c,V "as ^e ^^ l v\W^ IN 2H£ HIGH GOURr GS? jmiCA2UM& s Al JABALPUR* GBIMINAL APPSAL NO._S<NQJS/2000. Dat8^'E£i B^ijai'e son of Late Nal^chhed Sury&vanshi, aged 30 years, pan.ch&yat Inspector, HLock Gourela, Besident of [illage Gafcoupa, Police Station M&sfcuri, •ict Bilaspur ( ). APP^LLAN£ ./ loE~Biii.y 7s. Sta'te of Madhya Pradesh \ BSSEfiHQSE'I- G.BIMIHAL APPSAL UNQEH 31303!101,374^1 OF 2HE GODE OE GKEMIIAL PBQG^UM- l^l^ HIGH COURT OF CHHATTISGARH, BILASPUR S^_: HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. Criminal Appeal No. 1175 of 2000 APPELLANT RESPONDENT: Dataram Banjare Versus State of(Chhattisgarh ^^- JU OGMBNT .^. POST ON /^JANUARY, 2011 Sd/- Manindra Mohan Shrivastava Judge ^^'^. ^^^\ '"%^ 1 I %-^-\ % Vr>J ® HIGH COURT OF CHHATTISGARH : BILASPUR Single Bench : Hon'ble Shri Manindra Mohan Shriyastava, J. 1te APPELLANT RESPONDENT: Criminal Appeal No.ll75^f200Q Dataram Banjare Versus State of Chhattisgarh (Criminal Appeal under Section 374 12} of the Cr.P.Cl Appearance: Shri Pramod Verma, Sr. Advocate with Shri Sumit Verma, counsel for the appellant. Shri Avinash K. Mishra, Panel Lawyer for the State. JUDGMENT J^ (Delivered on 7^'Uanuary. 2011) 1. This appeal is directed against the judgnient of conviction and order of sentence dated 24th April, 2000 passed by learned Special Judge (Prevention of CorruptionAct) and 1st Additional Sessions Judge, Raipur, in Special Case No.59/1991, whereby and whereunder the learned trial Court, after holding the appellant guilty of commission of offence under Section 161 of the IPC and Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as "the Act of 1947'} has sentenced him to undergo R.I. for 1 year with fine of Rs. 1000/- and in default of payment of fine, S.I. for .^T^. /^-:^. ^ Q ^T^.^"'- i^'^. ^ 3 months for each of the offences, directing both the sentences to run concurrently. 2. Case of the prosecution, in brief, is that the appellant while working as Panchayat Inspector in Block-Gourela, demanded illegal gratification of Rs.150/- from complainant Jagatlal on 12.8.1986 and received the said amount and thereby committed the offences punishable under Sections 161 of the IPC and Section 5(1) (d) read with Section 5(2) of the Act of 1947. It is alleged that complainant -Jagatlal, resident of village- Bharri had planted fish seeds in the pond situated in Gram- Panchayat -Gangpur and he had taken the said pond on lease from one Kumar Sahab. Later on, the land was brought under ceiling and the pond was handed-over to Gram Panchyat ~ Gangpur. When complainant-Jagatlal niet Sapanch, he assured that as he has planted fish seeds in the pond, the contract would be given to him only. But, he was cheated and the contract was given to one Kanhaiya Lal. Having come to know about the same, the complainant submitted an application in July, 1986 to the Collector, Bilaspur, Panchayat Officer, Bilaspur & to the appellant-Panchayat Inspector, Gourela. The appellant - D.R. Banjare, Panchyat Inspector was entrusted with the enquiry. According to the complainant, initially the appellant/accused, recovered Rs.50/- from him but no enquiry was made and when the complainant again met the appellant, he said that he will conduct enquiiy only when complainant gives Rs.150/-, whereafter, the complainant ^y^^, /y^. '^ n^^-, - '^..;: '^, submitted a report,Ex.P-2, in the office of DSP (Vigilance), who instructed Investigating Officer- N.K. Heeradhar to arrange trap proceedings. 3. Thereafter, Inspector- N.K. Heeradhar called witnesses and the complaint was read over to them. Thereafter, the currency notes of Rs.150/- were taken from the complainant and phenolphthalein powder was smeared on it and thereafter, given to the complainant. Numbers of notes were recorded and kept in his pocket with instructions not to touch them. Pre- trap demonstration proceedings were also drawn and the entire proceedings were recorded in pre-trap panchnama, Ex.P-3. Thereafter, the trap team along with the complainant proceeded to Gourela by train and after having reached there, it is alleged that the complainant went to the office of the appellant where he handed over the money and thereafter, the trap team arrived at the spot. At the instance of the appellant, the bribed money i.e. Rs.150/- was recovered from under the table cloth of his office table. The same was seized vide Ex.P-4. Proceedings register of Gangpur along with other documents relating to demand of enquiry and statement relating to enquiry in the matter of the complaint concerning award of contract of pond were seized vide Ex.P-5. Panchnama of trap was prepared vide Ex.P-6. Map of the spot was prepared in Ex.P-10. Some other currency notes kept with the appellant was also seized vide Ex.P-11 and dehati nalishi was also recorded in Ex.P-12. FIR was lodged in Ex.P-13 alleging commission of offence under ^w^,."