Kerala High Court
Bharat Raj Meena vs Central Bureau Of Investigation, Acb, ... on 24 May, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
CRL.A NO. 590 OF 2016
AGAINST THE JUDGMENT DATED 31.05.2016 IN CC NO.4 OF 2014 OF
SPECIAL JUDGE (SPE/CBI CASES)-III, ERNAKULAM
APPELLANT/ACCUSED:
BHARAT RAJ MEENA
S/O.SRI RAMDEV MEENA, AGED 43 YEARS, RESIDING AT
WARD NO.12, KHENPALE GATE, NAINWA, DISTRICT-BUNDI,
(RAJASTHAN)-323801.
BY ADVS.
ABRAHAM P.MEACHINKARA
P.MURALEEDHARAN(K/209/1984)
ALEXANDER K.C.(K/1057/2021)
MARGARET MAUREEN DROSE(K/1328/2019)
JAYAKRISHNAN P.R.(K/1659/2020)
THOMAS GEORGE(K/1723/2021)
RESPONDENT/COMPLAINANT:
CENTRAL BUREAU OF INVESTIGATION, ACB, KOCHI
ERNAKULAM, BY STANDING COUNSEL, HIGH COURT OF
KERALA, PIN-682031.
BY ADVS.
SRI.SREELAL WARRIAR, SC, C.B.I.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
20.05.2024, THE COURT ON 24.05.2024 DELIVERED THE FOLLOWING:
Crl.Appeal No.590/2016
-:2:-
J U D G M E N T
This appeal has been preferred by the accused in CC
No.4/2014 on the file of Special Judge, (SPE/CBI) III Ernakulam (for
short, 'the trial court') challenging the judgment dated 31/5/2016
convicting and sentencing him under Sections 7 and 13(2) r/w
13(1)(a) of the Prevention of Corruption Act, 1988 (for short, 'the
PC Act').
2. The appellant Bharat Raj Meena was working as
Divisional Security Commissioner, Railway Protection Force,
Palakkad. The case of the prosecution in short is that, while the
appellant was working as public servant in the above capacity,
from April 2005 to July 2005, he demanded and accepted an
amount of `10,000/- from PW5 Abdul Rahiman, and `5,000/-
each from PW6 P.Sankara Narayanan and PW7 T.Rajendran
through PW10 Anantha Narayanan as illegal gratification for
effecting their transfers.
3. The genesis of the case is as follows:
One Sri.P.P.Nandakumar, Clerk in DSC Office, Palakkad
preferred a complaint alleging demand of bribe of `10,000/- by
the appellant through PW10 Anantha Narayanan, Constable/RPF
Coimbatore, for getting complainant's posting in Palakkad area
following his medical decategorization from RPF and subsequent
absorption in alternative post as clerk in Personnel Branch under
DRM Office, Palakkad. Based on the said complaint, the
Superintendent of Police, CBI/ACB, Kochi registered FIR vide
No.RC19(A)/2005/KER/CBI under Sections 7 and 12 of the PC Act
against the appellant and PW10 on 4/8/2005 and entrusted the
investigation of the case to PW12. Thereafter, one Dy.S.P.,
CBI/ACB, Kochi, Sri. Nandakumar Nair and his team laid a trap on
the same day itself and at the instance of Dy.S.P./Trap Laying
Officer aforesaid, tainted money of bribe was handed over by
complainant Sri.P.P.Nandakumar to PW10 which together with
some alleged bribe money in an envelope and personal cash and
diaries were recovered from PW10 who was then arrested by CBI
team. Thereafter, PW12, the investigation officer, after the
investigation of CBI case RC19(A)/2005/CBI/KER dated 4/8/2005
registered based on the original complaint dated 4/8/2005 of
Sri.P.P.Nandakumar filed three separate final reports on
31/7/2006 bearing Nos.04/SK/19/A/05/KER, 05/SK/19/A/05/KER
and 06/SK/19/A/05/KER, before the Court of Special Judge-II, CBI,
Kochi for prosecution of the accused under Sections 7 and 13(1)
(d), Section 7 and 13(1)(d) and Sections 7 and 13(1)(a) of the PC
Act respectively following tender of pardon of the principal
accused PW10 and one Abdul Gafoor from the Court of Chief
Judicial Magistrate, Ernakulam. The final report
Nos.04/SK/19/A/05/KER and 05/SK/19/A/05/KER against the
appellant were then taken up as CC No.2/2014 and CC No.3/2014
respectively by the trial court. The third final report
No.06/SK/19/A/05/KER was quadrifurcated into four cases by the
trial court under Section 219 of Cr.P.C. while framing the charges.
