Bombay High Court
Shridhar Gangaram Chavan vs The State Of Maharashtra on 13 October, 2015
Bench: A.M. Thipsay
Tilak 1/67 APPEAL-1069-13(J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1069 OF 2013
SHRIDHAR CHAVAN .. APPELLANT
Versus
THE STATE OF MAHARASHTRA .. RESPONDENT
---
Mr.Girish Kulkarni, Advocate with Mr.M.G. Shukla, Advocate for
the appellant.
Mr.Deepak Thakre, APP for the Respondent State.
---
CORAM : ABHAY M. THIPSAY, J.
JUDGMENT RESERVED : 11 th AUGUST 2015
JUDGMENT PRONOUNCED: 13th OCTOBER 2015
---
JUDGMENT :
1 The appellant who was working as a Chobdar on the
establishment of this Court, has appealed to this Court,
challenging the judgment and order delivered by the Special Judge
for Greater Mumbai appointed under Section 3 the Prevention of
Corruption Act, 1988 (hereinafter referred to as 'the P.C.Act' for the
sake of convenience). By the said judgment and order, the learned
Special Judge convicted the appellant of offences punishable
under Section 7 and section 13(2) read with Section 13(1)(d) of
Tilak 2/67 APPEAL-1069-13(J).doc
the P.C. Act, and sentenced him to suffer Rigorous Imprisonment
for 1(one) year, and to pay a fine of Rs.2,000/- on each of the said
two counts.
2 The case arose on a complaint lodged by one Shri Anil
Bugde (PW 1), an Advocate. The appellant, at the material time,
was attached to an Hon'ble Judge presiding over C.R.No.27. The
case, in brief, may be stated thus :
Bugde had filed an application in this Court on behalf
of one Smt.Vaishali, his client. On 8/10/2010, Bugde went to the
Court Room No.27, approached the staff and inquired with them
as to whether he could get urgent circulation of the Criminal
Application filed by him. The accused, at that time, informed him
that the Hon'ble Judge usually did not grant urgent circulations,
but if urgent circulation was required, Bugde would have to pay
an amount of Rs.1,000/-. Bugde handed over an amount of
Rs.500/- to the appellant immediately. He, however, was actually
not intending to give any bribe to the accused, and therefore,
lodged a complaint with the Anti Corruption Bureau (ACB) on the
same day. The complaint was recorded by Shahaji Shinde (PW
3), Assistant Commissioner of Police, the Investigating Officer.
Tilak 3/67 APPEAL-1069-13(J).doc
Shinde thereafter carried out the verification of the demand
allegedly made by the appellant. This verification was sought to
be done by sending an independent witness - panch Rahul
Shringare (PW 2) with the complainant, and by making
arrangement for recording the conversation that would take place
between the complainant and the appellant. In the presence of
panch Rahul Shringare, the appellant repeated his demand i.e.
demanded remaining amount of Rs.500/- on the same day i.e.
8/10/2010. After confirmation of the demand, the verification
panchnama was prepared, and a First Information Report was
registered on the basis of the complaint lodged by Bugde
(hereinafter referred to as 'the complainant'). A trap was
arranged by following usual procedure. The police party and the
panchas decided to trap the appellant on 11/10/2010 which was
the next working day. The complainant along with the panch
Shringare proceeded near Court Room No.27. There, they met the
appellant in the corridor. That, at that time, the appellant
demanded and accepted bribe of Rs.500/- from the complainant.
Immediately, the appellant was apprehended on the complainant
giving a pre-determined signal. The tainted money to which
Anthracin powder had been applied, was recovered from the
possession of the appellant. Traces of Anthracin powder were
Tilak 4/67 APPEAL-1069-13(J).doc
noticed on the hands of the appellant and also on the pant pocket
of the uniform which he was wearing. The post-trap panchnama
was drawn.
3 Further investigation was carried out. On completion
of the investigation, a charge-sheet came to be filed against the
appellant.
The prosecution examined four witnesses
during the trial. The first one is the complainant himself. The
second is the panch - Rahul Shringare. The third is Shahaji
Shinde - the Investigating Officer. The fourth one is Vasant
Kondvilkar, a Sheristedar working on the establishment of this
Court, who was, at the material time, attached to the Court Room
No.27. The appellant did not examine himself in defence. He,
however, filed a written statement. He also examined one
Smt.Smita Bhatkalkar, the Sheristedar who was attached to the
Court Room No.6 at the material time, as a witness for the
defence.
5 I have heard Mr.Girish Kulkarni, learned counsel for
the appellant. I have heard Mr.Deepak Thakre, learned APP for
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the State. With their assistance, I have carefully gone through the
evidence adduced during the trial. I have carefully examined the
entire record of the trial Court, and have studied the impugned
judgment, carefully.
6 Mr.Girish Kulkarni, learned counsel for the appellant
contended that the conviction of the appellant, as recorded by the
learned Special Judge, is not in accordance with law. He
submitted that there were a number of doubtful aspects as regards
the prosecution case. He submitted that the complainant, though
an Advocate, could not be termed as a reliable witness at all, and
that his evidence is full of inconsistencies and contradictions.
According to him, the learned Special Judge ought not to have
kept any reliance on the evidence of the complainant. Mr.Kulkarni
also contended that there were some basic infirmities in the
prosecution case, and that the evidence adduced makes it clear
that the complainant had no genuine grievance, and actually,
somehow, wanted to trap some member of the staff of this Court.
He, therefore, submitted that the appellant deserves to be
acquitted.
Tilak 6/67 APPEAL-1069-13(J).doc
7 Mr.Deepak Thakre, learned APP did concede that
there were some basic infirmities in the case of the prosecution.
He, however, submitted that, that the appellant had actually
accepted an amount of Rs.500/- from the complainant on 11 th
October 2010 in the presence of the panch Rahul Shringare (PW
2). was satisfactorily proved. He submitted that on the basis of
the proof of this fact, the Court may decide the matter in
accordance with law.
8 Before going into the contentions raised by the
learned counsel for the appellant, it would be proper to consider
the evidence of the complainant in all the necessary details.
9 The complainant, in his evidence, stated that he had
been practising as an Advocate since the year 1995, mostly on the
Criminal side. That, he was practising in all Courts, including the
High Court at Bombay. That, he had a client by name Smt.
Vaishali, who had lodged a report against her husband and in-laws
with the Agripada Police Station. After completion of
investigation, charge-sheet in that case was filed in the Court of
Metropolitan Magistrate at Mazgaon. However, Smt.Vaishali, at
that time, was residing at Pune, was not well, and was therefore,
Tilak 7/67 APPEAL-1069-13(J).doc
unable to remain present in the Court at Mazgaon, Mumbai for
giving evidence. That, on her instructions, the complainant had
filed in this Court, a Criminal Application bearing No.4301/2010
for transfer of the case from the Court of the Metropolitan
Magistrate, Mazgaon, Mumbai to the Court of a Magistrate at
Ghudegaon, Pune District. That, the said Application was filed in
the month of October 2010. That, as per the procedure, after
filing of the matter, it was required to be circulated for obtaining
necessary orders from the Court, and that therefore, on 8 th October
2010 at about 11.00 a.m, The complainant attended the High
Court and went to the Court Room No.27. He made enquiries
with the staff of Court Room No.27 about obtaining urgent
circulation. He enquired as to whether he would have to mention
the matter before the Hon'ble Judge for urgent circulation, or
whether it would be posted in due course as per rotation. The
appellant was in Court Room No.27 at that time, being attached to
that Court as a 'Chobdar'. The complainant made enquiries with
him also, regarding the circulation, when the appellant informed
him that the Hon'ble Judge would not grant urgent circulation, but
that urgent circulation could be managed. When the complainant
asked him 'how would he be able to do this', he asked the
complainant to come out of the Court hall. The complainant then
Tilak 8/67 APPEAL-1069-13(J).doc
went to the corridor in front of the Court room along with the
appellant. That, at that time, the appellant told him that if the
complainant needed urgent circulation, he would have to pay
Rs.1,000/- to the appellant. The complainant was shocked and
confused because of the demand made by the appellant and
enquired with him whether that was the regular procedure for
obtaining circulation, whereupon the appellant told him that those
who required urgent circulation were paying Rs.1,000/-,
otherwise, the matter would be posted in the routine course. The
complainant decided to initiate action against 'such illegal
practice', and to lodge a report against the appellant. He was not
aware of the name of the appellant at that time. He, however,
negotiated the matter with the appellant when the appellant told
him to hand over Rs.500/- to him immediately, and to pay the
remaining amount of Rs.500/- afterwards. The complainant then
immediately gave one currency note of Rs.500/- denomination to
the appellant in the corridor in front of Court Room No.27, itself.
