{"id":228294,"date":"2008-04-25T00:00:00","date_gmt":"2008-04-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/raza-imam-rizvi-vs-state-of-bihar-on-25-april-2008"},"modified":"2018-09-27T20:49:35","modified_gmt":"2018-09-27T15:19:35","slug":"raza-imam-rizvi-vs-state-of-bihar-on-25-april-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/raza-imam-rizvi-vs-state-of-bihar-on-25-april-2008","title":{"rendered":"Raza Imam Rizvi vs State Of Bihar on 25 April, 2008"},"content":{"rendered":"
Patna High Court<\/div>\n
Raza Imam Rizvi vs State Of Bihar on 25 April, 2008<\/div>\n
Author: Kishore Kumar Mandal<\/div>\n
                                                                                          1\n\n\n\n\n                          CRIMINAL APPEAL No.08 OF 1993\n                                       ---\n<\/pre>\n
           Against the judgment and order dated 3.12.1992 passed in
\n           Special Case no.36 of 1986 by Shri P.N.Yadav, Special
\n           Judge, Vigilance, South Bihar, Patna.\n<\/p>\n
                                       —\n<\/p>\n
           RAZA IMAM RIZVI——————————(Appellant)
\n                                      Versus
\n           STATE OF BIHAR————————— (Respondents)\n<\/p>\n
                                       —\n<\/p>\n
           For the appellant: Mr. Shakeel Ahmed Khan,
\n                                  Sr. Advocate, with
\n                              Messrs. Ajay Kumar No.I,
\n                                      Md. Mushtaque Alam,
\n                                      Syed Zafar Haider
\n                                      Humayou Ahmad Khan,
\n           For the Vigilance: Mrs. Anita Sinha,
\n                              Sp.PP (Vigilance)<\/p>\n
                                           P R E S E N T<\/p>\n
                    THE HON’BLE MR. JUSTICE KISHORE K. MANDAL\n<\/p>\n
                                         —\n<\/p>\n
\nKishore K. Mandal, J:               The present appeal arises out of and is<\/p>\n
           directed against the judgment and order dated 3rd December,<\/p>\n
           1992 passed by the learned Special Judge, Vigilance (South<\/p>\n
           Bihar), Patna in Special Case no.36 of 1986, whereby the<\/p>\n
           appellant has been found guilty under Section 161 of the<\/p>\n
           Indian    Penal     Code       and    sentenced    to    undergo     rigorous<\/p>\n
           imprisonment       for    01    year.   The    learned    trial    court   has<\/p>\n
           further    found    the    appellant          guilty under      Section    5(2)<\/p>\n
           read with Section 5(1)(d) of the Prevention of Corruption<\/p>\n
           Act, 1947 and sentenced to undergo                 rigorous imprisonment<\/p>\n
           for 01 year and          was also imposed a fine of Rs. 5000\/- and<\/p>\n
           in default thereof to undergo                  rigorous imprisonment for<\/p>\n
           six months.\n<\/p>\n
           2)        The present          case germinates out of the complaint<\/p>\n
           (Ext.12) lodged by              one Nagendra Pd. Singh (P.W.13), a<\/p>\n
           retired      officer      of    the     Excise    Department,      which   was<\/p>\n
           subsequently treated as an F.I.R. (Ext.3).                        As per the<\/p>\n
           prosecution case, the appellant during the relevant time<\/p>\n
           was posted as the Under Secretary in the                     Department of<\/p>\n
           Excise,    Government      of    Bihar,   Patna,    and    as     such   was   a
\n                                                                                          2<\/span><\/p>\n
public servant.         The complainant (P.W.13)                     had retired from<\/p>\n
the post       of Superintendent              of Excise sometimes in the<\/p>\n
year, 1984 and was facing                 a departmental proceeding which<\/p>\n
was pending          consideration before the government and on<\/p>\n
account of such          pendency          of the proceeding             his payment<\/p>\n
of full amount of            retrial dues           was\/were withheld. It is<\/p>\n
the prosecution case that the complainant (P.W.13) wanted<\/p>\n
that the proceeding pending against him be dropped and he<\/p>\n
should be paid the full amount of post retrial benefits.<\/p>\n
It is an admitted position that the complainant was getting<\/p>\n
provisional       pension      on    account        of    the    pendency        of    the<\/p>\n
proceeding.\n<\/p>\n
3)                 According to the prosecution, the appellant<\/p>\n
demanded      bribe\/illegal          gratification              to     the     tune    of<\/p>\n
Rs.25000\/-(twenty            five    thousand)           for     doing        his     work<\/p>\n
relating     to    pension,     gratuity       and       also    the     departmental<\/p>\n
proceeding.        It was made known to the complainant (P.W.13)<\/p>\n
by the appellant          that the alleged amount of bribe\/illegal<\/p>\n
gratification shall be               shared         by different officers of<\/p>\n
the department including the                  appellant.             The complainant<\/p>\n
expressed his inability to part with such a huge amount<\/p>\n
whereafter the appellant is said to have agreed to favour<\/p>\n
him on payment of a sum of Rs. 2000\/-(two thousand) as<\/p>\n
bribe.      Such a demand of bribe\/illegal gratification by the<\/p>\n
