Fahim Khan S/O Jahangir Khan vs Central Bureau Of Investigation, Anti ...
2024 Latest Caselaw 26702 Bom

Bombay High Court

Fahim Khan S/O Jahangir Khan vs Central Bureau Of Investigation, Anti ... on 19 October, 2024

2024:BHC-NAG:11821




              Judgment

                                                         303 apeal525.12

                                        1

                   IN THE HIGH COURT OF JUDICATURE AT
                     BOMBAY, NAGPUR BENCH, NAGPUR.
                      CRIMINAL APPEAL NO.525 OF 2012

              Fahim Khan s/o Jahangir Khan,
              aged about .......... years, occupation none,
              r/o Mujavar Pura, ward No.14,
              Patur, district Akola.       ..... Appellant.

                                :: V E R S U S ::

              Central Bureau of Investigation,
              Anti Corruption Bureau, through its
              Inspector, Nagpur.            ..... Respondent.
              ===============================
              Shri S.V.Sirpurkar, Counsel for the Appellant.
              Shri P.Sathianathan, Special Public Prosecutor for the
              Respondent/.
              ===============================

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 04/10/2024
              PRONOUNCED ON : 19/10/2024


              JUDGMENT

1. By this appeal, the appellant (the accused) has

challenged judgment and order dated 10.12.2012

passed by learned Special Judge (CBI) and Additional

Sessions Judge-2, Amravati (learned Special Judge) in

Special (CBI) Case No.8/2008.

.....2/-

Judgment

303 apeal525.12

2. By the said judgment impugned, the appellant

(the accused) is convicted for offence punishable

under Section 7 of the Prevention of Corruption Act,

1988 (the said Act) and sentenced to undergo

rigorous imprisonment for three years and to pay fine

Rs.1000/-, in default, to undergo rigorous

imprisonment for two months.

The accused is further convicted for offence

punishable under Section 13(1)(d) read with 13(2) of

the said Act and sentenced to undergo rigorous

imprisonment for three years and to pay fine

Rs.1000/-, in default, to undergo rigorous

imprisonment for two months.

Learned Special Judge directed that all

sentences shall run concurrently.

3. The case of the prosecution, in brief, is as

under:

.....3/-

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303 apeal525.12

On 23.5.2008, one Mohd.Rafi (the informant),

resident of Badnera, approached the office of the

Central Bureau of Investigation (CBI) at Nagpur and

lodged a complaint on allegations that the accused,

serving as Constable with the Railway Police Force

(RPF), demanded Rs.3000/- as gratification from him

so as to allow him to sale foodstuff at Railway

Platforms and in trains passing through Badnera

Railway Station. It was further alleged that the

accused asked him to pay the amount on 24.5.2008

when he would come at Badnera Railway Station by

Kurla-Howrah Express Train. As the informant was not

willing to pay the amount, he lodged the complaint.

4. After receipt of the complaint, officers of the CBI

called two panchas. The complaint was read over to

panchas and panchas also obtained information from

the informant. The informant produced four

currencies of Rs.100/- and eight currencies of Rs.50/-,

total amounting to Rs.800/- before officers of the CBI.

The demonstration as to phenolphthalein powder and

.....4/-

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sodium carbonate was shown to the informant and