He also handed over a praecipe (circulation slip) (Exhibit-10) to
the appellant, along with the said currency note.
10 The complainant then went to the office of the Anti
Corruption Bureau (ACB) at Worli, and met Mr.Kaushik,
Tilak 9/67 APPEAL-1069-13(J).doc
Additional Commissioner of Police. Kaushik directed the
complainant to the Director General of the ACB. The matter was
discussed with him. Shahaji Shinde, Assistant Commissioner of
Police (PW 3) was deputed for handling the complaint. The
complainant gave his complaint in writing (Exhibit-11). ACP
Shinde then explained the procedure to the complainant by
saying that the cognizance of the complaint could not be taken
without verifying its correctness. Two panchas - Rahul Shringare
(PW 2) and Jambhulkar were called. The contents of the
complaint were explained to them. Shinde explained to the
complainant that to verify the correctness of his complaint, Shinde
himself and both the panchas would go to the High Court building
along with the complainant. Shinde also planned to record the
conversation that would take place between the complainant and
the appellant; and, for that purpose, produced a blank CD,
recorded the introductory voice of the complainant and of both
the panchas by using a Digital Recorder. Rahul Shringare was to
accompany the complainant, and it was decided to introduce him
as the brother of the applicant Smt.Vaishali. The complainant, the
panchas and ACP Shahaji Shinde (PW 3) went to the High Court
building at about 5.05 p.m. The complainant had attached the
digital recorder provided to him, inside his shirt. The complainant
Tilak 10/67 APPEAL-1069-13(J).doc
and the panch Shringare went to Court Room No.27. They were
standing in the corridor in front of Court Room No.27. The
appellant arrived there from a wooden staircase. The
complainant met him, introduced Shringare to him as the brother
of applicant Smt.Vaishali. The complainant reminded the
appellant of his having been paid Rs.500/- in the morning and
sought advice from him about the further course of action. The
appellant told the complainant that it was necessary to verify from
the Board Department, whereafter the complainant Rahul
Shringare and the appellant, all went to the Board Department.
The appellant enquired with the staff about the Criminal
Application No.4301/10 when the staff informed that the matter
had been fixed and placed before Court Room No.6 on
11/10/2010.
11 The complainant, the appellant and the panch then
came back in the corridor in front of Court Room No.27. The
appellant asked whether the complainant had brought the
remaining amount of Rs.500/-. The complainant, after making a
show of enquiry with panch Rahul Shringare, said 'No', and the
panch Rahul Shringare, as decided, said that Rs.500/- would be
given on Monday i.e. 11/10/2010.
Tilak 11/67 APPEAL-1069-13(J).doc
12 The complainant and Rahul Shringare then went to
the ACB office at Worli. The conversation recorded in the Digital
Recorder which was provided to the complainant was heard, and
a transcript and a CD thereof was prepared in the office of the
ACB. The statement of the complainant was recorded, and a First
Information Report was registered (Exhibit-12). It was then
decided to lay a trap. The complainant and the panchas were
called on 11/10/2010.
13 On 11/10/2010, when the complainant went to the
office of the ACB at about 10.00 a.m, apart from ACP Shinde and
some other Officers, both the panchas were also already present
there. The complainant was explained the procedure of laying
trap. The conversation that would take place during the trap was
to be recorded by using digital voice recorder. 5(five) currency
notes of Rs.100/- denomination were handed over by the
complainant to ACP Shinde as the trap amount. By adopting usual
procedure, the details of which are given by the complainant in his
evidence, a trap was laid. Anthracin powder was applied to the
said currency notes. The properties of the Anthracin powder were
explained to the complainant and the panchas. The complainant
was instructed not to touch the said currency notes, till the
Tilak 12/67 APPEAL-1069-13(J).doc
appellant would make a demand for the amount. After handing
over the amount to the appellants, the complainant was to give a
signal by rolling his left hand over his head.
14 The police party and the panchas then proceeded
towards the High Court building. The complainant and panch
Shringare were walking together and the other members of the
raiding party were following them from some distance. When the
complainant and the panch reached in front of the Court Room
No.27, they met the appellant who was present there. The
appellant informed the complainant that the matter had been
placed before the Hon'ble Judge. The appellant then said that the
complainant's work had been done and demanded the remaining
amount of Rs.500/-. The complainant handed over the tainted
amount which the appellant accepted by his right hand and kept
in his left side pant pocket. After the amount was accepted, the
complainant gave pre-determined signal to the raiding party after
which the appellant was apprehended. He was taken to a room
situate in the High Court building used as a security office. After
some inquiries were made with the complainant and panch
Shringare by ACP Shinde, all proceeded towards Azad Maidan
Police Station, and then to the office of the ACB.
Tilak 13/67 APPEAL-1069-13(J).doc
15 The evidence of panch Rahul Shringare does show
that he had accompanied the complainant on 8/10/2010, and
that the appellant had informed the complainant that the work of
circulation had been done, and the matter was listed on Monday
(11/10/2010). According to Shringare, the appellant also showed
the (cause) list to the complainant, and showed that his matter
was there. That, some discussions then took place between the
complainant and the appellant, and that these discussions were
about listing the matter of the complainant before some other
Judge, and not before the Hon'ble Judge presiding over C.R.No.6,
before whom it was listed. The appellant informed that the matter
had been listed through the process of computer and not manually.
The appellant then demanded an amount of Rs.500/- from the
complainant, on which the complainant replied that the amount
would be given on Monday.
16 About the incident on 11/10/2010, Shringare does
speak about going near Court Room No.27. According to him, the
complainant was not present in the Court Room, but when the
complainant and Shringare were waiting, he arrived there from
the staircase. Shringare states about discussions about the change
Tilak 14/67 APPEAL-1069-13(J).doc
of the Court again taking place between the complainant and the
appellant. According to Shringare, thereafter, the appellant
demanded the money paid by a gesture. That, when the
complainant paid the money to the appellant, and when the
appellant accepted it, the appellant was trapped.
17 The evidence of Shahaji Shinde (PW 3) is in
accordance with the case of the prosecution. He does speak about
the complainant reporting the matter to him, that the complaint
being verified, a trap being laid and the appellant being trapped.
In the cross-examination, certain admissions were got elicited from
him, the effect of which shall be discussed at an appropriate place.
18 The fourth witness Vasant Kondvilkar, Sheristedar,
who was attached to Court Room No.27, at the material time, was
examined by re-opening the case that was closed for judgment.
When the case had been kept for judgment, the prosecution
moved an application for his examination which was permitted by
the learned Special Judge. Through Kondvilkar, the Circulation
Register maintained in Court Room No.27 was produced, and a
page in that register, containing a particular entry - supposedly
made by the appellant - was tendered in evidence and exhibited.
Tilak 15/67 APPEAL-1069-13(J).doc
Incidentally, Kondvilkar was on leave on 7/10/2010 and
8/10/2010.
19 The evidence of Smt.Bhatkalkar, (DW 1) Sheristedar
shows that on 7/10/2010, she was attached to the Hon'ble Judge
presiding over Court Room No.6. According to her, the Hon'ble
Judge had authorized her to grant circulations. When the
praecipe (Exhibit-10) was shown to the witness, she said that it
was forwarded to her in the Court Room No.6 on 7/10/2010, and
on the same day, it was granted. The praecipe shows that she had
put her signature thereon, and had also put the date below it as
'7/10/2010'. Through her, the daily board was also produced.
According to her, the Criminal Application No.4301/10 regarding
which the praecipe was forwarded, had nothing to do with Court
Room No.27, and that as per the roster, the Criminal Application
was required to be dealt with by the Hon'ble Judge presiding over
the Court Room No.6.
20 It can at once be noticed that there are a number of
curious aspects of the matter regarding which no answers can be
found from the evidence that was adduced before the learned
Special Judge.
Tilak 16/67 APPEAL-1069-13(J).doc
21 The first and foremost is that the transfer applications
were not being dealt with by the Hon'ble Judge presiding over
Court Room No.27, at all. The notification showing the roster was
produced before the trial Court and was by consent, marked as
'Exhibit-32'. The roster shows that the transfer applications were
to be dealt with by the Hon'ble Judge presiding over C.R.No.6.
