and 4 were independent witnesses associated with the trap team, and both were Bank employees. P.Ws.3 at para 9 has deposed that after completing the entire formality of post trap memorandum, he returned to the Bank at around 11 a.m, whereas P.W. 4 at para 15 deposed that he returned to the Bank at 12 p.m. clock. Whereas the complainant- P.W. 5 has deposed in para 27 that trap was laid at 2.30 p.m.

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P.W. 4 has deposed in para 31 that he had not seen either the demand or acceptance of the bribe amount from the accused. 13. There is material contradiction regarding demand of bribe amount, as it has been deposed by the complainant. P.W. 5 in para 5 deposed that he gone through the rear side of the house in the bedroom where he greeted the appellant and on his instruction, he put Rs.2000/- in the drawer. Shadow witness P.W. 3 in para 3 has deposed that when he arrived in the room of the accused, he was not present there and after a while, he came there after taking bath. When he came, he asked about P.W. 3, as to who he was, and he was introduced to him as his brother and then the bribe was demanded which was accepted by him by his hand. He counted the amount and kept it in his inner pocket.

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ARGUMENT ON BEHALF OF THE CBI

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Sanction has been duly proved by the Sanctioning Authority. Further, it is argued that no prejudice has been caused by any discrepancy in the sanction and, therefore, it cannot be set aside in view of the proviso of Section 19(3)(a) of the P.C. Act.

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It is argued by the learned ASGI that the plea taken by the learned counsel on behalf of appellant that the present case is fall out of a show cause served by the appellant to the complainant, is not tenable for the reason that Exhibit A i.e. letter written by the Senior Superintendent of Post Office, Jamshedpur to the appellant on 26.07.2004, is with regard to the complaint received regarding irregularities in postal distribution in Uliyan Kadma, whereas complainant-Shiv Ram Mandal was posted at Chaakri in Jamshedpur. The complaint from the consumer association, was not

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received with regard to irregularity in distribution of post in Chaakri and therefore, there was no occasion for serving show cause to the complainant.

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Verification is part of the preliminary enquiry to ascertain whether a cognizable offence has been committed or not. Law is settled that any infirmity at the stage will not be fatal to the prosecution case. 17. In the present case, the independent witnesses have supported the prosecution case, and minor discrepancy in their account cannot be attached undue weightage. Law is settled that even if the shadow witness turns hostile, his testimony cannot altogether be effaced as held in Reliance is placed on Neeraj Dutta Vs State (NCT of Delhi) , (2023) 4 SCC 731 .

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ANALYSIS

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On the combined reading of the deposition of the witnesses and considering the materials on record, the undisputed facts that emerges is that complainant was serving as a Post Man at Kadma, whereas the accused was Assistant Superintendent of Post Office at Jamshedpur. A complaint was received from one Sri J.C. Das, Upbhokta Kalyan Samiti, Kadma by the Senior Superintendent of Post Office, Jamshedpur Division regarding irregularity and non-distribution of postal consignment in Kadma area. Pursuant to it, letter was sent to the appellant from Senior Superintendent of Post Office on 26.07.2004 (Exhibit A) to hold enquiry and take appropriate action in the matter. D.W. 3- Senior Superintendent of Post Office has deposed that he had telephonic conversation with Post Master of Kadma Post Office who informed that Shiv Ram Mandal (complainant) was not properly attending to his duties.

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It was against this background that show cause was served to the complainant on 28.08.2004 by the Appellant and on 14.09.2004, complaint was lodged against him with the CBI. These background facts that immediately before filing of the complaint, the complainant had been served show cause for his dereliction of duty, is to be considered while appreciating the materials brought on record by the prosecution against the appellant accused.

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Before registering a graft case and launching the criminal prosecution, in such cases, it was incumbent on the part of the investigating agency to have properly verified the complaint. The verification appears to be perfunctory and the infirmities in the verification report has been rightly pointed out by the counsel on behalf of the appellant. Jamshedpur is more than 120 km from Ranchi, and the road conditions were not at its best in those days, as rightly argued, and it was physically difficult to complete the verification, return the same day and register the case. The verification at the residence having been done at 4 p.m., is also under a shadow of doubt, in view of the deposition of D.W. 4 in para 3that the appellant was in Patamda Branch upto 5.30 in the evening which is at a distance of 30 km from Jamshedpur. Verification

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report appears to be a table formality and these evidence disproof that the verification was at all conducted at Jamshedpur.

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Shadow witness P.W. 3-Tapas Kumar Paul, has stated in para 31 that he had not seen any demand or acceptance of bribe. On demand, acceptance and recovery, there are contradictory versions. As per the prosecution case, complainant had gone inside the room of the appellant along with P.W.3. PW.3 on his part has deposed that when he went inside the room of the appellant, he was not present there and after a while, he came there after taking his bath. On the other hand, P.W. 5 (complainant) has deposed in para 5 that when he entered along with R. K. Singh in the house of the appellant in his bedroom, he greeted him there and he delivered the amount.

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PW-7 another independent witness of the neighborhood has deposed in para 3 that he had not seen the appellant accepting illegal gratification. As argued on behalf of the Appellant, there was even contradiction in the time when the said trap was laid, as the shadow witnesses had returned to their office by 11-12 ‘O’ clock whereas the Complainant says that trap was laid at 2.30 p.m.

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The cumulative effect of the contradictions along with the background fact, the complaint being a sequel to the show cause served on the complainant, casts serious doubt on the prosecution case and it will not be safe to place reliance on the flawed evidence of the prosecution. Judgment of conviction and sentence is set aside.

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Appeal is allowed.

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(Gautam Kumar Choudhary, J . )

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Jharkhand High Court, Ranchi Dated, 13^th March, 2024 NAFR/Sandeep/Anit

Gandhi Baitha v. the State of Jharkhand through CBI

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