Government Appeal (SJ) No. 16 of 2003 With Criminal Appeal (SJ) No. 368 of 2003 ------- Against the judgment and order of conviction and sentence dated 7.7.2003 passed by Shri Braj Nandan Sahay, Special Judge, Central Bureau of Investigation, South Bihar, Patna in Special Case no. 4 of 1994/R.C. 3(A) of 1994. --------- Govt. Appeal (SJ) No. 16 of 2003 Union of India through Superintendent of Police, Central Bureau of Investigation, Special Police Establishment, Patna ………………. Appellant Versus Jugal Sahay, son of late Neel Kanth Sahay, resident of Ram Krishna Nagar, Police Station – Gaurichak, District – Patna ……………… Respondent Cr. Appeal (SJ) No. 368 of 2003 Jugal Sahay, son of late Neel Kanth Sahay, resident of Mohalla - Ram Krishna Nagar, New Bypass Road, Post Office – Lohia Nagar, Police Station – Gaurichak, District – Patna ……………….. Appellant Versus The State of Bihar through CBI ………….. Respondent ------------ For the Appellant in Govt. Appeal : Shri Bipin Kumar Sinha, Advocate Standing Counsel, CBI For the Appellant in Cr. Appeal : Sarvshri Hare Krishna Kumar, Surendra Prasad Singh & Mahendra Pratap, Advocates For the Respondent In Govt. Appeal : Sarvshri Hare Krishna Kumar, Surendra Prasad Singh & Mahendra Pratap, Advocates For the Respondent in Cr. Appeal : Shri Bipin Kumar Sinha, Advocate Standing Counsel, CBI --------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA --------- 2 Dharnidhar Jha, J. The solitary accused appellant Jugal Sahay was tried by the learned Special Judge, CBI, South Bihar, Patna in Special Case no. 4 of 1994 arising out of RC 3(A)/94 by being indicted of committing offence under sections 7 and 13(2) read with sections 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the ‘Act’). The accused appellant (hereinafter referred to as the ‘appellant’ for the sake of brevity) was found guilty of committing the offence by judgment dated 7th July, 2003 and after being heard on sentence on the same day, was directed to suffer RI for six months on both counts. The appellant appeals to this court. 2. The Union of India through Special Police Establishment, CBI has preferred the connected Government Appeal with the only prayer that the sentence of six months, which was inflicted upon the appellant by the court below under sections 7 and 13(2) read with section 13(1)(d) of the Act was below the minimum sentence prescribed under law, as may appear from section 13(2) of the Act and, as such, this Court should inflict the proper sentence after setting aside the lesser sentence, which was inflicted by the learned trial judge upon the appellant. 3. Because, the two appeals arise out of the same judgment, they have been heard together and are being disposed of simultaneously. 4. Some of the facts are vastly admitted. It is not in dispute that KVP No. 00CC 169905 of the value of rupees ten thousand was issued to late Sita Ram Singh. He died in a train accident on 11.12.1988. The holder of the above KVP had nominated his wife Smt. Godawari Devi, but there was some dispute regarding her name as she also appeared named Smt. Godawari Devi alias Golawari Devi. The claim on maturity of the above noted KVP, which was for a period of five and half years, was to be settled and for that purpose, the son of the deceased holder of the document, namely, Ranjan Kumar Singh (P.W. 7) approached the present appellant, who was working as a clerk in the General Post Office, Patna (GPO) with Form SR 50. This form was filled up by Ranjan Kumar 3 Singh on 23.11.1993 and the LTI of the nominee Smt. Godawari Devi alias Smt. Golawari Devi as per requirement of rules, was to be attested in presence of some gazetted officer and in that light the complainant (P.W.7) took his mother along with the form to the Assistant Medical Officer, Railway Hospital before whom the nominee put her LTI and the same was attested. The filled up Form No. SR 50 along with the photo copy of the above noted KVP with identity slip and death certificate of the real holder was handed over to one Sushil Kumar Singh, P.A. Transit, Administration Section, G.P.O., Patna on 24.11.1993 and acknowledgment was received regarding the application by the G.P.O. by P.W. 7. 