IN THE COURT OF SH. [ENTITY], SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI [CASE NUMBER] CC NO. 05/09 State Vs. [ENTITY] S/o Sh. [ENTITY], R/o Vill. & PO Danmal Pur, PS Shri [ENTITY], Distt. Sawai Madho Pur, Rajasthan. FIR No. : 29/2003 U/[SECTION] & [SECTION] & [SECTION] [ACT] PS : AC Branch Date of institution : 29.11.2006 Judgment reserved on : 29.04.2011 Judgment delivered on : 30.04.2011 JUDGMENT
1. As per prosecution, on 27.06.2003, a complaint was lodged against one [ENTITY] for demanding bribe of Rs.5000/ from the complainant on behalf of ASI [ENTITY]. The complainant [ENTITY] handed over the written complaint to Insp. [ENTITY] (Raid Officer) in the presence of panch witness [ENTITY]. Thereafter, complainant and panch witness appended their signatures on the complaint The same was attested by the Raid Officer.
State vs. [ENTITY] Page 1/27
2. The complainant produced two GC notes in the denomination of Rs.1000/ each and six G.C. Notes in the denomination of Rs.500/ each before the Raid Officer who recorded the numbers of the same in preraid report. After getting the same checked by panch witness, [ENTITY] powder was applied on the GC notes and right hand of panch witness was touched to the tainted GC notes and thereafter right hand wash of panch witness was taken in colorless solution of sodium carbonate which turned pink. The characteristics of [ENTITY] powder were explained to the complainant and panch witness.
3. The complainant was also instructed to keep the panch witness close to him and to talk and to transact with accused in such a manner so that the panch witness would be able to hear and see the transaction. The complainant was further instructed to give the bribe money to the accused only on his specific demand.
4. The panch witness was instructed to remain close to the complainant and overhear the conversation between complainant and accused and to observe and see the incident and after the demand and acceptance of money by the accused, he should give a signal to the raiding party by raising his both hands over his head.
5. Thereafter Raid officer, in the presence of panch witness, hand over the tainted GC notes to the complainant who kept the same in the front State vs. [ENTITY] Page 2/27 pocket of his shirt.
6. The hands of panch witness were got washed with the soap and clean water while the solution was thrown away. The RO recorded pre raid proceedings.
7. At about 04:20 PM., complainant alongwith panch witness, Raid Officer Insp. [ENTITY], IO Insp. [ENTITY] and other members of raiding party left AC Branch in a Government vehicle and reached near PS Najafgarh at about 05:40 PM where the govt. vehicle was parked at some distance.
8. The complainant and panch witness reminded of the instrutions and sent towards PS Najafgarh while the members of the raiding party followed them keeping reasonable distance. The IO Insp. [ENTITY] and driver were left in the vehicle.
9. At about 05:50 PM, complainant and panch witness entered PS Najafgarh and members of raiding party took their suitable positions outside the PS and started waiting for the predetermined signal.
10. At about 06:30 PM, the complainant and panch witness come out of the PS and informed the Raid Officer that ASI [ENTITY] and [ENTITY] were not available in PS and were likely to come shortly State vs. [ENTITY] Page 3/27 as they were informed by the Duty Officer. The Raid Officer instructed them to wait for accused.
11. At about 08:30 PM, the complainant and panch witness again came out of the PS and informed the Raid Officer that ASI [ENTITY] and [ENTITY] had not come to the PS. Raid Officer was further informed by the panch witness that there was little chances of their coming back to the PS. The complainant further told the Raid Officer that ASI [ENTITY] would come to the PS on the following day as informed by Duty Office. Accordingly, raiding party left the spot. At the A.C. Branch, the Raid Officer informed the senior officers and instructed the complainant to report to him immediately if either of the aforesaid police officials demanded the bribe amount from him. The raid was kept in abeyance. The panch witness and the complainant were relieved.