The transfer applications would not be listed before the Hon'ble
Judge presiding over C.R.No.27. This is not in dispute at all. Any
evidence in that regard is still felt required, the same is available
in the testimony of Smt.Smita Bhatkalkar, who as aforesaid, has
categorically stated that the matter mentioned for circulation, had
nothing to do with the C.R.No.27, and that, the assignment of
Criminal Applications for transfer, was with the Hon'ble Judge
presiding over C.R.No.6.
22 The question that, therefore, arises is why did the
complainant go to the C.R.No.27 at all for seeking circulation.
This conduct of the complainant is mysterious, and no direct
answer to this is found from the evidence. The complainant is an
Advocate practicing since quite some time, and according to him,
he had been practicing in the High Court also. He was, therefore,
Tilak 17/67 APPEAL-1069-13(J).doc
certainly expected to be aware of the fact that the Transfer
Application which had been preferred by him on behalf of his
client, would be dealt with by the Hon'ble Judge presiding over
C.R.No.6, and could not have been dealt with by the Hon'ble
Judge presiding over C.R.No.27.
23 I have carefully examined the evidence of the
complainant to see whether there exists any explanation of his
conduct of approaching the staff of the C.R.No.27 for seeking
circulation of a matter which pertained to the C.R.No.6. I am
unable to find any. The complainant simply, and as a matter of
fact, says that on 8/10/2010 at about 11.00 am he attended the
High Court and was present in C.R.No.27. He even does not say
that he, by mistake believed the matter to be pertaining to
C.R.No.27, and that, in that belief, he had gone to C.R.No.27.
24 The second curious aspect of the matter is that the
circulation had already been granted on 7/10/2010 itself under
the signature of the Sheristedar Smt.Smita Bhatkalkar (DW 1).
There is absolutely no challenge to the evidence of this witness.
Moreover, the praecipe (Exhibit-10) itself shows an endorsement
as follows :-
Tilak 18/67 APPEAL-1069-13(J).doc
"Coram : V.M.Kanade,J
Circulation for 11/10/10.
Signed
(Smt.Smita Bhatkalkar)
_________________
7/10/2010"
The complainant has made an attempt to dispute that the
praecipe was given by him on 7/10/2010, but in the light of the
evidence of Smita Bhatkalkar and the endorsement made by her in
the normal course of her duties on 7/10/2010, it has to be
accepted that circulation of the matter was already ordered on
7/10/2010 for 11/10/2010. What, then, was the occasion to
approach the appellant on 8/10/2010 ?
25 Another interesting aspect of the matter is that the
Criminal Application No.4301/10 for obtaining the urgent
circulation of which the whole matter arose, was actually
dismissed for non-appearance. The circulation of the said
application, as aforesaid, was granted and it was listed on board
on 11/10/2015. The complainant did not attend the Court on
that date, and even subsequently. As admitted by the complainant
in his cross-examination, the said Criminal Application was
dismissed for want of prosecution in the month of March 2011.
Tilak 19/67 APPEAL-1069-13(J).doc
26 Thus, the following factors :-
(a) The complainant approached the
staff of the C.R.No.27 for
obtaining circulation of a matter
which pertained to the C.R.No.6.
(b) The praecipe seeking circulation
of the matter shows that
circulation had been granted on
7/10/2010 itself, listing the
matter on 11/10/2010 before the
Hon'ble Judge presiding over
C.R.No.6.
(c) Instead of remaining present
before the Court on 11/10/2010,
and attending the matter which was
got circulated, the complainant
at that time, remained busy in
trapping the appellant; and he did
not even thereafter, pursue the
application, which ultimately got
dismissed for non-prosecution;
make it absolutely necessary to subject the evidence of the
complainant to a meticulous scrutiny not only with respect to the
factual details, but with respect to his motive behind making of the
complaint.
Tilak 20/67 APPEAL-1069-13(J).doc
27 The complainant being an Advocate was aware of the
fact that the circulation of a matter can be granted only by a
Judge, and that too, with respect to the matters that pertain to
him as per the roster. This circulation could also be granted by the
Sheristedar attached to the concerned Court on being expressly
authorized to do by the concerned Hon'ble Judge. Inspite of this,
the complainant attempted to get the circulation of the matter
from a Chobdar. Obviously, his intention was not to secure urgent
circulation of the matter in the interest of his client, which is also
clear from the fact that the said application was not at all pursued,
and was very much permitted to be dismissed for non-prosecution.
His intention was clearly to ' expose corruption that is going on in
the High Court'. In fact, the complainant has made no secret of
what he actually intended to do. In his complaint (Exhibit-11),
the complainant has mentioned the subject as 'complaint against
public servants'. The opening paragraph of his complaint
addressed to the Addl. Commissioner of Police, ACB reads as
under :-
"Sir,
Since 1999 I am residing at the above mentioned
place and carrying on my professional work from
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the said place. I am a lawyer by profession and
also provide legal services to other government
agencies such as office of Commissioner of Police,
Mumbai." (Emphasis supplied)
The complaint then gives the details of the application filed by
him on behalf of his client Smt.Vaishali, and then states as under :-
"On 8/10/2010 at about 11.15 p.m (it should be
"a.m") when I visited the Court of xxxxx (name
of Judge omitted) presiding in Court Room
No.27 for the purpose of circulating the above
matter for urgent orders on 15/10/2010, I was
told by the Peon of the Court along with
Sheristedar that xxxxxxx (Judge) does not
allow short period circulation, therefore, I
asked the remedies for the same. During
discussion with peon, he told me that he can
place my matter on 15/10/2010 with
consultation with his superior and thereafter
asked and demanded Rs.1,000/- as a bribe for
placing my case on 15/10/2010".
28 It is clear that the complainant did know that actually
the orders regarding urgent placing of matters on board were
required to be obtained from the Hon'ble Judge. He was, however,
not ready to mention the matter before the Hon'ble Judge, and see
Tilak 22/67 APPEAL-1069-13(J).doc
whether circulation would be granted or not, obviously because as
discussed earlier, he was not, in reality, interested in obtaining any
circulation. Even assuming that the complainant indeed wanted
urgent circulation of the matter, he ought to have mentioned the
matter before the Hon'ble Judge and accepted the decision of the
Hon'ble Judge, rather than making an attempt to improperly
obtain circulation.
It is evident that basically what the complainant
wanted to do is to point out/prove that such wrong things take
place in the High Court. That circulation was urgently required
was only an excuse put forth by him to get the things going. It is
significant in this context that his complaint does not mention as
being against any particular individual or individuals, but
generally against public servants. The complainant has admitted
in the cross-examination, that the complaint lodged by him was
not only against the accused, but was also against the other staff,
though he later claimed that his complaint was only against the
accused. During the cross-examination, he volunteered to state
that "in order to curb the illegal activities, he handed over an
amount of Rs.500/- to the accused". In the examination-in-chief
itself, he has stated that he decided to initiate action against such
Tilak 23/67 APPEAL-1069-13(J).doc
illegal practice, and evidently, his main issue was 'fighting the
corruption and exposing the corrupt public servants' rather than
the grievance in any particular work or matter.
30 The object of the complainant to expose corruption,
is indeed laudable. However, when a person is possessed by such
a desire, and when he, though has a general grievance about
corrupt practices which are being adopted in any particular
institution, selects targets a particular public servant to prove him
to be guilty of demanding and/or accepting bribe/illegal
gratification to make his point, then the evidence of such person
needs to be scrutinized with more than ordinary care.
31 It will not be out of place at this stage to refer to the
philosophy behind the Prevention of Corruption Act, and the
appreciation of evidence relating to trap cases, as can be gathered
from the authoritative pronouncements of the High Courts, and of
the Supreme Court of India.
32 The cases arising under the Prevention of Corruption
Act, can be broadly divided into two categories. (i) trap cases and
(ii) Non-trap cases. Non-trap cases include cases of Criminal
Tilak 24/67 APPEAL-1069-13(J).doc
misappropriation, obtaining of pecuniary advantages by the public
servants for himself or for others, and cases involving possession of
disproportionate assets. A majority of the cases coming up before
the Courts are, however, trap cases. Laying of traps is a step in
investigation. The propriety of laying of traps in detecting a crime
has always been a matter of controversy and discussion by the
Superior Courts and the Apex Court. A study of the case-law upon
the subject reveals that these methods have been repeatedly
deplored by the Courts, though the Courts have regretfully
acknowledged the necessity of such methods, on the ground that
otherwise it would be impossible, or atleast difficult, to bring to
book corrupt public servants (see Shiv Bahadur Singh Vs. State
of Vidhya Pradesh 1, State of Bihar Vs. Basawan Singh 2,
Ramanlal Mohanlal Vs. State of Bombay3, Ramkrishna v. Delhi
State,4 and Ramjanam Singh v. Bihar State5.