5. The further case is that after some entries, like, those in the SBCC- I Register, the form along with its enclosures was handed over to the present appellant on 24.11.1993 and it was pending before him for sanction of payment and issue memo in that behalf as regards the total maturity value of KVP. Likewise, the endorsement was also issued to the deceased accused A.K. Chakraborty to verify the LTI of the nominee who was the wife of the deceased holder of the document late Sita Ram Singh and it is stated, as may appear from the complaint filed by P.W. 7 before the CBI that on contacting the appellant, P.W. 7 was asked to come to G.P.O. on a particular date. The complainant P.W. 7 arrived one day ahead of the scheduled date on which he was asked by the appellant as to why he had come a day earlier but, still took the complainant P.W. 7 to the deceased accused A.K. Chakraborty, who was sitting on a separate table but in the same office hall of the G.P.O. After introducing P.W. 7 to him and briefing him about the job which was required to be done, asked the complainant and assured the said deceased accused A.K. Chakraborty of paying and getting Rs.300 in lieu of the favour which deceased accused A.K. Chakraborty was to dole out to P.W. 7. At that particular time, as may appear from the relevant records and the trap memo, the sleuths of the CBI were also watching the whole exercise from a particular distance by remaining present in the same hall. 4 6. Deceased accused A.K. Chakraborty asked P.W. 7 that he will be arriving at his residence some times in the afternoon, probably at 2.15 P.M. hearing which P.W. 7 and other witnesses, who were examined during trial, retreated to the house of P.W. 7. Deceased accused A.K. Chakraborty is said to have arrived at the right time and after having his tea which was offered to him as courtesy by P.W. 7 in presence of CBI personnel besides P.W. 2 and 6, who were employees of the Excise Department, who had been directed by their departmental heads to accompany the trap team of the CBI as witnesses, deceased accused A.K. Chakraborty obtained the blackish substance which had been stated as Kajrauta (it is generally kept in the house hold for blackening the eye lids primarily of a child born in the family). Thereafter, he blackened the left thumb of the mother of P.W. 7, namely, Smt. Godawari Devi alias Smt. Golawari Devi and got its imprint on the relevant records which was to be submitted as his report in GPO regarding the verification of the existence of said Smt. Godawari Devi and thereafter demanded rupees three hundred which was duly paid by P.W.7. 7. Before the above exercise, as may appear from the evidence of the members of the trap team, when the complainant (P.W.7) was asked to pay Rs.300 for the official duty which was enjoined upon deceased accused A.K. Chakaraborty to be performed, he (P.W.7) was a bit peeved and, as such, contacted the CBI who obtained the written report (Ext.6). Preliminary verifications were done and thereafter a trap team was constituted in which P.Ws 2 and 6 were invited as witnesses who were the employees of the Central Excise Department. Three notes were splashed with the granules of phenolphthalein and before doing that, credibility of the powder was tested by dipping the fingers of the members of the trap team in the water and that pink-colour-water water was kept in a bottle. 8. The trap team was reaching the house of P.W. 7 ahead of the arrival of deceased accused A.K. Chakraborty. The three currency notes of rupee one hundred denominations each were handed over by P.W. 7 to the officers of 5 the trap who noted down the serials number of the notes and after splashing with the granules of phenolphthalein handed them back to P.W. 7 with the instruction to keep the same in lower pant pocket of the right side. As soon as the deceased accused A.K. Chakraborty demanded the money, P.W. 7 brought out the notes from his pocket and handed it over to deceased accused A.K. Chakraborty and while he was in the process of putting it into his own pocket, the trap team caught his hands and dipped his fingers in water which turned pink and, thereafter, prepared the seizure memo. The deceased accused A.K. Chakraborty was arrested and the report was lodged. 9. I have already indicated that after trial the appellant was convicted of the offence for which he was sentenced. 10. The defence of the appellant throughout was that he was innocent and his actions could not attract the provisions either of the two sections and above all, there was no evidence directly connecting him to the receipt of the money or portion of the money for the deceased accused A.K. Chakraborty. 