12. On the following day, at about 04:30 PM the complainant came to A.C. Branch. At that time, panch witness [ENTITY] was also present there. The complainant told the Raid Officer that accused [ENTITY] had visited his house and had demanded Rs.5000/. As the complainant had expressed his inability to pay the said amount at that time, he was directed by [ENTITY] to pay the amount in the evening in PS Najafgarh. Thereafter, the complainant handed over the Raid Officer the same G.C. Notes which he (RO) had handed over to him on 27.06.2003 and the Raid Officer adopted the same procedure which he had adopted on the previous State vs. [ENTITY] Page 4/27 day. The Raid Officer had also given the same instructions to the complainant and panch witness. The Raid Officer had drawn the preraid proceedings. Thereafter, at about 05:00 PM, the Raid Officer alongwith complainant, panch witness and the same raiding team (except Ct. [ENTITY]), left A.C. Branch in a govt. vehicle and reached near PS Najafgarh at about 06:10 PM. The vehicle was parked at some distance and complainant and panch witness left the vehicle while the members of raiding party followed them. IO Insp. [ENTITY] and driver were left in the vehicle. At about 06:15 PM, complainant and panch witness entered the PS while the members of raiding party took their positions outside.
13. At about 06:25 PM, panch witness gave the preassigned signal and Raid Officer alongwith the raiding party reached the PS first and then the mess on the second floor. Complainant and [ENTITY] were not present in the mess. At that time, panch witness informed that [ENTITY] had demanded and accepted the bribe amount in the mess. In the meanwhile, the complainant come out of the room and informed the Raid Officer that [ENTITY] was sitting in the said room from where the complainant had come up. The Raid Officer alongwith raiding party went to the said room where the complainant and panch witness pointed towards the accused [ENTITY] who was sitting on the chair.
State vs. [ENTITY] Page 5/27
14. The Raid Officer disclosed his identity to the accused [ENTITY] and challenged him. The accused become perplexed and told the Raid Officer that he had accepted Rs.5000/ on the instruction of ASI [ENTITY]. The Raid officer also offered the accused to take search of the members of raiding party including himself (Raid Officer) before taking the search of the accused but he declined.
15. On enquiry, panch witness told the RO that the accused had demanded bribe money of Rs.5000/ from the complainant and had accepted the same with his right hand, counted the said amount with his both hands and then had kept the same in the back pocket of his pants.
16. At the instance of the Raid officer, panch witness recovered the bribe money from the back side pocket of the pants of accused. The numbers of the recovered GC notes were tallied with the serial numbers recorded in pre raid report. Thereafter, on being found to be identical, the recovered GC notes were taken in possession vide seizure memo.
17. The right and left hand wash of accused was taken, separately, in the colorless solution of sodium carbonate which gave positive result of handling [ENTITY] coated GC notes. The same was transferred into four clean glass bottles and sealed with the seal of RSK.
State vs. [ENTITY] Page 6/27
18. Similarly, the wash of back side pocket of pants of accused was taken which also gave positive result. The solution was transferred to two clean glass bottles and sealed with the seal of RSK. The pants was converted into parcel and sealed with the same seal.
19. Sealed bottles containing washes and the sealed parcel containing pants of accused were taken in possession vide seizure memo. Accused [ENTITY] was arrested. Thereafter Raid Officer prepared post raid report.
20. IO Insp. [ENTITY] was called to the spot and exhibits / case property as well as accused [ENTITY], copy of raid report and related documents were handed over to him for investigation.
21. The case was registered and chargesheet filed and charges were framed.
22. As per the charge, on 25.06.2003, in PS Najafgarh, Delhi accused [ENTITY] while posted as HC in Delhi Police at PS Najafgarh and as such being a public servant demanded bribe of Rs.5000/ on behalf of ASI [ENTITY] (since died) and on 28.06.2003 accepted bribe of Rs. 5000/ other than legal remuneration from the complainant [ENTITY] in consideration to help the complainant in dispute regarding a shop about which the complaint was pending in PS Najafgarh and thereby he committed an offence State vs. [ENTITY] Page 7/27 punishable u/[SECTION] of the [ACT].
23. Secondly, on the abovesaid date and place, accused [ENTITY] being employed as above public servant obtained bribe of Rs.5000/ from the said complainant as a pecuniary advantage for himself by corrupt or illegal means or otherwise by abusing his position as such public servant and thereby he committed an offence of criminal misconduct as specified u/[SECTION] and punishable u/[SECTION] of the [ACT].
