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CRIMINAL APPEAL No.08 OF 1993
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Against the judgment and order dated 3.12.1992 passed in
Special Case no.36 of 1986 by Shri P.N.Yadav, Special
Judge, Vigilance, South Bihar, Patna.
—
RAZA IMAM RIZVI——————————(Appellant)
Versus
STATE OF BIHAR————————— (Respondents)
—
For the appellant: Mr. Shakeel Ahmed Khan,
Sr. Advocate, with
Messrs. Ajay Kumar No.I,
Md. Mushtaque Alam,
Syed Zafar Haider
Humayou Ahmad Khan,
For the Vigilance: Mrs. Anita Sinha,
Sp.PP (Vigilance)
P R E S E N T
THE HON’BLE MR. JUSTICE KISHORE K. MANDAL
—
Kishore K. Mandal, J: The present appeal arises out of and is
directed against the judgment and order dated 3rd December,
1992 passed by the learned Special Judge, Vigilance (South
Bihar), Patna in Special Case no.36 of 1986, whereby the
appellant has been found guilty under Section 161 of the
Indian Penal Code and sentenced to undergo rigorous
imprisonment for 01 year. The learned trial court has
further found the appellant guilty under Section 5(2)
read with Section 5(1)(d) of the Prevention of Corruption
Act, 1947 and sentenced to undergo rigorous imprisonment
for 01 year and was also imposed a fine of Rs. 5000/- and
in default thereof to undergo rigorous imprisonment for
six months.
2) The present case germinates out of the complaint
(Ext.12) lodged by one Nagendra Pd. Singh (P.W.13), a
retired officer of the Excise Department, which was
subsequently treated as an F.I.R. (Ext.3). As per the
prosecution case, the appellant during the relevant time
was posted as the Under Secretary in the Department of
Excise, Government of Bihar, Patna, and as such was a
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public servant. The complainant (P.W.13) had retired from
the post of Superintendent of Excise sometimes in the
year, 1984 and was facing a departmental proceeding which
was pending consideration before the government and on
account of such pendency of the proceeding his payment
of full amount of retrial dues was/were withheld. It is
the prosecution case that the complainant (P.W.13) wanted
that the proceeding pending against him be dropped and he
should be paid the full amount of post retrial benefits.
It is an admitted position that the complainant was getting
provisional pension on account of the pendency of the
proceeding.
3) According to the prosecution, the appellant
demanded bribe/illegal gratification to the tune of
Rs.25000/-(twenty five thousand) for doing his work
relating to pension, gratuity and also the departmental
proceeding. It was made known to the complainant (P.W.13)
by the appellant that the alleged amount of bribe/illegal
gratification shall be shared by different officers of
the department including the appellant. The complainant
expressed his inability to part with such a huge amount
whereafter the appellant is said to have agreed to favour
him on payment of a sum of Rs. 2000/-(two thousand) as
bribe. Such a demand of bribe/illegal gratification by the
appellant was made on 25.11.1986. The complainant (P.W.13)
was not ready to even pay the same and as such he
approached the officials of the Vigilance Department on
25.11.1986 and filed his complaint (Ext.12) with the
D.I.G., Vigilance, Patna, who, vide his endorsement
(Ext.2/2), instructed the Officer In-charge of the
Vigilance Police Station (P.W.3) to take appropriate
action. Further the prosecution case is that one Sri
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Raghubir Prasad, a Vigilance Officer, (P.W.1) was entrusted
the job of verification of allegation vide an endorsement
(Ext.2/3) on the complaint. Thereafter, it is alleged,
Sri Raghubir Prasad (P.W.1) accompanied the complainant on
the same day to prima facie verify the allegation
levelled by the complainant in his complaint. It was
recess time at the Secretariat, the complainant in
presence of Shri Raghubir Prasad (P.W.1) met the
appellant within the precinct of the Secretariat, who once
again demanded the bribe/illegal gratification to get his
work favourably disposed of in the government. It was