appellant was made on 25.11.1986.                    The complainant (P.W.13)<\/p>\n
was   not    ready      to    even     pay    the        same    and     as    such    he<\/p>\n
approached     the      officials      of    the     Vigilance         Department       on<\/p>\n
25.11.1986        and   filed       his     complaint          (Ext.12)       with     the<\/p>\n
D.I.G.,      Vigilance,        Patna,        who,        vide    his         endorsement<\/p>\n
(Ext.2\/2),        instructed         the     Officer           In-charge        of     the<\/p>\n
Vigilance      Police        Station       (P.W.3)        to     take        appropriate<\/p>\n
action.      Further the prosecution case is that one                                  Sri
\n                                                                                          3<\/span><\/p>\n
Raghubir Prasad, a Vigilance Officer, (P.W.1) was entrusted<\/p>\n
the job of verification of allegation vide an endorsement<\/p>\n
(Ext.2\/3) on the complaint.                      Thereafter, it is alleged,<\/p>\n
Sri Raghubir Prasad (P.W.1) accompanied                          the complainant on<\/p>\n
the    same   day    to          prima    facie          verify     the    allegation<\/p>\n
levelled by the complainant                    in his complaint.                 It was<\/p>\n
recess     time     at     the     Secretariat,           the     complainant          in<\/p>\n
presence      of         Shri     Raghubir       Prasad         (P.W.1)         met    the<\/p>\n
appellant within the precinct                  of the Secretariat, who once<\/p>\n
again demanded the bribe\/illegal gratification                             to get his<\/p>\n
work     favourably disposed              of      in the government. It was<\/p>\n
agreed that the same shall be paid tomorrow. On making such<\/p>\n
verification        Shri    Raghubir        Prasad        (P.W.1)       submitted      his<\/p>\n
verification        report        (Ext.1)      on       the     same     day     to    the<\/p>\n
Vigilance authority concerned.                    After consideration of the<\/p>\n
said   report,      the     authority       of      the       Vigilance    department<\/p>\n
directed      for    registration           of      a     formal        F.I.R.         and<\/p>\n
accordingly F.I.R. (Ext.3) was drawn up on the same                                    day<\/p>\n
and a raid\/trap team was organized to lay a trap                                 on the<\/p>\n
following day            in order to arrest him red handed while<\/p>\n
accepting the bribe\/illegal gratification so demanded by<\/p>\n
him.     The trap team was comprised of Sri Ramshray Lal,<\/p>\n
Dy.S.P. (P.W.5), Raghubir Prasad, Inspector (P.W.1), Reyaz<\/p>\n
Ahmad, Sub Inspector (P.W.2), Jainandan Singh, Inspector<\/p>\n
(P.W.4),      Pramod       Kumar         Singh,      Assistant          Sub-Inspector<\/p>\n
(P.W.9),      G.Hembrum,          Sub      Inspector            (P.W.10)       and     the<\/p>\n
complainant (P.W.13). On 26.11.1986 the said team assembled<\/p>\n
in the office of Ramshray Lal, Dy.S.P. (P.W.5), where the<\/p>\n
complainant        (P.W.13)        produced             twenty      G.C.       notes    of<\/p>\n
denomination         Rs.100\/- each before                     P.W.5 and they were<\/p>\n
returned to him after               being treated with Phenolphthalein<\/p>\n
powder and               their numbers                           were      noted down
\n                                                                                     4<\/span><\/p>\n
vide the memorandum (Ext.4). Jainandan Singh (P.W.4) was<\/p>\n
given the role of           a shadow         witness (watcher).              He was<\/p>\n
directed to ensure the overhearing of talks between the<\/p>\n
complainant and the appellant and thereafter to clean his<\/p>\n
face     with    handkerchief         as     soon     as    the     bribe\/illegal<\/p>\n
gratification is demanded, tendered and accepted so that<\/p>\n
the other members of the raiding party available in and<\/p>\n
around the appellant could capture him red-handed.                                The<\/p>\n
prosecution case further is that the team proceeded to the<\/p>\n
Secretariat at about recess time.                    The appellant came out<\/p>\n
from his office            and        after locating             the complainant<\/p>\n
sitting in a Car proceeded towards him and sat down beside<\/p>\n
him on the front           seat of the         Car and thereafter, it is<\/p>\n
alleged,        the complainant, as per agreement, handed over<\/p>\n
the    tainted     G.C.notes           to     the     appellant,         which   was<\/p>\n
accepted by him.           The appellant counted that amount and<\/p>\n
kept them in the pocket of his full paint. On seeing the<\/p>\n
accused accepting the amount the shadow witness (watcher)<\/p>\n
(P.W.4), who was standing close by, gave the pre-determined<\/p>\n
signal     and    thereafter       the      members        of    the     trap    team<\/p>\n
immediately       rushed    and       surrounded      the       appellant.        The<\/p>\n
leader     of    the   team       Ramashray         Lal    (P.W.5)       thereafter<\/p>\n
disclosed his identity and challenged the appellant that he<\/p>\n
had demanded and accepted the bribe\/illegal gratification<\/p>\n
