w I !JF0000060418 \ ^K'SOrt (! IN THE HIGH COQRT OF 3XBICISVKE : SS JABAUPUR* CRIMINAL APPEAL SO. 1^3 ©F1997. cf?r - ^ts~^. 'x '"•; SffV!fs-- fv^ yA^r ATan Kumar Paadey son of Shankersan prasad pandey, aged 38 years,~Resident of village: paruwa, P.S.. Manrewa. TehsilSirmoiar, District Rewa B.p. APPELLANI CON BML) VS. State of Madhya Praiesh aESPGBBENT l-il.sc en iySkri ....l'^-v!•—••"• U*t.t6&< )(.£? Kn**^*— CRIMIHAL APPE&L BHDER_SECTIQH_ 374I2)__0F THB CRIMIHAL EROCEDURE CQDE. ^,BT—*<.4..»---"•»"»* .CE1MT<TT'KTC^1. 1 itlil ^ii'li's'ft'ifrinilcnn* lillj! i i;;'!'?s'S?s;lil;3aa iitl8HBBBfi^U i??s^;pil^g§^l .i,(.: ;!(•;•••; Itefc^- A.M, HIGH COURT'OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 159 of 1997 APPELLANT Arun Kumar Pandey VERSUS RESPONDENT State of Madhya Pradesh. Shri Ranbir Singh and Shri Sourabh Dangi counsel for appellant. ? Shri Pankaj Shrivastava PL for respondent/State. CRIIVIINAL APPEAL UNDERSECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT ( tC .06.2010) This appeal is directed against the judgment and order dated 16.1.1997 passed by Speciat Judge, Raipur, in Special Case No. 02/1992 convicting the accused/appellant for the offences punishable under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act and sentencing him to undergo rigbrous imprisonment for one-year with fine of Rs. 1000, in default of payment offineto further undergosimple imprisonment for three months, on each count. 2. Case of the prosecution in brief is that at the relevant time the accused/appellant was working as Labour Inspector posted at Bilaspur bus stand. His work was to check the illegal trafficking of labourers. It is alleged that on 15.1.1988, the accused/appellant had demanded Rs. 500 from complainant Suresh Prasad Tiwari (PW-4) who at the relevant time was looking i after the work of Pratap Travels. According 'to-thecase of the prosecution, as the complainant was not interested to give the amount of Rs. 500 to the accused/appellant, he made a written complaint Ex. P-2 in the ofl|ice of Dy. Superintendent of Police (Lokayukta) Bilaspur, his preliminary statement was recorded and after calling the food inspector the trap party was constituted. Demonstration of fest to be conducted was made to the trap party and subsequentlyi pre trap panchnama (Ex. P-4) was prepared, the trap party so coristituted proceeded to the spot and thereafter the complainant gave Rs. 500 to the 1^4= ^a-itAa i^^^^^f^; t- accused/appellant and then signaled to the trap party regarding the same. Thereafter the trap party went there and trapped the accused/appellant. Subsequently panchnamd Ex. P-5 was prepared and vide Ex. P-6 currency notes were seized. Further case of the prosecution is that after seeing the trap party, accused/appellant threw the said amount of Rs. 500 on the floor which subsequently was collected by the trap party. Hands of the aceused were washed in the sodium carbonate solution which according to the FSL report Ex. P-17 proved positive as its colour had turned light pink. Sanction to prosecute the accused/appellant was obtained on 4.10.1991 vide Ex. P-18 and then affer investigation the challan was filed on 20.2.1992 forthe offences under Sections 161 IPC and 5 (1) (d) and 5 (2) of the Prevention of Corruption Act but the trial Court had framed the charges under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act. 3. So as to hold the accused/appellant guilty, prosecution has examined 13 witnesses in support of its case. Statement of the aecused/appellantwas also recorded undersection 313 ofthe Code of Criminal Procedure in which he denied the charges levelled against him'and"pleaded"his'innocenceand false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellant submits ^thatas the complainant himself has not supported the case of the prosecution and has turned hostile, the a.cc.u.sed./aRReljant.cannpt be prosecuted for any offence particularly the one punishable under Section 13(1)(d) and 13(2) of the Prevention of Corruption Act as the prosecution has failed to establish the demand pf bribe bythe accused/appellant. He submits that the prosecution has committed the procedural illegatities.which, if.seen.Jn ttie.lighrt ofthe.releyant provisions of law, would vitiate the entire proceedings undertaken by it. According to ;»y- ^ ^ t. yj -3- him, the appellant has been tried and convicted under the provisibns of newAct of 1988, though he was trapped on 15.1.1988 i.e. much prior to coming into force thereof. He submits that the appellant could have been prosecuted for the offence under Section 161 IPC and 5 (1) (d) and 5 (2) of the Prevention of Corruption Act of1947 and not under the new