24. Accused pleaded not guilty and claimed trial.
25. In evidence, the prosecution had examined thirteen witnesses to substantiate the charge.
26. I have heard the arguments on behalf of the prosecution wherein Sh. [ENTITY], Addl. PP for the State has argued that the accused had accepted Rs.5000/ and he was caught red handed in PS Najafgarh and the same were recovered from him. The amount had been demanded together with SI [ENTITY] (since deceased) for facilitating the complainant in retaining the shop under dispute. The purpose and the intent of seeking the bribe has been proven and as such on the basis of evidence the accused be held guilty.
State vs. [ENTITY] Page 8/27
27. I have also heard Sh. [ENTITY], counsel for the accused who has argued that the complainant had taken this guise to retain the shop in which he had a dispute with his brother. The shop in question had already been taken in possession by his brother. Even otherwise no demand by the accused has been shown infact it is alleged that ASI [ENTITY] (since deceased) was the one who was demanding money. There is also the fact that there are material contradiction in the testimony of the complainant which has raised doubts and improbablizes the case of the prosecution.
28. Before we delve into the complicity of the accused in commission of the offence it is imperative to determine whether the prosecution had procured the sanction under the provision of [ACT] which is sine quo non for prosecution of the accused under [SECTION] of [ACT].
29. Sanction U/[SECTION] of [ACT] is not an idle formality, but it is a sacrosanct act as the future and career of a Government official is involved. Hon'ble Supreme Court in [PRECEDENT] has stressed that the person according sanction should be a competent person and a sanction accorded by the person not competent to grant the same cannot be held to be a valid sanction. This fact has not been challenged by the accused.
30. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are State vs. [ENTITY] Page 9/27 rendered void ab initio. What the court has to see is whether or not the Sanctioning Authority, at the time of giving sanction, was competent to accord sanction and whether it had applied its mind. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
31. Sanction lifts the bar for prosecution. It is sacrosanct act which affords protection to government servants against frivolous prosecutions. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. The validity of the sanction would, therefore, depend upon the material placed before the Sanctioning Authority and the fact that all the relevant facts, material and evidence have been considered by the Sanctioning Authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the Sanctioning Authority had considered the evidence and other material, placed before it. This fact can also be established by the extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the Sanctioning Authority.
32. Since the validity of "sanction" depends on the application of mind by the Sanctioning Authority to the facts of the case as also the State vs. [ENTITY] Page 10/27 material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
33. The Hon'ble Delhi High Court in the case of [PRECEDENT], has also applied the test as prescribed in the enunciation of the Hon'ble Supreme Court in the case of [PRECEDENT] and the view taken by the Supreme Court in [PRECEDENT].
34. For the said purpose, PW13 [ENTITY], Director Petroleum & Natural Gas, Govt. of India has been examined who has testified that on 27.6.03, a complaint had been lodged by [ENTITY] at State vs. [ENTITY] Page 11/27 PS AC Branch and in a dispute regarding shop viz Nikita Boot house accused [ENTITY] had demanded Rs. 5000/ to settle a dispute in his favour. Raid was conducted under the supervision of Insp. [ENTITY] alongwith panch witness but on the said date [ENTITY] was not present at the PS. The raid was followed up on the following date i.e on 28.6.03 and in the presence of panch witness [ENTITY] demanded Rs.5000/ and the accused was caught red handed while accepting the bribe amount of Rs.5000/ which was recovered from his pocket. Witness being an authority competent to remove the accused had examined the material placed before him and considering the allegations and facts and circumstances of the case and on due application of mind accorded sanction u/[SECTION] of [ACT] to prosecute the accused vide sanction Ex.PW13/A which bears the signatures of witness at point A. The same was forwarded to PS AC Branch vide forwarding letter Ex.PW13/B.
35. No substantial challenge has been made barring according the same perfunctorily. The same has been denied. In view of the said fact it can be said that a valid and tenable sanction had been accorded.