panchas. The informant was asked to have telephonic

communication with the accused. The conversation

between the informant and the accused was recorded in

a Micro Cassette Recorder. Accordingly, the conversation

was reduced into writing. A separate panchanama, as to

procedure, was drawn. The solution was applied on the

tainted notes and the said notes were kept in left side

shirt pocket of the informant. The informant was

instructed to give a signal after acceptance of the

amount. Pancha No.1 was also instructed to stay along

with the informant and observe all events. Whereas,

pancha No.2 was instructed to stay along with other

raiding party members. Accordingly, pre-trap

panchanama was drawn. Before proceeding for the trap,

the Micro Cassette Recorder was kept in pocket of the

informant and the informant and pancha No.1 proceeded

towards Railway Platform and other raiding party

members followed them. At about 9:20 am, Shalimar

Express arrived and the accused got down from the said

.....5/-

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303 apeal525.12

train. During communication, the informant picked the

amount from his pocket and gave it to the accused as

the accused demanded the same by gestures. The

accused accepted the said amount and kept in right side

pocket of his trouser. On receipt of a signal, raiding party

members caught the accused. The Micro Cassette

Recorder was removed from the pocket of the informant

and switched off. The amount was seized from the

accused. The hand wash of the informant as well as the

accused was collected. The pocket of the trouser was

dipped into the solution and the said solution was also

collected. Accordingly, post-trap panchanama was

drawn. After obtaining a sanction, chargesheet was filed

against the accused.

5. To substantiate allegations, the prosecution

examined in all seven witnesses namely Mohd.Rafi Mohd.

Hashim vide Exhibit-37 (PW1), the informant; Nishant

Wakode vide Exhibit-44 (PW2), the Shadow Pancha;

Achyutanand Zha vide Exhibit-55 (PW3), the Sanctioning

Authority; Dipak Sontakke vide Exhibit-60 (PW4), the RPF

.....6/-

Judgment

303 apeal525.12

Officer; Ramesh Satpute vide Exhibit-63 (PW5), the BSNL

employee; Rajivkumar Rishi vide Exhibit-68 (PW6), the

Trap Officer; and Krishnakumar Ranjit Singh vide Exhibit-

78 (PW7), the Investigating Officer.

6. Besides the oral evidence, the prosecution placed

reliance on transcription of Audio Recording Exhibit-45,

verification panchanama Exhibit-46, pre-trap

panchanama Exhibit-47, seizure memo Exhibit-48, Audio

Recording transcription Exhibit-49, post-trap

panchanama Exhibit-50, map Exhibit-51, transcription

panchanama Exhibit-52, Voice Sample Panchanama of

the accused Exhibit-53, Sanction Order Exhibit-56, Call

Details Exhibit-64, complaint Exhibit-69, First Information

Report Exhibit-70, Chemical Analyzer's Report Exhibit-71,

Voice Sample Analysis Exhibit-95.

7. After considering the evidence adduced during the

trial, learned Special Judge held the accused guilty as the

aforesaid.

.....7/-

Judgment

303 apeal525.12

8. Heard learned counsel Shri S.V.Sirpurkar for the

accused and learned Special Public Prosecutor Shri

P.Sathianathan for the CBI. I have been taken through

the entire evidence so also the judgment impugned in

the appeal.

9. Learned counsel for the accused submitted that

during the trial, the informant did not support the

prosecution case and he turned hostile. During his cross

examination, nothing transpired. The evidence of

Shadow Pancha PW2 Nishant Wakode is only to the

extent that the accused made gestures and informant

PW1 Mohd.Rafi paid the amount and the accused

accepted the same. Thus, as far as the demand is

concerned, neither the informant stated nor the Shadow

Pancha disclosed about the demand. As far as gestures

are concerned, there is no specific evidence. The

Shadow Pancha admitted that no description was given

in the panchanama as to gestures. As far as the Audio

Recording is concerned, nowhere it shows that the

demand was made and, thereafter, the amount was

.....8/-

Judgment

303 apeal525.12

handed over to the accused. In fact, the defence of the

accused was that the informant had obtained the hand

loan and agreed to pay the same by installments and in

that context, it appears in the transcription that the

informant agreed to pay the amount in installments.

Thus, as far as the demand is concerned, there is

absolutely no evidence to corroborate aspect of the

demand. Thus, the demand and the acceptance was not

proved, but learned Special Judge did not consider the

same and he convicted the accused. As to the sanction

also, the same was not accorded after application of

mind.

