Himachal Pradesh High Court
_____________________________________________________ vs State Of Himachal Pradesh on 30 November, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
Cr. Appeal No. 172 of 2015
Reserved on: 06.11.2023
Decided on: 30.11.2023
_____________________________________________________
Neeraj Kumar
...Appellant
of
Versus
State of Himachal Pradesh
rt ...Respondent
______________________________________________________
Coram
Hon'ble Mr. Justice Sushil Kukreja, Judge
Whether approved for reporting?
_____________________________________________________
For the appellant: Mr. Manohar Lal Sharma, Senior Advocate
with Mr. Aman Parth Sharma, Advocate.
For the respondent: Mr. Jitender Kumar Sharma, Additional
Advocate General.
Sushil Kukreja, Judge
The instant appeal filed under Section 27 of the
Prevention of the Corruption Act, 1988 ( for short, 'the PC Act')
read with Section 374(2) of the Code of Criminal Procedure
(Cr.P.C.) by appellant Neeraj Kumar, laying challenge to the
judgment of conviction and order of sentence dated 16.04.2015,
Whether reporters of Local Papers may be allowed to see the judgment?
passed by the learned Special Judge, Mandi, District Mandi, H.P.
.
in Sessions Trial No.20/2011, titled State of Himachal Pradesh
Versus Neeraj Kumar, whereby the appellant (hereinafter referred
to as the accused) was convicted and sentenced to undergo
rigorous imprisonment for three years and to pay a fine of
of
Rs.5,000/- under Sections 7 & 13 (1)(d) punishable under Section
13(2) of the PC Act and in default of payment of fine, to undergo
rt
simple imprisonment for a period of three months.
2. Briefly stated the facts of the case, which emerge from
the records, are that complainant Deepak Guleria, was running the
business in the name and style of M/s Deepak Business
Communication and had taken CST number in the year 2005 from
Excise and Taxation Department, during the year 2010. He was
directed by ETO Ms. Nirmal and accused Neeraj Kumar to file
returns yearly and a notice was also issued to him. He talked to
ETO as well as the accused and informed them that he had not
brought any goods from outside, therefore, his returns were nil.
However, ETO Nirmal and the accused told him that they would
charge Rs.500/- per year irrespective of the fact whether any goods
were brought from outside or not. Subsequently, ETO Nirmal, on
being contacted by the complainant, threatened him to impose
.
penalty of Rs.20,000/- for not filing returns and ETO and accused
demanded Rs.7,000/- and ultimately the matter was settled for
Rs.4,000/-, out of which Rs.3,000/- was to be paid to ETO Nirmal
and Rs.1,000/- to the accused. Thereafter, the complainant
of
contacted Vigilance Police and a raiding party was formed by
associating onert Shakti Sharma as shadow witness. The
Investigating Officer explained pre-trap proceedings by preparing
solution of sodium carbonate and phenolphthalein powder, then the
solutions were destroyed and some powder were kept in match
boxes, which were sealed in a cloth parcel. The currency notes
which were handed over by the complainant to the police, were
treated with phenolphthalein powder and thereafter were handed
over to the complainant with a direction to pay the same to ETO
Nirmal and the accused on their demand. The police also recorded
the number of currency notes on a memo. The complainant and
Shakti Sharma (shadow witness) went to the office of the accused
and handed over Rs.3,000/- to ETO Nirmal and Rs.1,000/- to the
accused and the shadow witness signaled the police and thereafter
both ETO Nirmal as well as the accused were caught red-handed.
Their hands were washed, which confirmed phenolphthalein on
.
their hands and the police tallied the currency notes recovered from
them which were found to be the same. The police made relevant
recoveries and also prepared memos qua the same. Sample seals
were drawn and the accused was arrested. In presence of Shyam
of
Singh, Tehsildar, the post trap proceedings were conducted and
hand-wash solution was taken in a nip and seized. The police also
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seized various documents from the office of the accused and
procured his posting and appointment orders. The hand-wash
solutions were sent to Forensic Science Laboratory (FSL) and the
report was obtained.
3. The prosecution sanction against accused Neeraj
Kumar was granted, whereas, the competent Authority, despite the
availability of sufficient evidence against ETO Ms. Nirmal, declined
the prosecution sanction. After conclusion of the investigation, the
police presented the charge-sheet against the accused Neeraj
Kumar before the learned trial Court.
4. Charges were framed by the learned trial Court against
the accused under Sections 7 and 13(2) of the PC Act, vide order
dated 24.03.2015. The accused did not plead guilty of the charge
framed against him and claimed trial.
.
5. In order to prove its case, during trial, the prosecution
examined 15 witnesses. After closure of the prosecution evidence,
the accused when examined under Section 313 of the Cr.P.C.,
stated that he was innocent and had been falsely implicated in the
of
case. The accused examined one witness in his defence.
6. On the basis of evidence led on record by the
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prosecution, the learned trial Court held the accused guilty of
having committed offence under Sections 7 & 13 (1) (d) punishable
under Section 13(2) of the PC Act and sentenced him as per the
description given hereinabove.
7. Being aggrieved and dissatisfied with the judgment of
conviction and order of sentence passed by the learned trial Court,
the accused approached this Court by way of the instant appeal,
praying for his acquittal, after setting aside the aforesaid judgment
of conviction and order of sentence.
8. The learned Senior Counsel for the appellant contended
that the appellant has been deliberately and discriminately chosen for
the trial, whereas, the circumstances demanded equal treatment and
on the same material as well as the reason, the prosecution
sanction was not granted to prosecute accused Ms. Nirmal, who
.
was the ETO. He further contended that the trial Court has failed
to consider that there was no evidence to show any demand of
bribe having been made by the appellant, who had no authority to
condone the penalty of tax. He finally submitted that as in this case
of
there is absolutely no evidence regarding the demand of illegal
gratification and the evidence put forth by the prosecution is full of
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discrepancies and as the prosecution has miserably failed to
establish either the charge for the offence punishable under
Section 7 or the charge for the offence punishable under Section
13(1)(d) of the PC Act, hence, the impugned judgment of
conviction and order of sentence dated 16.04.2015 passed by
learned Special Judge, Mandi, District Mandi, H.P., is liable to be
set aside and the appellant-convict be acquitted of the charges
framed against him.
9. On the other hand, learned Additional Advocate
General supported the judgment of the learned trial Court and
contended that since the charges against the accused have been
duly proved by the prosecution beyond reasonable doubt, the
learned trial Court has rightly convicted him on the basis of proper
.
appreciation of evidence.
