THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NOS.202 AND 203 OF 2006 COMMON JUDGMENT: These two appeals are filed by A1 and A3 respectively against judgment dated 3-2-2006 passed by the Special Judge for ACB Cases, Visakhapatnam in CC No.8 of 1988, by which A1 was convicted for the offence under Section 7 of the Prevention of Corruption Act, 1988 (in short, the Act) and was sentenced to rigorous imprisonment for one year and fine of Rs.1,000/-; and A1 was also convicted for the offence under Section 13 (1)(d)/13(2) of the Act and was sentenced to rigorous imprisonment for two years and fine of Rs.1,000/-; and A3 was convicted for the offence under Section 7 of the Act and was sentenced to rigorous imprisonment for one year and fine of Rs.1,000/-; and A3 was also convicted for the offence under Section 12 of the Act and was sentenced to rigorous imprisonment for one year and fine of Rs.1,000/-. At the relevant point of time, A1 was working as Sub Inspector of Police in Padmanabham Police Station and A3 was working as Police Constable in the same police station of Visakhapatnam District. At this point of time, there is no doubt about registration of case in Cr.No.85 of 1997 for offences punishable under Sections 323 IPC and Section 7 (1)(d) of the Protection of Civil Rights Act in that police station against PW1 and son of PW4 on 12-10-1997. On the same day, A1 arrested PW1 and produced him before the Magistrate on 13-10-1997 and subsequently, PW1 was granted bail on 14-10-1997. It is alleged by the prosecution that 15 days prior to 24-11-1997, A1 sent word to PW1 through A3 and in pursuance thereof, PW1 along with PW4 went to Padmanabham Police Station and met A1 on 24-11-1997 when A1 demanded Rs.1,000/-from PW1 towards bribe to reduce gravity of the said criminal case and for helping PW4’s son in that criminal case and that on the next day, PWs.1 and 4 went to the police station and paid Rs.1,000/- to A1 as bribe and that again A3 met PW4 on 24-11-1997 at Revidi Village and conveyed message of A1 for further demand of Rs.1,000/- as bribe and that on the same day, A3 met PW1 at Padmanabham and conveyed demand of bribe of Rs.1,000/- made by A1 and that A3 demanded bribe of Rs.200/- to himself. It is the prosecution case that on 23-11-1997, PWs.1 and 4 met A1 in the police station where A1 demanded bribe of Rs.1,000/- for showing official favour in the registered case and that aggrieved by the demand, PW1 lodged Ex.P1 report with PW5-Deputy Superintendent of Police, ACB, Visakhapatnam on 24-11-1997, in pursuance of which a trap was laid. According to the prosecution, on 25- 11-1997 PW1 went to Padmanabham Police Station at 5-15 PM and A1 accepted the bribe of Rs.1,000/- through his police constable A2 and that when the ACB officials raided, A2 produced tainted amount of Rs.1,000/-. At the out set, it may be noted that in the charge sheet, there is in-consistency with regard to the dates. As per allegations in the charge sheet, the initial payment of Rs.1,000/- as bribe by PW1 and PW4 was on 24-11-1997. Subsequently, it is averred in the charge sheet that again on 21-11-1997, A3 went to Revidi village and conveyed demand of A1 for Rs.1,000/- towards bribe. The alleged second demand cannot be prior to the date of payment of the first bribe amount. Be that as it may, I propose to consider the evidence on record with reference to the contentions made by the appellants’ counsel and the Special Public Prosecutor. In order to find an accused person guilty of offence under Section 7 of the Act, there must be an official favour pending with the public servant and for making the said official favour, the public servant must have demanded and obtained illegal gratification. Insofar as A3 is concerned, he is after all a Police Constable. He has no role either in registration of the case or in investigation of any case or filing charge sheet in any criminal case. Therefore, there was absolutely no official favour pending with A3 and there was no official favour which A3 can extend to PW1 or to PW4. Insofar as A1 is concerned, he being the Sub Inspector of Police and the Investigating Officer in Cr.No.85 of 1997, he has got some role to perform in that crime as per law. It is PW1’s evidence that A1 asked him to bring Rs.1,000/- as bribe to weaken gravity of crime reported against him. Admittedly, PW1 was arrested and produced before the Magistrate in Cr.No.85 of 1997 on 13-10-1997 itself. Therefore, registration of the case was over and arrest of PW1 as accused in that crime was over. Except filing of charge sheet, there is no other official favour pending with A1 at that point of time. PW1 claims to have gone to A1 and paid the demanded amount of Rs.1,000/- to A1. For the said payment of R.1,000/- initially by PW1 to A1, there is no independent evidence and at the time of initial payment of bribe of Rs.1,000/-, no trap was arranged by the ACB officials. On 25-11-1997, when the trap was arranged, PW1 went to Padmanabham police station along with PW2 as accompanying witness. It is PW1’s evidence that A1 asked him about the bribe amount for closing the complaint given by the complainant against him. But, as per records seized by PW5 immediately after the alleged trap, they revealed that in Case Diary relating to Cr.No.85 of 1997 there was already copy of the charge sheet singed by A1 dated 21-11-1997 itself(vide page 16 of MO5 case diary). It is contended by the appellants’ counsel that even by 21-11-1997 which is four days prior to the alleged trap, A1 had signed the charge sheet in Cr.No.85 of 1997 and filed the same before the Magistrate and that therefore, it cannot be said that