36. The case was initiated by PW4 [ENTITY] who had testified that he was running a shop at Nawaba Bazar, Najafgarh and there was a dispute between him and his brothers [ENTITY] and [ENTITY] who wanted him to vacate the shop.
State vs. [ENTITY] Page 12/27
37. A prospective buyer was brought by the said brothers and in consequence the complainant was asked to vacate. The complainant called the PCR whereby one SI [ENTITY] came to the shop who called him to the PS Najafgarh. The complainant waited at the PS for about 2 hours thereafter he was sent back by Insp. [ENTITY]. The complainant was again called where the accused, identified by the witness, to whom the SI [ENTITY] asked the complainant to talk to. The complainant had a talk with const. [ENTITY], the accused herein demanded a sum of Rs.5000/ from the complainant for giving the complainant possession of a shop permanently. The complainant pleaded with accused to reduce the amount but the accused was adamant and asked the complainant to bring the amount on 27.6.2003.
38. Being averse to giving bribe the complainant met DCP at the AC Branch. He directed the complainant to Insp. [ENTITY] who recorded the complaint Ex.PW3/A in presence of panch witness [ENTITY]. The witness had brought Rs. 5000/ in denomination of 2 GC notes in the denomination of Rs.1000/ and 6 GC notes in the denomination of Rs.500/ who recorded the serial numbers of the GC notes and applied [ENTITY] on the said GC notes and gave demonstration of the purpose and consequence of the same. The GC notes were handed over to complainant and were required to be handed over to the accused on his specific demand. Pre raid report was drawn which is Ex.PW3/B. State vs. [ENTITY] Page 13/27
39. The witness PW4 and the panch witness along with the RO and other police officials left in government vehicle for PS Najafgarh and reached there within an hour where the vehicle was left at a distance while raiding team followed the complainant to the mess of the PS while IO was left in the vehicle. The complainant searched for SI [ENTITY] and HC [ENTITY] but they were not available. After waiting for 2 hours the RO was informed about the non availability of accused person and the raid was accordingly postponed for the following day.
40. On the next date the complainant again went to AC Branch where the panch witness was already present and the same GC notes were handed over to complainant who kept the same in his pocket. The proceedings Ex.Pw3/E1 was drawn and the raiding team left AC Branch at 5.00pm. And reached the PS at about 6.15pm. And again vehicle was parked at some distance. Complainant and panch witness went to PS and met the accused who asked about the panch witness. The panch witness was introduced as a relative. Thereafter the accused asked the complainant whether he had brought the bribe amount of Rs. 5000/ to which the complainant replied in affirmative and again the complainant pleaded with the accused to reduce the amount but the accused stated that there was no need of bargain and thereafter demanded the money. The complainant handed over the GC notes to the accused who received the same in his right hand and kept it in his back pocket of pant. Predetermined signal was given. And the Raid Officer apprehended the accused. The accused started weeping and pleaded with the State vs. [ENTITY] Page 14/27 the RO. The GC notes were recovered from right back pocket by panch witness. The same were taken into possession vide Ex.Pw3/C. The right hand wash of the accused was taken which gave positive result of presence of [ENTITY] the same was transferred in bottles and sealed. The same were also identified by pasting of slips over them. Thereafter the left hand wash was also taken which also turned pink and the solution was again preserved and identified. The pant of the accused was taken and pant pocket wash was also obtained in a similar way which also gave positive result of the presence of [ENTITY] powder. The pant pocket wash was also preserved, sealed and identified. The pant of the accused were converted into a parcel and identified and retained. Post raid proceeding were drawn which is Ex.Pw3/E and thereafter another officer was called. The witness has identified the GC notes as Ex.P1 to Ex.P8 while the pocket wash and hand wash as Ex.P9 to Ex.P14 while the trousers of the accused as Ex.P15.
41. The witness was cross examined for his omissions which the witness has recounted as the procedure of the raid which were given under instructions. The witness was cross examined whereby it is admitted by the witness that in a litigation with his brother the complainant had lost and possession of the shop had been given to his brothers. The witness has maintained his testimony and has admitted that accused [ENTITY] had demanded the money. The evidence from the testimony of Pw4 is explicitly clear and unwavering and has steadfastly maintained that it was infact [ENTITY] who had demanded the bribe amount and had not reduced the amount State vs. [ENTITY] Page 15/27 despite the plea of the complainant. The accused had infact demanded and accepted the illegal gratification and the same was recovered from the pocket of the accused.