10. I have heard the learned counsel for the appellant as
well as the learned Additional Advocate General and also gone
through the record carefully.
of
11. The accused stood charged for commission of the
offence under Sections 7 and 13(1)(d) punishable under Section
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13(2) of the PC Act as being a public servant, he allegedly
demanded and accepted illegal gratification of Rs.1,000/- from the
complainant to dispose of his assessment case. To substantiate
the said charge and to bring home the guilt of the accused, the
prosecution examined as many as fifteen witnesses. However, the
case of the prosecution mainly rests upon the statements of PW-1
Shyam Singh, PW-2 Deepak Guleria, PW-3 Shakti Sharma, PW-4
Inspector Mahender Kumar and PW-14 Bhupender Singh, who is
the Investigating Officer of the case. These are the most material
witnesses of the prosecution, who have been examined primarily to
prove the guilt of the accused.
12. PW-1 Shyam Singh deposed that in the year 2010, he
accompanied the Dy.SP Vigilance to the office of ETO, who was
present in her office whose name was Kumari Nirmal and the
.
vigilance officials were also present in the said office. A clerk of the
office, namely Neeraj, was also present in the office. Accused
Neeraj was caught from his both hands by the vigilance staff and
his hands were got washed in a bowl with clean water. The colour
of
of the hand wash remained normal and thereafter the police added
sodium carbonate to the hand wash and the colour of the hand
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wash changed into a light pink. The said pink colour hand wash
was put in a glass nip, which was sealed with seal, impression of
which he did not remember. The similar process was repeated in
case of ETO also. Accused Neeraj Kumar was asked about the
money at which he took out currency notes of Rs.500/- each from
the pocket of his pants. The serial numbers of the currency notes
were tallied with the serial numbers noted on the memo. The said
currency notes were sealed in a cloth parcel. The parcel containing
currency notes was taken into possession vide memo Ex.PW-1/F
and the nip was taken into possession vide seizure memo Ex.PW-
1/A. Thereafter, the police recorded his statement and the accused
was taken into custody by the police. The pocket of trouser from
which the currency notes of Rs.1,000/- were taken out by the
accused Neeraj Kumar was also washed with clean water in a bowl
.
and the colour of the water on wash remained natural, which turned
to light pink colour on adding sodium carbonate by the police. The
pink coloured-wash obtained from the pocket wash was put into a
glass nip which was also sealed with seal impression 'H'. The
of
trouser of the accused was also put into a cloth parcel which was
also sealed with seal 'H' and was taken into possession vide
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seizure memo Ex.PW-1/C. Deepak Guleria and one more witness
were also present at the spot when the proceedings were
conducted.
13. Complainant Deepak Guleria, while appearing in the
witness box as PW-2, deposed that in the year 2005 he had taken
CST number from the Excise and Taxation Department, Mandi. He
used to deal in various types of goods from outside and used to
pay excise duty for the same. He used to file Excise and Taxation
returns after every three months and in the year 2010, ETO Nirmla
and the dealing hand/clerk Neeraj had asked him to file the returns
yearly and a notice from ETO office was given to him. He had
talked to ETO and concerned dealing clerk Neeraj Kumar that
since he was out of station, he had not brought any goods from
outside, therefore, his income tax returns were nil. ETO Nirmla and
.
dealing clerk Neeraj told him that they would charge Rs.500/- per
year whether he had brought any articles from outside or not.
Thereafter, he went to the office of ETO and before going there he
had also talked to her telephonically. ETO had told him that she
of
could impose penalty of Rs.20,000/- for not filing income tax
returns. Accused Neeraj told him that he should talk to ETO. ETO
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and accused Neeraj had demanded firstly Rs.7,000/- and thereafter
demanded Rs.4.000/- for settling the matter, out of this money,
accused Neeraj demanded Rs.1,000/- and ETO demanded
Rs.3,000/-. Thereafter, he contacted Dy.SP and Inspector Vigilance
Hemant Kumar, who recorded his statement Ex.PW-2/A, who
formed a raiding party comprising of about 10 officials and came to
his office at Moti-bazar. Shakti Sharma was also with him at the
time when he visited the police station and in his office also. When
the police party came to his office, in his presence the police
officials prepared the solution of Sodium Carbonate and
Phenolphthalein which remained colourless and when they were
mixed together, the colour turned into light pink. Thereafter, the
solution was destroyed and sodium carbonate and phenolphthalein
powder was taken in two separate paper packets and were put in a
.
match box and matchbox was sealed in a cloth parcel. The police
also treated the currency notes given by him to them with
phenolphthalein powder and told him that these notes should be
handed over to the accused persons and they prepared
of
demonstration memo Ex.PW-2/B. The police also prepared memo
regarding currency notes which were eight in number of the
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denomination of Rs.500/- each. Police had noted down the
numbers of the currency notes which he had handed over to the
police. Thereafter, he and Shakti Sharma proceeded to the office of
ETO and police had associated Shakti Sharma as shadow witness
and had asked him to hand over the currency notes to the accused
persons and asked Shakti Sharma to signal the police officials after
watching the transaction. Thereafter, he handed over currency
notes of Rs.1,000/- of the denomination of Rs.500/- each to Neeraj
and remaining Rs.3,000/- to the ETO Nirmla. The shadow witness
Shakti Sharma signaled the police party, who came inside the
office. Before proceeding to the office of ETO, the members of
raiding party had already washed their hands regarding which
memo Ex.PW-2/D was prepared. When they reached the office of
ETO and police apprehended the accused Neeraj, then their hands
.
were got washed. Thereafter, the currency notes of Rs.1,000/- of
the denomination of Rs.500/- were recovered from the pants of
Neeraj, which he handed over to the accused. Thereafter, the
currency notes recovered from accused Neeraj were put into an
of
envelope and sealed in a parcel vide memo Ex.PW-1/F.
14. PW-3 Shakti Chand deposed that in the month of
rt
March 2010, when he visited the office of Deepak Guleria, the
vigilance team had come to the office as Deepak Guleria had made
some complaint. Police had prepared two solutions with the help of
sodium carbonate and phenolphthalein, the colour was neutral and
colourless, but when they were mixed, the colour changed to light
pink. They were told that in case currency notes treated with
phenolphthalein were touched/ handled by a person and his hand-
wash was conducted then its colour would change to pink, when
mixed with sodium carbonate. Police had treated the currency
notes of the value of Rs.4,000/- of the denomination of Rs.500/-
each which were given to them by Deepak Guleria. After treating
these notes, the police put the sample powder of phenolphthalein
and sodium carbonate into paper packets and the same were put
into the match boxes, which were sealed in cloth parcels.
.
Thereafter, he alongwith Deepak had gone to the office of ETO and
he remained outside the room. Deepak went inside the room of
accused Neeraj and handed over two currency notes of the
denomination of Rs.500/-each to him. He signaled the police and
of
police went inside the room of accused and the accused put the
currency notes in the pocket of his pants/trouser. Police got the
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hands of accused Neeraj washed in a bowl which was colourless
and put the sodium carbonate in the said bowl, due to which the
colour of the solution turned pink. The said solution was poured
into a nip and sealed. Thereafter, the currency notes of Rs.1,000/-
of the denomination of Rs.500/- each were recovered from the
pocket of the pants of Neeraj. The police had taken into possession
the currency notes vide memo Ex. PW-1/F.