10. In support of his contentions, learned counsel for

the accused placed reliance on following decisions:

1. Panalal Damodar Rathi vs. State of Maharashtra1;

2. Dattatraya s/o Udaji Warkad vs. State of Maharashtra, through ACB Office, Buldana2;

1 (1979)4 SCC 526 2 Criminal Appeal No.319/2000 decided by Nagpur Bench on 7.9.2017

.....9/-

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303 apeal525.12

3. Dr.Kiran Deshpande vs. The State of Maharashtra, through Anti Corruption

Bureau, Nagpur ;

4. Soundarajan vs. State Rep.By the Inspector of Police vigilance Anti Corruption, Dindigul4,and

5. B.Jayaraj vs. State of Andhra Pradesh5.

11. Per contra, learned Special Prosecutor for the CBI

submitted that though informant PW1 Mohd.Rafi did not

support the prosecution case, the evidence of Shadow

Pancha PW2 Nishant Wakode is consistent as to the

demand and acceptance. As far as defence of the

accused is concerned, there was no immediate

explanation as soon as he was caught by raiding party

members. The sanction was also after application of

mind. The electronic evidence, i.e. transcription

panchanama, shows that there was a demand and

acceptance. The electronic evidence in the nature of

transcription panchanama shows involvement of the

accused in the alleged crime.

3 2018 SCC OnLine Bom 95 4 Criminal Appeal No.1592/2022 decided by the Hon'ble Apex Court on 17.4.2023 5 (2014)13 SCC 55

.....10/-

Judgment

303 apeal525.12

12. In support of his contentions, learned Special

Prosecutor placed reliance on following decisions:

1. Shriram s/o Tanbaji Dhamane vs. Government of India (through CBI Nagpur)6;

2. Tarsem Lal vs. State of Haryana7, and

3. Ghalappa Sardar Nadgeri and anr vs. The State of Maharashtra8.

On the basis of the evidence adduced, he claimed

that no interference is called for in the judgment

impugned in the appeal.

13. The validity of the sanction was questioned by the

accused and it was challenged on ground that it was

accorded without application of mind.

14. In order to prove the sanction, the prosecution

examined Sanctioning Authority PW3 Achyutanand Zha,

whose evidence shows that at the relevant time, he was

serving as Divisional Security Commissioner of Railway

Protection Force, Central Railway, Bhusawal Division.

6 Criminal Appeal No.632/2005 decided by this court on 21.8.2024 7 AIR 1987 SC 806 8 2018 ALL MR (cri) 5096

.....11/-

Judgment

303 apeal525.12

As per RPF Rules, 1987, the Divisional Security

Commissioner is the Appointing Authority and has

powers to remove persons of a rank of Constable. He

received a request letter from the office of the CBI to

grant sanction to launch prosecution against the

accused. After going through the First Information

Report, other documents like pre-trap; post-trap, and

seizure panchanamas and other documents, he was

satisfied and, therefore, he accorded the sanction.

15. The cross examination of Sanctioning Authority

PW3 Achyutanand Zha shows that the sanction was

challenged on ground that the Chief Security

Commissioner is the Appointing Authority, which is

denied by the said witness. He clarified that in Rule 39, it

nowhere stated that powers of the Divisional Security

Commissioner are contemplated and it nowhere stated

that the Divisional Security Officer is the Appointing

Authority.

.....12/-

Judgment

303 apeal525.12

Thus, an attempt was made that the Sanctioning

Authority is not competent person to accord the

sanction.

His cross examination further shows that after

scrutiny, he prepared a draft and accorded the sanction.

Thus, as far as application of mind is concerned,

his evidence sufficiently shows that after application of

mind, he accorded the sanction.

The sanction order also discloses that on

examining and fully satisfying as to copy of the

complaint, the First Information Report, verification

panchanama, pre-trap and post-trap panchanamas,

recovery of memo, copy of transcription panchanama,

other relevant documents, he accorded the sanction.

16. Whether sanction is valid or not and when

sanction can be called as valid, is settled by various

decisions of the Hon'ble Apex Court as well as this

Court.

.....13/-

Judgment

303 apeal525.12

17. The Hon'ble Apex in the case of Mohd.Iqbal

Ahmad vs. State of Andhra Pradesh 9 held that what

the court has to see is whether or not the Sanctioning

Authority at the time of giving the sanction was aware

of the facts constituting the offence and applied its

mind for the same and any subsequent fact coming into

existence after the resolution had been passed is wholly

irrelevant. The grant of sanction is not an idle formality

or an acrimonious exercise but a solemn and sacrosanct

act which affords protection to government servants

against frivolous prosecutions and must therefore be

strictly complied with before any prosecution can be

launched against the public servant concerned.