11. Nine witnesses were examined in support of the charges. The learned trial judge held that the witnesses were trustworthy and convicted the appellant as pointed at the very outset of the present judgment. It was contended by Shri Hare Krishna Kumar, learned counsel for the accused appellant that even accepting the facts alleged by the CBI as true, the alleged behaviour of the appellant that he was acting as a settler of bribe for being paid or being received in connection with the discharge of his official duty by deceased accused A.K. Chakraborty, did not create any liability for him so as to warrant any punishment. It was contended that it appears absurd that a reasonable person would be behaving in that manner. It was also contended that no officer of the General Post Office came forward to support any part of the whole incident and that goes to indicate that the whole proceedings were a fix-up against the appellant. It was contended, lastly, that the word ‘obtain’ which was appearing in section 13 of the Act at different places could not be constituted by the facts which were alleged by 6 the prosecution. Appellant had never obtained anything from P.W. 7 and, as such, the findings of the court below were out right fallacious. The contention further was that P.Ws 2 and 6 stated that they were always hired for being witnesses in such proceedings and other witnesses who were examined, were all members of the trap team and their evidence would hardly inspire confidence. It was contended that their evidence have to be rejected as unworthy of credence. The contention further was that the position of a public servant has to be protected and in that connection, a number of decisions were cited before me which are reported in 2008(3) BBCJ 76, AIR 1992 SC 665 and lastly 2006 Cr.LJ 518. 12. Shri Bipin Kumar Sinha, learned Standing Counsel, CBI was referring to some of the evidence adduced by the prosecution and was submitting that it was not that the CBI was choosing or picking up any witness to be dissociated with the trap for witnessing the seizure or the proceedings thereof rather, on request by the CBI any of the departmental heads was free to depute its employees and likewise, as may appear from the evidence of P.W.6 in paragraph 1, the two witnesses namely, P.Ws 2 and 6 were associated with the proceedings of the trap. Reference was made to the evidence of P.Ws 2, 6 and 7 besides evidence of other witnesses who were the members of the trap team from which it may appear, it was contended, that the present appellant was assuring P.W. 7 that if he had paid rupees three hundred to deceased accused A.K. Chakraborty, his work will be done and he was leading the complainant informant P.W. 7 to the table of said deceased accused A.K. Chakraborty for introducing him and assuring him that if he had completed the formalities as was to be done by him in discharge of his official duty, in lieu thereof the complainant was to pay Rs.300. Shri Sinha was placing reliance upon AIR 2004 Supreme Court 960 to submit that showing leniency in sentencing after convicting the accused of committing an offence under the Act was not permissible. 13. It is not denied that the father of P.W. 7 was the holder of KVP No. 00 CC 169905 the maturity value of which was Rupees twenty thousand. It is 7 also not denied that the original holder of the KVP, namely, late Sita Ram Singh had demised and that the due date for making the payment was 17.11.1993, that the nominee was the mother of P.W. 7 and further that there was some defect in the name of the nominee who had been described as Godawari Devi alias Golawari Devi. It is admitted to the larger extent that P.W. 7 was presenting the KVP for encashment after filling duly the form required in that behalf to be submitted in the relevant section of the General Post Office and it further appears from the evidence that P.W. 7 was meeting this appellant on account of the appellant being the person who could have done some part of the table work on payment of maturity amount accruing on KVPs. P.W. 7 has elaborately stated in his evidence that after being pointed out by someone in the General Post Office that it could be the appellant who could be contacted in the above behalf, he met the appellant, who handed him a form and instructed to fill the same and get the attestation of the signature / LTI of his mother and then present it again into his office. He took his mother to the railway hospital and got the LTI of his mother attested there by the Medical Officer of the hospital and after annexing thereto the death certificate of his father, came back to the General Post Officer where he handed over the filled up form with the annexed documents to one Sushil who issued a receipt to him on account of having received the form. Thereafter this witness went to the present appellant to inform him that he had already submitted the form as per his instruction, whereupon the appellant pointed out to P.W. 7 that he shall receive the necessary communication from the post office and, thereafter, he will have to come for other formalities. 