33 In Som Prakash Vs. State of Delhi 6, Their Lordships
referred to laying of traps as a 'morally murky mechanism', and
observed :
1 AIR 1954 SC 322
2 AIR 1958 SC 500
3 AIR 1960 SC 961
4 AIR 1956 SC 476
5 AIR 1956 SC 643
6 AIR 1974 S.C 989
Tilak 25/67 APPEAL-1069-13(J).doc
".......... Courts have frowned upon
evidence procured by such experiments
since the participants are prone to
be over-anxious and under-accrupulous
and the victims are caught morally
unawares".
Yet, laying of traps has been held to be justified as inevitable for
detecting a crime, and to collect evidence against a dishonest
public servant. However, the Courts have also recognized that
traps could be laid in different circumstances, and by different
types of complainants. In the same case, it was observed :
"Where you intercept the natural course
of the corrupt stream by setting an
invisible contraption its ethics above
board. On the contrary, to test the
moral fire of an officer whose
reputation is suspect, if you .lay a
crime mine which explodes when he, in
a weak moment, walks on it the whole
scheme is tainted".
34 The pronouncements of the High Courts and Supreme
Court have classified the traps into 'legitimate' and 'illegitimate'.
Illegitimate traps are viewed with disapproval by the Courts.
Tilak 26/67 APPEAL-1069-13(J).doc
Illegitimate traps are those which arise when a public servant is
deliberately tempted to accept a bribe/illegal gratification by
offering to him such bribe or gratification though he never went
out of his way to make any such demand. It must be understood
clearly that the provisions of the P.C. Act are not designed for
ascertaining whether a public servant is honest or not. Traps
cannot be laid for deciding the general honesty and integrity of a
public servant. Traps cannot be organized for observing whether a
public servant, if offered money can be lured into doing something
which he otherwise, would not have done. In Ramjanam Singh
Vs. The State of Bihar 7, it was observed as follows:-
"Whatever the criminal tendencies of a
man may be, he has a right to expect
that he will not be deliberately
tempted beyond the powers of his frail
endurance and provoked into breaking
the Law; and more particularly by
those who are guardians and keepers of
the law".
In the said case, the reference as 'guardians and keepers of the law'
was to the police, but the said observations are extremely relevant
in the present case also where the complainant is an Advocate -
7 AIR 1956 SC 643
Tilak 27/67 APPEAL-1069-13(J).doc
treated as an Officer of the Court - and the appellant is an
employee - a public servant working on the establishment of the
High Court; and the question is whether the complainant had
tempted and provoked the appellant - a Chobdar - to do
something wrong for a monetary gain.
35 Judicial Pronouncements have also recognized that
there are various types of complainants. The one whose
complaint is not valid or justifiable, and is not in compliance with
the established or accepted rules and standards, is believed to be,
often having ulterior intentions in levelling corruption charges
against a public servant. Courts have taken great caution in
ascertaining the nature and type of the complainant, in deciding
whether an accused is guilty in a given case. The one who
mischievously sets bait to one or more public servants and then,
traps them after they have acted on the luring of such
complainant, is recognized as a 'fishing complainant'. Such traps
are deprecated as practically amounting to the abetment of an
offence, and artificially creating a crime. In such cases, it would
be the duty of the Court to properly scrutinize the evidence of the
complainant to ascertain the validity/reliability of his claims and
to unmask his ulterior intentions. The appreciation of the
Tilak 28/67 APPEAL-1069-13(J).doc
evidence of the complainant in a trap case, is required to be done
be keeping in mind the type of the complainant.
36 In the instant case, when the complainant certainly
knew that the mater did not pertain to the assignment of the
Hon'ble Judge presiding over Court Room No.27, his act of
attempting to take a circulation of the matter before that Hon'ble
Judge, is itself suspicious. At the cost of repetition, it may be
observed that it is not the case of the complainant that he, by
mistake believed the matter to be pertaining to the assignment of
the Hon'ble Judge presiding over that Court. He simply, and as a
matter of fact, speaks of going to the Court Room No.27 for
obtaining circulation of the matter. A look at the complaint made
by the complainant with the ACB (Exhibit-11) shows that even
that does not - like his evidence - disclose as to what prompted
him to abruptly go to the Court Room No.27, and seek circulation
of the matter. He did not even try to ascertain the name of the
person who had demanded an amount of Rs.1000/- for securing
urgent circulation. He described the appellant as a 'peon', and not
as a 'Chobdar' which means that he did not even try to ascertain
the designation, did not bother about any particular public servant
and was more concerned with the fact that 'somebody from the
Tilak 29/67 APPEAL-1069-13(J).doc
employees of the High Court had made a demand'. His complaint
shows that it was generally lodged against the High Court staff as
evident from the expression "them" used by him in the concluding
part of the complaint.
37 That the complainant wanted to establish that bad
practices are prevailing in the High Court, and that High Court
staff obtains money and/or that circulations of matters are granted
irregularly, illegally and after accepting bribe, is further confirmed
from the statements made by the complainant in his evidence. In
the cross-examination, this is what he has said:
"After talking with the accused as I
realised that illegal procedure for
granting circulation was being
adopted. I, therefore, decided to
take up that issue and therefore, I
had not mentioned the matter before
the Court".
(Emphasis supplied)
During the course of the cross-examination, he
volunteered to state that the amount of Rs.500/- was given to the
appellant by him before lodging of the complaint "in order to curb
the illegal activities".
Tilak 30/67 APPEAL-1069-13(J).doc
38 There is another mysterious aspect of the matter. The
evidence indicates that the complainant wanted the matter to be
listed before the Court Room No.27 itself. The insistence for
getting the matter placed before that Court when as per the roster,
the matter was required to be placed before Court Room No.6, is
also curious. The evidence of the complainant and also that of
Shringare, shows that the complainant entered into a discussion
with the appellant about listing of the matter before Court Room
No.27 and expressed, after learning that it had been listed before
Court Room No.6, that he did not want it to be listed there. As
observed earlier, the conduct of the complainant does not show
that there was any genuine desire to obtain the urgent circulation
of the matter, and therefore, this insistence of the complainant
was, obviously, only for further checking 'whether the illegal
practices can go to the extent of placing the matter before wrong
bench'. Thus, the complainant, undoubtedly, was making a survey
of the working of this Court, and wanted to know to what extent
illegalities can take place by paying bribe to the High Court staff.
39 When the complainant had taken upon himself such a
task, and wanted to test the moral fiber of the persons working on
Tilak 31/67 APPEAL-1069-13(J).doc
the establishment of the High Court, it is only natural that the
complainant would be over anxious and try to ensure that his
effort to expose the corruption, is successful. It is in this
background that the evidence of the complainant, and that of the
other prosecution witnesses, is required to be examined.
40 It is well known that in trap cases, there should be
satisfactory evidence of the initial demand of illegal gratification
by the public servant concerned. The demand has been held to be
the very foundation of trap cases. It is well settled that even with
respect to the offence punishable under section 13(2) of the P.C.
Act read with section 13(1)(d) thereof, the necessity of there being
evidence of a previous demand, cannot be done away with. It is
well settled that unless the evidence of the initial demand is
satisfactory, the whole evidence obtained by laying a trap is
required to be viewed cautiously. Since the legal position is well
settled, it is not necessary to elaborate this aspect of the matter
any further.
41 In this case, according to the complainant, he paid an
amount of Rs.500/- to the appellant on 8/10/2010 in the morning
itself. At that stage, of course, the complainant cannot be
Tilak 32/67 APPEAL-1069-13(J).doc
expected to have any corroborative evidence, and one has to
decide the matter on the basis of the appreciation of the evidence
of the complainant himself. Considering the peculiar aspects of
the matter, as discussed earlier, it would be unsafe to rely solely on
the word of the complainant in that regard. Therefore, this aspect
is to be judged in the light of the other evidence i.e. of the
complainant regarding the further happenings, of the panch and of
the Investigating Officer.
42 After reporting the matter to the ACB, the
complainant came back to the High Court premises at about 5.05
p.m along with panch Shringare. The fact of the complainant
already having paid an amount of Rs.500/- to the appellant, was
repeated in the presence of Shringare. In the presence of
Shringare, the appellant is supposed to have made a demand for
the remaining amount of Rs.500/-. The evidence in that regard,
needs to be carefully examined.
43 According to the complainant, when he and
Shringare reached the High Court, and were standing in the
corridor, appellant arrived there from the wooden staircase.