18. In view of the settled principles of law, it is crystal

clear that the Sanctioning Authority has to apply his/her

own independent mind for generation of his/her

satisfaction for sanction. The sanction order should

speak for itself. It is well settled that sanction order

should not be so elaborate like an order of court

9 1979 AIR 677

.....14/-

Judgment

303 apeal525.12

containing detailed reasons, but it should be after

application of mind. Ultimately, an object of grant of

sanction should be able to consider evidence and

material before it and the Sanctioning Authority shall

come to a conclusion that whether the prosecution in

the circumstances be permitted or forbidden. It is

further well settled that sanction is solemn and

sacrosanct act. The law does not require sanction to be

in a particular form. The sanction should be given in

respect of facts constituting offence charged equally

which applies to the sanction under Section 19 of the

said Act.

19. As observed earlier, sanction order is not required

to be passed as of a court order.

20. Sub section (4) of Section 19 of the said Act

states that in determining under sub-section (3)

whether the absence of,or any error, omission or

irregularity in, such sanction has occasioned or resulted

in a failure of justice, the Court shall have regard to the

.....15/-

Judgment

303 apeal525.12

fact whether the objection could and should have been

raised at any earlier stage in the proceedings.

21. In the light of the above well settled legal

position, if the sanction order is perused, Sanctioning

Authority PW3 Achyutanand Zha, specifically stated that

he received all investigation papers and on examining

and verifying the same, he accorded the sanction. The

evidence shows that he has not only gone through

papers of investigation but also, on satisfying himself,

accorded the sanction.

22. Thus, the issue of sanction cannot be put at such

pedestal as it would make impossible for the

prosecution to prove the same. The object and purpose

of grant of sanction and protection contemplated

thereby does not mean that technical and trivial

objections to legality and validity of sanction are to be

entertained. When all relevant materials placed before

the Sanctioning Authority are found to be taken into

.....16/-

Judgment

303 apeal525.12

consideration in correct perspective, the sanction

accorded is by application of mind.

23. The sanction is also challenged on ground that

Sanctioning Authority PW3 Achyutanand Zha, is not

competent person.

24. In view of legal position, as per Section 19(3) of

the said Act and Explanation, term "Error" includes

competency of the authority to grant sanction and

competency to grant sanction would not be open to be

questioned. Moreover, it was for opponent to

demonstrate, what prejudice he has suffered.

25. As far as prejudice is concerned, the accused has

not shown anything that too demonstrate that due to the

sanction by the incompetent person, prejudice is caused

to him.

26. Besides the issue of the sanction, the prosecution

claimed that the accused demanded the amount of

gratification and accepted the same.

.....17/-

Judgment

303 apeal525.12

27. To prove the charge, the prosecution mainly

placed reliance on the evidence of informant PW1

Mohd.Rafi. Though he has lodged the complaint against

the accused, alleging that the demand was made by the

accused for permitting him to sale foodstuff at platforms

of the Badnera Railway Station as well as in running

trains, he has not supported the prosecution case and

left loyalty towards the prosecution. Though he was

cross examined at length by Public Prosecutor, nothing

transpired to show that there was a demand by the

accused and in pursuance of the said demand, the

amount was accepted. On the contrary, during cross

examination, the informant admitted that he had

borrowed Rs.3000/- from the accused and the accused

was insisting him to repay the same and, therefore, he

paid Rs.800/-, out of the said amount.

28. Besides the evidence of informant PW1 Mohd.Rafi ,

the prosecution examined Shadow Pancha PW2 Nishant

Wakode. Perusal of his evidence shows that his superior

asked him to attend the office of the CBI at Amravati.