42. No denial is forthcoming from the accused, though it is well settled that the accused is not required to establish his explanation by the strict standard of 'proof beyond reasonable doubt' and the presumption u/[SECTION] of the Act would stand rebutted if the explanation or defence offered and proved by the accused is reasonable and probable. The following words of caution in [PRECEDENT] should be kept in mind before it can be said that the presumption stood rebutted : "Thus it had been indubitably established that the appellant, a public servant accepted a gratification that is a sum of Rs. 500/ which was not his legal remuneration, from [ENTITY] (PW1). On proof of this fact, the statutory presumption u/[SECTION] of the [ACT] was attracted in full force and the burden had shifted on to the appellant to show that he had not accepted this money as a motive or reward such as is mentioned in [SECTION] [ACT] It is true that the burden which rests on an accused to displace this presumption is not as onerous as that cast on the prosecution to prove its case. Nevertheless, this burden on the accused is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused, State vs. [ENTITY] Page 16/27 other than as a motive or reward such as is referred to in [SECTION]."
43. In [PRECEDENT], it has held that the High Court was not justified in accepting the explanation regarding receipt of Rs.300/ by the accused as being towards Tagal loan. The conclusion of guilt is inescapable. Consequently, we allow this appeal, set aside the order of the High Court and restore the judgment of the Additional Special Judge, Pune, in [CASE NUMBER] convicting the respondent for the offences punishable u/[SECTION] [ACT] and [SECTION]/[SECTION] of the Act.
44. Even though, there is no established law that corroboration of the testimony of the complainant is imperative yet prudence requires that the witness and its testimony is required to be corroborated to give it credence. For the said purpose panch witness. PW3 [ENTITY] was examined to corroborate the testimony of PW4. The said witness has testified that he was on 27.6.03 was deputed to the AC Branch as panch witness and had reported at 10.00am. It is testified that [ENTITY] had come to AC Branch and had got Ex.Pw3/A recorded according to which, the bribe had been demanded by police official of PS Najafgarh. Thereafter a complaint was lodged and the GC notes produced by complainant were treated with [ENTITY] powder and thereafter a demonstration was given as to the purpose and consequence of applying the same. The panch witness was directed to go alongwith the complainant and remain closed to the complainant so that he State vs. [ENTITY] Page 17/27 would be able to hear and observe the transaction and on being satisfied that the bribe amount had actually been demanded and accepted the witness was required to give a predetermined signal by hurling his hand over his head. Similarly the complainant was also instructed. The complainant and the panch witness went along with raiding team in government vehicle and reached at about 11.00am at PS Najafgarh and leaving the vehicle at a distance the raiding team the complainant and panch witness went inside the PS but nobody came to meet the complainant. Thereafter the RO was informed and the raiding team returned to PS AC Branch.
45. On the following day the complainant was already present in the AC Branch when the panch witness reached. The RO again conducted the pre raid proceedings and Ex.Pw3/E1 was given to him. It is further testified by the panch witness that panch witness alongwith complainant went inside the PS and went to the room of accused. Accused inquired from complainant about the panch witness who was introduced as a relative. Thereafter accused asked the complainant whether he had brought the bribe amount to which he replied in affirmative. The complainant inquired as to the reduction of bribe amount. The accused did not concede to the request and accordingly complainant took out the GC notes and handed over to the accused in his right hand who kept the same in right pocket of his pant. Immediately thereafter the panch witness signaled to the RO. The RO recovered the GC notes from the right back pant pocket of the accused. The serial number of GC notes were tallied. And on being found identical the same were taken in State vs. [ENTITY] Page 18/27 possession vide Ex.Pw3/C. The right hand wash of accused was taken which gave positive result of presence of [ENTITY] as was his left hand. The residue was reserved, sealed and identified.