According to Shringare, however, the appellant was inside the
Tilak 33/67 APPEAL-1069-13(J).doc
Court hall and the complainant called him outside the Court hall.
Panch Shringare has categorically stated that it is on the
complainant's calling him outside the Court hall that the appellant
came out. Thus, the version of the complainant and that of the
panch Shringare about where did they meet the complainant
when they had gone to the High Court for verification of the
demand of illegal gratification, is not uniform.
What happened thereafter, is also stated differently by
the complainant and by Shringare. According to the
complainant, he introduced Shringare to the appellant as the
brother of the applicant Vaishali, then said about the appellant
having been handed over Rs.500/- in the morning, and asked the
appellant about what should be done thereafter. That, the
appellant then said that they would have to verify from the Board
Department. That, the complainant Shringare and the appellant
thereafter went to the Board Department and made enquiries
regarding the said Criminal Application. That, at that time, the
staff in the Board Department informed them that the matter had
been placed before C.R.No.6 on 11/10/2010. Shringare, however,
narrates the events differently. It, may be recalled, that according
to Shringare, the appellant was inside the Court hall, and came
Tilak 34/67 APPEAL-1069-13(J).doc
out, when the complainant called him outside. Shringare's version
is that as soon as the appellant came out, he informed the
complainant that his work of circulation had been done, and the
matter was listed on Monday. Shringare speaks about the
appellant taking them to a room (perhaps Board Department) only
thereafter, and also speaks about one list (probably cause list)
being shown to the complainant in which the said application was
shown. This variation in the version is not inconsequential or
immaterial, inasmuch according to the complainant, even the
appellant did not know as to whether the matter had been listed
on board till they all went to the Board Department and verified
the same, while according to Shringare, the appellant was already
aware of circulation having been granted.
45 There is no uniform version even with respect to the
circumstances and the manner in which the alleged demand of the
remaining amount of Rs.500/- was made by the appellant.
According to the complainant, after coming back from the Board
Department, and while they all were standing in the corridor in
front of C.R.No.27, the appellant asked him whether he had
brought the remaining amount of Rs.500/- and demanded the
same. The complainant, thereupon enquired with Shringare who
Tilak 35/67 APPEAL-1069-13(J).doc
had been introduced as the brother of the applicant Smt.Vaishali
as to whether he was having Rs.500/-. That, Shringare said that
he was not having the same, and asked the complainant whether
the complainant was having that much amount. That the
complainant also said 'no', and thereafter, Shringare said that it
would be given on Monday. That, the complainant then told the
appellant that the amount would be given on Monday. Shringare,
however, does not speak of any commitment made by him to give
the amount on Monday. Shringare simply says that the appellant
demanded the remaining amount from the complainant to which
the complainant said that it would be given on Monday.
46 These variations by themselves might not have been
very significant. However, there are two reasons which make
these variations a factor throwing doubt on the prosecution
version. The first is, as aforesaid, that he complainant was bent
upon exposing the illegal practices going on in the High Court and
was, therefore, likely to be over-anxious and fill in the details of
the happenings as would support the theory propounded by him.
Secondly, appreciation of evidence in trap cases has to be done
somewhat differently from other cases where 'that the
offence is likely to take place', is not previously
Tilak 36/67 APPEAL-1069-13(J).doc
known to the witnesses or the victim. In trap cases, everything is
previously planned. Guidance is taken from the Investigating
Agency who are well experienced in such matters. The
complainant has already decided to expose the culprit and he does
know what is required to be established. A panch who is told
about what is expected to happen, is sent with the complainant
specifically to observe the happenings, and note them carefully.
Thus, the witnesses in trap cases are specifically expected to, and
are told to watch the happening of the events including the
sequence thereof carefully. When the witnesses are observing the
happenings carefully, so as to be able to give evidence of what was
happening, the variations in their testimony would be much more
significant than in other cases where the witnesses are not acting
according to a pre-plan. The variations which might be justifiably
ignored as not very material or significant in other cases, may not
so easily be ignored in trap cases.
47 However, even these discrepancies and variations is
not the crucial aspect of the matter. It may be recalled that
arrangements had been made for recording the conversation that
would take place between the complainant and the appellant on
8/10/2010 as also on 11/10/2010. The prosecution case is that
Tilak 37/67 APPEAL-1069-13(J).doc
the conversation that took place on 8/10/2010 had been recorded,
and the alleged demand made by the appellant was verified on the
basis of such recording. According to the prosecution, the Digital
Voice Recorder was played, a transcript of the conversation that
had taken place was made, and a record thereof was also got
made in a C.D. The transcripts of the conversation find place in
the record of the verification panchnama dated 8/10/2010
(Exhibit-14) and the pre-trap panchnama dated 11/10/2010
(Exhibit-16). The complainant as well as the panch Shringare
have given their versions of the conversations that took place
between them and the appellant on both these occasions.
Surprisingly, the record of either of these conversations was not
tendered in evidence at all. Inspite of there being a record of the
conversation which would corroborate the version of the
complainant and of the panch regarding the alleged demand of
bribe made by the appellant, the conversation was not played over
during the trial. No transcript of the conversation was got
prepared, and no attempt to tender the same before the Court was
made. This is more surprising because the conversation had been
recorded, obviously, as and by way of evidence to support the
claim that was being made by the complainant and the panch. It
was put to the complainant, panch, and also the Investigating
Tilak 38/67 APPEAL-1069-13(J).doc
Officer in their respective cross-examinations that there existed no
such record. That, inspite of such direct challenge given by the
defence to the very existence of such recorded conversations, the
relevant record was not produced, makes it all the more
surprising. When the record of the conversation was available,
that it should not be produced before the Court during evidence,
leads to an inference that the said record, if produced, would not
have been favourable to the prosecution.
48 In the light of the fact that the complainant had laid a
fishing trap which has been frowned upon, time and again, by the
Superior Courts; that the testimony of the complainant and that
of the panch about the happenings in the evening of 8/10/2010;
do not match regarding some particulars; and that the record of
the conversation that took place between the complainant, the
appellant and the panch - though said to be supporting the case
of the prosecution, and though said to be available - was not
produced before the trial Court, make it hazardous to accept the
story of the appellant having accepted an illegal gratification of
Rs.500/- in the morning of 8/10/2010, and of his having
demanded an illegal gratification of Rs.500/- in the evening on the
same day.
Tilak 39/67 APPEAL-1069-13(J).doc
49 Since the demand of illegal gratification has not been
satisfactorily proved, the whole prosecution case gets seriously
affected. However, I have still examined the evidence of the
acceptance of the bribe by the appellant, and I find the same also
unsatisfactory.
50 The complainant has stated about the happenings on
11/10/20100 since the time he reached the Anti Corruption
Bureau at about 10.00 a.m. According to him, the panchas were
already present there. After speaking about the happenings that
took place there, the instructions given to him and the panchas
etc, he narrates what took place after he and Shringare came to
the High Court. The complainant and Shringare proceeded
towards the first floor near C.R.No.27 who were being followed by
the team of the ACB Officers from some distance. According to the
complainant, when he and Shringare reached in front of C.R.No.27,
the appellant was present, and discussions took place between him
and the appellant. Surprisingly, according to the complainant, the
appellant informed him that his matter had been placed before the
Hon'ble Judge - a fact which had already been informed by the
appellant to the complainant on 8/10/2010 itself, and which had
Tilak 40/67 APPEAL-1069-13(J).doc
even been verified by the complainant. According to the
complainant, Shringare was again introduced as the brother of the
applicant Vaishali which is also rather unusual. It is, at that time,
the appellant made a demand of the remaining amount of
Rs.500/-.
51 What Shringare says is however, different. Shringare
does not categorically state whether when he went to the ACB
office, the complainant was already present or not, but a reading
of his evidence gives an impression that the complainant was
already present. Shringare says that he and Jambhulkar arrived in
the ACB office prior to 10.00 a.m, and that they met ACP Shinde
(PW 3) when the complainant was also present. Regarding the
happenings after reaching the High Court building, Shringare says
that on going to C.R.No.27, the complainant peeped inside the
Court room, but the appellant was not there. According to
Shringare, the appellant then arrived there from the staircase.
That the appellant was carrying one register in his hand at that
time, and that while standing in the corridor in front of C.R.No.27,
the complainant, the appellant and the panch had discussion
about the circulation of the matter. Shringare says that there were
also discussions about the change of the Court. Shringare then
Tilak 41/67 APPEAL-1069-13(J).doc
states that the appellant by gesture
(that is by rubbing his thumb
over his index finger) demanded the bribe amount. Thus, apart
from the minor variations, there is a major variation as to the
manner in which the demand was made. According to the
complainant, it was a plain and categorical demand.