.....18/-

Judgment

303 apeal525.12

Another pancha was also present. Thereafter, officer of

the CBI took them at BSNL Inspection Bungalow. The

informant was also present there. They verified from the

informant as well as the written complaint and revealed

to them that the accused, who was serving as RPF

Constable, demanded Rs.3000/- for permitting him to

sale foodstuff at Railway Platforms and inside trains. In

their presence, CBI officer asked the informant to have a

telephonic talk with the accused and the said talk was

recorded in a Micro Cassette Recorder. The transcription

of the said communication was recorded, which is at

Exhibit-45 and separate panchanama is at Exhibit-46.

On 24.5.2008, pre-trap panchanama was drawn. He

narrated about events carried out during the pre-trap

panchanama. He also narrated about instructions given

to them. As to the demand, his evidence is that he along

with the informant proceeded towards the RPF Police

Station. In front of the police station, the accused by

gestures asked the informant to give the amount and the

informant removed the amount from his pocket and gave

.....19/-

Judgment

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it to the accused. The accused accepted the amount by

his right hand and kept the same in right side pocket of

his trouser and, thereafter, the informant gave a signal

and the accused was caught. Amount Rs.800/- was

seized from the accused. The hands of the informant

and the accused and right side pocket of his pant were

dipped in the said solution and the said solution was

seized. The conversation between the accused and the

informant was also transcripted as well as transferred

the same to another cassette. Accordingly, post-trap

panchanama was drawn.

29. Thus, as per the evidence of Shadow Pancha PW2

Nishant Wakode, the demand was made by gestures.

During cross examination, the Shadow Pancha admitted

that he did not confirm whether the person, who was

talking on mobile phone, was the accused himself. His

evidence further shows that platforms remain crowded

on arrival of trains. The Micro Cassette Recorded, if kept

on, voice of crowd would be recorded. He further

admitted that description of gestures, which the accused

.....20/-

Judgment

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made for demanding the amount, are not mentioned in

the panchanama.

Thus, the evidence, as to the demand, shows that

the demand was made by telephonic communication as

well as by gestures when they met the accused.

Exhibit-45 is the transcription of the telephonic

communication. Perusal of the entire communication

nowhere reveals that the accused demanded any

amount and informant PW1 Mohd.Rafi agreed to pay the

same. On the contrary, the communication shows that it

was the informant who assured the accused that he will

pay Rs.800/- and remaining amount will be paid in

installments and he will NIL the account. The

transcription recorded in the Micro Cassette Recorder is

also transcribed, which also shows that it was the

informant who informed the accused that he is unable to

pay the amount in lump-sum and he will pay in

installments. The communication further shows that the

.....21/-

Judgment

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accused only asked how much he brought and he

informed that he has brought Rs.800/-.

Thus, as far as the demand is concerned, even

transcription transcribed in the Micro Cassette Recorder

nowhere shows that there was a demand by the

accused. As far as the demand by gestures is

concerned, admittedly, no specific gesture is narrated

either by the informant or by the Shadow Pancha.

30. Besides Shadow Pancha PW2 Nishant Wakode, the

prosecution examined RPF Officer PW4 Dipak Sontakke.

As far as the demand and acceptance is concerned, his

evidence is not helpful to the prosecution. On the

contrary, his evidence shows that he has not received

any complaint against the accused. He has also not

received any complaint of informant PW1 Mohd.Rafi that

he is doing unlawful vending at platforms or in trains. He

specifically admitted that he had not seen the informant

doing such vending at platforms of Badnera Railway

.....22/-

Judgment

303 apeal525.12

Station. He further stated that he observed the accused

working sincerely and his confidential reports were good.

31. PW5 Ramesh Satpute is the Vigilance Officer

serving in BSNL Department at Nagpur. His evidence

shows that there was a call between informant PW1

Mohd.Rafi and the accused.

32. PW6 Rajivkumar Rishi is Trap Officer and PW7

Krishnakumar Ranjit Singh is Investigating Officer.