46. The pant of the accused was also taken in possession, after the wash gave positive result of the presence of [ENTITY]. The post raid proceedings were drawn which is Ex.Pw3/C. Thereafter another inspector was called for investigation. Personal search of accused was taken vide memo Ex.PW3/F and accordingly the witness has been proved the identity of the GC notes which are Ex.P1 to P6 and the right hand wash and left hand wash were taken which were sealed, preserved and identified. The bottles are Ex.P9 to 14.
47. From the testimony of PW4 and corroborated by testimony of PW3, demand and acceptance manifests and furthermore, the testimony of the said two witnesses have also revealed that the bribe amount was recovered from the accused. The law in this regard is well established.
48. In [PRECEDENT]. in [CASE NUMBER] (Arising out of [CASE NUMBER]) it was held that : "When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or the motive .
State vs. [ENTITY] Page 19/27
49. In furtherance of the case of prosecution, PW10 Insp. [ENTITY] has been examined who has testified that the complainant had lodged his complaint on 27.6.2003 when the complainant handed over the complaint together with the GC notes amounting to Rs. 5000 in denomination of Rs. 500 and two GC notes of Rs. 1000 each in presence of panch witness [ENTITY]. The witness applied [ENTITY] powder and demonstrated the purpose and consequence of the said application. The witness directed both the complainant and panch witness to remain close to each other and to hear and observe the transaction and further, the panch witness was directed to give a predetermined signal on completion of the transaction.
50. The raiding team including Insp. [ENTITY] SI [ENTITY], Ct. [ENTITY], Ct. [ENTITY] complainant and panch witness left AC Branch in Govt. gyspy at about 5:40 PM for PS Najafgarh. Leaving Insp. [ENTITY] and driver behind, the remaining raiding team took the position outside the PS while the complainant and panch witness were told to approach the accused. On the said date, ASI [ENTITY] and HC [ENTITY] were not available in the PS and after waiting for sometime when there was no likelihood of their returning, the raid was called off at about 9:30 PM, the raiding team returned to the PS.
51. On 28.6.2003, the complainant informed that HC [ENTITY] had visited his house and had demanded Rs. 5000/. The RO applied the State vs. [ENTITY] Page 20/27 same procedure as afore and preraid report was recorded vide Ex.PW3/E. Thereafter, with the same raiding team, the RO left the AC Branch for PS Najafgarh barring Ct. [ENTITY]. At about 6:10 PM raiding team reached PS and vehicle was parked at some distance. At about 6:25 PM the panch witness gave preassigned signal and the raiding team reached the mess on the second floor where HC [ENTITY] was not available but the panch witness informed that the said [ENTITY] had demanded and accepted the bribe amount in the mess. The complainant came out from a room and had informed that HC [ENTITY] was sitting in the said room from where the complainant had come out. The accused was found sitting in the said room on the chair. After disclosing his identity the RO challenged the accused that he had demanded and accepted the bribe amount of Rs. 5000/ from the complainant. The RO offered his search before searching the accused and on the instructions of the RO, the panch witness recovered the GC notes, the numbers were tallied and on being found identical, the same were taken in possession. The hand wash was taken and the residue was preserved, sealed and identified. The GC notes were seized vide memo Ex.PW3/C. The back pocket of the pant was also washed and the residue preserved. The GC notes have been identified as Ex.P1 to P8 while the hand wash and pocket wash have been identified as Ex.P9 to P14. Parcel containing pant of the accused is P15.
52. In [PRECEDENT] the Hon'ble Supreme Court has held that : State vs. [ENTITY] Page 21/27 "The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like " gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to be public servant who received it".
53. The Hon'ble High Court in [PRECEDENT] through CBI has held that : "The necessity for court to search for independent witness in case of charges for corruption cannot be insisted upon. Such crimes are committed in secrecy and normally bribe are not taken openly (although there are bold public servants who do even that). In case of trap where accused has not been lured and goaded in some form to accept bribe but the accused himself has created a situation so State vs. [ENTITY] Page 22/27 that he gets bribe money or the accused indulges in the harassment of the complainant to compel the complainant to give bribe and the complainant reports the matter, the absence of independent witnesses to support the version of the complainant cannot be a ground to acquit the accused."
