BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14/10/2009 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.A.(MD)No.142 of 2000 and Crl.A.(MD)No. 143 of 2000 1.V.A.Chelliah .. Appellant in Crl.A.No.142 of 2000/A1 2.Chinnakkannu .. Appellant in Crl.A.No.143 of 2000/A2 Vs State, rep. by the Inspector of Police, Vigilance and Anti Corruption, Pudukottai. .. Respondent in both
Crl.As./Complainant
Common Prayer
Criminal appeals are filed under Section 374(2) of Cr.P.C.,
against the judgment dated 27.01.2000 passed in Special C.C.No.1 of 1996 by the
learned Special Judge cum Additional Sessions cum Chief Judicial Magistrate,
Pudukottai.
!For appellants ... Mr.R.Shanmughasundaram in both Crl.As. Senior counsel for for Mr.S.Ravi ^For respondent ... Mr.P.Rajendran in both Crl.As. Govt. Advocate (Crl. side) * * * * * :COMMON JUDGMENT
These criminal appeals have been preferred against the judgment dated
27.01.2000 passed in Special C.C.No.1 of 1996 by the learned Special Judge cum
Additional Sessions cum Chief Judicial Magistrate, Pudukottai.
2. The accused were charged under Sections 7 and 13(2) r/w.13(1)(d) of the
Prevention of Corruption Act.
3. The learned Special Judge cum Additional Sessions Judge cum Chief
Judicial Magistrate, Pudukottai was pleased to convict the accused for offences
under Sections 7 and 13(2) r/w.13(1)(d) of the Prevention of Corruption Act and
sentence them as follows:
Accused Offence Sentence
A1 7 and 13(2) r/w.13(1)(d) To undergo rigorous imprisonment for
of the Prevention of two years and to pay fine of Rs.1000/-
Corruption Act i/d.to undergo rigorous imprisonment
for ten months under Section 7 of
the Prevention of Corruption Act and
to undergo rigorous imprisonment for
three years and to pay fine of Rs.2000/-
i/d. to undergo simple imprisonment
for ten months.
A2 7 and 13(2) r/w.13(1)(d) To undergo rigorous imprisonment for two
of the Prevention of years and to pay fine of Rs.1000/- i/d.
Corruption Act to undergo rigorous imprisonment for ten
months under Section 7 of the
Prevention of Corruption Act and to
undergo rigorous imprisonment for three
years and to pay fine of Rs.2000/- i/d.
to undergo simple imprisonment for ten
months.
4. The prosecution case is as follows:
(a) The first accused worked as Village Administrative Officer and the
second accused worked as Village Menial of Kathalur Village of Pudukkottai
District. P.W.1, Elumalai, P.W.4, Veeran, P.W.5, Vellaikannu are brothers and
P.W.6, Nallu is their paternal uncle. All of them are residents of
Akkalnayakkanpatti Village. During March, 1995, they have encroached upon
Government poramboke land and put up huts for their habitation. The first and
second accused visited the said place along with Alagan, another Village Menial
and questioned them on 28.03.1995. The accused dismantled the huts and directed
P.Ws.1,4 and 6 to come and meet him at his office on the next day. Accordingly
P.Ws.1,4 and 6 went to the office of the first accused, where they were informed
that they should not put up huts in the place encroached by them, but he would
point out some other place and towards the same the first accused demanded a sum
of Rs.2000/- from them. They have pleaded that they are coolies and not in a
position to pay Rs.2000/-. Finally, after a bargain Rs.600/- was agreed upon.
A2 Chellakannu, who was present demanded Rs.100/- separately for himself. Both
the accused informed them that they should come and meet them with money.
(b) P.Ws.1,4 and 6 consulted each other and found themselves uninterested
in putting up huts in the place shown by the accused, since it was near a
graveyard. P.Ws.4 to 6 informed P.W.1 that a complaint was to be preferred to
the vigilance police. They have directed P.W.1 to lodge the complaint. Each of
them contributed a sum of Rs.175/- and directed him to prefer the complaint. On
18.04.1995 at about 08.00 a.m. P.W.1 preferred a complaint Ex.P1 to Vigilance
and Anti Corruption Police and a case in Crime No.1 of 1995 was registered by
P.W.9, Inspector of Police. Ex.P16 is the printed First Information Report.