The said cases after splitting up were then taken up as CC
No.4/2014, CC No.2/2015, CC No.3/2015 and CC 4/2015 for trial.
Thereafter, the trial court framed charges against the appellant in
all the above six cases on 26/10/2015. The trial in all cases
commenced simultaneously.
4. In CC No.4/2024 which is the subject matter of this
appeal, PWs 1 to 12 were examined and Exts.P1 to P44 series
were marked on the side of the prosecution. DWs1 to 4 were
examined and Exts.D1 to D26 series were examined on the side
of the defence. After trial, the appellant was found guilty and he
was convicted for the offence under Sections 7 and 13(1)(a) r/w
13(2) of the PC Act. He was sentenced to undergo rigorous
imprisonment for one year each and to pay a fine of `25,000/-
each, in default to suffer simple imprisonment for three months
each for the offence under Section 7 of PC Act, 1988 committed
against each of PWs5, 6 and 7 and further sentenced him to
undergo rigorous imprisonment for two years and to pay a fine of
`1 lakh in default to suffer simple imprisonment for six months
each for the offence under Section 13(2) r/w 13(1)(a) of the PC
Act. The substantive sentence was ordered to be run
concurrently. Challenging the said conviction and sentence, the
appellant preferred this appeal.
5. I have heard Dr.Abraham P.Meachinkara, the learned
counsel for the appellant and Sri.Sreelal N.Warrier, the learned
standing counsel for the CBI.
6. The learned counsel for the appellant impeached the
finding of the trial court on appreciation of evidence and resultant
finding as to the guilt. The learned counsel submitted that there
is absolutely no legal evidence to prove the demand and
acceptance of bribe by the appellant from PWs5, 6 and 7 to
constitute the offence under Sections 7 and 13(1)(a) of the PC
Act. The learned counsel further submitted that the evidence of
PWs6, 8, 9 and 11 is not at all reliable and insufficient to connect
the appellant with the crime. The counsel also submitted that
without any proof of receipt of bribe by the appellant, the trial
court wrongly drew presumption under Section 20 against the
appellant. There is no valid sanction to prosecute the appellant,
added the counsel. On the other hand, the learned Standing
Counsel for CBI supported the findings and verdict handed down
by the trial court and submitted that the prosecution has
succeeded in proving the case beyond reasonable doubt.
7. First, I shall deal with the contention regarding lack of
sanction. The learned counsel for the appellant submitted that
Ext.P12 sanction to prosecute the appellant was not proved in
accordance with law. According to the learned counsel, the
sanction for prosecution was accorded by the sanctioning
authority without considering the relevant documents and
applying its mind. The counsel further submitted that the
sanctioning authority was not examined to prove Ext.P12
sanction order.
8. Section 19(1) of the PC Act says that no court shall
take cognizance of an offence punishable under Sections 7, 10,
11, 13 and 15 alleged to have been committed by a public
servant, except with the previous sanction of the competent
authority referred to in sub-sections (a), (b) and (c). The question
of sanction is of paramount importance for protecting a public
servant who has acted in good faith while performing his duties.
The purpose of obtaining sanction is to see that the public
servant is not entangled in false and frivolous cases. The grant of
sanction is not a mere formality but a solemn act which affords
protection to the government servant against frivolous
prosecution. All the relevant records and materials for the grant
of sanction must be made available to the sanctioning authority,
which must undertake complete and conscious scrutiny of those
records and materials independently applying its mind before
deciding whether to grant sanction or not. The order of granting
or declining sanction should reflect that the sanctioning authority
was furnished with all relevant facts and materials and applied its
mind to all those materials. The validity of the sanction would
therefore depend upon the materials placed before the
sanctioning authority and on the application of mind by the
sanctioning authority to those materials and facts of the case. On
going through the materials and facts, the sanctioning authority
has to apply its own independent mind to generate genuine
satisfaction whether the prosecution has to be sanctioned or not
When the order granting or declining sanction is challenged
before a court, the court must determine whether there has been
an application of mind on the part of the sanctioning authority
concerned with the materials placed before it. The order of
sanction must ex facie disclose that the sanctioning authority had
considered the facts and all relevant materials placed before it
(See Central Bureau of Investigation v. Ashok Kumar Aggarwal
(2014) 14 SCC 295 and Mansukhlal Vithaldas Chauhan v. State of
Gujarat 1997 KHC 1065).