%. i ?":^^' :^ w Section 161of IPC and Section 5 (1) (d) read with Section 5 (2) of the Act against the appellant in the Special Police Establishment. Seized articles, which included hand wash alleged to be sealed in separate bottles at different stages of trap proceedings along with other articles including currency notes were sent for examination to Forensic Science Laboratory (F.S.L.) vide Ex. P-14 and the expert opinion was sent by F.S.L. to Superintendent of Special Police Establishment, Lokayukt, Bilaspur vide Ex.P-15. On the basis of raaterial, sanction for prosecuting the appellant for alleged commission of offense under Section 161 IPC and Section 5 (1) (d) read with Section 5 (2) of the Act of 1947 was granted by the State of M.P. vide its order dated 2.5.1990 (Ex.P-1). After completing usual investigation, which included the case diary statements of prosecution witnesses, charge sheet was filed on 31.8.1990 before Sessions Judge, Bilaspur, whereafter the records were transferred to the Court of Special Judge (1st Additional Sessions Judge), Raipur for disposal according to law. 4. Initially on 26.10.1991, the Special Judge framed charged for commission of offence under Section 161 IPC and Section 5 (2) of the Prevention of Corruption Act. Later on, vide order dated 7.5.1993, the charged were altered to offence under Sections 7, 13 I (d), 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act of 1988"). After examination of sonie of the prosecution witnesses, vide order dated 15.7.1999, the trial Court again altered the charges and .^s^> ^A"^ ^ instead of charges under Section 7 & 13 (1) (d) read with Section 13 (2) of the Act of 1988, charges were altered to Section 161 of IPC and Section 5 (1) (d) read with Section 5 (2) of the Act of 1947. The appellant abjured the guilt. 5. In order to prove its case, the prosecution examined Chatur Singh (P.W.l), D.N. Bille (P.W.2), R.R.Thakur (P.W.3), Shankar Prasad Tiwari(P.W.4), Gangaram Gond (P.W.5), H.N. Shukla (P.W.6), P.D. Bhatt (P.W.7), Jagatlal (P.W.8), the complainant, Satyaprakash Ojha (P.W.9) and N.K. Heeradhar (P.W.10) and produced as many as 15 documents exhibited as Ex.P-1 to Ex.P-15 to prove the charges against the appellant. 6. In his examination under Section 313 of Cr.P.C., the appellant denied the circumstances and incriminating evidence appearing against him and stated that while he was working as Inspector in Janpad Panchyat - Gourela, he received a complaint of Jagatlal for enquiry. He had taken statement of Sarpanch, Jagatlal and Kanhaiyalal, but the enquiry was being delayed as the relevant information register of Gram-Panchyat was not being made available in spite of repeated demand. He further stated that on 12.8.1986, when he was sitting in his office and discussing official matters with Sukhmat, Gangaram and Shanker Tiwari, the Lokayut people reached and caught hold of him. When he was searched, money was not recovered from him. Thereafter, the complainant was searched and from his possession money was recovered, which was shown to have been recovered and seizure made as having been recovered % froni under the table. He did not demand any bribe from Jagatlal nor received any money. He was not required to give any report to Jagatlal. Report was to be submitted to the Sub Divisional Officer. He stated that he is innocent and has been falsely implicated. To impeach the credibility of the prosecution case, the appellant examined Bhosal Singh as D.W.l as the solitary defence witness and also produced as many as 6 docuraents from Ex.D-1 to D-6. 7. Learned trial Court by impugned judgment dated 24.4.2000 has held the appellant guilty of commission of offence under Section 161 IPC and Section 5 (1) (d) read with Section 15 (2) of the Act of 1947 and imposed sentences as mentioned in paragraph 1 of the judgment. 8. The learned senior counsel for the appellant raised manifold contentions and submitted that the impugned judgment and conviction and order of sentence is not sustaina,ble in law. His first and foremost contention raised is that the offence is alleged to have been committed on the date when the Prevention of Corruption Act, 1947 was in force, whereas, charge sheet was filed in the Court of Sessions Judge, which was in turn, transferred to the Special Court at Raipur, constituted under the new Act namely the Prevention of Corruption Act, 1988, which had no jurisdiction to try the offence alleged to be committed uhder the Act of 1947. Learned counsel for the appellant submitted that in respect of the offenses committed under the Act of 1947, by virtue of the .^sss^ .£^^- ^ f€^.