CRIMINAL APPEAL No.174 OF 1998 Against the judgment and order dated 30th of April, 1998, passed by the Special Judge, Vigilance, South Bihar, Patna, in Special Case No. 13 of 1987 arising out of Vigilance P.S. Case No. 6 of 1987. BISHUN RAM @ BISHNU RAM, son of Ramdeo Ram, resident of Karma Bhagwan, P.S. & District- Aurangabad at present, resident of Professor Colony, Patel Nagar, P.S.- Shastrinagar, Patna- 23. --------------------Appellant Versus THE STATE OF BIHAR -------------------Respondent For the Appellant :- Mr. Rana Pratap Singh, Senior Advocate Mr. Binod Kumar Singh, Advocate Mr. Sumant Singh, Advocate Mr. Aruni Singh, Advocate For the Vigilance :- Mr. Rakesh Kumar, Advocate P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. This appeal arises out of a case in which the appellant has been convicted under Section 161 of the Indian Penal Code as also under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 (hereinafter referred to as ‘the Act’). The appellant is an Executive Engineer in the Building Division, P.W.D. and was posted at Sasaram in the district of Rohtas during the relevant period. The prosecution case is that Randhir Kumar Singh, P.W. 16, a P.W.D. Contractor had done some 2 work of annual repair of few B.M.P. Havildars quarters located at Dehri-on-sone for which a final bill (Ext. 13) was prepared after measurement. Badri Narain Upadhaya, P.W. 19 was posted as the Junior Engineer in Dehri-on-sone, Building Section No. 1 and the complainant, Randhir Kumar Singh, P.W. 16 was working directly under him. It is said that P.W. 19, Badri Narayan Upadhaya checked the bill and endorsed it to the appellant for passing orders of payment. After considerable time when the payment was not made, the complainant met the accused and requested him to pass the bill but the complainant demanded a gratification of Rs.500/-. The complainant, Randhir Kumar Singh, P.W. 16 lodged a written report (Ext. 10) with the D.I.G. of Police, Vigilance in which the Inspector, Arun Kumar Singh ‘Vineet’, P.W. 17 was deputed to verify the allegations. On verification of the allegations, Arun Kumar Singh Vineet could not substantiate the allegations made in the complaint petition, Ext. 10. It is alleged that thereafter the complainant again met the appellant and the appellant is said to have expressed his displeasure for bringing a stranger to his house and further demanded Rs. 500/- for passing the bill. The 3 complainant again filed the complaint, Ext. 10(1) before the D.I.G. Police, Vigilance, Patna on 10.3.1987 which has resulted in the instant vigilance Case No. 6 of 1987. On the basis of the aforesaid allegations, a trap was set up and the team consisting of Special Magistrate, P.W. 6, Inspector, P.Ws. 1 and 12, Sub-Inspectors, P.Ws. 4 and 7 and Assistant Sub-Inspector and P.W. 9 were deputed for the purpose of trapping the appellant. They were accompanied by Jawahar Lal Rai P.W. 2, Upendra Prasad Singh P.W. 5, Vijay Prakash P.W. 10 and Ranjan Kumar Singh P.W. 3. The said team left for Sasaram. At Sasaram the team prepared the trap and Rs. 500/- was treated with ‘Phenolphthalein’ powder and was handed over to the complainant. Instructions were given to the individual members of the raiding party and all of them proceeded on 12.3.1987 to the office building and chamber of the appellant. It is said that the appellant received the money in the office chamber from his left hand and thereafter put the money in the right hand and then put it in a rexin bag which was lying on the table. As soon as the appellant had put the money in the bag, the raiding party entered the office and caught hold of his hands, seized the rexin bag 4 and thereafter conducted the test by dipping the money and hands of the appellant in Sodium Carbonate. Ninteen prosecution witnesses and 1 defence witness have been examined in this case. P.Ws. 2, 3, 5, 7, 10 and 12 were tendered for cross examination. The others have been examined to prove the prosecution case. The defence has denied the entire occurrence. In the written statement a plea has been taken denying the entire occurrence and it has been stated that the money was planted and the rexin bag does not belong to the appellant. The complainant is a relative of Laxman Prasad Singh, Senior Accounts Clerk working in the office of the appellant against whom the appellant has made several adverse reports and he was the person who had got his relative, the complainant to file this case. The defence case further is that P.W. 8, Ajit Kumar Singh could not have seen the occurrence and that no bill was left to be paid to the Contractor Ranjit Kumar Singh, and the entire case is false. It is also alleged that the trap was not conducted in a proper manner. Several points have been argued on behalf of the appellants. (1) The first point is that 5 there was no preliminary enquiry/verification before planning the trap and institution of the police case. (2) No bill of the Contractor was pending. (3) The money was never handed over to the appellant, it has been planted and powder was transferred from P.Ws. 9 and 4 who had caught hold of the appellant’s hands. It is also stated that the hands of P.Ws. 9 and 4 ought to have been tested in this case. I shall take up the first point first i.e. whether there is a requirement for holding the preliminary enquiry/verification before instituting the vigilance case under Section 161 of the Indian Penal Code and the Prevention of Corruption Act. It is an admitted fact that Randhir Kumar Singh, the complainant had first made a complaint that the appellant was demanding Rs. 15,000/-. This complaint was verified and the Officer who made the verification i.e. Arun Kumar Singh Vineet, P.W. 17 could not come to a conclusion that the demand was made. Thereafter the complainant introduced certain new facts and alleged that when he went to meet the appellant he again demanded Rs. 500/- i.e. 1/3 the amount of what was earlier demanded, and it is also alleged that the appellant is said to have 6 expressed his annoyance because the complainant had brought a stranger to his house. These are oral allegations which have not been enquired into or tested and it is word of the complainant against the word of the appellant who denies the entire episode. The appellant is a Government Servant and any allegation with respect to the performance of his duty and discharge of his functions should be subject matter of an enquiry before the said public servant