Act of 1988. In support of this argument counsel for the appellant placed reliance on the decision of the High Court of Karnataka and also the High Court of Delhi in the matter of R.S. Kalakapur v. State of Karnataka report:ed in 1994 Cr.L.J. 2696 and in the matter of Sukhwant Singh v. Union of India reported in 1996 Cri.L.J. 4079. Counsel for the appellant further submits that Article 20 (1) of the Constitution of India provides for protection against ex post facto lawwhich says that no person is to be convicted of an offence except for violating a law in force at the time ofcommission of the offence. According to him, it is an admitted position that the incident in the case in hand had taken place on 15.1.1988 whereasthe Act.of 1988 came Tnto forceon 9th September, 1988 and thus in the lightof Article 20 (i) of the Constitution of India conviction of appellant is per se illegal. He submits that Article 20 (1) of the Constitution of India provides for protection against ex post facto law which says that no such person is to be convicted for an offence except for violating a law in force at the time of commission of the act eharged as an offence. Counsel for " the appellant has made an attempt to distihguish his case with that of M.W. IVIohinuddin v. State of Maharashtra reported in (1995) 3 SCC 567 stating that while deciding the matter the Apex Court has held that for the first time such issue caninot be raised in the Supreme Court and secondly that no prejudice was caused to the accused in that case. Counsel for the appellant submits that ,in the case in hand as this mistake ofthe prosecution has been pointed out at the High Court itself, the decision rendered in the case of IVI.W. IVIohinuddin v. Stateof Maharashtra (supra) would not be of any help to the State. He submits that so far as the prejudice, if any, is concerned, a great prejducie is likely fo1 be causedto the accused/appellant because as per Section 161 IPC the maximumi punishment is imprisonment for three years whereas no minimum .^i_, w's 1.11: <iBSS3eBn.. h.S^^f^^^®r'~ Kyfa-K^^S^-^ -4- punishment is provided. He however submits that as per the provision of Section 7 of the New Act the maximum higher punishment has been provided as imprisonment for five years whereas the minimum one is imprisonment for six months and therefore, even if this Court takes a lenient view in sentencing the accused/appellant, the total sentence of not less than six months cannot be imposed on him. He submits that in the case of M.W. Mohinuddin v. State of Maharashtra (supra) though the minimum punishment was imprisonment for six months as per section 7 of the new Act which was awarded by the trial Court but ultimately the Apex Court reduced the same to the period already undergone by him but the same treatment cannot be given to the accused/appellant in this case and his sentence cannot be reduced to below six months in the light of the settled position of law. He further submits that similar is the position in respect of section 5 (1) (d), 5 (1) (e) and 5 (2) ofthe Prevention ofCorruption Act 1947 and that of Section 13 '(1) (d) and 13 (2) of the Prevention of Corryption Act 1988. He submits thatcase of M.W. Mohinuddin v. State of Maharashtra (supra) is further distinguishable on the pointthat the three judge bench of theSupreme Court in the matter of Olga Tellis vs. BombavlVIunicipal Corporation repoi'ted in AIR (1986) SC 180 m lwl4u-lt=Sie=8aFeiTTr~©eyi*,has held that there cannot be any estoppel in theconstitution. Counsel forthe appetlant further placed reliance on the decision of the Supreme Court in the matter of Jagan M. Seshadri v. State of TamilNadu reported in AIR (2002) SC 2399 in which it is held that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act,shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance ofofthe corresponding provisions oftheAct. He submits that as per the provisions of Section 17 of the Prevention of Corruption Act, investigation ought to have been done by the Dy. Superintendent df Police or the police officer of equivalent ranR. In the present case the investigation has been done by M.K. Hiradhar (PW-10) who was the inspector at the relevant time. Hesubmits that as the investigation has been done by the Inspector a great prejudice has beencaused -5~ "~'"^~. -s?aa s!& s 'ff^-^^^;^^. •*, gi:g^Kg^^^^ i^t^-^^'^i- '^te.;^.