agreed that the same shall be paid tomorrow. On making such
verification Shri Raghubir Prasad (P.W.1) submitted his
verification report (Ext.1) on the same day to the
Vigilance authority concerned. After consideration of the
said report, the authority of the Vigilance department
directed for registration of a formal F.I.R. and
accordingly F.I.R. (Ext.3) was drawn up on the same day
and a raid/trap team was organized to lay a trap on the
following day in order to arrest him red handed while
accepting the bribe/illegal gratification so demanded by
him. The trap team was comprised of Sri Ramshray Lal,
Dy.S.P. (P.W.5), Raghubir Prasad, Inspector (P.W.1), Reyaz
Ahmad, Sub Inspector (P.W.2), Jainandan Singh, Inspector
(P.W.4), Pramod Kumar Singh, Assistant Sub-Inspector
(P.W.9), G.Hembrum, Sub Inspector (P.W.10) and the
complainant (P.W.13). On 26.11.1986 the said team assembled
in the office of Ramshray Lal, Dy.S.P. (P.W.5), where the
complainant (P.W.13) produced twenty G.C. notes of
denomination Rs.100/- each before P.W.5 and they were
returned to him after being treated with Phenolphthalein
powder and their numbers were noted down
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vide the memorandum (Ext.4). Jainandan Singh (P.W.4) was
given the role of a shadow witness (watcher). He was
directed to ensure the overhearing of talks between the
complainant and the appellant and thereafter to clean his
face with handkerchief as soon as the bribe/illegal
gratification is demanded, tendered and accepted so that
the other members of the raiding party available in and
around the appellant could capture him red-handed. The
prosecution case further is that the team proceeded to the
Secretariat at about recess time. The appellant came out
from his office and after locating the complainant
sitting in a Car proceeded towards him and sat down beside
him on the front seat of the Car and thereafter, it is
alleged, the complainant, as per agreement, handed over
the tainted G.C.notes to the appellant, which was
accepted by him. The appellant counted that amount and
kept them in the pocket of his full paint. On seeing the
accused accepting the amount the shadow witness (watcher)
(P.W.4), who was standing close by, gave the pre-determined
signal and thereafter the members of the trap team
immediately rushed and surrounded the appellant. The
leader of the team Ramashray Lal (P.W.5) thereafter
disclosed his identity and challenged the appellant that he
had demanded and accepted the bribe/illegal gratification
from the complainant (P.W.13). The accused appellant
became surprised and he was not able to speak anything.
The incident, according to the prosecution had taken place
within the precinct of the Secretariat and as such
attracted a crowd and out of the said crowd two persons,
namely, Dilip Jha (P.W.11) and Vijay Kumar (P.W.12) were
picked as independent witnesses and, it is said, in their
presence P.W.4 searched the person of the appellant. In
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course of the search the aforesaid currency of notes
amounting to Rs.2000/- were found and recovered. Such
recovery was made from the left pocket of the full paint
(trouser) which the appellant was wearing at that time.
The further case of the prosecution is that in order to
avoid the unsavory situation the appellant was taken to the
office of the Dy.S.P. (P.W.5), where the seizure memo
(Ext.5) was prepared after undergoing the process of tests
and sealing. In order to confirm that the appellant
received the said bribe, it is alleged, the seized notes
were compared with the numbers of notes already mentioned
in the pre-determined memorandum (Ext.4) and they were
found to be identical. The fingers and the pocket of the
full pant of the appellant were also treated with the
solution whereafter the solution turned pink.
4) The investigation was whereafter taken up and
Manoranjan Kavi, Inspector, (P.W.14) was made the
Investigating Officer of the case. Upon conclusion of the
investigation the chargesheet was made and thereafter the
cognizance was taken. The appellant denied the allegation
and claimed to be innocent and hence the trial.