P.W.9 obtained permission from his superiors for further action. P.W.9 arranged
for official witnesses. P.W.3, Junior Assistant of TWAD Board and another
witness one Radhakrishnan, Junior Assistant, World Bank Plan – II, Pudukkottai
assisted P.W.9 in the trap proceedings. The entrustment mahazar prepared at the
office of P.W.9 is Ex.P3. At about 12.10 hours P.W.1 along with P.W.3 left
Pudukkottai and went to the office of the accused. A1 was present in the
office. The first accused informed them that the second accused had gone
outside and directed them to bring the second accused. When they were coming
down the staircase, they saw the second accused climbing up. P.W.2 informed
him. The second accused asked P.W.1 whether he had brought the amount as
demanded by him. P.W.1 replied in the positive. The second accused informed
P.W.2 that he should pay Rs.100/- to him and Rs.600/- to the first accused.
Thereafter all of them went inside and met the first accused. The first accused
asked whether PW1 had brought the money. P.W.1 replied that he had and paid
Rs.600/- to the first accused. The first accused enquired about P.W.3. P.W.1
informed him that he was working along with him in a pattarai. P.W.1 asked the
first accused to point out the place to put up a hut immediately and left the
office.
(c) On signal from P.W.1, P.W.9 Inspector of Police, Vigilance and Anti
Corruption came into the office of the accused. P.W.9 asked P.W.1 to identify
the first and second accused. P.W.9 asked P.W.1 to leave the office and wait
outside. P.W.9 introduced himself to the accused. P.W.9 questioned the accused
about the receipt of money. P.W.9 conducted phenolphthalein test and the hands
of the first accused, turned pink. The money of Rs.600/- was seized from the
left side pocket of the first accused and verified with the entrustment mahazar.
The shirt was subjected to phenolphthalein test and the same also turned pink.
P.W.9 questioned the second accused about Rs.100/- and seized Rs.100/- from
M.O.5 paper. P.W.9 recovered the money and conducted phenolphthalein test,
which proved positive. Thereafter P.W.9 conducted a further phenolphthalein
test and both hands of the second accused, turned pink. The amount seized from
both the accused was seized under Ex.P6. P.W.9 prepared Observation Mahazar
Ex.P7 and Rough Sketch Ex.P17. P.W.9 along with accused went to the office of
the Revenue Inspector and seized certain records. At about 16.30 hours the
prosecution party left Viralimali and went to Akkalnayakkanpatti Village. P.W.9
inspected the poromboke land and prepared Observation Mahazar. P.W.9 took
photogrph of the said place. P.W.9 arrested the first and second accused and
conducted search at their houses under Ex.P8 and P9. Nothing incriminating
against the accused was seized. Thereafter P.W.9 released the accused on bail
and directed them to appear before the Court on summons and handed over the
investigation to P.W.10, Inspector, Vigilance and Anti Corruption Wing for
further investigation. P.W.10, who took the investigation, examined witnesses
and after completion of investigation sent the file to the office of the
Directorate of Vigilance and Anti Corruption on 29.09.1995. P.W.2, Revenue
Divisional Officer met P.W.10 and verified certain records towards according
sanction. P.W.10 after obtaining sanction Ex.P4 from P.W.2 filed the final
report for offences under Sections 7 and 13(2) r/w. 13(1)(d) of Prevention of
Corruption Act, 1988.
(d) During the course of trial, to establish the case of the prosecution
P.W.1 to P.W.10 were examined. Exs.P1 to 20 and M.Os.1 to 10 were marked.
P.Ws.4 to 7 did not support the case of the prosecution and were declared
hostile by the prosecution.
(e) When questioned on the evidence against them, the accused denied the
charges.
5. On appreciation of evidence and material on record, the trial Court has
convicted the appellants/accused as afore stated and hence the appeal.