15. PW-4 Inspector Mahender Kumar deposed that on
06.03.2010, he alongwith DySP Bhupender Singh Kanwar,
Inspector Hemant Kumar, SI Rishi Raj, Constable Brajesh Kumar,
Constable Pankaj Kumar, Constable Rajesh Kumar and LC Alka
Thakur had gone to the office of Deepak Communication, Moti
Bazar, Mandi in a government vehicle, where the complainant
Deepak Guleria got recorded his statement Ex.PW-2/A, which was
.
sent to PS SV and ACB, through Constable Rajesh Kumar.
Thereafter, Investigating Officer Bhupender Singh Kanwar had
taken out two glasses from his kit and put a pinch of sodium
carbonate and phenolphthalein into the glasses and also poured
of
water in the same. The colour of the water remained neutral, when
the two solutions were mixed together, the colour turned light pink.
rt
The Investigating Officer demonstrated about this solution to
complainant and witness Shakti Sharma on the spot and then
destroyed the said solution. Thereafter, the samples were taken
from the said powder, which were put into paper packets and then
in the match boxes and sealed in cloth parcels. Thereafter,
complainant Deepak Gulería handed over 8 currency notes of
Rs.500/- each to the Investigating Officer which were treated with
phenolphthalein power and their numbers were noted vide memo
Ex.PW-2/C. Investigating Officer directed the complainant to hand
over two notes of Rs.500/- each to accused Neeraj Kumar and
remaining six notes to ETO and asked complainant to put these
notes into the pocket of his jacket. Shakti Sharma was made
shadow witness and Investigating Officer also asked the shadow
witness to watch the whole transaction and to give signal to the
.
police party when the complainant would hand over the currency
notes to the accused. Thereafter, hand wash of the members of the
raiding party and complainant was done and memo regarding this
Ex.PW-2/D was prepared. Complainant Deepak Guleria and
of
shadow witness Shakti Sharma went to the office of ETO on a
motorcycle and raiding party went to the office of ETO in their
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official vehicle. Thereafter, the raiding party and the shadow
witness took their position outside the office of ETO. Accused
Neeraj Sharma was found sitting in his room. On receipt of signal
from shadow witness, they entered the room of the accused who
was sitting in the office of ETO and ETO was sitting on her seat.
ETO was apprehended from hands by LC Alka Thakur and
accused Neeraj Sharma was nabbed by Constable Pankaj Kumar
and Brijesh Kumar. Thereafter, Investigating Officer called Naib-
Tehsildar Shyam Singh Thakur on the spot and the hands of the
accused were got washed in a fiber bowl which remained
colourless and thereafter sodium carbonate was added in it and it
turned pink. The pink coloured solution was poured in a nip and
sealed with seal impression 'H' and taken into possession vide
memo Ex.PW-1/A. Sample seal was taken on a separate piece of
.
cloth. Thereafter, two currency notes of Rs.500/- were recovered
from the right side pocket of pants of the accused Neeraj and their
serial numbers were tallied with the pretreated numbers already
noted in pre-trap memo which were same. The recovered notes
of
were put in khakhi envelope and sealed in a cloth parcel with same
seal impression 'H' and were taken into possession vide memo
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Ex.PW-1/F. The pocket of the pant of the accused was also washed
whose colour did not change, but when mixed with sodium
carbonate, its colour changed into pink.
16. PW-14 Addl. SP Bhupender Singh (Investigating
Officer) deposed that on 06.03.2010, a raiding party was
constituted on the information of complainant Deepak Guleria, who
had stated that he had received an assessment notice from
Assessing Authority, Mandi and in lieu of settlement of his account,
E.TO. Nirmal Kumari demanded a sum of Rs.3,000/- and her clerk
Neeraj Kumar i.e. accused demanded a sum of Rs.1,000/-. The
statement of complainant under Section 154 Cr.P.C. was recorded
and sent to the police station for registration of the FIR, where FIR
EX.PW5/D was registered. He had constituted two raiding parties,
one under his leadership and second under Inspector Hemant
.
Kumar. Inspector Mohinder, S.I. Rishi Raj, C. Pankaj were with him
and SI Harbans, LC Alka and C. Rajesh Kumar were with the
Inspector Hemant Kumar in the other party. Thereafter, he
demonstrated to the witnesses about the proceedings in the office
of
of the complainant and prepared memo Ex.PW2/B. Thereafter, he
took samples of sodium carbonate and phenolphthalein into
rt
separate papers those were kept in separate match boxes and
were sealed in a cloth parcel with 3 seals of impression 'H' each.
Thereafter, he obtained a sum of Rs.4,000/- from the complainant
which was demanded by the accused persons as bribe. The
numbers of currency notes were noted. These currency notes were
treated with Phenolphthalein and prepared memo Ex.PW2/C. He
directed the complainant to pay a sum of Rs.3,000/- to Nirmal and
Rs.1,000/- to accused Neeraj Kumar on their demand. Shakti
Sharma was associated as shadow witness and thereafter the
entire police party was directed to wash their hands alongwith
witnesses and memo Ex.PW2/D was prepared. Both the parties
proceeded to the office of Excise and Taxation Department, Ram
Nagar Mandi, H.P. He had directed the complainant to pay bribe
money to the accused persons on their demand and shadow
.
witness was directed to give signal after acceptance of bribe
money by the accused persons. After some time shadow witness
Shakti Sharma gave signal to the police officials and they entered
the office of ETO Nirmal. Thereafter, they introduced themselves
of
to E.TO. Nirmal and accused Neeraj and the accused persons
were caught hold from their wrists. Thereafter,
rt he called PW-1
Naib Tehsildar Shyam Singh. In presence of the witnesses, the
hands of accused Neeraj Kumar were washed with water in utensil.
The colour of the water did not change. Thereafter sodium
carbonate was put into this water and colour changed into light
pink. The hand wash was kept in a nip which was sealed with seal
'H' at one place and nip was taken into possession vide memo
Ex.PW1/A and signatures of witnesses were obtained on it.
Thereafter, the hands of ETO Nirmal were also washed in the same
manner. Thereafter, a sum of Rs.3,000/- was recovered from ETO
Nirmal. The numbers of currency notes were tallied with the memo
and were found to be same. The currency notes were put in an
envelope and were sealed with 3 seals of seal 'H'. The memo
Ex.PW14/A was prepared and signatures of witnesses were
obtained on it. Thereafter a sum of Rs.1,000/- was recovered from
.
the right pocket of the pants of accused Neeraj Kumar. The
numbers of these notes were tallied with memo and were found to
be the same. The currency notes were put in an envelope which
was kept in a parcel and was sealed with 3 seals of seal H. The
of
sample seal was also drawn and the parcel was taken into
possession vide memo Ex.PWI/F. Thereafter, pants worn by
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accused Neeraj Kumar was taken into possession and right pocket
of the pant of the accused was washed with simple water and the
colour did not change but after putting sodium carbonate in it, the
colour changed into light pink. The pocket wash was kept in a nip
which was sealed with one seal impression of H. The pant was
kept in a separate parcel which was sealed with 9 seals of seal 'H'.