^,^-- '"'^fS^a-''"' - s - to the accused/appellant. He submits that even the Court below has erred in law while recording the statement of the accused/appellant under Section 313 of the Code of Criminal Procedure in relation to the demand of any illegal gratification. He placed relianee on the decision of the Supreme Court in the matter of Ranbir Yadav v. State of Bihar reported in 2009 (6) SCC 595. He submits thatas the complainant namely Syresh Prasad Tiwari (PW-4) has turned hostile, factum of demand of illegal gratification cannot be proved and therefore the appellant cannot be convicted underSection 13 (1) (d) and 13 (2) of the Act. He submits thatthe complainant has categoricallystated that when he went to the police station as his bus was seized by the Police, the police officers had asked him to write a complaint which was written by him as per the desire of the police officer vide Ex. P-2. He submits that this statement of the complainant completely falsifies the entire case of the prosecution that he ever made any CQmplaint against the appellant for demanding bribe. According to him, under the compelling circumstances an application wastaken from the complainant, which unfortunately has been used by the prosecution. He submits that as per the case of the prosecution itself at the relevant time the complainant was working as the Manager of Pratap Travels and fhe appellant was working as the Labour Inspector and his job was to check the illegal migration of the labourers and for this he had to put check over those contractors who without obtaining license from labour department under the Inter State Migrant Labour Act, 1979, were involved in such activities. He submits that the demand of Rs. 500 if seen as per the value of money in the year 1988 appears to be so exorbitant. He submits that the statement of Food Inspector namely P.C. Singh (PW-5) makes it clear that the appellant had never accepted the bribe amount of Rs, 500 and he had thrown the same on the floor. He submits that in an exactly similar situation the Supreme Court had an occasion to deal with the similar point in the matter of Darshan Lal v. Delhi Administration reported in AIR (1974) SC218 in which it has been held that the courts below should have required independent andtrustworthy corroboration of the evidence of Niranjan Laland Satish Chandra, who had laid fhe .i • ij ^t'*'6». •^; '"•:: -t^"^.<?;-,.. '^ "^ss^^:. "1 •/'. "!aB.,».,^-iK-' 6 trap. It has also been held that the trap witnesses are concerned in the success of the trap and their evidence must be tested in the same way as that of the interested witnesses and in the proper case, the Court may look for independent corroboratiori before convicting the accused persons. 7. According to the counsel for the appellant, independent witness P.C. Singh (PW-5) has categorically stated in hisevidence that he was not sure whether the appellant had thrown the. money prior to arrival of the trap party and therefore no independent evidence is available on record to prove the case ofthe prosecution. In respect of this submission, counsel for the appellant tias placed reliance on the decision of the Supreme Court in the matter ofRam Prakash Arora v. State of Punjab reported in AIR 1973SC 498. He submits that as per the statement of prosecution witnesses, in particular thatof the trap party, it is apparent that none of these witnesses could hear the conversation between the complainant and the accused and once the complainant turns hostile, there remains nothing against the accused/appellant. He submits that there is no evidence available on record that any illegal gratification was demanded by the accused/appellant. 8. Statement ofAmrit Rao Sinde (PW-8) and M.K. Hiradhar (PW- 10), R.J. Toppo (PW-11) and S.K. Verma (PW-12), in r^spect of acceptance of money by the accused/appellant is contradictory to each other and on the basis of this weak evidence the accused/appellant cannot be conviGted. According to him, the statements of these witnesses are full of contradictions and omissions and on this count also they are not safe to be relied upon. He submits that case of the appellant issquarely covered with a well reasoned judgment of th'e Supreme Court in the matter of C.M. Girish Babu v. CBI Cochin, reported in (2009) 3 SCC 779. According to the counsel for the;appellant, in the present case even the recovery of tainted money has not been proved beyond reasonable doubt as thestatement of the witnesses to this effect is cohtradictbry tb eacli'bther. Hesubmits that as per the site map^Ex. P-1) prepared by Patwari (PW-1) the incident had taken place in an l!IE*i<.,u j 'a.yjK:^^i^a.;^.._ ;,&H?Easjg» -I- . ;. .'..I open place whereas as per thestatement of Amrit Rao Sinde (PW-8) the complainant had gone inside the room and gave money to the accused/appellant. 