5) At the trial, the prosecution, in order to
prove the allegation/charge got examined altogether 15
P.Ws. P.W.1 Raghubir Prasad is the Vigilance Officer, who
is also the verifier of the complaint. He has proved the
verification report (Ext.1). Reyaz Ahmad, Sub Inspector,
(P.W.2) is a police officer of the Vigilance department,
who has been tendered by the prosecution. Arbind Prasad,
Officer In-charge of the Patna Vigilance Police Station,
(P.W.3) is not the member of the trap team. He has proved
the formal F.I.R. (Ext.3), Jainandan Singh, Inspector,
(P.W.4) is an officer of the Vigilance Department and is a
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member of the trap team/party. Ramshray Lal (P.W.5) is the
Dy. S.P. in the Vigilance Department and under whose
leadership the entire team worked and the trap was laid.
Subrato Gupta, (P.W.6) is the Senior Scientific Officer,
Forensic Science Laboratory, who has proved the laboratory
report (Ext.9). Thakur Bishnu Shankar Singh (P.W.7) is
the Senior Law Officer, Law Department, who has proved
the sanction for prosecution of the appellant (Ext.10).
Surnedra Kumar Singh (P.W.8) is the Registrar of the
Excise Department, who has proved the government files
relating to pension (Ext.11) and departmental proceeding
(Ext.11/1). Pramod Kr. Singh (P.W.9), who is the Vigilance
Officer, has been tendred. G.Hembrum (P.W.10) is the Sub
Inspector of the Vigilance, who is member of the trap team.
P.W.11 Dilip Jha and P.W.12 Vijay Kumar are two independent
witnesses, who had been picked up by P.W.5 from the members
of the mob assembled around the scene of occurrence, who
are said to be the witnesses of the seizure memo. Nagendra
Pd. Singh (P.W.13) is the complainant. Manoranjan Kavi
(P.W.14) is the Vigilance officer, who took up the
investigation soon after the trap was laid. Sardanand Singh
(P.W.15) is another Vigilance officer, who had taken charge
of the investigation of the case at later stage.
6) Learned counsel for the appellant while assailing the
impugned judgment and order has submitted that the
charge/allegation leveled against the appellant has not
been proved beyond all shadow of doubt. While assailing
the judgment under appeal the learned counsel has made the
following submissions:
i) There was no occasion for the appellant to demand
the bribe/illegal gratification.
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ii) The recovery/seizure of the notes given as bribe
from the possession of the appellant is not free from
doubt in view of the several circumstances emanating
from the evidence.
iii) The sanction accorded by the authority permitting
the prosecution of the appellant (Ext.10) is
mechanical as the same does not deal with all aspects
of the matter.
7) While elaborating on the first point, learned
counsel for the appellant draws attention of the court to
Exts.11 & 11/1. Ext.11 is the government file relating to
the pension of the complainant (P.W.13). Learned counsel
for the appellant submits that the said file was dealt with
by the appellant on 28.5.86, in which he made his notes as
per rule and thereafter it went to the higher authority
concerned for consideration. Ext.11/1 is the file which
deals with the departmental proceeding of the complainant.
Learned counsel for the appellant in reference to the
notings made in the aforesaid files of the government
states that the appellant as the Under Secretary in the
said department had made his notes and/or recorded his
opinion thereon on 3.10.86 itself and thereafter the files
were placed before the other higher authority for
consideration. Relying on these notings appearing in the
files (Ext.11 & 11/1), it has been submitted that there was
prima facie no occasion for the appellant to demand
bribe/illegal gratification and correspondingly the
complainant being a retired officer of the same department
had no occasion to oblige the appellant by paying the
alleged bribe so demanded by the appellant. Reference in
this regard was made to the judgment of Apex Court rendered
in Stat vs. K. Narasimhachary (2006 Cri.L.J.518).
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8) Learned counsel for the appellant submits that
admittedly the records reveal that the complainant, who
retired 3 years ago (sometime in 1984), was an officer of
the said department and he must have known the
procedure(s) which is/are adopted in pushing the file in
the Secretariat. Based on these facts appearing on the
record, particularly, the contents of the complaint
(Ext.12), learned counsel for the appellant submits that
the demand of bribe made by the appellant as such is not
free from doubt as, admittedly, the appellant acting as
Under Secretary in the Excise Department dealt with the
files of the complainant (P.W.13) much prior to 25.11.1986.