^\ I %'^-1:% 1 v-'y ^ provisions contained in Criminal Law Amendment Act, 1952 (hereinafter referred to as "the Act of 1952"), Special Courts were constituted. The earlier Act i.e. the Act of 1947 as well as the Act of 1952 both were repealed by the new Act and the jurisdiction of the Special Judge constituted under the Act of 1952 was saved only in respect of the pending cases. It is further submitted that the Special Judge constituted under the provision contained in Section 3 of the Act of 1988 are erapowered to try the offences punishable under the Act of 1988 and had no jurisdiction to try offenses alleged to have been committed under the Act of 1947. It has been vehemently subraitted that as the new Act i.e the Act of 1988 came into force w.e.f. 19.9.1988 which repealed earlier Act of 1947, neither the Special Courts constituted under the Act of 1952 nor Special Court constituted under Section 3 of the- Act of 1988 had jurisdiction to try the offence and therefore, the alleged offence could be tried only by a Court of competent Magistrate as provided under the Cpde of Criminal Procedure. Learned counsel for the appellant submitted that as this aspect goes to the root of the matter, the issue regarding jurisdiction of the Court to try the offence, even though, it has been not specifically raised during the course of trial, is being raised for the first time before this Court in the appeal, which is permissible under the law in view of the judgment of Supreme Court in the case ofB.C. Goswami Vs. Delhi Administration1. 1 AIR 1973 SC 1457 T^:'f I ^ '-Vo' 9. In addition to the aforesaid submission relating to the jurisdiction and competence of the Special Judge to try the offence and convict the appellant under the impugned judgment of conviction and order of sentence, learned Sr. counsel has made elaborate submissions on the merits of the case as well. Learned counsel for the appellant contended that the prosecution has failed to prove beyond reasonable doubt demand, acceptance or recovery of illegal gratification and in the absence of which, the conviction of the appellant is unsustainable in law. Elaborating his submissions on the aspect of demand, leamed counsel for the appellant argued that the contents of the compliant (Ex.P-2) tested on the evidence of the complainant- Jagatlal (P.W.8) and the attending circumstances, disclosed and proved by the prosecution witnesses^do not inspire confidence in view of the material and inherent contradictions with regard to the motive. It is argued that the complainant is an accomplice and looking to the degree of complicity, as he says that in the past, he had given Rs.50/-, in the absence of any corroboration, coupled with the serious contradictions with regard to motive behind such demand, the demand itself is rendered doubtful. 10. Learned counsel for the appellant then contended that the prosecution has utterly failed to prove acceptance as there is serious contradiction with regard to the manner in which and the place at which the bribed money is stated to have been given to the appellant by thecomplainant. Learned counsel for ,/y^^ ff' - j i;;A-% i -^sal<—-'"\,;^ ^.~ v>-->.,. ...-•':'' '"^r^a^" •^t the appellant argued that the testimony of independent panch witnesses is not at all corroborated by the testimony of other witnesses including the complainant with regard to the place where bribed money was given to the appellant. He further submitted that there are two sets of prosecution evidence in respect of the entire episode of trap, running completely contrary to each other and one excluding the other. He argued that the entire case of the prosecution falls to the ground in view of repeated statement of the complainant Jagatlal (P.W.8) in his deposition that the money was given to the appellant, 20 days after the date on which complaint (Ex.P-2) was submitted, whereas according to the case of the prosecution, complaint (Ex.P-2) was submitted on 12.8.1986 and on that date itself, the trap was arranged and money is alleged to have been given and fhen recovered from the appellant in the block office at Gourela. Learned counsel for the appellant argued that if the money was not given on the date, trap is alleged to have been laid, and the money is said to be recovered, a grave doubt is created and entire case of the prosecution becomes highly doubtful. 