This is what the complainant said.
"At that time, accused told me that my
work has been done by him and he
demanded ig remaining amount of
Rs.500/-".
This cannot be construed as a demand by gesture as spoken about
by Shringare.
52 Apart from this, the conflict in the version as to
whether the appellant was present when complainant and
Shringare arrived at C.R.No.27, is also quite significant, because
the evidence does not show that any place or time was fixed for
paying the remaining amount of the illegal gratification. The
evidence only shows that the matter had already been listed on
board on 11/10/2010, and that the complainant who was made
aware of it on 8/10/2010 itself, had promised to pay the balance
on Monday i.e. on 11/10/2010. When and where he was to meet
the appellant, is not clear, and there is no evidence that it was at
Tilak 42/67 APPEAL-1069-13(J).doc
all, decided. There is no reason to disbelieve the version of
Shringare to the effect that the appellant was not present when
they reached near C.R.No.27 particularly because admittedly, the
appellant was also carrying a register with him when he came in
contact with the complainant and Shringare. It therefore, appears
that the complainant has tried to suppress the fact that actually it
was he who was looking for the appellant. The complainant could
have attended the matter in C.R.No.6 and could have left without
coming across the appellant.
53 Apart from these variations, which themselves might
not have been significant, there is a serious infirmity in the
evidence of the complainant as regards the acceptance of the
tainted amount by the appellant. The case of the prosecution, as
can be gathered from the record of the panchnama (Exhibit-18) is
that the appellant accepted the tainted amount by his right hand,
and kept it in his right side pant pocket. The complainant's
version, in that regard is varying. Initially, he said that the
appellant accepted the amount by his right hand, and placed it in
his left side pant pocket. Shringare said that the appellant who
was holding a register in right hand, shifted it in his left armpit,
and accepted the amount by his left hand. According to Shringare,
Tilak 43/67 APPEAL-1069-13(J).doc
the appellant then shifted the said amount to his right hand, and
kept the same in his right side pant pocket. When he was
confronted with the relevant portion in the panchnama, he said
that it was 'partly correct, and partly incorrect'. According to
Shinde also, the appellant accepted the bribe amount by his left
hand, then transferred the same in his right hand and then kept it
in the right side pant pocket. When however, it was pointed out to
him that the panchnama did not speak so, and spoke of the
acceptance of the amount by right hand, and keeping the same in
the right side pant pocket, he claimed that it was 'an inadvertent
mistake'. He had to admit in the cross-examination that an
identical 'inadvertent mistake' had taken place also in the
supplementary statement of the complainant that was recorded in
the course of investigation.
54 The evidence shows that traces of Anthracin powder
were noticed on both the hands of the appellant, the register, his
mobile telephone and the right side pocket of his pant when
checked under ultra-violet rays. The possibility of the witnesses
having changed their version to explain the traces of Anthracin
powder on both the hands of the appellant, cannot be ruled out,
particularly because it has been the defence of the appellant that
Tilak 44/67 APPEAL-1069-13(J).doc
the complainant forcibly tried to thrust money in his pocket,
which he resisted by both his hands.
55 The doubt in that regard is magnified because of the
serious infirmities in the evidence of the complainant regarding
the actual acceptance of bribe by the appellant. As aforesaid, the
complainant initially said that the appellant accepted the tainted
amount by his right hand, and then kept it in his left side pant
pocket. The complainant then voluntarily stated before the
Court, as is reflected in the note made by the Court which is worth
reproducing here :
"witness narrated that he is lefty
therefore he slight confused about
the hand by which accused accepted
the amount and about the pant pocket
whether it was left or right"
That a lefty person will not be able to understand the difference
between right and left, and that he would not be able to
distinguish between right hand and left hand, is difficult to digest.
The same is not supported by any scientific data or research.
Anyway, the complainant then said that he did not remember
Tilak 45/67 APPEAL-1069-13(J).doc
precisely whether the amount was accepted by the appellant by his
left hand or right hand, and whether it had been kept by him in
the right pocket or left pocket. In his further examination-in-chief,
when he was asked about the recording of his supplementary
statement on 14/10/2010, he abruptly stated before the Court
about his 'confused state of the mind', about by which hand the
tainted amount had been accepted by the appellant. The learned
Special Judge has made a note in that regard which is worth
reproducing here :
"At this stage witness narrated that as
he is performing his all acts by left
hand which are normally performed by
right hand,he is still in confused
stated of mind about the pant pocket
where the amount was kept by accused.
He further submitted that in order to
refresh his memory he be permitted to
read his previous writing. Ld. Adv.
Juvekar, holding for Adv.Kulkarni,
strongly objected for permitting the
witness to refresh his memory.
Considering that as it is explained by
the witness he is lefty such sort of
confusion can be there, therefore there
is no harm in permitting the witness to
Tilak 46/67 APPEAL-1069-13(J).doc
go through his previous writing to
refresh his memory. The defence has
right to cross examined the witness on
this point. The supplementary statement
of complainant is provided to the
complainant for reading".
This is indeed shocking. In the first place, the view of the learned
Special Judge that since the witness is lefty, that sort of confusion
could be there, is baseless without any scientific data or research.
Further, allowing a witness to read his supplementary statement
recorded by the police in the course of investigation, for refreshing
his memory, is in express violation of the provisions of section 162
of the Code. Apart from this, there was no question of 'refreshing
memory', as memory can be refreshed only in the circumstances
mentioned in section 159 of the Evidence Act, and there was no
evidence that the conditions requisite for permitting the
complainant to refer to his supplementary statement recorded by
the police had been fulfilled. This is apart from the express bar
created by section 162 of the Code, which would over-ride the
provisions of section 159 of the Evidence Act. The learned Special
Judge, thereafter, recorded the evidence of the complainant as to
the happenings, whereupon the complainant stated that the
appellant was holding one register in his left hand, he kept the
Tilak 47/67 APPEAL-1069-13(J).doc
said register in his right arm-pit, then accepted the said amount by
his left hand, and transferred the same in his right hand, and then
by his right hand, kept the said amount in his right pant pocket.
However, surprisingly, this version, which he advanced supposedly
after refreshing his memory on reading his supplementary
statement, is not in consonance with his supplementary statement.
56 According to the complainant, as soon as the tainted
amount was delivered to the appellant, he gave the pre-
determined signal to the raiding party. He has specifically used
the word 'immediately' in describing the happening. However,
Shringare states that after the amount was handed over,
conversation took place between the complainant and the
appellant. Shringare has even stated as to what the conversation
was viz. that the complainant enquired with the appellant as to
whether the appellant would keep the amount of Rs.1,000/- for
himself, or whether he would be giving it to some other persons;
and that the appellant then gave the names of 2 - 3 persons,
including the name of the Sheristedar, and other staff members.
57 The evidence shows that after the tainted amount was
handed over to the appellant, appellant received a telephone call,
Tilak 48/67 APPEAL-1069-13(J).doc
and was talking on his mobile telephone. However, whether this
was before or after giving a pre-determined signal, is not very
clear. The complainant does not refer to any such telephone
conversation, at all. According to him, as soon as the amount was
paid, the signal was given, and immediately, the appellant was
apprehended. Shringare says that after the signal was given, the
telephone call was received by the appellant, and that, he was
talking on the mobile. Shinde says that after the amount was
given to the appellant, the appellant had been talking on the
mobile telephone and also with the complainant, and that, the
pre-determined signal was given by the complainant after this
conversation was over.
58 There is also one more aspect of the matter. The
evidence clearly shows that Shinde and the members of the
raiding party were at a short distance from the complainant and
Shringare. The happenings were clearly being seen by them. In
fact, the suggestion specifically given in the cross-examination
'that due to the 'L' shape of the corridor, the complainant and
Shringare were not visible to the raiding party', was denied by
Shinde. His evidence even otherwise makes it clear that he had
been observing the happenings. Thus, when he could see that the
Tilak 49/67 APPEAL-1069-13(J).doc
amount had been actually paid by the appellant to the
complainant, where was the question of waiting for the pre-
determined signal to be given by the complainant ? All this shows
that the evidence has been given in a mechanical manner, and as
per the happenings that take place usually in trap cases, and
therefore, may not be reflecting the actual happenings. At any
rate, it is too artificial.