Insofar as the evidence of Trap Officer PW6

Rajivkumar Rishi is concerned, he narrated about various

events took place during pre-trap and post-trap

panchanamas. As far as demand and acceptance is

concerned, the same was not in his presence. His cross

examination shows that when the accused alighted from

the train, he was going with informant PW1 Mohd.Rafi

telling to him that in conversation recorded there was a

noise of crowd. He admitted that in Exhibit-59 he has

not mentioned about noise of crowd. In Exhibit-65 also,

no information is mentioned as regards mobile phones

.....23/-

Judgment

303 apeal525.12

used for conversation standing in names of the informant

and the accused. He also admitted that in post-trap

panchanama Exhibit-50, nothing is mentioned about

gestures as to what were specific gestures of the

accused.

Thus, his evidence also shows that there were no

specific gestures mentioned in the post-trap

panchanama.

Insofar as Investigating Officer PW7 Krishnakumar

Ranjit Singh is concerned, he conducted further

investigation, who also admitted that during the

investigation, it was revealed that SIM Cards used were

not standing in names either of the accused or the

informant.

33. Besides the oral evidence, the prosecution placed

reliance on the Chemical Analyzer's Report as well as

Voice Samples Analysis. The Chemical Analyzer's Report

Exhibit-71 shows Exhibits-B, D, E, F, and G i.e. the

solutions collected were analyzed containing presence of

.....24/-

Judgment

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phenolphthalein powder and sodium carbonate. The

Voice Sample Analysis Report also shows that the Voice

Sample collected of the accused matches with the voice

in the Audio Cassette Recorder.

34. It is vehemently submitted by learned Special

Prosecutor that the evidence of Shadow Pancha PW2

Nishant Wakode, corroborated by circumstantial

evidence in the nature of Chemical Analyzer's Report and

the Voice Sample Analysis Report, sufficiently shows

involvement of the accused.

In support of his contentions, he placed reliance

on the decision of the Hon'ble Apex Court in the case of

Tarsem Lal vs. State of Haryana supra wherein it is

held that no explanation is given by accused at the time

of search and recovery. Explanation given at trial, is

liable to be rejected and the accused is liable to be

convicted.

As to the demand by gestures, he placed reliance

on the decision of this Court in the case of Ghalappa

.....25/-

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Sardar Nadgeri and anr vs. The State of

Maharashtra supra wherein it is held that gesture is a

movement of a limb or the body as an expression of

thought or feeling. It is further held that the demand by

gesture as defined in Black's Law Dictionary was a

calculated movement to emphasize a certain point and

that was the demand of tainted currency notes.

35. Learned counsel for the accused placed reliance

on the decision of the Hon'ble Apex Court in the case of

Panalal Damodar Rathi vs. State of Maharashtra

supra and submitted that as far as the demand is

concerned, it is not corroborated in material particulars.

There was no corroboration of testimony of the Shadow

Pancha regarding the money.

As to the demand by gestures, he placed reliance

on the decision in the case of Dattatraya s/o Udaji

Warkad vs. State of Maharashtra, through ACB

Office, Buldana supra wherein it is held that a

conclusive and definite demand must be proved beyond

.....26/-

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303 apeal525.12

any reasonable doubt for constituting office under the

said Act.

He further placed reliance on the decision of the

Hon'ble Apex Court in the case of Soundarajan vs.

State Rep.By the Inspector of Police vigilance Anti

Corruption, Dindigul supra wherein the Hon'ble Apex

Court by referring decision in the case of Neeraj Dutta

vs. State (Govt. of NCT of Delhi)10 reiterated that

presumption under Section 20 of the said Act can be

invoked only on proof of facts in issue, namely, the

demand of gratification by the accused and the

acceptance thereof.

36. On appreciation of the evidence, it reveals that

admittedly, informant PW1 Mohd.Rafi has not supported

the prosecution case and, therefore, the entire reliance is

on the evidence of Shadow Pancha PW2 Nishant Wakode.

10 2022 SCC OnLine SC 1724

.....27/-

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As far as the earlier demand is concerned, as the

informant has not supported the case of the prosecution,

there is no other evidence to prove the earlier demand.