The sample seal was separately drawn and the seal after its use
was handed over to Shakti Chand. The parcels were taken into
possession vide memo Ex.PW6/C. Thereafter, he prepared spot
map Ex.PW14/B and the file of the complainant was taken into
possession from the office of ETO, vide memo Ex.PW5/E.
Thereafter, the office of ETO Nirmal was searched and memo
Ex.PW14/C was prepared. Thereafter, ETO Nirmal was arrested
vide memo Ex.PW14/D and accused Neeraj Kumar was arrested
.
vide memo Ex.PW2/E.
17. Now, the point for determination in this appeal is
whether the mandatory requirements to bring the accused under
the purview of Section 7 of the PC Act and under Section
of
13(1)(d) read with Section 13(2) of the PC Act, have been followed
to warrant a conviction in this case?
rt
18. It is not in dispute that that the sanction for prosecution
was granted only in the case of the accused-appellant, but on the
same material, it was refused with respect to the co-accused, i.e.
ETO Ms. Nirmal for the reasons best known to the prosecution.
19. Before going into the factual aspects, the first question
which arises for consideration is as to whether there is a proper
and legal prosecution sanction in this case or whether such a
sanction stands proved according to law. It is a settled law
that sanction of prosecution is not an automatic formality and it
cannot be accorded in a mechanical manner without application of
mind by the sanctioning authority. Ext.PW12/A is the copy of the
prosecution sanction granted by the Excise & Taxation
Commissioner against accused Neeraj Kumar. On going through
the sanction order Ext.PW12/A, it can be seen that
.
this sanction was by the order and in the name of Excise &
Taxation Commissioner. This sanction order Ext.PW12/A
mentioned about the details of allegations against the accused.
20. A reading of the prosecution sanction Ext.PW12/A
of
shows that the allegations therein are that the accused had
demanded the bribe from the complainant in lieu of the facilitating
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for tax assessment penalty and after completion of codal
formalities, a trap was laid and the accused was caught red handed
while accepting bribe. The prosecution, in order to prove the
sanction order Ext. PW12/A, has examined Dinesh Kumar, Senior
Assistant, office of Excise and Taxation Commissioner as PW-12,
however, he is not the right and the competent person to prove a
prosecution sanction granted under Section 19 of the PC Act. PW-
12 has failed to depose that the entire relevant material was placed
before the sanctioning authority and the authority had applied its
mind on the same and thereafter the sanction Ext. PW12/A was
granted. In so many decisions, the Hon'ble Apex Court has settled
that the prosecution sanction must be proved by the person who
granted the sanction or issued the sanction order, except in cases
.
where the sanction can claim some sanctity or immunity.
21. In Mansukhlal Vithaldas Chauhan Vs. State of
Gujarat, (1997) 7 SCC 682, it was held that the grant of sanction is
not an idle formality or an acrimonious exercise but a solemn and
of
sacrosanct act which affords protection to government servants
against frivolous prosecutions and the validity of the sanction
rt
would, therefore, depend upon the material placed before the
sanctioning authority and the fact that all the relevant facts,
material and evidence have been considered by the sanctioning
authority. Paras-17 to 19 of the judgment read as under:-
"17. Sanction lifts the bar for prosecution. 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. Sanction is a weapon to ensure
discouragement of frivolous and vexatious prosecution and
is a safeguard for the innocent but not a shield for the guilty.
18. The validity of the sanction would, therefore,
depend upon the material placed before the sanctioning
authority and the fact that all the relevant facts, material and
evidence have been considered by the sanctioning authority.
Consideration implies application of mind 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 This fact
can also be established by extrinsic evidence by placing the
relevant files before the Court to show that all relevant facts
were considered by the sanctioning authority.
19. Since the validity of "sanction" depends on the
applicability of mind by the sanctioning authority to the facts
of the case as also the material and evidence collected
during investigation, it necessarily follows that the
.
sanctioning authority has to apply its own independent mind
for the generation of genuine satisfaction whether
prosecution has to be sanctioned or not. The mind of the
sanctioning authority should not be under pressure from any
quarter nor should any external force be acting upon it to
take a decision one way or the other. Since the discretion to
grant or not to grant sanction vests absolutely in the
sanctioning authority, its discretion should be shown to have
not been affected by any extraneous consideration. If it is
of
shown that the sanction authority was unable to apply its
independent mind for any reason whatsoever or was under
an obligation or compulsion or constraint to grant the
sanction, the order will be bad for the reason that the
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discretion of the authority "not to sanction" was taken away
and it was compelled to act mechanically to sanction the
prosecution".
22. In State (NCT of Delhi) Vs. Navjot Sandhu, (2005) 11
SCC 600, the Supreme Court held as under:-
"16...........Ultimately, the test to be applied is whether
relevant material that formed the basis of allegations
constituting the offence was placed before the sanctioning
authority and the same was perused before granting
sanction.............."
23. In the matter of State of Karnataka Vs. Ameerjan,
(2007) 11 SCC 273, it was held that the order granting sanction
must be demonstrative of the fact that there had been proper
application of mind on the part of the sanctioning authority. Para-10
of the judgment is reproduced as under:-
"10. For the aforementioned purpose, indisputably,
application of mind on the part of the sanctioning authority is
imperative. The order granting sanction must be
demonstrative of the fact that there had been proper
application of mind on the part of the sanctioning authority.
We have noticed hereinbefore that the sanctioning authority
.
had purported to pass the order of sanction solely on the
basis of the report made by the Inspector General of Police,
Karnataka Lokayukta. Even the said report has not been
brought on record. Thus, whether in the said report, either in
the body thereof or by annexing therewith the relevant
documents, IG Police, Karnataka Lokayukta had placed on
record the materials collected on investigation of the matter
which would prima facie establish existence of evidence in
regard to the commission of the offence by the public
of
servant concerned is not evident. Ordinarily, before passing
an order of sanction, the entire records containing the
materials collected against the accused should be placed
before the sanctioning authority. In the event, the order of
rt
sanction does not indicate application of mind as the
materials placed before the said authority before the order of
sanction was passed, the same may be produced before the
court to show that such materials had in fact been
produced."