The defence of the appellant, as is categorically taken
by him by filing a written statement, is that he had neither
demanded nor accepted any amount from the complainant. That,
he had not met the appellant on 8/10/2010 at all. According to
him, that the complainant had come to C.R.No.27 on 7/10/2010,
but the Hon'ble Judge presiding over that Court, was not available
on that date. That, the complainant then asked the appellant to
take the circulation praecipe, and give circulation when the
appellant told him that the Hon'ble Court did not give any
circulation, except in urgent matters, and that the matter would
have to be mentioned to the Court, and then, depending on the
urgency, the Court may grant or refuse circulation. According to
the appellant, complainant was still repeatedly insisting that
circulation should be given, and therefore, he told the
Tilak 50/67 APPEAL-1069-13(J).doc
complainant that he was an Advocate, and should understand
these things, whereupon the complainant got angry, and
threatened that 'he would show him'. That, on 11/10/2010, the
complainant met him outside C.R.No.27 when the appellant was
busy in his work. That, the complainant stopped him and told
him that he had got the circulation. That, he received a telephone
call in the mean time, and while he was speaking on the phone,
suddenly the complainant was noticed being putting something in
the appellant's pocket. The appellant resisted the same by his both
hands, and at that moment, two persons apprehended him. The
appellant categorically stated that he never demanded any money,
and he never accepted money, and that he had been falsely
implicated.
60 Considering the nature of the evidence on record, the
prosecution case cannot be held to have been satisfactorily proved.
The question is not whether the defence of the appellant is true,
but whether upon considering the matters before it, the Court,
entertains a rational and reasonable doubt about the truth of the
prosecution case. Such a doubt can arise even when the defence
theory cannot be fully accepted. In the background of the fact that
the complainant was on the lookout for trapping corrupt public
Tilak 51/67 APPEAL-1069-13(J).doc
servants, (although with all good intentions) the possibility of his
having targeted the appellant to see whether he could be lured into
acceptance of illegal gratification, can certainly not be ruled out.
61 The evidence of Vasant Kondvilkar (PW 4), who as
aforesaid, was examined after the case was fixed for judgment,
shows that it was the appellant who had carried the praecipe given
by the complainant to the Board department. This is based not on
the personal knowledge of Kondvilkar, but on the basis of the fact
that the number of the said application i.e. '4301/10', as written in
the circulation register, is in the handwriting of the appellant.
Kondvilkar has said that the figure '4301' has been written by the
appellant, and this he said from his acquaintance with the writing
of the appellant. Kondvilkar, however, also admitted that he was
not certain about it. However, assuming that the praecipe -
which had already been placed before C.R.No.6, and on the basis
of which order granting circulation had already been passed on
7/10/2010 - was actually transmitted to the Board Department
from the circulation register maintained in C.R.No.27, it does not
indicate that the appellant had demanded and/or accepted a bribe
in respect of an official act. In any case, it does not establish that
the prosecution version is true and correct. The investigation in
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the matter has been far from satisfactory. The Investigating Officer
even did not ascertain whether the matter, the circulation of which
was sought, indeed pertained to the assignment of the Hon'ble Judge
presiding over C.R.No.27. Shinde did not bother to question the
complainant as to how his praecipe had an endorsement dated
7/10/2010, and that, in that case, what was the reason for him to
have approached the staff of C.R.No.27 on 8/10/2010. Shinde
also did not verify as to who had taken the praecipe to the Board
Department. Shinde also did not ascertain whether there was any
other praceipe that had been given by the complainant to the
appellant, inasmuch as the complainant did speak of a praecipe
given to the appellant on 8/10/2010. That the circulation was
granted, is evident from the fact that the matter was actually listed
on board on 11/10/2010, and this was known on 8/10/2010
itself.
62 When the investigation was carried out in such a
perfunctory manner, and when the evidence adduced by the
prosecution is not satisfactory, either with respect to the demand
of bribe, or the acceptance thereof - it was not possible to hold the
appellant guilty of the alleged offences. The prosecution evidence
had inherent weaknesses in it, and the very foundation of the
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prosecution case was based on facts which could be termed as
mysterious. The appreciation of evidence, as done by the learned
Special Judge, was not in accordance with the well accepted
parameters, experience and logic.
63 There is one aspect of the matter which needs a
mention. It is that no permission for laying a trap in the premises
of this Court was obtained from the Hon'ble The Chief Justice.
This is indeed shocking. According to the Investigating Officer
Shinde (PW 3), he gave a letter in a sealed envelope to Police
Constable Shri Chandanshive with a direction to hand over the
same to the P.A. of the Hon'ble The Chief Justice, and further
instructed him to inform Shinde immediately on Shinde's mobile
telephone about the handing over of the said letter. It is nobody's
case that any permission of the Hon'ble The Chief Justice was
obtained by the Investigating Agency before laying the trap, but
whether even the intimation had actually been to the Hon'ble the
Chief Justice before laying the trap, is also not clear. The only
evidence in that regard is that a letter giving intimation addressed
to the Hon'ble The Chief Justice was handed over by a police
constable to the Personal Assistant of the Hon'ble The Chief
Justice. The Investigating Officer did not contact the Registrar of
Tilak 54/67 APPEAL-1069-13(J).doc
this Court - or even the Principal Secretary or the Secretary to the
Hon'ble The Chief Justice for that matter - and such contact was
done by a Police Constable by simply delivering the letter. This is
highly objectionable.
64 The propriety of arranging and laying traps in the
Court premises, without the permission of the Judge in-charge
Judge of the administration of the Court concerned, or the
Principal District Judge, or the High Court, needs to be seriously
considered. To my knowledge, 'whether a trap can be laid in the
court premises without the permission of the Judge in-charge of the
administration of that court, or the District court, or the High Court,'
has not been dealt with directly in any decisions of the Supreme
court of India. The Manual of Instructions issued by the
'Maharashtra State Anti Corruption and Prohibition Intelligence
Bureau', Government of Maharashtra, deals with this and prohibits
only the laying of a trap in a court room, while the court is in
session. The instructions in the Manual do not contemplate
raiding or laying a trap in the premises of the High Court which is
the highest court in the State and has been conferred with
constitutional jurisdiction. The instructions deal with the laying of
traps in subordinate courts and lay down that such traps should be
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laid after giving information to the District Judge or to the senior
most Judicial Officer in the station about the proposed trap, before
it is actually laid. Whether giving of information would be
sufficient, or whether a previous permission would be necessary
needs consideration and a second look at the instructions in the
Manual by the concerned authorities, appears to be essential. In
this case, the appellant who was to be trapped was attached to an
Hon'ble Judge of this Court. The Hon'ble Judge was very much
present in the Court premises discharging judicial functions. The
staff attached to a Judge discharges duties under the instructions
of the Judge. If Police Officers whose subordination to the Judicial
Officers - even of the lowest rung - is evident from the provisions
of the Code of Criminal Procedure, and who frequently visit the
Courts as representing a party i.e. the State, or as witnesses, are
allowed to raid the Court premises without permission of the
Presiding Officer of the Court, or the Principal District Judge or the
High Court, there is every possibility of a serious threat to the
administration of justice and independence of judiciary being
posed. This would apply even to the subordinate Courts, but
laying a trap in the High Court premises without the permission of
the Hon'ble the Chief Justice, is all the more serious.
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65 Norms of propriety were not followed in this case by
the Investigating Agency, as is evident from a number of factors.
The appellant was apprehended and taken away after the trap was
said to have been successful without bothering about the effect
thereof on the working of the Court. As a matter of curiosity, I
have examined the letter written to the Hon'ble the Chief Justice,
which, as aforesaid, was transmitted by a Constable to the
Secretary to the Chief Justice. This letter has been signed by the
Investigating Officer himself. The Investigating Officer who was of
a rank of Assistant Commissioner of Police, ought not to have
addressed a letter to the Hon'ble the Chief Justice, who is a high
constitutional functionary. Writing of such letter under the
signature of the Assistant Commissioner of Police, is not in
accordance with the norms observed in government
correspondence. The letter is impolite. It curtly mentions that 'in
respect of C.R.No.53/10 regarding the offences punishable under
section 7, 13(1)(d) read with section 13(2) of the Prevention of
Corruption Act, a trap is being arranged in the High Court campus
on 11/10/2010'. It doesn't even mention that 'a note of the same
may kindly be taken' - leave apart seeking even a formal
permission.