9. The appellant is a Class I officer under the Central
Government. So, the sanction order has to be issued under
Article 77(2) of the Constitution of India. The Minister of Railways
is the competent authority for granting sanction for prosecution
of the accused on behalf of the President of India. The formal
order of the prosecution has to be signed and issued by the
designated authority of the concerned Ministry. Here, PW8, the
Director of the Ministry of Railway, New Delhi has signed the
sanction order, Ext.P12. Ext.P12 would show that the sanction
was accorded by the Minister of Railways. Ext.D16 series is the
copy of the file maintained at the Railway Board relating to the
sanction granted to prosecute the appellant. DW4 was the Joint
Director of Vigilance, Recruitment and Security (R&SC). He was
examined to prove Ext.D16 series. Relying on the evidence of
DW4 and the recital in paragraph 8 of page 9 of Ext.D16 series,
the learned counsel for the appellant argued that important
documents including the FIR were not forwarded to the Ministry
of Railways at the time when the sanction for prosecution was
sought. Since the material documents pertaining to the case were
not forwarded to the sanctioning authority, Ext.P12 sanction
order is vitiated, submitted the counsel. DW4 indeed deposed
that 52 documents including FIR were not there when the file was
transmitted to the Chief Vigilance Commissioner (CVC) for
sanction. However, the recital in page 8 of Ext.D16 series would
show that the Minister of Railways has made an endorsement
that he has accorded sanction after going through the
investigation report of the case No.RC19(A)2005/CBI/KER as well
as all other relevant records. At any rate, the original case file
contains copies of all the relevant records in respect of the case.
On going through the entire evidence of DW4 and perusing
Ext.D16 series, the trial court found that there is every reason to
believe that even if the documents were not there at the time
when DW4 forwarded the file to the CVC, the documents were
there at the time when the Ministry of Railways perused the
same. On analysis of the evidence, the trial court found that the
Minister of Railways has accorded sanction after considering the
facts of the case and perusing the entire documents in respect of
the case. I see no reason to take a different view.
10. So far as the contention raised by the appellant
regarding the non examination of the Minister of Railways who
granted the prosecution sanction is concerned, PW8 who was
examined to prove the sanction was the Director of the Ministry
of Railway and he signed the sanction as per the Rules of
Business. The Supreme Court of India in State of Madhya Pradesh
v. Jiyalal (AIR 2010 SC 1451) has held that there is no
requirement to examine the authority who gave the sanction to
prove the sanction order. In State through Inspector of Police A.P.
v. K.Narasimhachary (AIR 2006 SC 628), it was held that an order
of valid sanction can be proved either by producing the original
sanction which itself contains the facts constituting the offence
and the grounds of satisfaction or by adducing evidence aliunde
to show that the facts were placed before the sanctioning
authority and the satisfaction arrived at by it. It is evident from
Ext.P12, Ext.D16 series and also the evidence of PW8 and DW4
that the sanctioning authority has applied its mind to the facts of
the case and the materials placed before it. That apart, Section
19(3)(a) of the PC Act says that no finding, sentence or order
passed by a Special Judge shall be reversed or altered by a court
in appeal, confirmation or revision on the ground of the absence
of, or any error, omission or irregularity the sanction required
under sub-section (1), unless in the opinion of that court, a failure
of justice has in fact been occasioned thereby. There is no proof,
much less a case for the appellant, that a failure of justice has
been caused to him Hence, the submission of the learned
counsel for the appellant that there is no valid sanction for
prosecution must fail.