from   the      complainant      (P.W.13).           The    accused       appellant<\/p>\n
became surprised and he was not able to speak anything.<\/p>\n
The incident, according to the prosecution had taken place<\/p>\n
within     the    precinct       of    the     Secretariat         and     as    such<\/p>\n
attracted a crowd and out of the said crowd two persons,<\/p>\n
namely, Dilip Jha (P.W.11) and Vijay Kumar (P.W.12) were<\/p>\n
picked as independent witnesses and, it is said, in their<\/p>\n
presence P.W.4 searched the person of the appellant. In
\n                                                                                     5<\/span><\/p>\n
course    of     the     search      the    aforesaid       currency     of     notes<\/p>\n
amounting       to    Rs.2000\/-      were    found    and    recovered.          Such<\/p>\n
recovery was made from the left pocket of the full paint<\/p>\n
(trouser) which the appellant was wearing at that time.<\/p>\n
The further case of the prosecution is that                          in order to<\/p>\n
avoid the unsavory situation the appellant was taken to the<\/p>\n
office    of    the     Dy.S.P.      (P.W.5),      where     the    seizure      memo<\/p>\n
(Ext.5) was prepared after undergoing the process of tests<\/p>\n
and     sealing.       In    order    to    confirm     that       the    appellant<\/p>\n
received the said bribe, it is alleged, the seized notes<\/p>\n
were     compared       with the numbers of notes already mentioned<\/p>\n
in the pre-determined                memorandum (Ext.4) and they were<\/p>\n
found to be identical.               The fingers and the pocket               of the<\/p>\n
full pant of the appellant were                      also treated with           the<\/p>\n
solution whereafter the solution turned pink.<\/p>\n
4)              The investigation was whereafter taken up and<\/p>\n
Manoranjan           Kavi,    Inspector,       (P.W.14)        was       made     the<\/p>\n
Investigating Officer of the case. Upon conclusion of the<\/p>\n
investigation the chargesheet was made and thereafter the<\/p>\n
cognizance was          taken.       The appellant denied the allegation<\/p>\n
and claimed          to be innocent and hence the trial.<\/p>\n
5)                    At the trial,         the prosecution,         in order to<\/p>\n
prove    the     allegation\/charge           got   examined        altogether     15<\/p>\n
P.Ws. P.W.1 Raghubir Prasad is the Vigilance Officer, who<\/p>\n
is also the verifier             of the complaint. He has proved                  the<\/p>\n
verification report (Ext.1).                  Reyaz Ahmad, Sub Inspector,<\/p>\n
(P.W.2) is           a police officer of the Vigilance department,<\/p>\n
who has been tendered by the prosecution. Arbind Prasad,<\/p>\n
Officer In-charge of the Patna Vigilance Police Station,<\/p>\n
(P.W.3) is not the member of the trap team. He has proved<\/p>\n
the    formal    F.I.R.      (Ext.3),        Jainandan Singh,            Inspector,<\/p>\n
(P.W.4) is an          officer of the Vigilance Department and is a
\n                                                                                     6<\/span><\/p>\n
member of the trap team\/party. Ramshray Lal (P.W.5)                         is the<\/p>\n
Dy.    S.P.    in     the    Vigilance    Department        and     under       whose<\/p>\n
leadership the entire team worked and                     the trap was laid.<\/p>\n
Subrato Gupta, (P.W.6) is the Senior Scientific Officer,<\/p>\n
Forensic Science Laboratory, who has proved the laboratory<\/p>\n
report (Ext.9). Thakur              Bishnu Shankar Singh (P.W.7)                  is<\/p>\n
the      Senior Law Officer, Law Department, who has proved<\/p>\n
the   sanction      for     prosecution       of   the appellant         (Ext.10).<\/p>\n
Surnedra      Kumar    Singh    (P.W.8)       is   the      Registrar       of   the<\/p>\n
Excise    Department,        who    has   proved     the    government          files<\/p>\n
relating to pension (Ext.11) and departmental proceeding<\/p>\n
(Ext.11\/1). Pramod Kr. Singh (P.W.9), who is the Vigilance<\/p>\n
Officer,      has been tendred. G.Hembrum (P.W.10) is the Sub<\/p>\n
Inspector of the Vigilance, who is member of the trap team.<\/p>\n
P.W.11 Dilip Jha and P.W.12 Vijay Kumar are two independent<\/p>\n
witnesses, who had been picked up by P.W.5 from the members<\/p>\n
of the mob assembled around the scene of occurrence, who<\/p>\n
are said to be the witnesses of the seizure memo.                         Nagendra<\/p>\n
Pd.   Singh    (P.W.13)       is    the   complainant.       Manoranjan          Kavi<\/p>\n
(P.W.14)      is    the     Vigilance     officer,         who    took     up    the<\/p>\n
investigation soon after the trap was laid. Sardanand Singh<\/p>\n
(P.W.15) is another Vigilance officer, who had taken charge<\/p>\n
of the investigation of the case at later stage.<\/p>\n
6)    Learned counsel for the appellant while assailing the<\/p>\n
impugned      judgment        and     order    has       submitted       that     the<\/p>\n
charge\/allegation           leveled    against     the     appellant      has     not<\/p>\n
been proved beyond all shadow of doubt.                          While assailing<\/p>\n
the judgment under appeal the learned counsel has made the<\/p>\n
following submissions:\n<\/p>\n
      i) There was no occasion for the appellant to demand<\/p>\n
      the bribe\/illegal gratification.