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66 In my opinion, traps in the premises of the Court on
working days, cannot be organized without the permission of the
Judge who is in-charge of the administration of such Court, or the
Principal District Judge, or the High Court. The working of the
courts of law is distinguishable from the offices of the government
departments. In the court premises, there is presence of advocates
and advocates' clerks, who, quite often - lawfully and for lawful
purposes - receive amounts in cash from the litigants or their
representatives. No receipts regarding such amounts are passed -
atleast not at that time. The members of the staff of the court, are
quite often required to assist the litigants or the advocates, and to
provide answers to their queries. Implicating a member of the
court staff falsely, with respect to the accusation of his having
demanded and/or accepted illegal gratification is easier than
implicating public servants working in other departments. If the
police are permitted to lay traps without such permission, it can
indeed pose a serious threat to the administration of justice and
independence of judiciary. On the contrary, no harm can possibly
be suffered by seeking the permission of the concerned Judge or
his superior, or the High Court. The impermissibility of laying
such traps was considered by the Allahabad High Court in
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Surendra Sahai and Ors. Vs. State of U.P8 and it was held that
such traps ought not to be organised. In my opinion, it was
absolutely improper in this case on the part of the Investigating
Agency to have laid a trap without seeking a previous permission
of the Hon'ble The Chief Justice.
67 The learned Special Judge appears to have departed
from the normal and usual approach towards the matter, as is
evident from the impugned judgment; and this could be due to a
number of reasons, including the pressure put on the learned
Judge by the attitude and conduct of the complainant. Since the
matter is of considerable general importance, apart from being
relevant for appreciating the evidence of the complainant and
understanding the approach of the trial Court towards the matter,
the same needs to be mentioned here in necessary details. It
appears that on one date, - i.e. 24/6/2013, - when the case was
fixed for recording of the evidence before the trial Court, the
complainant was absent. The learned Special Judge, therefore,
issued a bailable warrant in the sum of Rs.2,000/- against him so
as to procure his presence. The roznama of 24/6/2013 reflects
that the Court felt the necessity of issuing a bailable warrant, as
8 1997 Cr.L.J 1670,
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the programme of the case had already been fixed, and on the
next date, the panch witness had been called. It appears that the
complainant flared up because of the issuance of a bailable warrant
against him. He made an application to the trial Court on the
next date casting aspersions on the trial Court for an action which
was perfectly in accordance with law. In this application
(Exhibit-8), he proclaimed himself to be an 'activist lawyer' and
'making himself responsible for eradicating the corrupt practices
committed by the public servants in the institutionalized public
sector areas'. It would be appropriate to reproduce certain parts of
the said application.
"I say that I am an Activist Lawyer
and making myself responsible for
eradicating the corrupt practices
committed by the public servants in
the institutionalized public sector
areas and towards the said goal I
made an effort to clean up the
judicial system as some of the court
staffs are deeply involved into the
corrupt practices and thereby the
above accused who was working as
Chopdar in the Hon'ble High Court in
the Court of Justice xxxxx (name
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omitted), above accused was caught
red handed by accepting illegal bribe
amount from me and therefore the
above case was registered against
him". (Emphasis supplied)
In the later paragraphs, the complainant expressed his anguish
over the issuance of bailable warrant against him, and a bare
reading of the application gives an impression that the
complainant expected to be treated not as an ordinary witness, but
as a highly privileged person by the trial Court. It would be
appropriate to reproduce paragraph nos.8 and 9 of the said
application here :
"I say that now in view of the approach
adopted by this Hon'ble Court as above
to cause me mental stress while deposing
before this Hon'ble Court which I am
deposing for the interest of general
public and due to such serious order of
issuance of warrant against the
complainant the interest of public to
expose corruption in public sector is
got seriously jeopardized and hence I am
not in a position to depose my statement
before this Hon'ble Court in the above
matter.
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I, therefore, request to this
Hon'ble Court the above matter may be
redirected for assignment before the
office of Principal Judge.
For the interest of natural justice
the complainant as above prays that :
a) The Bailable Warrant issued by this
Hon'ble Court on 24/06/2013 against the
complainant may be stayed or in
alternatively may be cancelled if this
Hon'ble Court may deem fit proper.
b) That for the interest of justice the
above case may be redirect for
assignment for hearing in the office of
Ld. Principal Judge, City Civil and
Sessions Court, Gr. Bombay.
(Emphasis supplied)
68 It is worth making a reference to the roznama of
25/6/2013. The learned Judge observed that the application
(referred to earlier) had not been signed by the complainant
though it had been filed. This is what the Court has observed in
the roznama about the conduct of the complainant :
"He argue much and informed this
court that, he has fixed appointment
with Hon'ble Chief Justice, he also
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submitted that this court has
prosecuted prosecution witnesses and
the rate of conviction is only 7% he
being vigilant citizen, does not want
to proceed with this matter before
this Court.
The complainant try to
pressurized this court by threating
and not talking in proper manner.
Considering his submission this
matter is adjd to 7.8.2013, for
further instruction and steps."
(Emphasis supplied)
Later, on the same day, the complainant submitted that he did not
intend 'to raise the issues', and that he wanted to proceed with the
matter. He, however, did not give evidence on that day though
was present in the Court, and got the matter adjourned to
27/6/2013. The conduct of the complainant was undoubtedly
such as to have a tendency to affect the normal, fair and objective
assessment of the matter by the learned Special Judge. The
mention of the 'low conviction rate' and referring to his
appointment with the Hon'ble the Chief Justice was absolutely
uncalled for, unjust and improper.
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69 A perusal of the impugned judgment shows that the
learned Special Judge, in her judgment referred to a number of
decisions which were not cited by either of the parties. Though,
principally, there cannot be any objection to refer to the judgments
not cited by, or relied upon by parties - provided opportunity is
given to the party affected by the ratio of the judgment to reply
thereto - in the present case, the judgments relied upon by the
learned Special Judge are totally irrelevant. The learned Special
Judge cited the case of R.S. Nayak Vs. A.R. Antulay9 and
reproduced a passage from the judgment in the said case which
emphasizes the necessity of adopting a construction that would
advance the object underlying the act i.e. to make effective
provision for prevention of bribery, and corruption, and at any
rate, not defeat it'. The impugned judgment does not show that
any dispute or necessity regarding the construction of any
particular provision in the Act, had arisen before the learned
Special Judge. The observations made by their Lordships of the
Supreme Court, which the learned Special Judge went on to
reproduce in the impugned judgment, were in the context of the
following question which had fallen for the consideration of their
Lordships i.e. What is the relevant date with reference to which
9 1984(2) SCC 183,
Tilak 64/67 APPEAL-1069-13(J).doc
a valid sanction is a pre-requisite for the prosecution of a
public servant for offences enumerated in Section 6 of the 1947
Act (now section 19 of the present P.C. Act) ? There was simply no
occasion to reproduce the said observations. The learned Special
Judge also referred to the decision of this Court in Dattatraya
Krishnaji Joshi Vs. State of Maharashtra 10 and quoted the
following from the judgment.
"There appears to be no such precedent
and what has to be appreciated is
that the making of the demand has to
be a matter of understanding not
between the accused and any third
person but the person who demands and
the person who proceeds to pay or who
is pay."
In that case, the question that had arisen was whether the words
'as to what had happened to his work' as uttered by the accused,
could be treated as evidence of demand of illegal gratification.
This Court held that the demand need not be so crude and express
such as "have you brought the amount, give it to me", and the
observation reproduced above, were made in that context. In this
10 1991 (2) BomCR 49,
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case, there was absolutely no occasion to consider whether any
particular words used by the accused amounted to demand of
illegal gratification or not.
70 The learned Special Judge also referred to four more
judgments, reproducing passages therefrom which deal with
certain general legal principles/propositions. The learned Special
Judge felt the necessity of reproducing the observations made by
the Superior Courts and the Apex Court, as a justification for
ignoring the discrepancies and infirmities in the evidence, and still
convicting an accused 'as a means to eradicate corruption'.
None of those observations can be understood to mean that 'even
where there would be no satisfactory evidence, it is desirable to
convict a person, as corruption is admittedly on increase; and
convicting a person accused of an offence punishable under the
P.C.Act, would help eradicating the corruption, whether or not, he
was actually guilty of the alleged offences'. Such an approach was
entirely unjustified and contrary to law.
71 The appreciation of evidence as done by the learned
Special Judge, and the conclusion arrived at by her, is not in
accordance with law. This was a case where the prosecution case
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had not been satisfactorily proved. The appellant was therefore,
entitled to be acquitted.
72 The Appeal is allowed.
73 The impugned judgment and order is set aside.
74 The appellant is acquitted.
75 His bail bonds are discharged.
76 Fine, if paid, be refunded to him.
(ABHAY M. THIPSAY, J)
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CERTIFICATE
Certified to be true and correct copy of the original signed
Judgment/Order.