11. It is next urged that the prosecution has completely failed to prove recovery either from the appellant or from at his instance. Learned counsel for the appellant argued that even according to the prosecution, the currency notes was recovered from under the table cloth of the table and not from the possession of the appellant. He submitted that the complainant says that 10 the currency notes was recovered from the pocket of the appellant, whereas independent panch witnesses gave altogether different story of the place where from it was recovered. Further submission of learned counsel for the appellant is that in the absence of any memorandum of recovery recorded by the investigating officer, case of the prosecution that the bribed money was recovered at the instance of the appellant itself becomes doubtful and could not be accepted. According to learned counsel for the appellant, the evidence led by the prosecution is highly contradictory on all material aspects, therefore, neither demand nor acceptance is proved therefore, the appellant could not be convicted only on the basis of positive nature of colour test of phenolphthalein solution, particularly when the seized articles including seized sealed bottles and bribed money were not produced during course of trial in spite of specific directions of the Court and the articles produced under the case number were found relating to some other case of trap and thus, in a case of false implication, as the complainant had an axe to grind with, particularly when the coraplainant himself stated that the money was paid 20 days after the date on which the complaint was made and trap was arranged and money alleged to be recovered by the prosecution. It is lastly submitted that even if it is found that the appellant is guilty of commission of offence, considering the fact that at the time of alleged commission of offence the appellant was 30 years old and has undergone agony of trial and the matter is almost 24 years old, considering the amount 'ti. /^^ sfe^^ £' 11 ^^'^ which is alleged to have been given in bribe and in the totality of the circumstance, the sentence of imprisonment is liable to be reduced. In support of his submissions, learned counsel for the appellant relied upon in the cases of T. M. Joseph Vs. State of Kerala2, Ramesh Gupta Vs. State of M.P.3, Aditva Nath Pandev Vs. State of U.P.4 and State of Maharashtra Vs. Rashid Babubhai Mulani5 . 12. On the other hand, learned counsel for the State supported the impugned judgment of conviction and order of sentence and raised a preliminary objection with regard to the first contention regarding jurisdiction by submitting that such an objection relating to jurisdiction was not raised all through during the trial and therefore, such an objection could not be taken at the stage of appeal during the course of argument. Learned counsel for the State submitted that the Special Judge constituted under Section 3 of the Act of 1988 had jurisdiction to try offense alleged to have been comraitted when the Act of 1947 was in force in cases where challan is filed affcer completion of investigation, after coming into force of the new Act i.e the Act of 1988. He further submitted that the aforesaid technical argument is liable to be rejected as the appellant has failed to show any prejudice caused to him. It is then submitted that in so far as demand is concerned, the complainant Jagatlal (P.W.8) has clearly proved that the appellant had 2 1993 Suppl.(l) SCC465 3 (1995) 5 SCC 320 4 (2000) 9 SCC 206 5 2006 AIR SCW 162 12 i 8.—. ^ '^&^ '%.. ^s^/ '^ ....^ demanded Rs.150/- from him for giving him report in the matter of enquiry on his compliant regarding award of contract of fishing. Learned counsel for the appellant submitted that false implication, as his defence, is not proved from the evidence on record or from any other circumstances established from the evidence on record. He further submits that/the evidence of complainant is natural and coherent and does not suffer from any material contradiction or omissions so as to disbelieve his statement regarding demand of bribe by the appellant. It is proved from the circumstances and documents seized during fhe course of investigation that the appellant was holding enquiry on the complaint made by the complainant. It is also submitted that the independent panch witnesses R.R. Thakur (P.W.3) has clearly stated that the appellant received the money from the complainant which is supported by the testiniony of N.K. Heeradhar (P.W.10), the investigating officer. Therefore in his submission, even if the complainant and another witness have given a little different version, the exact place where the money was tendered, the same is not so serious contradiction as to completely dislodge the case of the prosecution. He further submits that the money was recovered at the spot on the signal given by the complainant and it was found on the office table of the appellant which is proved by the witnesses. His submission is that the colour test having turned positive clearly shows that bribed money had come in the hands of the appellant, leaving traces of phenolphfhalein, on account of which, when his fingers were dipped in the solution 13 of sodiura carbonate, the same turned pink. Learned counsel for the State submits that this is a clinching evidence which clearly connects and proves beyond reasonable doubt that the appellant had accepted the bribe from the complainant and therefore, notwithstanding minor contradictions and omissions, the evidence of demand and acceptance of recovery prove beyond all reasonable doubt, commission of offence by the appellant. Learned counsel for the State relied upon the decision in the cases of M.0. Shainsudhin Vs. State of Kerala6, Central Bureau of Investieation Vs. Subodh Kumar Datta and another7, Arun Ku. Pandev Vs. State of M.P. decided on 16.6.2010 Jn Cr,A, N0,159/1997, Ghunjiy^^am Gavade Vs. State of Madhva Pradesh 8. 