14. P.W. 7 stated that after passage of some time and having not received any communication, he came again to meet the present appellant who stated to him that if he was ready to pay Rs.300, his work will be done. The witness stated that he was hurt a lot after having heard about the demand of the appellant and, as such, he went to CBI office and filed Ext. 4, the complaint dated 19.1.1994 and on the same day Bhagwan Singh (P.W. 3) accompanied him up to 8 the General Post Office and met the appellant who stated that he had called him on the next day and not on that day and pointed out to the witness P.W. 7 that he should come with Rs.300 and accordingly he and Bhagwan Singh (P.W. 3) went back to the office of the CBI to re-appear on 20.1.1994. Before doing that, he came again to CBI office where the formalities of putting up a trap were gone through in presence of two witnesses, that’s, P.Ws 2 and 6. Accordingly, P.W 7 and others came to G.P.O. and met the present appellant who again stated as to whether he had brought Rs.300 and after knowing certain facts from the witness (P.W. 7), the appellant told the deceased accused A.K. Chakraborty to go to the house of the witness (P.W. 7) for doing the work where he will be getting Rs.300. Accordingly, the informer-complainant came back to the house along with his companion and said deceased accused A.K. Chakraborty came there at 2.20-25 P.M. and obtained LTI of the mother of P.W. 7 whereafter he wanted the payment of money and accordingly, the three notes of rupees hundred denomination each were handed over to the deceased accused A.K. Chakraborty who was caught while he was putting the notes in his pocket. The verification report with the LTI of his mother was marked Ext. 7. 15. The evidence of P.W. 7 has been corroborated by P.Ws. 2 and 6 who were deputed at the orders of their superior officers of the Central Excise Department on receipt of requisition which was sent by the office of the CBI for earmarking two staff/employees for being associated with the trap and other formalities. In addition to that, witnesses except PWs 2,3,6 and 7 have also supported the whole proceedings which were carried out in course of trap or prior to that. Thus, this appears established from the evidence of witnesses that the appellant was contacted initially for seeking the payment on the matured KVP by P.W. 7 and he was pointing out to the witness (P.W. 7) that he shall have to pay Rs.300 for getting the work done and was also being led to deceased accused A.K. Chakraborty with a request that he should go to the house of P.W. 7 for carrying 9 out the formalities of the identification and verification of the nominee who happened to be the mother of P.W. 7. 16. The contention was that because the appellant was not the direct recipient of money and he was simply said to have solicited the amount for deceased accused A.K. Chakraborty, as such, his act may not be constituting the offence under sections 7 and 13(2) read with 13(1)(d) of the Act. 17. Misconduct of the class, which has been alleged against the appellant, normally, would not have been defined as an offence as it could have been, in the olden days, sufficient for initiating a departmental proceeding for examining the conduct of a public servant like the appellant. But the proliferation of corruption and the recurrence of such incidents in the public offices, which are meant to render services to the general public, were so frequently being reported that the whole scheme of the Act had to be reviewed or revamped by bringing amendments. This is how the scheme of the Act with enlarged definition of public servant and definition of offence with enhancement of sentences were brought into through the amendments which were incorporated by Act no. 49 of 1988. Criminal misconduct has been defined by the same section 13 of the Act which also prescribes the sentence by virtue of sub section (2) appended to it. If a public servant is habitually even normally, by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage as may appear from section 13(1)(d) of the Act, would be