9) Highlighting the second point, learned counsel for
the appellant submits that in such a case where trap is
being laid and all the officers of one department are
involved the presence of independent witness from all
corners is the prime requirement of law in order to
convince that the occurrence had taken place in the manner
depicted by the prosecution.
10) In the present case the incident , admittedly, had
taken place within the premises of the Secretariat of the
government and it was the recess time. According to the
prosecution, the trap team had reached the place (office
premises) at about 1.00 O’ Clock in the noon. At about
1.10 O’ Clock the appellant emerged from the office and
straightway proceeded towards the Car of the complainant
(P.W.13) where he was sitting at the driver seat. The
prosecution case is that the appellant reached near the
Car, opened its gate and sat just by the side of the
complainant (P.W.13) on the front seat and the bribe/illegal
gratification was tendered and received inside the car.
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11) As per the evidence on record although the search
was carried out at the place of occurrence but the seizure
list/seizure memo was not prepared at the said place. The
evidence of Ramashray Lal (P.W.5), who was the Dy. S.P. and
leading the raiding team, is to the effect that the
raiding team remained in operation at the scene of the
occurrence for about 3 hours. It further appears from the
evidence of this P.W. that a detailed entry with regard to
the event taking place at the place of occurrence was
incorporated by him in the diary (Ext.A.). Learned counsel
referring to the evidence of P.Ws.11 & 12 (independent
witnesses selected by the prosecution at the place of
occurrence) has submitted that these P.Ws. have stated that
no seizure of any article was made and signature of
witnesses including him/them obtained thereon at the place
of the occurrence. They were asked to reach the Vigilance
Office at about 4 O,Clock in the evening and all the post
trap formalities were carried out at the Vigilance Office
after 4 P.M.
12) P.W.11 in his examination in chief has stated that
the trap team after arrest of the appellant took him to the
Vigilance Office and they (independent witnesses) were
directed to come to the said office. He has admitted that
he went to the Vigilance Office on a Scooter. Similar is
the statement of P.W.12 Vinay Kumar in para – 2 of his
deposition. Referring to the evidence of Manoranjan Kavi
(P.W.14) as set out in paras – 5 & 6 of his deposition, it
has been submitted that this P.W. being an officer/I.O. of
the department visited the Vigilance Office (Headquarters)
on 26.11.1986 at 6.00 P.M. but no document concerning the
case including the material exhibits was/ were handed over
to him. No documents including the trap seizure memo
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was/were handed over to him. In Para – 6 of the deposition,
this witness appears to have stated that on the next day
(26.11.1986) at 10.30 O’Clock, he met with the leader of
the trap team (P.W.5) but on this occasion also no document
including the seizure list and material exhibits concerning
the case was/were handed over to him.
13) Learned counsel for the appellant referring to the
supplementary C.D. (Ext.A) prepared by the P.W.4 at the
place of occurrence (Secretariat Premises) submits that as
per the contents of this Exhibit as also somewhat consistent
evidence of the members of the trap team including that of
P.W.5 indicate the trap team remained operative at the place
of occurrence for about 3 hours but surprisingly the
seizure list(s) was/were not made and prepared there.
According to the counsel, in all fairness, there was
sufficient time to conduct the post trap paraphernalia at
the place of occurrence itself and to get the seizure memo
made and signed by the witnesses including P.Ws. 11 & 12
(independent witnesses). According to the appellant, this
creates a serious doubt about the veracity and
truthfulness of the process of the trap devised by the
authorities.
14) Learned counsel for the appellant has further
questioned the independent status of the two independent
witnesses (P.W.11 & 12). Referring to the evidence of
P.W.11 (Dilip Jha) at para 5, it has been submitted that
this P.W. had admitted that the seizure of the currency
notes was not made in his presence at the Secretariat
premises. In para – 4 of his deposition, this witness has
accepted that on the date of occurrence (26.11.1986) he was
an examinee of Master of Arts (M.A.). Similarly P.W.12
has also stated that he had no work in the Secretariat
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on that particular day and, in fact, he had accompanied
one boy who had some job in the Education Department of
the Government. Learned counsel for the appellant has
further submitted in reference to the evidence of this
P.W. (appearing at para -11) that this P.W. had
accepted that he is related to a retired officer of the
same department, namely, Y.N.Sinha.