24. In CBI Verus Ashok Kumar Aggarwal, AIR 2014
Supreme Court 827, the Hon'ble Supreme Court in paras 7 & 8
has held as under:-
"7. The prosecution has to satisfy the court that at the
time of sending the matter for grant of sanction by the
competent authority, adequate material for such grant was
made available to the said authority. This may also be
evident from the sanction order, in case it is extremely
comprehensive, as all the facts and circumstances of the
case may be spelt out in the sanction order. However, in
every individual case, the court has to find out whether there
has been an application of mind on the part of the
sanctioning authority concerned on the material placed
before it. It is so necessary for the reason that there is an
obligation on the sanctioning authority to discharge its duty
to give or withhold sanction only after having full knowledge
of the material facts of the case. Grant of sanction is not a
mere formality. Therefore, the provisions in regard to the
sanction must be observed with complete strictness keeping
in mind the public interest and the protection available to the
accused against whom the sanction is sought.
It is to be kept in mind that sanction lifts the bar for
prosecution. Therefore, it is not an acrimonious exercise but
.
a solemn and sacrosanct act which affords protection to the
government servant against frivolous prosecution. Further, it
is a weapon to discourage vexatious prosecution and is a
safeguard for the innocent, though not a shield for the guilty.
Consideration of the material implies application of
mind. Therefore, the order of sanction must ex facie disclose
that the sanctioning authority had considered the evidence
and other material placed before it. In every individual case,
the prosecution has to establish and satisfy the court by
of
leading evidence that those facts were placed before the
sanctioning authority and the authority had applied its mind
on the same. If the sanction order on its face indicates that
all relevant material i.e. FIR, disclosure statements, recovery
rt
memos, draft charge sheet and other materials on record
were placed before the sanctioning authority and if it is
further discernible from the recital of the sanction order that
the sanctioning authority perused all the material, an
inference may be drawn that the sanction had been granted
in accordance with law. This becomes necessary in case the
court is to examine the validity of the order of sanction inter-
alia on the ground that the order suffers from the vice of total
non-application of mind.
(Vide: Gokulchand Dwarkadas Morarka v. King, AlR
1949 PC 82; Jaswant Singh v. State of Punjab, AIR 1958 SC
124; Mohd. Iqbal Ahmed v. State of A.P., AIR 1979 SC 677;
State through Anti- Corruption Bureau, Govt. of Maharashtra
v. Krishanchand Khushalchand Jagtiani, AIR 1996 SC
1910; State of Punjab v. Mohd. Iqbal Bhatti, (2009) 17 SCC
92; Satyavir Singh Rathi, ACP v. State, AIR 2011 SC 1748;
and State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC
119 : (AIR 2013 SC (Cri) 1466: 2013 AIR SCW 3174).
8. In view of the above, the legal propositions can be
summarised as under:-
(a) The prosecution must send the entire relevant
record to the sanctioning authority including the FIR,
disclosure statements, statements of witnesses, recovery
memos, draft charge sheet and all other relevant material.
The record so sent should also contain the
material/document, if any, which may tilt the balance in
favour of the accused and on the basis of which, the
competent authority may refuse sanction.
(b) The authority itself has to do complete and
conscious scrutiny of the whole record so produced by the
prosecution independently applying its mind and taking into
consideration all the relevant facts before grant of sanction
.
while discharging its duty to give or withhold the sanction.
(c) The power to grant sanction is to be exercised
strictly keeping in mind the public interest and the protection
available to the accused against whom the sanction is
sought.
(d) The order of sanction should make it evident that
the authority had been aware of all relevant facts/materials
and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to
of
establish and satisfy the court by leading evidence that the
entire relevant facts had been placed before the sanctioning
authority and the authority had applied its mind on the same
and that the sanction had been granted in accordance with
rt
law."
25. In this case, the prosecution did not care to examine
J.C. Sharma, Excise and Taxation Commissioner, who granted the
sanction. In a case where a prosecution cannot be sustained in the
absence of a proper sanction, the person who granted the sanction
must be examined. This is the trend of all the decisions on the
point. But in this case, the person who granted the sanction was
not examined to prove the same. Mere fact that a draft sanction
order detailing all the facts and circumstances of the case was
forwarded to the sanctioning authority is indicative of the fact that
the sanctioning authority has accorded sanction mechanically and
without applying its mind to the facts and circumstances of the case
by signing on the dotted lines. In such a situation, it will have to be
found that there is no proper and valid prosecution sanction in this
.
case. On this ground itself, the accused is entitled for acquittal as
regards the charge under the PC Act, in view of the bar under
Section 19 of the PC Act.
26. It is a settled principle of law that mere recovery of the
of
bribe money by itself cannot bring home the charge for the
offences punishable under Section 7 or 13(2) read with Section
rt
13(1) (d) of the PC Act against the accused, in the absence of any
evidence to prove demand of bribe or to show that the accused
voluntarily accepted the bribe money, as has been held in a catena
of judgments passed by the Apex Court. It is also a settled
principle of law that suspicion, however grave cannot take the
place of proof, and there is a large difference between something
that "may be" proved, and something that "will be proved".
27. In B. Jayaraj Vs. State of Andhra Pradesh, (2014) 13
SCC 55, the Hon'ble Supreme Court in paras 8 & 9 of the judgment
held that mere possession and recovery of the currency notes from
the accused without proof of demand will not bring home the
offence under Section 7. Paras 8 & 9 of the judgment reproduced
as under:-
"8. In the present case, the complainant did not
support the prosecution case insofar as demand by the
.
accused is concerned. The prosecution has not examined
any other witness, present at the time when the money was
allegedly handed over to the accused by the complainant, to
prove that the same was pursuant to any demand made by
the accused. When the complainant himself had disowned
what he had stated in the initial complaint (Ext. P-11) before
LW 9, and there is no other evidence to prove that the
accused had made any demand, the evidence of PW 1 and
the contents of Ext. P-11 cannot be relied upon to come to
of
the conclusion that the above material furnishes proof of the
demand allegedly made by the accused. We are, therefore,
inclined to hold that the learned trial court as well as the High
Court was not correct in holding the demand alleged to be
rt
made by the accused as proved. The only other material
available is the recovery of the tainted currency notes from
the possession of the accused. In fact such possession is
admitted by the accused himself. Mere possession and
recovery of the currency notes from the accused without
proof of demand will not bring home the offence under
Section 7. The above also will be conclusive insofar as the
offence under Sections 13(1)(d)(i) and (ii) is concerned as in
the absence of any proof of demand for illegal gratification,
the use of corrupt or illegal means or abuse of position as a
public servant to obtain any valuable thing or pecuniary
advantage cannot be held to be established.
9. Insofar as the presumption permissible to be drawn
under Section 20 of the Act is concerned, such presumption
can only be in respect of the offence under Section 7 and not
the offences under Sections 13(1)(d)(i) and (ii) of the Act. In
any event, it is only on proof of acceptance of illegal
gratification that presumption can be drawn under Section 20
of the Act that such gratification was received for doing or
forbearing to do any official act. Proof of acceptance of illegal
gratification can follow only if there is proof of demand. As
the same is lacking in the present case the primary facts on
the basis of which the legal presumption under Section 20
can be drawn are wholly absent."