indulging into an offence of committing criminal misconduct if he holds a public office. The definition of public servant in sub section 2(c ) in its general term was completely applicable to the appellant as he was in the service of the Central Government and was holding an office which was remunerated by the government for performing public functions which were enjoined upon the present appellant. The evidence on record, specially that of P.W. 7, indicates that the service to be rendered by the appellant to witness PW 7 was purely a public service as his father’s investment had matured and he had to receive the maturity amount that was to be paid by the 10 post office and his evidence shows that there were certain verifications to be done on account of some anomaly occurring in the name of the mother of PW 7. The order of Assistant Post Master, which has been marked Ext. 14 series which is dated 7.1.1994, was requiring the deceased accused A.K. Chakraborty to verify and submit a report in favour of Smt. Godawari Devi alias Golawari Devi as the claimant’s name who had appeared before the postal authorities was Godawari Devi though her name was Golawari Devi. This was the direction issued to deceased accused Chakraborty and this was the direction issued by Assistant Post Master, National Savings Certificate, as may appear from the seal at page 41 of the bunch of list of documents. The connected order which was conveyed to deceased accused A.K. Chakraborty on 19.1.1994 for verification and which appears sent to his office have been marked as Ext. 14. The verification which was done by deceased accused A.K. Chakraborty has been brought on record and stands marked Ext. 7 in its original. Thus, there is sufficient evidence that on the relevant date, i.e., 19.1.1994, deceased accused A.K. Chakraborty had gone to the house of P.W. 7 for verifying the genuineness of the nominee and her real name, which was verified by obtaining LTI or signature, whatever, at the direction of the Assistant Post Master. Evidence indicates consistently, as may appear from the deposition of P.Ws 3 and 7, that this appellant was contacted and he was asking P.W. 7 to cough up rupees three hundred to deceased accused A.K. Chakraborty so as to getting the report submitted favourably for payment of the matured KVP. The evidence of P.W. 7 itself is sufficient to point out that when he had contacted him, this appellant was taking him to deceased accused A.K. Chakraborty and after introducing P.W. 7 to deceased accused A.K. Chakraborty, was informing the said Chakraborty that if he had gone and submitted a verification report, he will get rupees three hundred from P.W. 7. On the first occasion when the appellant was contacted, he was very categorically pointing out to P.W. 7 that the work would be possible only when he paid Rs.300. It may be true that the appellant did not receive money himself. It is also apparent that no money or any 11 part of it was received by the appellant, but the evidence clearly indicated that he was always pressing P.W. 7 for the money to be paid to the person who was performing the duties of a public servant, which duty was enjoined upon him under the rules and prevailing practices. Thus, it could safely be said that the appellant abetted the payment of rupees three hundred as public servant for deceased accused A.K. Chakraborty and, thus, his conviction under section 13(2) read with sections 13(1)(d) of the Act was properly recorded. 18. After having convicted the appellant for the above two offences, the learned trial judge was inflicting a sentence of six months. The date of occurrence was 19.1.1994 and the Act was amended by Act no. 49 of 1988 and, as such, accordingly to the newly amended provision of section 13(2) of the Act on the day on which the occurrence was committed, the minimum sentence was of one year. But, the learned trial judge, without even assigning any reason, was showering the magnanimity of a judge upon the appellant and was passing the sentence of RI for six months, which was, no where, prescribed as minimum sentence. 19. In AIR 2004 Supreme Court 960, State of Andhra Pradesh Vs. V. Vasudeo Rao, the question of inflicting proper sentence was considered and, as may appear from paragraph 28 to 32, after due caution with reference to a few tests also, the Supreme Court was of the view that it was simply against the public policy to inflict minimum sentence or to take a lenient view on the sentence if a person had been found guilty of an offence