54. The testimony of the RO PW10 leaves little doubt as to the complicity of the accused in the commission of the offence. The RO has denied the fact that in absence of accused SI [ENTITY], accused [ENTITY] had been arrested. Keeping in view the enunciation of the Hon'ble Supreme Court in [PRECEDENT] where the testimonies of the panch witness and the complainant were not forthcoming yet the Hon'ble Supreme Court was pleased to inculpate the accused on the basis of testimony of RO.
55. In the instant case, the situation is however different. The complainant (PW4) as well as the panch witness (PW3) have both supported the case of the prosecution in as much as PW12 Insp. [ENTITY] who was the IO in the present case has identified the accused as the person arrested and the chemical analysis of the hand wash as well as pocket wash which were procured from the FSL at his instance. PW12 has proven on record the identity of the accused as the person arrested in the raid as well as in the chemical analysis and the hand wash and pocket wash corroborating the acceptance and recovery of the tainted GC notes thereby proving on State vs. [ENTITY] Page 23/27 record that the accused had in fact received and obtained bribe amount.
56. In [PRECEDENT], the Hon'ble Supreme Court observed that : "Therefore the court has no choice in the matter once, it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised u/[SECTION], [ACT] and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by ' proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the State vs. [ENTITY] Page 24/27 presumption created by the provision cannot be said to be rebutted Something more, than raising a reasonable probability, is required for rebutting a presumption of law. The bare word of appellant is not enough and it was necessary for him to show that upon the established practice his explanation was so probable that a prudent man ought, in the circumstances, to have accepted it."
57. Support can also be derived from [PRECEDENT] wherein the accused had accepted illegal gratification for settling claim of complainant. The amount was recovered from possession of appellant by raiding team which numbers were earlier noted down by trap team. The accused produced file of complainant in his presence to raiding team. Independent witness also supported seizure of tainted notes from possession of appellant. After raid procedure, hands of appellant were washed and preserved residue wash, turned pink. Defence plea of false implication not established. The conviction of the accused was held to be proper.
58. The evidence that has been led barring few discrepancies which do not improbablises the case of the prosecution and can prove to be fatal as they are minor in nature. As regards the inconsistencies in the testimonies of the prosecution witnesses, the Hon'ble Supreme Court has held :
"Inconsistencies here and State vs. [ENTITY] Page 25/27 discrepancies there but that is the shortcoming from which no criminal case is free. The main thing to be seen is whether the inconsistencies etc. go the root of the matter ([PRECEDENT]).
59. In the Supreme Court of India Crl. Appeal No.129/06 titled Shivappa and Ors. Vs. State of Karnataka it was held that: "Minor discrepancies or some improvements also would not justify rejection of the testimonies of the eye witnesses."
60. Further, in [PRECEDENT] the Hon'ble Supreme court has held that minor flaws in the prosecution evidence should not be given undue importance and impeccable evidence which unmistakably proved the guilt of the accused be ignored. And accordingly the sentence was upheld.
61. On the anvil of the facts, unimpeachable testimony of the witnesses duly corroborated and the enunciation of our peers, the case of the prosecution stands proven against the accused beyond all reasonable doubts.
62. Accordingly, this court is of the view that the accused [ENTITY] is guilty of the offence u/[SECTION] & [SECTION] punishable u/[SECTION] of State vs. [ENTITY] Page 26/27 the [ACT] The accused [ENTITY] had expired during the course of the trial and as such the case against him abates.
To come up for arguments on quantum of sentence.
Announced in the open court ([ENTITY]) th today on 30 April, 2011 Special Judge (PCAct)06 THC/Delhi/30.04.2011 State vs. [ENTITY] Page 27/27 IN THE COURT OF SH. [ENTITY], SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI [CASE NUMBER] State Vs. [ENTITY] S/o Sh. [ENTITY], R/o Vill. & PO Danmal Pur, PS Shri [ENTITY], Distt. Sawai Madho Pur, Rajasthan. FIR NO : 29/2003 U/[SECTION] & [SECTION] & [SECTION] [ACT] PS : AC Branch Judgment delivered on : 30.04.2011 Order on Sentence announced on : 30.05.2011 ORDER ON SENTENCE
1. It is never too simple and easy to incarcerate a person for his offence and be certain as to whether the sentence so given is commensurate with his act. An overview and humane touch is required when a plea of the plight of the family and the dependents is taken before the court. It is true that we are answerable for our own acts but it is seldom that others are not effected by it. Be it the offence or punishment.