9. Replying to the arguments of the counsel for the appellant, counsel for the respondenf state submits that the offence against the appellant was registered under section 161 IPC and Sections 5 (1) (d) and 5 (2) of the Prevention of Corruption Act 1947 and the charge sheet was flled under the aforesaid seetion but while framing the charge as Section 161 IPC and Section 5 (1) (d) and 5 (2) ofthe Prevention of Corruption Act 1947 was repealed and the Act of 1988 came into force with effect from 9.9.1988 and further that Section 7 of Preventionof Corruption Act 1988 is pari materia to Section 161 IPC and Sections 5(1) (d) and 5 (2) ofthe Prevention ofCorruption Act 1947 are pari materia to Sections 13 (1) (d) and Sections 13 (2) ofthe Prevention of Corruption Act. Hesubmits that the court below has rightly proceeded against the appellant as per the provcisions of the Act of 1988. He submits that Section 4 (1) of the Act of1947 is pari materia to Section 20 of the Act of 1988 and therefore also once the amount has been seized from the possession of the accused appellant, burden shifts on him and he was required to prove as to for what purpose the money was accepted by him. He subrriits that once the provision of two Aets are pari materia, no prejudice whatsoever would be caused to the accused appellant if he has been charged under the provisions of riew Act. He placed reliahce on Section 30 ofthe Prevention ofCorruption Act1988 which reads as under: "30. Repeal and saving - (1) The Prevenfion of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952(46 of 1952)are hereby repealed. (2) Notwithstanding such repeal, butwithout prejudice to the application of section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in \: pursuance ofthe Actsso repealed shall, in so farasitis ; not inconsistent with the provisions of this Act, be \ \ ">38aa-»iff5s" ^- deemed to have been done or taken under or in pursuance of the corresponding provision of this Act." 10. So far as the point raised by the accused/appellant that the complainant has turned hostile, and therefore he cannot be convicted, it has been argued by the State Counsel that though the complainant has turned hostile, in his cross-examination he has admitted his signature on the written complaint Ex.P-2. He submits that making ofcomplaint Ex.P-2 has not been denied by the accused appellant and thus he cannot take any benefit of the fact that the complainant has turned hostile. He submits that admittedly on the date of incident the appellant was on duty at bus stand, Bilaspur to prevent illegal migration of labourers. Admittedly the complainant was working as manager in Pratap Travels operating the buses from Bilaspur to Allahabad. According to him the appellant has failed to discharge the function as provided under section 20 of'the-Act 1988. He submits that the conviction of accused appellant can be based on the testimony of the police witnesses and no further corroboration of the same from any independent witnesses is required. He fairly admits that once the complainant turned hostile, the demdand of bribe has not been proved by the prosecution and therefore the appellant cannot be convicted under section13 (1) (d) and 13 (2) of Prevention of Corruption Act. According to him the appellant can be convieted under section 7 of the Prevention of corruption Act. As regards investigation being done by the Ispectorand not by the officer below the rank of Dy. S.P, counsel for the State argued that as no prejudice is shown to have been caused to the appellant, he cannpt derive any benefit from the same. Accordihg to him, this point ought to have been raised by the appellant at the trial stage itself and fpr the first time he cannot take this plea at the appellate stage. He placed relianceon the decision of the Supreme Court in the matter of State Inspector of Police^ Vishakhapatnam v. Surya Sankaram Karri reported in 2006 (7) SGC 172. He submits that if the investigation has been done by the Police Inspector and not by the Dy. S.P, this alone will not vitiate the entire trial. In respedof Section 7 of the Prevention of Corruption Act it is argued that once fcK =F~ i' ^ 1 la 'l°sa5»g g •^,. . ..^- ^' t'S^.W;^!^ N1. "? the tainted money was recovered from the possession of the accused/appellant and phenolphthalein testwas also find positive in respect of hand wash and coat wash, it is established by the prosecution that the amount of bribe was accepted by the accused/appellant. He submits that independent winess P.C.Singh (PW-5) has also supported to the case of the prosecution to this effect. In respect of contradiction and omission in the statements of the prosecution winesses it is argued that the trap was laid on 15.1.1988 whereas the statement was recored in the court in the months of January, July and August, 1996 and therefore the contradictions and omissions in the statement of the witnesses examined by the prosecutlon have to be ignored. 