28. In P. Satyanarayana Murthy Vs. District Inspector of
Police, State of Andhra Pradesh and another, reported in
(2015) 10 SCC 152 , it has been held that mere acceptance of any
amount allegedly by way of illegal gratification or recovery thereof,
.
dehors the proof of demand, ipso facto, would thus not be sufficient
to bring home the charge under these two sections of the Act.
Paras 23 and 24 of the judgment read as under:-
"23. The proof of demand of illegal gratification, thus,
of
is the gravamen of the offence under Sections 7 and
13(1)(d)(i) and (ii) of the Act and in absence thereof,
unmistakably the charge therefor, would fail. Mere
acceptance of any amount allegedly by way of illegal
gratification or recovery thereof, dehors the proof of demand,
rt
ipso facto, would thus not be sufficient to bring home the
charge under these two sections of the Act. As a corollary,
failure of the prosecution to prove the demand for illegal
gratification would be fatal and mere recovery of the amount
from the person accused of the offence under Section 7 or
13 of the Act would not entail his conviction thereunder.
24. The sheet anchor of the case of the prosecution is the
evidence, in the facts and circumstances of the case, of PW
1 S. Udaya Bhaskar. The substance of his testimony, as has
been alluded to hereinabove, would disclose qua the aspect
of demand, that when the complainant did hand over to the
appellant the renewal application, the latter enquired from the
complainant as to whether he had brought the amount which
he directed him to bring on the previous day, whereupon the
complainant took out Rs 500 from the pocket of his shirt and
handed over the same to the appellant. Though, a very
spirited endeavour has been made by the Cr.Appeal (SJ).
No.302 of 2020 learned counsel for the State to co-relate this
statement of PW1 S.Udaya Bhaskar to the attendant facts
and circumstances including the recovery of this amount
from the possession of the appellant by the trap team,
identification of the currency notes used in the trap 12
operation and also the chemical reaction of the sodium
carbonate solution qua the appellant, we are left
unpersuaded to return a finding that the prosecution in the
instant case has been able to prove the factum of demand
beyond reasonable doubt. Even if the evidence of PW 1 S.
Udaya Bhaskar is accepted on the face value, it falls short of
the quality and decisiveness of the proof of demand of illegal
gratification as enjoined by law to hold that the offence under
Section 7 or Sections 13(1)(d)(i) and (ii) of the Act has been
.
proved. True it is, that on the demise of the complainant,
primary evidence, if any, of the demand is not forthcoming.
According to the prosecution, the demand had in fact been
made on 3-10-1996 by the appellant to the complainant and
on his complaint, the trap was laid on the next date i.e. 4-10-
1996. However, the testimony of PW 1 S. Udaya Bhaskar
does not reproduce the demand allegedly made by the
appellant to the complainant which can be construed to be
one as contemplated in law to enter a finding that the offence
of
under Section 7 or Sections 13(1)(d)(i) and (ii) of the Act
against the appellant has been proved beyond reasonable
doubt."
29.
rt
In Krishan Chander Versus State of Delhi, (2016) 3
SCC 108, the Hon'ble Supreme Court reiterated the settled
principle of law regarding the ingredients of inter-alia Section 7 of
the PC Act that the demand for the bribe money is sine qua non to
convict the accused for the offences punishable under Sections 7
and 13(1)(d) read with Section 13(2) of the PC Act. Paras 35, 36
and 37 of the judgment read as under:-
"35. It is well settled position of law that the demand
for the bribe money is sine qua non to convict the accused
for the offences punishable under Sections 7 and 13(1)(d)
read with Section 13(2) of the PC Act. The same legal
principle has been held by this Court in the case of
B.Jayaraj (supra), A. Subair (supra) and P. Satyanarayana
Murthy (supra) upon which reliance is rightly placed by the
learned senior counsel on behalf of the appellant.
36. The relevant paragraph 7 from B. Jayaraj case
(supra) reads thus "7. Insofar as the offence under Section
7 is concerned, it is a settled position in law that demand of
illegal gratification is sine qua non to constitute the said
offence and mere recovery of currency notes cannot
constitute the offence under Section 7 unless it is proved
beyond all reasonable doubt that the accused voluntarily
accepted the money knowing it to be a bribe. The above
.
position has been succinctly laid down in several judgments
of this Court. By way of illustration reference may be made
to the decision in C.M. Sharma v. State of A.P. and C.M.
Girish Babu v. CBI." (emphasis supplied)
37. In the case of P. Satyanarayana Murthy (supra), it
was held by this Court as under:
"21. In State of Kerala and another vs. C.P. Rao, this
Court, reiterating its earlier dictum, vis-à-vis the same
offences, held that mere recovery by itself, would not
of
prove the charge against the accused and in absence
of any evidence to prove payment of bribe or to show
that the accused had voluntarily accepted the money
knowing it to be bribe, conviction cannot be
rt
sustained."
30. In N. Sunkanna Vs. State of A.P., (2016) 1 SCC 713 ,
the Hon'ble Supreme Court held that mere possession and
recovery of the currency notes from the accused without proof of
demand will not bring home the offence under Section 7, since
demand of illegal gratification is sine qua non to constitute the said
offence. Relevant portion of the judgment reads as under:-
"5. ..........It is settled law that mere possession and
recovery of the currency notes from the accused without
proof of demand will not bring home the offence
under Section 7, since demand of illegal gratification is sine
qua non to constitute the said offence. The above also will be
conclusive insofar as the offence under Section 13(1)(d) is
concerned as in the absence of any proof of demand for
illegal gratification the use of corrupt or illegal means or
abuse of position as a public servant to obtain any
valuable thing or pecuniary advantage cannot be held to be
established. It is only on proof of acceptance of illegal
gratification that presumption can be drawn under Section
20 of the Act that such gratification was received for doing or
forbearing to do any official act. Unless there is proof of
demand of illegal gratification proof of acceptance will not
follow. Reference may be made to the two decisions of the
.
three-Judge Bench of this Court in B. Jayaraj v. State of A.P.
[(2014) 13 SCC 55: (2014) 5 SCC (Cri) 543] and P.
Satyanarayana Murthy v. State of A.P. [(2015) 10 SCC 152 :
(2016) 1 SCC (Cri) 11 : (2015) 9 Scale 724] "
31. In Mukhtiar Singh v. State of Punjab, (2017) 8 SCC
136, it has been held that in order to prove the charge under the
of
above provisions, the prosecution has to establish by proper proof,
the demand and acceptance of the illegal gratification and till that is
rt
accomplished, the accused should be considered to be innocent.