2. Corruption is all pervading and it is the public service that has to manifest honesty and diligence in its functioning so as to give a clean State vs. [ENTITY] Page 28/27 society. Lest the public service degenerates and become a cauldron of corruption, the courts have to step in and send a message that the society shall not endure this degeneration in public life. Imposition of sentence without considering its effect on the social order in any cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of an per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system [PRECEDENT].
The Principle has been laid down in culpae poenae par esto.
3. I have heard Sh. [ENTITY], Addl. PP for the state and Sh. [ENTITY], counsel for the convict on the point of sentence.
4. The Ld. Counsel for accused submits that the convict is of mature age and has spouse who is a housewife, school going children four in number, of which one is married, to look after. The convict has had renal failure where he has has to maintain a certain amount of hygienic condition for his physical welfare. Prolonged incarceration would render his family State vs. [ENTITY] Page 29/27 destitute and without protection or care.
5. Learned PP for the State submits that convict [ENTITY] does not deserve any leniency being public official. He had to manifest honesty and diligence in his functioning. He had misused his official position for personal gain.
6. After hearing both the sides and upon perusal of the record, I find it difficult to accept the prayer of the convict that he deserves any leniency in this case.
7. In words of Justice [ENTITY] in [PRECEDENT] it has been held that : "I may before closing draw the attention of the authorities and all concerned to the grave danger to our very existence as a free, honest democratic welfare society when we became indulgent to our police personnel getting habitual to taking bribes."
8. The Hon'ble Supreme Court in [PRECEDENT] observed as under : "Corruption is corroding like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralizing the honest officers. The efficiency in public service State vs. [ENTITY] Page 30/27 would improve only when the public servant devotes his sincere attention and does the duty diligently truthfully honestly and devotes himself assiduously to the performance of the duties of his post".
9. Corruption has pervaded all public services but it has colossal manifestation in services where public interaction is involved. For each and every need, it has become necessary for ordinary citizen to bribe his way to get his work done. This is a sorry state of affair and the authorities more particularly judiciary has to quell this menace to send a message that society shall not endure this degeneration in public life.
10. The police has certain role to play as a protector and savior of the society and if they themselves turn unscrupulous and dishonest and resort to illegal exploitation, then the society is heading towards chaos. The society should not allow it and it should be quelled with exemplary force.
11. Consequently, the convict does not deserve any indulgence or clemency from the court of law and as such custodial sentence of Rigorous Imprisonment alone would serve as a real deterrent.
12. Ld. Counsel for the convict [ENTITY] has cited [PRECEDENT] wherein it has been held that:
"The act alleged against the respondent of State vs. [ENTITY] Page 31/27 demanding and receiving illegal gratification constitutes an offence both under [SECTION] and [SECTION] of the [ACT]. The offence being a single transaction but falling under two different sections the offender cannot be liable for double penalty. As the offence is one which falls under two different sections providing different punishments, the offender should not be punished with a more sever punishment than the Court could award to the person for anyone of the two offences.
13. I am in agreement with the said authority and accordingly, sentence convict [ENTITY] to undergo RI for a period of two years with a fine of Rs. 5,000/ u/[SECTION] and [SECTION] of [ACT] and in default of payment of fine, the convict shall undergo SI for a further period of three months. The convict shall be entitled to benefit u/[SECTION] [ACT].
14. A duly attested copy of the judgment and this order be supplied to the convict free of costs and thereafter file be consigned to record room.
Announced in the open court ([ENTITY]) th today on 30 May, 2011 Special Judge (PCAct)06 THC/Delhi/30.05.2011 State vs. [ENTITY] Page 32/27