As to the demand, regarding on the day of the

trap, as per the evidence of the Shadow Pancha, there

was a telephonic talk prior to the trap to verify

genuineness of the demand. The transcription of the

said telephonic call nowhere discloses that it was the

accused who made the demand, but it discloses that it

was the informant who assured him to pay the entire

amount by way of installments. At the time of the trap,

as per the Shadow Pancha, the demand was made by

gestures, but he has not narrated the nature of gestures.

Not only the Shadow Pancha but also Trap Officer PW6

Rajivkumar Rishi admitted that in the post-trap

panchanama what were exact gestures were not

mentioned.

37. Thus, neither the oral evidence of Shadow Pancha

PW2 Nishant Wakode discloses about exact gestures nor

.....28/-

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303 apeal525.12

the post-trap panchanama shows what were exact

gestures by the accused.

38. As far as reliance placed by learned Special

Prosecutor on the decision of this Court in the case of

Ghalappa Sardar Nadgeri and anr vs. The State of

Maharashtra supra is concerned, in the said decision

evidence was adduced as to exact gesture and,

therefore, this Court held that demand by gesture is

proved. In paragraph No.20 of the said decision, it is

specifically mentioned that PW4 has stated that accused

No.2 had called him by giving a signal by neck.

39. Here, such type of evidence is absent and,

therefore, the decision of this Court to prove the demand

by gestures is not helpful to the prosecution. As far as

the demand by gestures is concerned, in view of the

settled legal position, a conclusive and definite demand

must be proved beyond any reasonable doubt for

constituting offence under the said Act.

.....29/-

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303 apeal525.12

40. In the decision of the Hon'ble Apex Court in the

case of Mukhtiar Singh (since deceased) through

his LR vs. State of Punjab 11 also it is held that the

statement of complainant and inspector, the shadow

witness in isolation that the accused had enquired as

to whether money had been brought or not, can by no

mean constitute demand as enjoined in law. Such a

stray query ipso facto in absence of any other cogent

and persuasive evidence on record cannot amount to

a demand to be a constituent of the offence.

41. The Hon'ble Apex Court, in the case of

Mukhtiar Singh supra, held that the statement of

complainant and inspector, the shadow witness in

isolation that the accused had enquired as to whether

money had been brought or not, can by no mean

constitute demand as enjoined in law. Such a stray

query ipso facto in absence of any other cogent and

persuasive evidence on record cannot amount to a

demand to be a constituent of the offence.

11 2017 SCC ONLine SC 742

.....30/-

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303 apeal525.12

42. It is well settled that mere possession and

recovery of currency notes from accused, without

proof of demand, would not establish an offence

under Section 7 as well as Section 13(1)(d)(i)(ii) of the

said Act.

43. The Hon'ble Apex Court, in the case of Jagtar

Singh vs. State of Punjab12 also, by considering the

judgment of the Constitution Bench in the case of

Neeraj Dutta vs. State (Govt. of NCT of Delhi) 13

summarized discussion and reproduced paragraph

No.74, which is as under:

"74. What emerges from the aforesaid discussion is summarised as under:

(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections and 13(1)(d)(i) and (ii) of the Act.

(b) In order to bring home the guilt of the accused, the prosecution has to first prove the

12 2023 SCC OnLine SC 320 13 2023 SCC OnLine SC 280

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demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

(d) In order to prove the fact in issue, namely, the demand and acceptance of Criminal Appeal No.1669 of 2009 illegal gratification by the public servant, the following aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act.

In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal

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gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence.

Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is Criminal Appeal No.1669 of 2009 a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.

(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and

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not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not.

Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said Criminal Appeal No.1669 of 2009 presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act.

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(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point

(e) as the former is a mandatory presumption while the latter is discretionary in nature."

44. The Constitution Bench of the Hon'ble Apex

Court in the case of Neeraj Dutta vs. State

(Govt.of NCT of Delhi) supra held that in order to

bring home the guilt of the accused, the prosecution

has to first prove the demand of illegal gratification

and the subsequent acceptance as a matter of fact.