\n                                                                                     7<\/span><\/p>\n<\/blockquote>\n
      ii) The recovery\/seizure of the notes given as bribe<\/p>\n
      from the possession of the appellant is not free from<\/p>\n
      doubt in view of the several circumstances emanating<\/p>\n
      from the evidence.\n<\/p><\/blockquote>\n
      iii) The sanction accorded by the authority permitting<\/p>\n
      the     prosecution       of     the      appellant      (Ext.10)        is<\/p>\n
      mechanical as the same does not deal with all aspects<\/p>\n
      of the matter.\n<\/p><\/blockquote>\n
7)            While elaborating          on      the first point, learned<\/p>\n
counsel for the appellant               draws attention of the court to<\/p>\n
Exts.11 & 11\/1. Ext.11 is               the government file relating to<\/p>\n
the pension of the complainant (P.W.13).                      Learned counsel<\/p>\n
for the appellant submits              that the said file was dealt with<\/p>\n
by the appellant on 28.5.86, in which he made his notes                         as<\/p>\n
per rule and thereafter               it went     to the higher authority<\/p>\n
concerned for          consideration. Ext.11\/1 is the file which<\/p>\n
deals with the departmental proceeding of the complainant.<\/p>\n
Learned      counsel    for    the appellant            in   reference    to   the<\/p>\n
notings        made    in the    aforesaid files of            the   government<\/p>\n
states that         the appellant as the Under Secretary in the<\/p>\n
said    department      had    made    his     notes    and\/or    recorded     his<\/p>\n
opinion thereon on 3.10.86 itself and thereafter the files<\/p>\n
were    placed        before     the     other     higher      authority       for<\/p>\n
consideration.         Relying       on these notings appearing in the<\/p>\n
files (Ext.11 & 11\/1), it has been submitted                     that there was<\/p>\n
prima       facie      no   occasion     for     the    appellant    to   demand<\/p>\n
bribe\/illegal         gratification       and     correspondingly              the<\/p>\n
complainant being a retired officer                    of the same department<\/p>\n
had     no occasion to oblige the appellant by paying                          the<\/p>\n
alleged bribe         so demanded by the appellant.               Reference in<\/p>\n
this regard was made to the judgment of Apex Court rendered<\/p>\n
in    Stat vs. K. Narasimhachary (2006 Cri.L.J.518).