there was any official favour pending with A1 by that point of time. On the other hand, it is contended by the Special Public Prosecutor that since the case was pending before the Magistrate and since the police have to lead evidence in that pending case before the Magistrate, A1 tried to favour PW1 by lessening gravity of the offence. When the case is pending before the Magistrate, the police have no role to play except to produce witnesses and lead evidence as per investigation record. In such a situation, it cannot be said that there was any official favour pending with A1 in Cr.No.85 of 1997. At best, it can be said that official favour was pending with the Magistrate in whose Court, the case was filed by A1. In the absence of any official favour pending with A1 by the date of the alleged trap or with A3, it cannot be said that the prosecution has made out the offence under Section 7 of the Act against any of A1 or A3. With regard to the proceedings relating to the trap are concerned, in this case neither A1 nor A3 received any portion of tainted cash from PW1. Even though PW1 went to Padmanabham Police Station on 25-11-1997 along with two wads of cash of Rs.1,000/- and Rs.200/- for payment to A1 and A3 respectively, A3 was not available in the police station and therefore, admittedly PW1 did not hand over wad of cash of Rs.200/- to A3. A3 came to the police station around 9- 00 p.m on that day whereas the ACB raid was conducted around 5-15 p.m on the same day. A3 did not even touch tainted cash of Rs.200/- from PW1. Except recording statement of A3 by PW5 in the presence of mediators PW7 and another, in which A3 denied he having demanded Rs.200/- as bribe to himself and denied he having conveyed message of A1 to PW1 or to PW4 for bribe of Rs.1,000/- to A1, there is absolutely no other incriminating material with the prosecution to prove the role of A3 during the course of trap proceedings. Insofar as A1 is concerned, admittedly, even as per prosecution case, A1 did not touch tainted cash of Rs.1,000/- covered by MO7. According to evidence of PWs.1 and 2, A1 asked PW1 to hand over the cash to A2 and accordingly, the cash was handed over to A2. A2 was another police constable working in the same police station on that day. After filing of charge sheet, A2 expired and therefore, the case against A2 stood abated. After PW2 gave signal from the police station to the ACB officials by wiping his face with a hand kerchief by coming out of the police station and when the ACB officials rushed into the police station and detained all the persons including A2, A2 was not in physical possession of MO7 cash of Rs.1,000/-. According to PWs 3 and 5, A2 led them to a bore pump located in the police station compound and lifted bore pump lid wherefrom he produced MO7 cash of Rs.1,000/- before PW5 who seized the same. The place where the bore pump is located in the police station compound is not visible from the room of A1. Thus, demanded cash of Rs.1,000/- covered by MO7 was not even covered from the vicinity of A1 muchless from A1. It is suggested by the defense counsel in the lower Court that A2 colluded with PWs.1 and 4 with whom A2 was having previous acquaintance admittedly and handed over MO7 cash from the bore pump place. That is why A2’s fingers turned pink when his fingers were dipped in sodium carbonate solution covered by MO5 and 6. Except the statements of PW1 and 4 about the alleged demand of A1 for payment of bribe of Rs.1,000/-, there is no other evidence to show that A1 received the illegal gratification or bribe of Rs.1,000/- from PW1 or that A2 received the same on the directions of A1. It is not evidence of PW1 or PW4 that on the previous occasion when another amount of Rs.1,000/- was paid as bribe, A1 asked any other police constable or any other person to receive the previous bribe amount. According to PW1 and PW4, the earlier bribe amount of Rs.1,000/- was paid to A1 himself. It is not as if A1 suspected any ACB raid on 25-11-1997 when the alleged trap was arranged. In fact, as per evidence of PWs.1, 3 and 5, A1 became perplexed when PW5 entered into A1’s room and introduced himself as Deputy Superintendent of Police, ACB, Viakhapatnam. Therefore, A1 had no suspicion on 25-11-1997 to make a circuitous way to receive the bribe amount of Rs.1,000/- from PW1. There is another circumstance which throws certain amount of doubt on the conduct of PW5 and other ACB officials at the time of trap. After PW5 and others entered into A1’s room, it is evidence of PWs.1 to 3 and 5 that PWs.1 and 2 and Vasu were asked to sit in Varandah during the course of ACB officials conducting interrogation of A1 and others conducted inside A1’s room. There was no need for PW5 to ask PWs.1 and 2 to wait out side the place of interrogation of A1 and others by PW5 and while conducting Phenolphthalein test on A1 and A2. Therefore, in these circumstances, this Court has no hesitation to conclude that the prosecution could not prove mis-conduct on the part of A1 by way of accepting illegal gratification or bribe from PW1 though A2 to an extent of Rs.1,000/-. Further, the prosecution could not make out any abetment on the part of A3 for A1 receiving illegal gratification. In my opinion, the lower Court did not appreciate the circumstances on record properly, and erroneously found A1 and A3 guilty of the offences under Section 7, 12, 13 (1), (d)/13 (2) of the Act In the result, both the appeals are allowed setting aside the convictions and sentences passed by the lower Court against the appellants/A1 and A3 and acquitting them. ________________________________ SAMUDRALA GOVINDARAJULU,J Rkk Dated: 2-2-2011