15) Learned counsel for the appellant draws attention of
this court to the evidence of P.W.5 appearing at para – 4
and P.W.12 appearing at para 7 and submitted that these
P.Ws. have admitted that although a crowd had assembled at
the place of occurrence but there was absolutely no
hindrance put by any member of the crowd in carrying out
the functions and duties of the trap team at the said
place. The trap party although stayed at the place of
occurrence for nearly 03 hours but the appellant was
driven to the Vigilance Office in the company of officials
of the trap team and the independent witnesses (P.Ws. 11 &
12) were instructed to come to the Vigilance Office for
completing the post trap process, that is, holding the
chemical test and preparing the seizure memo/material
exhibits.
16) Learned counsel for the appellant submits that
in such a matter the prosecution has to take care and
precaution while selecting an independent witnesses. While
selecting an independent witness it must be kept in mind
that that witness must be respectable and reliable so
that his credibility may not be questioned and all the
actions taken by the officials of the vigilance department
including recovery, seizure and preparation of post trap
memo(s) remain aboveboard and any suspicion is not
created in the mind of the court.
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17) With regard to the third point no serious arguments
have been advanced by learned counsel for the appellant.
It has only been indicated as one of the points but the
court was not taken to the relevant evidence in this
regard and no further submission was made by learned
counsel for the appellant.
18) Summarizing the evidence on the point, as noticed
above, it has been submitted before this court that, in all
fairness, the prosecution should have completed the
entire process at the place of occurrence, particularly,
considering the fact that the team remained operative at
the place of occurrence (Secretariat premises) for about 3
hours and that there was no hindrance in performance of
their duties by the people assembled at the alleged place
of occurrence and that the evidence of PWs 11 and 12
(independent witnesses) do not inspire confidence as they
admit of suspicion at paces.
19) Learned Special Public Prosecutor appearing on
behalf of the Vigilance Department, on the contrary, has
supported the judgment. According to her, there is
evidence in the shape of P.Ws.1,4,5,11,12 & 13 to indicate
that the complainant (P.W.13) was facing a proceeding and
his post retirement benefits were withheld. The appellant
during the relevant time was posted and working as under
Secretary in the Excise Department, Government of Bihar,
and was definitely involved in the decision making process
so far the work of the complainant is concerned. According
to her, the verification of the allegation was made by
P.W.1 (Raghubir ), who had proved to the effect that the
appellant had demanded the illegal gratification which was
subsequently, on the next date paid to and received by
the appellant by way of illegal gratification. It has been
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further submitted that considering the scenario it was
absolutely nothing unusual in getting the recovery of
G.C.notes effected not at the said place of occurrence by
preparing seizure memo/list and completing the post trap
formalities and instead carrying the appellant and the
witnesses to the Vigilance Office and thereafter conducting
the entire chemical test confirming the acceptance and
recovery of the illegal gratification in order to favour
the complainant. It has further been submitted that
admittedly the appellant was a public servant and the
sanction for prosecution was granted on due consideration
of the materials on record. The sanction order is Ext.10,
which was proved by P.W.7 (Thakur Bishnu Singh ) the Senior
Law Officer of the Law Department, Government of Bihar. It
has also been submitted that P.W.6 (Subroto Gupta) has
deposed before the court and proved the forensic report
(Ext.9). In regard to credential of the two independent
witnesses so produced by the prosecution (P.Ws. 11 & 12),
learned counsel submits that it was just a chance that
these two witnesses were selected by the prosecution,
particularly, the P.W.5 (Ramashray Lal), the leader of
the team. She has further submitted that in their
deposition the appellant has not been able to get anything
to suspect their credential save and except that they were
ordinarily not supposed to be present there on the alleged
date and time of the occurrence and that seizure list/memo
was not prepared at the Secretariat, the scene of
occurrence just after the acceptance.