Para-13 of the judgment reads as under:-
"13.The indispensability of the proof of demand and
illegal gratification in establishing a charge under Sections 7
and 13 of the Act, has by now engaged the attention of this
Court on umpteen occasions. In A. Subair v. State of Kerala,
this Court propounded that the prosecution in order to prove
the charge under the above provisions has to establish by
proper proof, the demand and acceptance of the illegal
gratification and till that is accomplished, the accused should
be considered to be innocent. Carrying this 13 enunciation
further, it was exposited in State of Kerala v. C.P. Raothat
mere recovery by itself of the amount said to have been paid
by way of illegal gratification would not prove the charge
against the accused and in absence of any evidence to
prove payment of bribe or to show that the accused had
voluntarily accepted the money knowing it to be bribe,
conviction cannot be sustained."
32. Thus, mere possession and recovery of currency notes
from an accused without proof of demand would not enable the
court to convict the accused. In the absence of any proof of
demand for illegal gratification, the use of corrupt or illegal means
.
or abuse of position as a public servant to obtain any valuable
thing or pecuniary advantage cannot be held to be proved. The
proof of demand, thus, has been held to be an indispensable
essentiality for an offence under Sections 7and 13 of the PC Act.
of
Qua Section 20 of the PC Act, which permits a presumption as
envisaged therein, it has been held that while it is extendable only
rt
to an offence under Section 7 of the PC Act, such proof of
acceptance of illegal gratification, could follow only if there was
proof of demand. Axiomatically, it is true that in absence of proof of
demand, such legal presumption under Section 20 of the PC Act
could not be made.
33. Now, it is to be seen as to whether the prosecution has
been able to successfully establish the demand of Rs.1,000/- by
the appellant-accused and recovery of two currency notes of
Rs.500/- from his possession. The perusal of the evidence on
record reveals that it was the co-accused, i.e. Excise and Taxation
Officer (ETO) who demanded the bribe from the complainant. In his
cross-examination, PW-2 Deepak Guleria, who is the complainant,
admitted that accused Neeraj had not telephonically talked with him
and he had received a notice from the ETO. He also admitted that
.
regarding imposition of the penalty of Rs.20,000/-, he had been
intimated by the ETO and it was the only ETO who was competent
to impose penalty as well as to recover arrears of tax. Therefore,
the accused- appellant being not authorized to impose/condone
of
penalty as well as to recover arrears of tax, by no stretch of
speculation, he could be expected to have put forth a demand of
rt
Rs.1,000/- as bribe money. It is also pertinent to note that a
meagre sum of Rs.1,000/- alone is said to be demanded and
accepted as bribe which also makes it improbable. The prosecution
has failed to prove by leading sufficient and reliable evidence that
accused had demanded the bribe money from the complainant. It is
a settled law that in the absence of proof of demand, the
presumption under Section 20 of the Prevention of the Corruption
Act will not get attracted. In V. Venkata Subbarao V.
State represented by Inspector of Police reported in (2006) 13
SCC 305, the Hon'ble Supreme Court has held that in the
absence of a proof of demand, the question of raising the
presumption would not arise. Section 20 of the PC Act provides for
raising of a presumption only if a demand is proved. The relevant
portion of the judgment reads as under:-
.
"24..........In the absence of a proof of demand, the question
of raising the presumption would not arise.Section 20 of the
Prevention of Corruption Act, 1988 provides for raising of a
presumption only if a demand is proved. It reads as under:
20. Presumption where public servant accepts
gratification other than legal remuneration - (1)
Where, in any trial of an offence punishable under
Section 7 or Section 11 of clause (a) or clause (b) of
of
sub-section (1) of Section 13, it is proved that an
accused person has accepted or obtained or has
agreed to accept or attempted to obtain for himself, or
for any other persons, any gratification (other than
rt
legal remuneration) or any valuable thing from any
person, it shall be presumed, unless the contrary is
proved, that he accepted or obtained or agreed to
accept or attempted to obtain that gratification or that
valuable thing, as the case may be, as a motive or
reward such as is mentioned in Section 7 or, as the
case may be, without consideration or for a
consideration which he knows to be inadequate."
34. In State of Maharashtra Vs. Dnyaneshwar Laxman
Rao Wankhede, reported in (2009) 15 SCC 200, the Hon'ble
Supreme Court has made the following observations:-
"16. Indisputably, the demand of illegal gratification is a
sine qua non for constitution of an offence under the
provisions of the Act. For arriving at the conclusion as to
whether all the ingredients of an offence viz., demand,
acceptance and recovery of the amount of illegal
gratification have been satisfied or not, the court must take
into consideration the facts and circumstances brought on
the record in their entirety. For the said purpose,
indisputably the presumptive evidence, as is laid down in
Section 20 of the Act, must also be taken into consideration
but then in respect thereof, it is trite, the standard of burden
of proof on the accused vis-a-vis the standard of burden of
proof on the prosecution would differ. Before, however, the
accused is called upon to explain as to how the amount in
question was found in his possession, the foundational
facts must be established by the prosecution. Even while
.
invoking the provisions of Section 20 of the Act, the Court is
required to consider the explanation offered by the
accused, if any, only on the touchstone of preponderance
of probability and not on the touchstone of proof beyond all
reasonable doubt."
35. In the instant case, as observed earlier, demand by the
of
accused-appellant from complainant could not be established by
the prosecution, as such, in the absence of a proof of demand, the
rt
question of raising the presumption would not arise under Section
20 of the Act.
36. The trap proceedings are also surrounded by
suspicious circumstances and doubts. There are vital and material
contradictions which would show that the entire trap operation
could have been a stage managed show. Different versions were
given by PW2, PW-3 and PW4 in respect of the execution of the
trap. PW-2 Deepak Guleria, in his cross-examination stated that
firstly he visited the room of accused Neeraj. He admitted that his
file was with ETO and he remained in the room of ETO for about
five minutes and thereafter the police came there, whereas, PW-3
Shakti Sharma, who is the shadow witness, stated in his
examination-in-chief, that he alongwith PW-2 Deepak had gone to
the office of ETO and he remained outside the room and Deepak
.
went inside the room of accused Neeraj and handed over two
currency notes of Rs.500/- each to him. However, PW-4 Mahender
Singh, who was one of the police officials in the raiding party, in his
cross-examination deposed that they reached in the office of ETO
of
at about 11.30 am. He was standing outside the office of ETO near
the gate and accused Neeraj was in the room of ETO when they
rt
reached there and they did not go to the room of accused Neeraj.
PW-14 Bhupender Singh deposed that after sometime, shadow
witness Shakti Sharma gave signal to the police officials and they
entered the office of ETO Nirmal. Thereafter, they introduced
themselves to ETO Nirmal and accused Neeraj and they were
caught hold from their wrists. He admitted in his cross-
examination that the room occupied by accused Neeraj was in
front of the office of ETO and accused Neeraj was also present in
the office of ETO when they were caught accepting bribe money
from the complainant.