\n                                                                                     8<\/span><\/p>\n
8)         Learned counsel for the appellant submits                              that<\/p>\n
admittedly         the   records    reveal      that    the     complainant,       who<\/p>\n
retired       3 years ago (sometime in 1984), was an officer of<\/p>\n
the    said     department         and    he    must     have        known         the<\/p>\n
procedure(s)         which is\/are         adopted in pushing the file in<\/p>\n
the Secretariat.           Based on these              facts appearing on the<\/p>\n
record,       particularly,         the     contents      of      the     complaint<\/p>\n
(Ext.12),          learned counsel for the appellant submits that<\/p>\n
the demand of bribe made by the appellant                        as such is not<\/p>\n
free from doubt as, admittedly,                   the appellant acting as<\/p>\n
Under Secretary in the Excise Department dealt with the<\/p>\n
files of the complainant (P.W.13) much prior to                         25.11.1986.<\/p>\n
9)          Highlighting the             second point, learned counsel for<\/p>\n
the appellant submits that in such a case where trap                                is<\/p>\n
being laid          and all the officers of                   one department are<\/p>\n
involved       the presence of              independent witness from all<\/p>\n
corners       is     the prime           requirement of law          in order to<\/p>\n
convince that the occurrence had taken place in the manner<\/p>\n
depicted by the prosecution.\n<\/p>\n
10)           In the present case the incident , admittedly, had<\/p>\n
taken place within the premises of the Secretariat of the<\/p>\n
government and it was the recess time. According to the<\/p>\n
prosecution, the trap team had reached the place (office<\/p>\n
premises) at about 1.00 O’ Clock                       in the noon. At about<\/p>\n
1.10 O’ Clock the appellant emerged from the office and<\/p>\n
straightway proceeded              towards the Car of the               complainant<\/p>\n
(P.W.13) where he was               sitting      at the driver seat.               The<\/p>\n
prosecution case is that the appellant reached                              near the<\/p>\n
Car,   opened       its   gate     and    sat   just     by    the   side    of    the<\/p>\n
complainant (P.W.13) on the front seat and the bribe\/illegal<\/p>\n
gratification was tendered and received                   inside the car.
\n                                                                                     9<\/span><\/p>\n
11)     As per the evidence on record although                        the     search<\/p>\n
was carried out at the place of occurrence but the seizure<\/p>\n
list\/seizure memo was not prepared at the said place.                              The<\/p>\n
evidence of Ramashray Lal (P.W.5), who was the Dy. S.P. and<\/p>\n
leading      the       raiding     team,    is    to   the    effect       that    the<\/p>\n
raiding    team    remained        in operation        at the       scene    of the<\/p>\n
occurrence for about 3 hours.                It further appears from the<\/p>\n
evidence of this         P.W. that a detailed entry                 with regard to<\/p>\n
the event taking place at the place of occurrence                                  was<\/p>\n
incorporated by him in the diary (Ext.A.).                        Learned counsel<\/p>\n
referring       to the evidence of               P.Ws.11 & 12 (independent<\/p>\n
witnesses    selected         by   the     prosecution       at     the    place    of<\/p>\n
occurrence) has submitted that these P.Ws. have stated that<\/p>\n
no    seizure     of    any     article     was    made      and     signature      of<\/p>\n
witnesses including him\/them               obtained thereon at the place<\/p>\n
of the occurrence.            They were asked to reach the Vigilance<\/p>\n
Office at about 4 O,Clock in the evening                      and all the post<\/p>\n
trap formalities were carried out at the                      Vigilance Office<\/p>\n
after 4 P.M.\n<\/p>\n
12)        P.W.11 in his examination in chief has stated that<\/p>\n
the trap team after arrest of the appellant                        took him to the<\/p>\n
Vigilance     Office      and      they    (independent       witnesses)          were<\/p>\n
directed to come to the said office.                    He has admitted           that<\/p>\n
he went to the          Vigilance Office on a Scooter.                    Similar is<\/p>\n
the statement          of P.W.12 Vinay Kumar in para – 2 of his<\/p>\n
deposition.        Referring to the evidence of Manoranjan Kavi<\/p>\n
(P.W.14)    as set out in paras – 5 & 6 of his deposition, it<\/p>\n
has been submitted that this P.W. being an officer\/I.O. of<\/p>\n
the department visited the                Vigilance Office (Headquarters)<\/p>\n
on 26.11.1986 at 6.00 P.M. but no document concerning the<\/p>\n
case including the material exhibits                   was\/ were       handed over<\/p>\n
to him.      No documents           including the trap               seizure memo
\n                                                                                    10<\/span><\/p>\n
was\/were handed over to him. In Para – 6 of the deposition,<\/p>\n
this witness          appears to have stated that                 on the next day<\/p>\n
(26.11.1986)          at 10.30 O’Clock, he met with the leader                     of<\/p>\n
the trap team (P.W.5) but on this occasion also no document<\/p>\n
including       the seizure list and material exhibits concerning<\/p>\n
the case was\/were            handed over to him.\n<\/p>\n
13)       Learned counsel for the appellant referring                         to the<\/p>\n
