1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4223 OF 2010 IN CRIMINAL APPEAL NO. 418 OF 2010 Narayan Rajaram Wagh, Aged 55 years, Occupation Government Service, At present working as Assistant Sub Inspector, M.I.D.C. Waluj Police Station, Waluj, Taluka and District Aurangabad Appellant V E R S U S The State of Maharashtra Respondent Mr. Rajendra Deshmukh, Advocate for the appellant Mr. S.N. Kendre, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 22nd October, 2010 ORAL JUDGMENT 1. The applicant / appellant is seeks suspension of his conviction in Criminal Appeal No. 418 of 2010. 2. The appellant and one more person were charged under Section 7, 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988. After the trial, the learned Judge of the trial Court convicted both, the appellant and the other accused, for the above mentioned offences. They were both ordered to suffer substantive sentences and to pay fine amounts etc. This appeal is filed against the Judgment of conviction and sentence. 3. Soon after the appeal was filed, the same was admitted, and the appellant was released on bail by suspending his substantive sentence. 4. Very rarely the Court concedes to such request and the law on this subject is now settled through the Judgment of Supreme Court in 2 the case of State of Punjab v. Navraj Singh (AIR 2008 SC 2962). In this Judgment, the Supreme Court held that in cases under the Prevention of Corruption Act, suspension of the conviction during the appeal should be granted only in very exceptional cases. 5. The question is, whether appellant is in a position to secure acquittal in this appeal? I think, the appellant would probably succeed in doing so. The learned Advocate appearing for the appellant took me through the deposition of the prosecution witness No. 1, who is the complainant. This was a usual case of trap laid by the Anti Corruption Bureau to catch the offenders red handed. The prosecution witness No. 1 stated that the appellant, who was then working as Assistant Sub-Inspector of Pundlikwadi Police Chowki, had approached him and had threatened him that he would arrest him on account of a complaint that was lodged by the complainant’s wife against him. The complainant stated that the appellant then demanded a bribe of Rs.2,000/- from him for showing him favour and for not causing his arrest in the case. The complainant said that he agreed to pay a bribe of Rs.1500/- and initially handed over Rs.200/- to the appellant. He said, on next day, he agreed to pay remaining amount of Rs.1300/-. In the meantime, he approached the Anti Corruption Bureau and the trap was laid. However, the complainant resiled from his previous version while narrating the events particularly that took place at the time of trap while deposing before the trial court. He said, when he went to the Police Chowki, he found that the appellant and the other accused there. He said, the appellant asked him, whether the complainant had brought the money. He said, to this, he answered in affirmative, and then, he said that he handed over the amount to the other accused. He thus resiled from his earlier statement that at the direction of the appellant he had handed over the remaining amount of Rs.1300/-, which were the tainted currency notes, to the other accused. 3 6. In the cross-examination, he further damaged the prosecution case by saying that he owed Rs.2,000/- to the other accused. He said, he and the other accused had certain business transaction and he was trying to pay his dues to the other accused by handing over the tainted currency notes to him. In view of this, the prosecution declared this witness as hostile one and cross-examined him. Although the another prosecution witness, the shadow panch, narrated the incident as per the prosecution case, it is unlikely that the case would survive on the basis of his solitary statement. Corroboration in such a case on all material particulars is required. (Pannalal Damodar Rathi v. State of Maharashtra – AIR 1979 SC 1191). In view of this lapse in the prosecution case, there is strong possibility that the appellant might be able to secure acquittal in this appeal. So, in my view, this is one of the exceptional cases where stay of conviction can be ordered. 7. There is one more reason why I consider this is an exception case, where I should exercise my discretion to issue necessary order suspending the order of conviction. This case has a checkered history. In this case, the charge-sheet was initially filed in the year 2002. Thereafter, the prosecution led its entire evidence. The last witness of the prosecution was the officer who had accorded sanction for prosecuting the appellant and the other accused. During the cross-examination of this witness, he admitted that he had no authority to grant sanction for prosecuting the appellant and other accused. Thereafter, the prosecution closed its case. The learned Judge of the trial Court then recorded the statement of the accused under Section 313 of Code of Criminal Procedure. Thereupon, the learned Judge even asked the accused, whether they wanted to enter their defence. When the answer came in negative, the learned Judge of the trial Court proceeded to hear the submissions on merits. The learned Judge held specifically that the sanction for prosecuting the 4 appellant and the other accused was defective, because the witness admitted having no authority to grant such sanction. But the learned Judge, instead of acquitting the accused, held that the proceeding should be dropped and the appellant and the other accused should be discharged. He passed this order after referring to a Judgment of Supreme Court in the case of State of Tamilnadu v. M.M. Rajendran (1988 (9) SCC 268). The prosecution then was allowed to file an additional charge-sheet by way of the additional material. The prosecution was allowed to put forward a new case that after the discharge of the appellant and the other accused, the Anti Corruption Bureau sought fresh sanction from the competent authority placing before it the prosecution papers. They said that they were obtained a fresh sanction for prosecuting the appellant and the other accused. Thereafter, a fresh trial commenced against the appellant and the other accused, and ultimately, on the basis of a grossly defective prosecution evidence, the learned Judge recorded the order of conviction and sentence. 8. This peculiar feature of this case prompts me to use my discretion in favour of the appellant to suspend the order of conviction. ORDER 1. Application is allowed. 2. The conviction of the applicant / appellant under Sections 7, 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988, as recorded by the learned Special Judge, Aurangabad vide impugned Judgment and order dated 1st October, 2010 in Special Case No. 20 of 2008 is suspended / stayed till disposal of the appeal. ( A.V. NIRGUDE, J. ) SRM/ca/4223/10/221010/ok 5