37. So far as recovery is concerned, the inconsistencies,
contradictions and discrepancies pointed out leads to an
inference that the prosecution has miserably failed to prove its
case of acceptance of bribe .Therefore, in the light of the emphatic
.
pronouncement of the law in this regard, the necessary conclusion
that can be arrived at is that the presumption contemplated under
Section 20 of the PC Act does not get attracted to the case on
hand. Furthermore, it is not a case where the burden of proof was
of
on the accused in terms of Section 20 of the PC Act. The learned
trial court has recorded the finding of guilt on the basis of surmises
rt
and conjectures. The learned trial court has misread the evidence
and has mislead itself in reaching to the conclusion that the
accused is guilty of the offence charged, as a result of which, the
entire proceedings against the accused stand vitiated.
38. Learned Senior Counsel for the appellant-accused
further contended that no independent witness has been
associated by the police, on account of which the entire
proceedings against the accused stand vitiated. In Ram Parkash
Arora Vs. The State of Punjab, AIR 1973 SC 498, while
deprecating the practice of associating interested witnesses, it has
been held by the Apex Court that the court may look for
independent corroboration before convicting the accused. Relevant
portion of the judgment reads as under:-
"8.........It must be remembered that both Joginder
Singh (bribe giver) and Dalbir Singh (shadow witness) P.Ws.
.
were interested and partisan witnesses. They were
concerned in the success of the trap and their evidence must
be tested in the same way as that of any other interested
witness and in a proper case the court may look for
independent corroboration before convicting the accused
person......."
39. The Hon'ble Apex Court in Som Parkash V. State of
of
Punjab, reported in AIR 1992 SC 665, has held that witnesses
forming part of the raiding party are not independent witnesses.
rt
Therefore, their evidence has to be considered like any other
witnesses in the light of the other materials and the cumulative
circumstances available on record. Para-2 of the judgment reads
as under:-
"2. The High Court found that the witnesses who were
associated in the conduct of the raid for recovery of
tainted money from the appellant could not be termed as
independent who could be associated with such raids. The
High Court further expressed doubt about veracity of the
witness who claimed that money was actually handed over
in his presence. The High Court, however, drew an adverse
inference against the appellant from the circumstance that
the, bill which was delayed for unreasonable period had
suddenly been passed by the appellant On an overall
assessment the High Court entertained some suspicion
about the credibility of the prosecution witnesses but at the
same time did not find the suspicion to be strong enough to
raise doubt about the guilt of the appellant. We agree with
the learned Counsel for the appellant that in the face of the
finding that the witnesses who formed part of the raiding
party were not independent and the evidence regarding
handing over money to the appellant being unbelievable, the
conviction of the appellant cannot be sustained. The guilt of
the appellant has not been proved beyond reasonable doubt
and as such the benefit must go to him. Considering the
above decisions, in the case of absence of independent and
.
reliable corroborative evidence, other evidence not
conclusive and found contradictory, benefit of doubt can be
given to the accused. In such circumstances, I am of the
view, there is no evidence to show that the
respondent/accused has demanded illegal gratification,
since P.W.2 has given total go by to the complaint. The trial
Court has rightly held that the demand has not been proved
by the prosecution beyond reasonable doubt and as such
the benefit must go to him."
of
40. In Ganga Kumar Srivastava Vs. State of Bihar,
rt
(2005) 6 SCC 211, the Hon'ble Supreme Court in para-20 of the
judgment held as under:-
"20.We must not forget that in a trap case the duty of
the officer to prove the allegations made against a
Government officer for taking bribe is serious, and therefore,
the officers functioning in the Vigilance Department must
seriously endeavour to secure really independent and
respectable witnesses so that the evidence in regard to raid
inspires confidence in the mind of the court and the Court is
not left in any doubt whether or not any money was paid to the
public servant by way of bribe. It is also the duty of the officers
in the Vigilance Department to safeguard for the protection of
public servants against whom a trap case may have been
laid."
41. In the instant case, PW-2 Deepak Guleria is the
complainant, therefore, he is an interested witness and obviously
interested in the success of the case against the accused. The
shadow witness, i.e. PW-3 Shakti Sharma is also an interested
witness as he was working with complainant Deepak Guleria during
the relevant period. The prosecution cannot place reliance on the
evidence of PW-4 Mahender Kumar to corroborate the version of
.
the complainant i.e. PW-2, because he cannot be considered to be
an independent witness as he was a member of the raiding party
as held by the Hon'ble Apex Court in Som Prakash Vs. State of
Punjab, AIR 1992 SC 665 to the effect that the witnesses forming
of
part of the raiding party are not independent witnesses. PW-1
Shyam Singh is the only independent witness, who is the Naib-
rt
Tehsildar, but admittedly he was associated during post trap
proceeding. He had not deposed as to whether the accused had
demanded and accepted the bribe money in his presence. Thus, in
view of the law laid down by the Hon'ble Apex Court, non-
association of the independent witnesses during pre-trap
proceedings assumes significance and the testimonies of the
complainant and the shadow witness cannot be believed to be true
to record the conviction against the accused and also to draw
presumption under Section 20 of the PC Act.
42. From the evidence adduced, nothing has been proved
on record that the appellant demanded bribe from the complainant
for doing his work. Neither demand nor receipt of the bribe money
has been proved. In view of the entire evidence on record, mere
recovery of Rs.1,000/- from the accused is not sufficient to prove
.
the fact of demand and acceptance of illegal gratification by the
accused. Therefore, in the absence of demand of any illegal
gratification and acceptance thereof, it is clear that the prosecution
has failed to prove its case beyond reasonable doubt.
of
43. Hence, in view of my aforesaid discussion, the
prosecution has failed to prove its case against the accused
rt
beyond reasonable doubt. There has been a total wrong
appreciation of evidence on record by the learned trial Court, which
has resulted in miscarriage of justice. For all the reasons stated,
the criminal appeal is allowed and the impugned judgment of
conviction and order of sentence dated 16.04.2015 passed by
learned Special Judge, Mandi, District Mandi, H.P. in Sessions Trial
No.20/2011 are set aside and the appellant-accused is acquitted of
the charges framed against him. Fine amount collected, if any, shall
be refunded to him. The bail bonds executed shall stand cancelled.
44. In view of the provisions of Section 437-A Code of
Criminal Procedure, 1973, the appellant is directed to furnish
personal bond in the sum of Rs.50,000/- with one surety in the like
amount, before the trial Court within a period of four weeks, which
shall be effective for a period of six months, with stipulation that in
.
the event of Special Leave Petition being filed against this
judgment or on grant of leave, the appellant aforesaid, on receipt of
notice thereof, shall appear before the Supreme Court.
of
( Sushil Kukreja )
Judge
November 30, 2023
(VH) rt