6. From the evidence, it is seen that P.Ws.4 and 5 are brothers of P.W.1,
the complainant and P.W.6 is their paternal uncle. They have turned hostile.
P.W.7 is the photographer, who also has also turned hostile.
7. Heard Mr.R.Shanmugasundaram, learned senior counsel for Mr.S.Ravil,
learned counsel for the appellants/ accused and the learned Government Advocate,
on the submissions of the learned senior counsel.
8. The primary attack on the prosecution case is that the sanction for
prosecution Ex.P4 is bad in law. P.W.2 is the sanctioning authority. In
evidence, he has admitted to not being satisfied that the present was a case in
which prosecution could be deservedly sanctioned. As he suspected the truth of
the prosecution case, he called the Inspector of Police, Vigilance and Anti
Corruption Wing, sought explanation, perused the Prevention of Corruption Act,
1988 and then accorded sanction after a period of 420 days. He has admitted
that on discussion with the Inspector, he was not satisfied towards granting
sanction. As rightly contented by the learned senior counsel, there is no
material on record to show what are the areas of suspicion entertained by the
sanctioning authority and how he finally arrived at satisfaction towards
granting sanction as there against. The non-application of mind on the part of
the sanctioning authority is also reflected by his referring to P.W.3 in Ex.P4
as Junior Engineer, whereas in fact P.W.3 is only a Junior Assistant. The
sanction order suffers also from one other defect. It reads as if the first
accused had made a demand of bribe both for himself as also the second accused.
A perusal of Ex.P1 complaint would show that separate demands were made, the
first by the first accused and then an independent demand by the second accused.
Such is the position, which is reflected also from the evidence. In such
circumstances, it may be said that according of sanction in respect of both the
accused by one and the same sanction order would prejudice the accused. This
would be more so in respect of the first accused, since the sanction order
reflects the position that it was he who made the demand on behalf of both the
accused.
9. The further discrepancy in the prosecution case is that according to
Exs.P3 and P6 mahazars, P.W.1 was accompanied to the trap scene by P.W.3. But
in his deposition P.W.1 has spoken to having been accompanied by one
Radhakrishnan, who had not been examined. A reading of the evidence of P.W.1
goes to show that he knew both these persons viz., Radhakrishnan and P.W.3
Sethuraman. The finding of the trial Court is that P.W.1 was accompanied to the
trap scene by P.W.3. However, the questioning of the accused under Section 313
Cr.P.C. is to the effect that P.W.1 was accompanied by one Radhakrishnan, who
was not examined. P.W.3 is the material prosecution witness. He is the
prosecution witness to the trap and the non-questioning of the accused as to the
role allegedly played by him certainly would cause serious prejudice and the
accused is entitled to complain thereagainst. In this regard, useful reference
may be had to the decision of the Hon’ble Supreme Court in Shaikh Maqsood v.
State of Maharashtra, 2009(4) Supreme 429, where it is held that:
“9.The importance of observing faithfully and fairly the provision of
Section 313 of the Code cannot be too strongly stressed. It is not sufficient
compliance to string together a long series of facts and ask the accused what he
has to say about them. He must be questioned separately about each material
substance which is intended to be used against him. The questioning must be
fair and couched in a form which an ignorant or illiterate person will be able
to appreciate and understand. Even when an accused is not illiterate, his mind
is apt to be perturbed when he is facing a charge of murder. Fairness,
therefore, requires that each material circumstance should be put simply and
separately in a way that an illiterate mind, or one which is perturbed or
confused, can readily appreciate and understand”.
On a consideration of the facts and circumstances of the case and the
requirements of law, it is difficult to affirm the finding of conviction arrived
at by the lower Court and accordingly the same is set aside.
10. In the result, the Criminal Appeals are allowed by setting aside
Judgment of the trial Court. The bail bonds, if any, executed by the
appellants/accused, shall stand cancelled and the fine amount, if any, paid by
them, is ordered to be refunded forthwith.
smn
To
1.The Special Judge cum Additional Sessions Judge cum
Chief Judicial Magistrate,
Pudukottai.
2.The The Inspector of Police,
Vigilance and Anti Corruption,
Pudukottai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.