20) I have considered the submissions made by the
respective counsels and perused the relevant evidence so
produced in support of their submissions.
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21) In this case the two independent witnesses (P.Ws.11
& 12) have been selected by the prosecution. They were,
in the ordinary course of business, not required to be
present at the place of occurrence at the relevant date
and time. It further appears that at least one witness
(P.W.12) has accepted that he is related to one of the
officers of the said department, namely, Y.N.Sinha.
According to the evidence available on the record, the
independent witnesses reached the Vigilance Office not
along with the trap team but on their own and as such
separation of these witnesses from the appellant is
admitted. On these factual grounds emerging from the
record of the present case a shadow of doubt is created
with regard to the recovery of G.C. notes as alleged by the
prosecution. Further there may be a possible situation
that no witnesses at the scene of occurrence was ready to
be a witness of the alleged seizure. As such the two
persons (P.Ws. 11 & 12) were subsequently selected and
they were commanded to come to the office of the Vigilance
and there everything was done and their signatures on the
documents(post trap material exhibits etc.) was/were taken.
22) In such a case of trap and recovery of the tendered
amount presence of independent witnesses from all
respects is the requirement of law as all others involved
are personnels of the department. The witnesses so produced
as independent witnesses must not only be independent but
they must be of such a category that what they depose
before the court cannot ordinarily be questioned or
doubted. The prosecution must in such matter seriously
endeavour to secure really independent and respectable
witnesses so that his/their evidence in regard to every
step of trap inspire confidence and the court is not
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left in any doubt. This is a safeguard for protection of
public servant. Reference in this regard may be made to
the case of Raghbir singh vs. State of Punjab, 1976 Cri.
L.J. 172,.
23) Secondly, in all fairness, the entire process
should have been completed at the place of the occurrence
itself. Admittedly, the trap party remained at the scene
of the occurrence for about 3 hours and incorporated
certain facts in the supplementary diary (Ext.A) but
neither the seizure was made there and got signed by the
witnesses nor post trap chemical test was carried out and
memorandum prepared and signed at the place of occurrence.
The evidence on record of the independent witnesses (P.W.11
& 12) cannot readily be accepted in view of the fact that
they admitted that per chance they were available at
the precinct of the Secretariat as they had absolutely no
work in the government office (Secretariat) and that they
were instructed to come to the Vigilance office and as such
they subsequently reached the vigilance office on their
own. There is no evidence on record to show that they
continued to remain with the trap team and the appellant
from the place of occurrence (Secretariat) to the
Vigilance Office, where the remaining formalities of
chemical test, seizure etc., were carried out by the
Vigilance Department and documents prepared and signed. As
noticed above, there was no convincing reason on the part
of the appellant to demand bribe as he had already dealt
with his files earlier. The shadow of doubt created on the
prosecution story further turns darker considering the
fact that Exts. 11 & 11/1 do indicate that the appellant
had, much prior to the date of occurrence, dealt with the
files concerning the complainant and the complainant
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being a retired officer of the department had full
knowledge of the procedures, which are adopted in the
government office in order to take a decision by the
government. It has therefore been rightly submitted before
this court that the demand of illegal gratification and/or
undue reward made by the appellant and the agreement on
the part of the complainant to give the same does not
inspire confidence and/or becomes doubtful.
24) This court while taking the said view has also taken
into accounts the submission advanced by the learned
counsel for the appellant that P.Ws. 11 & 12 can neither be
said to be really independent witnesses or respectable
independent witnesses. At least one of them was related
to the officer of the department and as such, to some
extent, cannot be said to be the independent.
25) In view of the discussions made above and the
suspicion that has arisen in the mind of this court, this
court is of the view that the prosecution has not been
able to prove the charge levelled against the appellant
beyond all reasonable shadow of doubt.
26) In the result, this appeal is allowed. The
conviction and sentence recorded against the appellant is
set aside. He is discharged from the liability of the bail
bonds.
(Kishore K. Mandal, J.)
Patna High Court,
Dated, the 25th April, 2008,
NAFR/(Neyaz)