supplementary C.D.            (Ext.A) prepared by the P.W.4 at the<\/p>\n
place of occurrence (Secretariat Premises) submits that                            as<\/p>\n
per the contents of this Exhibit as also somewhat consistent<\/p>\n
evidence of          the members of the trap team including that of<\/p>\n
P.W.5 indicate the trap team remained operative at the place<\/p>\n
of    occurrence       for    about   3     hours       but    surprisingly       the<\/p>\n
seizure    list(s)        was\/were    not        made    and    prepared      there.<\/p>\n
According       to    the     counsel,      in    all     fairness,     there     was<\/p>\n
sufficient time to conduct the post trap paraphernalia at<\/p>\n
the place of occurrence itself and to get                        the seizure memo<\/p>\n
made and signed by the              witnesses including              P.Ws. 11 & 12<\/p>\n
(independent witnesses).              According to the appellant, this<\/p>\n
creates     a    serious         doubt             about       the   veracity     and<\/p>\n
truthfulness         of   the   process of         the trap       devised   by    the<\/p>\n
authorities.\n<\/p>\n
14)        Learned        counsel     for    the        appellant     has   further<\/p>\n
questioned the independent status of the                         two independent<\/p>\n
witnesses (P.W.11 & 12).                  Referring           to the evidence of<\/p>\n
P.W.11 (Dilip Jha) at para 5, it has been submitted                              that<\/p>\n
this P.W. had admitted              that the        seizure of the currency<\/p>\n
notes     was not made in his                presence at the Secretariat<\/p>\n
premises.       In para – 4       of his deposition, this witness has<\/p>\n
accepted that on the date of occurrence (26.11.1986) he was<\/p>\n
an examinee of Master of Arts (M.A.). Similarly                               P.W.12<\/p>\n
has also        stated that he            had no work in the Secretariat
\n                                                                                    11<\/span><\/p>\n
on that particular day and, in fact, he had accompanied<\/p>\n
one    boy who had some job in the Education Department of<\/p>\n
the    Government.      Learned    counsel           for    the    appellant      has<\/p>\n
further submitted           in reference to the evidence of this<\/p>\n
P.W.      (appearing     at     para   -11)          that          this   P.W.    had<\/p>\n
accepted that he is related to a retired officer of the<\/p>\n
same    department, namely, Y.N.Sinha.\n<\/p>\n
15)       Learned counsel for the appellant draws attention of<\/p>\n
this court       to the evidence of P.W.5              appearing at para – 4<\/p>\n
and P.W.12 appearing at para 7                 and     submitted that           these<\/p>\n
P.Ws. have admitted that although a                   crowd had assembled at<\/p>\n
the    place    of    occurrence        but     there       was    absolutely      no<\/p>\n
hindrance       put by any member of the crowd in carrying out<\/p>\n
the functions and duties               of the        trap    team at      the    said<\/p>\n
place.     The trap         party although stayed at the place of<\/p>\n
occurrence      for    nearly    03    hours    but        the    appellant       was<\/p>\n
driven to the         Vigilance Office in the company of officials<\/p>\n
of the trap team and the independent witnesses                        (P.Ws. 11 &<\/p>\n
12)      were instructed        to come to the Vigilance Office                   for<\/p>\n
completing       the post trap process,              that is,        holding      the<\/p>\n
chemical       test   and     preparing       the     seizure       memo\/material<\/p>\n
exhibits.\n<\/p>\n
16)       Learned counsel for the              appellant            submits      that<\/p>\n
in such a matter the             prosecution has to take                  care and<\/p>\n
precaution while selecting an independent witnesses. While<\/p>\n
selecting an independent witness it must be kept in mind<\/p>\n
that     that witness must be respectable and reliable                             so<\/p>\n
that his credibility may not be                     questioned and all the<\/p>\n
actions taken by the officials of the vigilance department<\/p>\n
including       recovery, seizure and preparation of                      post trap<\/p>\n
memo(s) remain aboveboard               and          any    suspicion is          not<\/p>\n
created in the mind of the court.\n<\/p>\n
                                                                                   12<\/span><\/p>\n
17)       With regard to the third point no serious arguments<\/p>\n
have been advanced           by learned counsel for the appellant.<\/p>\n
It has only been           indicated       as one of the points but the<\/p>\n
court was not taken            to the relevant evidence                   in this<\/p>\n
regard      and     no   further    submission        was    made    by    learned<\/p>\n
counsel for the appellant.\n<\/p>\n
18)      Summarizing the evidence              on the point, as noticed<\/p>\n
above, it has been submitted before this court that, in all<\/p>\n
fairness,         the    prosecution       should    have    completed           the<\/p>\n
entire process at the place of occurrence, particularly,<\/p>\n
considering       the fact that the team remained operative at<\/p>\n
the place of occurrence (Secretariat premises) for about 3<\/p>\n
hours and that there was no hindrance in performance of<\/p>\n
their duties by the          people assembled at the alleged place<\/p>\n
of    occurrence     and    that    the    evidence     of    PWs    11    and    12<\/p>\n
(independent witnesses) do not inspire confidence as they<\/p>\n
admit of suspicion at paces.\n<\/p>\n