18et t-'l*e"!;!E !-r;:r' ff^^^i 11. I have heard counsel for the parties and perused the material available on record. 12. The proseeution'has-examined Laxman Ram (PW-1) who at the relevant time was working as Patwari and had prepared the spot map, Ram Bahadur Singh (PW-2) - the Head Constable posted in the office pf Lokayukta, Ram Nayak (PW-3)—the bus conduGtor, Suresh Prasad Tiwari (PW-4) - the complainant in the case, P.C. Singh (PW-5)"- Food'lnspector; R:G; Pandey (PW-6) who at the relevant time was working as Assistant Labour Commissiaher, Baldau Prasad Pandey (PW-7) - the witness of Rojnamcha Sanha (Ex. P11 and P-12), Amrit Rao Sinde (PW-8)—Constable, Shrawan Kumar (PW-9)- Head Constable, M.K. Hiradhar (PW-IO)who atthe relevant time wasworking as InspeetoFand investigating officer in the present case, R.J. Toppo (PW-11)- Inspector in the Lokayukta Police, S.K. Verma (PW-12) - Dy. S.P.and panch witness and D.N. Billey (PW-13) - the clerk in thelaw:department and witness of sanction. 13. Laxman Ram (PW-1) - the Patwari in his evidence has steted that 1-ie had prepared thespot map. Ram Bahadur Singh(PW-2|) has stated in his evidence thaton 15.1.1988 he was working as Head Constable in the office of Lokayukta and he had applied phenolphthalein powder.ion the.currency notes and put the same in ^t ^•^K^^l !%?!K^i;6*t£$S?fe;s- '^^^^^-^ift-S. -^.S'*-l » "'^ s isi.-.-y f -10 the pocket of the complainant. Ram Nayak (PW-3) - the bus conductor has not deposed anything against the accused/appellant. Suresh Prasad Tiwari (PW-4) - the complainant and the star witness of the prosecution has turned hostile. He however has stated that at the relevant time the accused/appellant was working as Labour Inspector and his bus was not permitted to be plied by the police officer and it was kept in the police station. He has further stated that when he had gone to the police station tb get the bus released, the police officers had asked him to write a particular application as dictated by them. On this, he wrote the application Ex. P-2 which was also signed by him. He has stated that the accused/appellant had never demanded the money from him nor had he made any effort to get the accused/appellant caught while receiving the bribe. However, when he was cross examined by the special Public Prosecutor, he has categorically stated that the complaint Ex. P-2 was written by'him at the behest of the police people. This witness has denied the fact that Rs. 500 per day were demanded by the accused/appellant as bribe.In respect of the contents of the application, it has been darified by this witness that he has nbt written the same of his own sweet will and if such things are mentioned in the application, they are incorrect. Even in respectof his statement, this witness has stated that he has never made any such statement and if the same has been mentioned in Ex, P-3, the same is not correct. He has denied the entire policestatement in paragraphs 4, 5 and 6 of tiis cross examination. He has denied the fact that he ever gave Rs. 500 to the police or that he had applied phenolphthalein powder thereon. In paragraph 7 of his cross examination, he has stated that he was taken to the bus stand by the police officer and at the instanee ofthe police people, he gave money to the accused/appellant but the same was thrown by him. He has stated that in the Panchnama of trap and that of the seizure his signatures were obtained by the police. P.C. Singh (PW-5) - the Food Inspector and independent witness in the case has stated that he was called by the Lokayukta police, complaint made by Suresh Prasad Tiwari (Ex. P-2)was readover to him, five currency noteslof 100 denomination were given to the complainant, pre trap §» ia.ii»^g^^-.f^>-. ~ If- Panchnama Ex. P-4 was conducted and then along with the Lokayukta Police he had gone to the bus stand. Me has stated that the amount was given by the complainant to the accused/appeltant and after receiving the signal, when Lokayukta people had arrested the appellant, the money was thrown by him. Hands of the accused/appellant and also the complainant were washed and the colour of the solution of sodium carbonate had turned pink. According to him, currency notes were fhrown by the accused/appellant. According to this witness, the place of incident was just opposite the booking counter and number of persons were present fhere. He has state'd in between him andthe place of incident number of persons were there and he had not made any