13. I have considered the rival submissions made by learned counsel for the parties and perused the records 14. Before dealing with the first submission of learned counsel for the appellant relating to the competence and jurisdiction of the Special Judge to try the offence, the preliminary submission of learned counsel for the State that the issue could not be raised for the first time before this Court in appeal is required to be dealt with. True it is, that such an objection with regard to the jurisdiction and competence of the Special Judge, who tried the appellant for alleged commission of offence, was not specifically raised for consideration of the learned trial Court and from the 6 1995 (3) SCC 351 7 AIR 1997 SC 869 8 2009 (73) AIC 366 (C.G.H.C.) 14 M- ^.... judgment of learned ti-ial Courf also, it is not reflected that any such objection was raised, yet, since the objection relates to a pure question of law and goes to the root of the matter as it relates to the very jurisdiction of the Court which tried the offence, in my opinion, the objection does not merit acceptance. In the case of B.C. Goswanii (supra), an argument was raised, though for the first time, in the Supreme Court that the statutory presuraption under Section 5 1 (d) of the Act was not available. The same was allowed to be raised and was, in fact, considered on merits and it was held as under. "8.......No doubt, this point was not raised in the courts below and it also escaped the attention both of the Special Judge and the High Court. The decision in R.C. Mehta v. State of Punjab1. was apparently not brought to the notice of the courts below. But being a question of pure law which goes to the root of the matter relating to the appellant's conviction under Section 5(l)(d) and Section 5(2) of the Prevention of Corruption Act, this Court would be fully justified in taking notice of this argument.?\. ...... 15. The reliance placed on the decision of this Court in the case of Arun Kumar Pandey (supra) is misconceived as in that case, this Court, applying the principles laid down in the case of M.W. Mohiuddin vs. State of Maharashtra9 found that though the issue was raised for the first time, serious prejudice was caused and the matter related to violation of constitutional guarantee. That decision is not an authority for the proposition ^ (1995) 3 SCC567 15 that under no circumstances, an objection relating to jurisdiction and competence of the Court to try the offence could be raised unless it was raised at the first instance before the trial Court. The other decision rendered in the case of Ghunnu Ram. Gawade (supra) is also not applicable and is distinguishable on facts as the issue relating to irregularity in investigation had cropped-up for consideration and in the peculiar facts and circumstances of the said case, it was held that as the alleged irregularity could not be said to have caused any prejudice, trial would not be vitiated. The prejudice based argument has no application in the case as the appellant has raised a very basic issue which goes to the root of the matter and therefore, applying the principles laid down by the Supreme Court in the case of B.C. Goswami(supra), the objection cannot be sustained. 16. The edifice of the submissions relating to competence of the jurisdiction of the Special Court to try the offence in the present case rests on the twins submissions, ftrstly- that the jurisdiction of the Special Judge constituted under the Act of 1952 is saved only in respect of pending proceedings as provided under Section 26 of the Act of 1988 and^secondly - that the Special Courts constituted under Section 3 of the Act of 1988 would have jurisdiction to try the offences committed under the Act of 1988. In the considered opinion ofthis Court, the issue is no longer res-integra and has been conclusively determined and set at rest by the Supreme Court in its ^y^ ^.'\.1' 'ff // ^y 16 judgment in the case of Nar Bahadur Bhandari and another Vs. State ofSikkim & Ors.lo,therein the cases were registered by the CBI on