19)         Learned        Special Public Prosecutor appearing on<\/p>\n
behalf of     the Vigilance Department, on the contrary,                         has<\/p>\n
supported     the       judgment.         According    to     her,    there       is<\/p>\n
evidence    in the shape of P.Ws.1,4,5,11,12 & 13 to indicate<\/p>\n
that     the complainant (P.W.13) was facing a proceeding and<\/p>\n
his post retirement benefits were withheld.                     The appellant<\/p>\n
during the relevant time            was posted        and working         as under<\/p>\n
Secretary in the Excise Department, Government of Bihar,<\/p>\n
and was     definitely involved in the decision making process<\/p>\n
so far the work of the complainant is concerned.                      According<\/p>\n
to her, the verification               of the allegation was made by<\/p>\n
P.W.1     (Raghubir ), who had proved               to the effect that the<\/p>\n
appellant     had demanded the illegal gratification which was<\/p>\n
subsequently,        on the next date           paid to and received by<\/p>\n
the appellant by way of illegal gratification.                      It has been
\n                                                                                        13<\/span><\/p>\n
further submitted that                 considering the scenario it was<\/p>\n
absolutely nothing             unusual           in getting the recovery               of<\/p>\n
G.C.notes       effected not at the said place of occurrence by<\/p>\n
preparing seizure memo\/list                      and completing the post trap<\/p>\n
formalities       and       instead       carrying    the    appellant       and     the<\/p>\n
witnesses to the Vigilance Office and thereafter conducting<\/p>\n
the   entire      chemical         test     confirming      the    acceptance        and<\/p>\n
recovery of the illegal gratification in order to favour<\/p>\n
the   complainant.             It     has       further    been    submitted         that<\/p>\n
admittedly the              appellant was a public servant and the<\/p>\n
sanction for prosecution was granted                        on due consideration<\/p>\n
of the materials on record.                     The sanction order is Ext.10,<\/p>\n
which was proved by P.W.7 (Thakur Bishnu Singh ) the Senior<\/p>\n
Law Officer of the Law Department, Government of Bihar.                               It<\/p>\n
has also been submitted that P.W.6 (Subroto Gupta)                                   has<\/p>\n
deposed       before the court              and proved       the forensic report<\/p>\n
(Ext.9).        In regard to credential of the                    two     independent<\/p>\n
witnesses so produced by the prosecution                          (P.Ws. 11 & 12),<\/p>\n
learned counsel submits that                     it was just a chance that<\/p>\n
these    two         witnesses      were        selected    by    the   prosecution,<\/p>\n
particularly, the             P.W.5 (Ramashray              Lal), the leader of<\/p>\n
the     team.         She    has     further       submitted       that    in    their<\/p>\n
deposition the appellant has not been able to                           get anything<\/p>\n
to suspect       their credential save and except that they were<\/p>\n
ordinarily not          supposed to be present there on the alleged<\/p>\n
date and time of the occurrence and that seizure list\/memo<\/p>\n
was     not     prepared       at     the        Secretariat,      the     scene      of<\/p>\n
occurrence just after the acceptance.\n<\/p>\n
20)      I    have    considered          the    submissions        made        by    the<\/p>\n
respective counsels and perused                    the     relevant evidence          so<\/p>\n
produced       in support of their submissions.
\n                                                                              14<\/span><\/p>\n
21)      In this case the           two independent witnesses (P.Ws.11<\/p>\n
& 12) have been selected by the prosecution.                     They    were,<\/p>\n
in the ordinary course              of business,       not required     to be<\/p>\n
present at the place of occurrence at the relevant                         date<\/p>\n
and time.        It further appears that at least one witness<\/p>\n
(P.W.12) has accepted that he is related to one of the<\/p>\n
officers         of     the     said   department,     namely,     Y.N.Sinha.<\/p>\n
According to the evidence available on the record,                         the<\/p>\n
independent witnesses reached                  the Vigilance Office        not<\/p>\n
along     with the trap team but on their own and as such<\/p>\n
separation       of     these      witnesses    from    the    appellant    is<\/p>\n
admitted.         On    these      factual   grounds    emerging    from    the<\/p>\n
record of the present case a shadow of doubt is created<\/p>\n
with regard to the recovery of G.C. notes as alleged by the<\/p>\n
prosecution.           Further there may be a possible situation<\/p>\n
that no witnesses at the scene of occurrence was ready to<\/p>\n
be a witness of the alleged seizure.                    As such the        two<\/p>\n
persons      (P.Ws. 11 & 12) were              subsequently selected and<\/p>\n
they were     commanded to come to the office of the Vigilance<\/p>\n
and there everything was done and their signatures on the<\/p>\n
documents(post trap material exhibits etc.) was\/were taken.<\/p>\n
22)     In such a case of trap and recovery of the tendered<\/p>\n
amount       presence         of   independent     witnesses     from      all<\/p>\n
respects is the requirement of law as all others involved<\/p>\n
are personnels of the department. The witnesses so produced<\/p>\n
as independent witnesses must not only be independent                       but<\/p>\n