This fact in issue can be proved either by direct

evidence which can be in the nature of oral evidence

or documentary evidence. The Hon'ble Apex Court,

while discussing expression "accept", referred the

judgment in the case of Subhash Parbat Sonvane

vs. State of Gujarat14 observed that mere

acceptance of money without there being any other

evidence would not be sufficient for convicting the

accused under Section 13(1)(d)(i). In Sections and

13(1) and (b) of the said Act, the Legislature has 14 (2002)5 SCC 86

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specifically used the words 'accepts' or 'obtains'. As

against this, there is departure in the language used

in clause (1)(d) of Section 13 and it has omitted the

word 'accepts' and has emphasized the word 'obtains'.

In sub clauses (i) and (ii) (iii) of Section 13(1)(d), the

emphasize is on the word "obtains". Therefore, there

must be evidence on record that accused 'obtained'

for himself or for any other person any valuable thing

or pecuniary advantage by either corrupt or illegal

means or by abusing his position as a public servant

or he obtained for any person any valuable thing or

pecuniary advantage without any public interest.

While discussing the expression "accept", the

Hon'ble Apex Court observed that "accepts" means to

take or receive with "consenting mind". The 'consent' can

be established not only by leading evidence of prior

agreement but also from the circumstances surrounding

the transaction itself without proof of such prior

agreement. If an acquaintance of a public servant in

expectation and with the hope that in future, if need be,

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he would be able to get some official favour from him,

voluntarily offers any gratification and if the public servant

willingly takes or receives such gratification it would

certainly amount to `acceptance' and, therefore, it cannot

be said that as an abstract proposition of law, that without

a prior demand there cannot be `acceptance'. The

position will however, be different so far as an offence

under Section 5(1)(d) read with Section 5(2) of the 1947

Act is concerned. Under the said Sections, the prosecution

has to prove that the accused `obtained' the valuable

thing or pecuniary advantage by corrupt or illegal means

or by otherwise abusing his position as a public servant

and that too without the aid of the statutory presumption

under Section 4(1) of the 1947 Act as it is available only in

respect of offences under Section 5(1)(a) and (b) and not

under Section 5(1)(c), (d) or (e) of the 1947 Act.

According to this court, 'obtain' means to secure or gain

(something) as the result of request or effort. In case of

obtainment the initiative vests in the person who receives

and in that context a demand or request from him will be

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a primary requisite for an offence under Section 5(1)(d) of

the 1947 Act unlike an offence under Section 161 of the

Indian Penal Code, which can be established by proof of

either 'acceptance' or 'obtainment'.

45. Thus, it is well settled that to prove offences under

Sections 7 and 13(1)(d) of the said Act, proof of demand

is sine qua non. As far as applicability of presumption is

concerned, it would be attracted only when the

foundational facts have been proved by relevant oral and

documentary evidence and not in the absence thereof.

On the basis of the material on record, the Court has the

discretion to raise a presumption of fact while considering

whether the fact of demand has been proved by the

prosecution or not. Of course, a presumption of fact is

subject to rebuttal by the accused and in the absence of

rebuttal presumption stands.

46. In the instant case, as observed earlier, prior

demand by the accused is not proved by the prosecution.

Informant PW1 Mohd.Rafi has not supported the

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prosecution and the evidence of Shadow Pancha PW2

Nishant Wakode nowhere discloses as to exactly what

gestures were made by the accused to demand the

amount. The said gestures were also not mentioned in the

post-trap panchanama. Mere possession of gratification

amount is not sufficient to hold the accused guilty.

47. Since proof of demand is sine qua non for

convicting the accused, in such cases, it cannot be said

that the prosecution has been successful in proving its

case beyond reasonable doubt. The sanction accorded is

without application of mind and, therefore, it is not a valid

sanction.

48. In the light of the above discussion, as the appeal

succeeds and deserves to be allowed, following order is

passed:

ORDER

(1) The Criminal Appeal is allowed.

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(2) Judgment and order dated 10.12.2012 passed by

learned Special Judge (CBI) and Additional Sessions

Judge-2, Amravati in Special (CBI) Case No.8/2008 is

hereby quashed and set aside.

(3) The accused is acquitted of offences for which he

was convicted and sentenced.

Appeal stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 21/10/2024 11:09:32