is made to face a criminal proceeding. The very fact that the prosecution decided to set up a trap case despite the fact that the complainant on an earlier occasion had not been able to substantiate his allegations becomes suspect. The fact that the demand was reduced by 1/3 and the fact that the Contractor who was working in the Department was pursuing the payment of his bill by pursuing the appellant does not seem to be believable in the circumstances which I will discuss. Thus the Court finds that the actions of the complainant and the officers do not seem to be quite fair. The prosecution has not tried to explain why they did not think it necessary to verify the allegations when the second complaint petition was filed. Learned counsel for the 7 petitioner has referred to the case of P. Serajuddin Vs. State of Madras reported in A.I.R. 1971 SCC 520. The facts of the case are very different to the present facts. However, the Supreme Court has observed that the some sort of investigation should be made before subjecting a public servant to criminal prosecution. Drawing from the principle aforesaid, this Court can only comment that once a decision has been taken by the Vigilance Department to conduct an enquiry before laying a ‘trap’ they ought to have followed the same procedure in this case. The most important question in this case however, relates to the facts surrounding the procedure adopted by the prosecution in laying the trap. P.Ws. 8 and 15 are the search witnesses. P.W. 8 had been declared hostile however, P.W. 15 supports the seizure of the bag. He, however, does not remember as to which of the team members opened the bag and found that the money was there. He also does not remember whether the money or the bag was dipped in solution. P.W. 1 on the other hand states in his evidence that the money was recovered from the rexin bag. At paragraph 9 he says that no special mark of identity was put on the rexin bag 8 which would indicate the case number or the signature of the person who had seized the bag. P.W. 1 admits that P.Ws. 9 and 4 had caught hold of the hands of the appellant and further states that the hands of P.Ws. 9 and 4 were not tested in a solution. The argument is that if P.Ws. 9 and 4 had caught hold of the hands of the appellant, they would have come in contact with the chemical powder and as such the solution would also turn pink if their hands were dipped in the solution. The D.S.P., in this case P.W. 14 has stated that no separate seizure was made of the rexin bag nor was the rexin bag tested in the chemical solution to indicate that the money was kept in the bag. It has been argued by the learned counsel appearing on behalf of the appellant that the money was not recovered from the possession of the appellant. The recovery was made from a rexin bag which was lying on the table. Therefore, it cannot be said that in fact the appellant was the person who had kept the rexin bag on his table. It has been suggested to the witnesses that P.Ws. 4 and 9 who caught hold of the hands of the appellant would have the powder in the hands which was transferred to the hands of the appellant. The Court finds 9 that the recovery of the money from the rexin bag cast a cloud over the prosecution case. The proper procedure would have been to first test the hands of the appellant in the chemical solution and thereafter search him for the money apparently this appellant was not searched at all and as such not a single chit of paper or money has been recovered from the appellant which also seems improbable. In a case such as this where an illegal gratification is demanded and the recovery is not made from the person of the accused rather the tainted money is recovered from a bag kept on a table. The test to prove the case is also severe. The facts of this case creates a doubt in the mind of the Court with respect to the recovery of the tainted money. The appellant has specifically denied that he had demanded or accepted any money whatsoever. It has been submitted that the presumption of guilt because his hands turned pink in a chemical solution would not be attracted as his hands were caught by two members of the raiding party and the hands of those members was not tested in chemical solution. The prosecution has not been able to prove beyond reasonable doubt that the money was recovered from the appellant. 10 The third aspect which has been argued with some vehemence is that according to the prosecution case, no bill was pending therefore, there was no occasion for the appellant to demand illegal gratification. Referring to Ext. 13 it has been submitted that according to P.W. 19, Badri Narayan Upadhaya, the Junior Engineer under whom the complainant was working, a bill was prepared initially for about Rs. 15,000/-. In the cross examination, the Junior Engineer has stated that the Contractor had not completed his work thus, it would appear from the facts that a reduced bill of about Rs. 3,138/- was prepared which was passed on 21.12.1986 and as such on the date of demand no bill was pending. It has been argued that since the work was not completed, a reduced bill was prepared and perhaps for this purpose this false complaint has been filed. The appellant has produced D.W. 1 Indrama Lal who was the Head Clerk in the Building Department who has clearly stated that till October, 1986, the appellant had no power to pass bills or issue cheques as there was no allotment of funds and once the power had been confirmed, the bill was cleared in 1986. The bill has been received by the Contractor with the note 11 of protest. However, the fact remains clear that the Junior Engineer who had passed the earlier bill was the person who had written to the appellant that since the work had not been completed, the bill ought not to be approved by the appellant. Considering these aspects it appears that the reason for demand of Rs. 500/- has not been proved by the prosecution and the defence has been able to show prima facie that there was an occasion for the appellant to make a demand. After discussing and considering all three aspects and issues which have been raised in this case, this Court hold that the case of the appellant has not been proved beyond reasonable doubt and the impugned judgment convicting the appellant is set aside. The appellant is discharged from the liabilities of his bail bond. The appeal is allowed. Patna High Court, May 1st ,2009 A.F.R./Sanjay (Sheema Ali Khan, J.)