they must be of such a category                  that what they         depose<\/p>\n
before     the    court       cannot    ordinarily      be    questioned    or<\/p>\n
doubted.      The prosecution must in such matter seriously<\/p>\n
endeavour to           secure       really independent and respectable<\/p>\n
witnesses        so that his\/their evidence in regard to                 every<\/p>\n
step of trap           inspire      confidence     and the court is not
\n                                                                                     15<\/span><\/p>\n
left in any doubt.               This is a       safeguard for protection of<\/p>\n
public servant.          Reference in this regard may be                    made    to<\/p>\n
the case of Raghbir singh vs. State of Punjab, 1976 Cri.<\/p>\n
L.J. 172,.\n<\/p>\n
23)          Secondly,      in     all    fairness,      the   entire        process<\/p>\n
should       have been completed           at the place of the occurrence<\/p>\n
itself.        Admittedly,        the trap party remained at the scene<\/p>\n
of    the    occurrence           for    about    3   hours    and    incorporated<\/p>\n
certain       facts    in     the       supplementary      diary      (Ext.A)      but<\/p>\n
neither the seizure was made there                      and got signed by the<\/p>\n
witnesses nor post trap chemical test                      was carried out and<\/p>\n
memorandum prepared and signed                   at the place of occurrence.<\/p>\n
The evidence on record of the independent witnesses (P.W.11<\/p>\n
& 12) cannot readily              be accepted in view of the fact that<\/p>\n
they admitted          that        per chance           they were available at<\/p>\n
the precinct of the Secretariat as they had absolutely no<\/p>\n
work in the government office (Secretariat) and that they<\/p>\n
were instructed to come to the Vigilance office and as such<\/p>\n
they subsequently             reached the vigilance office on their<\/p>\n
own.        There is no evidence on record to show                      that they<\/p>\n
continued to remain with the trap team and                           the appellant<\/p>\n
from     the     place      of     occurrence           (Secretariat)        to    the<\/p>\n
Vigilance       Office,       where      the     remaining     formalities          of<\/p>\n
chemical       test,     seizure        etc.,    were    carried      out    by    the<\/p>\n
Vigilance Department and documents prepared                      and signed. As<\/p>\n
noticed above, there was no convincing reason on the part<\/p>\n
of the appellant to demand bribe as he had                           already dealt<\/p>\n
with his files earlier. The shadow of doubt created on the<\/p>\n
prosecution        story further               turns darker considering the<\/p>\n
fact that        Exts. 11 & 11\/1 do indicate that the appellant<\/p>\n
had, much prior to the date of occurrence,                       dealt with the<\/p>\n
files       concerning      the      complainant        and    the     complainant
\n                                                                                            16<\/span><\/p>\n
being          a    retired         officer    of    the     department            had   full<\/p>\n
knowledge of the procedures, which are adopted                                       in the<\/p>\n
government         office      in    order    to     take     a    decision         by    the<\/p>\n
government. It has therefore been rightly submitted before<\/p>\n
this court that the              demand of illegal gratification and\/or<\/p>\n
undue reward made by the appellant                         and the           agreement on<\/p>\n
the part of the complainant to give the same                                       does not<\/p>\n
inspire confidence and\/or becomes doubtful.<\/p>\n
24)      This court while taking the said view                          has also taken<\/p>\n
into    accounts           the      submission       advanced       by       the    learned<\/p>\n
counsel for the appellant that P.Ws. 11 & 12 can neither be<\/p>\n
said    to    be    really       independent         witnesses          or    respectable<\/p>\n
independent witnesses. At least                      one of them was                related<\/p>\n
to the officer of                the department         and       as such, to            some<\/p>\n
extent, cannot be said to be the                     independent.<\/p>\n
25)      In    view       of   the      discussions          made       above      and   the<\/p>\n
suspicion that has arisen in the mind of this court,                                     this<\/p>\n
court is of the view                  that the prosecution has not been<\/p>\n
able      to prove the charge levelled against the appellant<\/p>\n
beyond all reasonable shadow of doubt.\n<\/p>\n
26)           In    the     result,      this       appeal         is    allowed.         The<\/p>\n
conviction and sentence recorded against the appellant is<\/p>\n
set aside. He is discharged                   from the liability of the bail<\/p>\n
bonds.\n<\/p>\n<\/p>\n
                                      (Kishore K. Mandal, J.)<\/p>\n
Patna High Court,
\nDated, the 25th April, 2008,
\nNAFR\/(Neyaz)\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Raza Imam Rizvi vs State Of Bihar on 25 April, 2008 Author: Kishore Kumar Mandal 1 CRIMINAL APPEAL No.08 OF 1993 — 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-228294","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nRaza Imam Rizvi vs State Of Bihar on 25 April, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/raza-imam-rizvi-vs-state-of-bihar-on-25-april-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Raza Imam Rizvi vs State Of Bihar on 25 April, 2008 - 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