11. The prosecution mainly relied on, and the trial court
accepted the oral testimony of PWs5, 6, 7 and 10 to prove its
case and to fix the culpability on the appellant. As stated already,
the prosecution allegation against the appellant in this case is
that the appellant demanded and accepted the bribe of `10,000/-
from PW5 and `5,000/- each from PWs6 and 7 through PW10 for
making the transfer of their choice and for issuing the transfer
order. Going by the prosecution version, it was PW10 who
accepted bribes from PWs5, 6 and 7. He was initially arrayed as
the 2nd accused. Thereafter, he was granted pardon by the Chief
Judicial Magistrate Court under Section 306 of Cr.P.C and made
as an approver. PW10 gave evidence that the appellant directed
him to meet PWs5, 6 and 7 and one Johnny, Girish Kumar and
Mohanakrishnan and to inform them that they should pay
`10,000/- each for getting the transfer. According to him, when
they met the aforesaid persons, they said that they would give
something if they were given transfer. He further deposed that
after passing the transfer order, the appellant again directed him
to collect the money from the above persons and when he
contacted them, PW5 Abdul Rahiman alone gave `5,000/- and
others including PWs6 and 7 told that they would give the money
later. He further deposed that the appellant before proceeding
on leave directed him to collect the balance amount from PW5
Abdul Rahiman and the entire amount from others. He asserted
that thereafter when he approached PWs5, 6 and 7, PW5 gave
the balance amount of `5,000 and PW6 gave `5,000/- . PW7 did
not make any payment. He further deposed that when he again
met PW7 at the instance of the appellant, he gave `3,500/- and
told him to entrust the same with the appellant. When he handed
over the said money to the appellant, the appellant asked to
inform PW7 to meet him. Accordingly, PW7 met the appellant on
1/8/2005. PWs5, 6 and 7 gave evidence corroborating the
evidence given by PW10. All of them deposed that PW10
demanded, and they paid money as a reward to the appellant for
effecting their transfer. PW7 further deposed that as instructed
by PW10, he met the appellant at his quarters and the appellant
showed him a mobile phone in one hand and a pen in the other
hand and asked him as to whether the pen is sufficient instead of
the mobile. He added that the appellant told him something in
Hindi which he could not understand. Subsequently, PW7 told him
that the appellant was insisting for `10,000/- in total. This is the
evidence available to prove the alleged demand and acceptance
of illegal gratification.
12. It is trite that proof of demand and acceptance of
illegal gratification by a public servant is a pre-requisite to
establish the guilt of the accused/ public servant under Section 7
of the PC Act. Indeed, proof of demand and acceptance of illegal
gratification by a public servant can also be proved by
circumstantial evidence in the absence of direct, oral and
documentary evidence [See Neeraj Dutta v. State (Govt. of NCT of
Delhi (2023) 4 SCC 731]. Recently, the Supreme Court in Jagtar
Singh v. State of Punjab (AIR 2023 SC 1567) reiterated the
principle that the demand of illegal gratification, at least by
circumstantial evidence, is sine qua non to attract the offence
under Section 7 or 13(1)(d)(i) and (ii) of the PC Act. Section 13(1)
(a) of the PC Act provides that the prosecution is obliged to prove
that the accused accepted or obtained or agreed to accept or
agreed to obtain any gratification as a motive or reward as
contemplated under Section 7 of the PC Act. Thus, the demand
and acceptance by the public servant for illegal gratification must
be independently proved by the prosecution as a fact in issue to
establish the guilt under Section 7 or 13(1)(a) of the PC Act.
13. PWs5, 6 and 7 did not depose that appellant made any
demand to them. Nor did they have a case that they paid the
alleged bribe money to the appellant. On the other hand, it is
their version that PW10 told them that the appellant asked him to
collect money from them and believing the said words, they paid
the money to PW10 to hand over to the appellant for effecting
their transfers. Even though PW7 deposed that he met the
appellant directly at this quarters as instructed by PW10, there is
also no evidence to show that on such occasion, the appellant
made any demand. There is no independent evidence or
circumstance to suggest that PW10 demanded and accepted
money from PWs5, 6 and 7 as alleged by the prosecution at the
instance of the appellant. Such a piece of crucial evidence to
connect the appellant with the demand and acceptance of bribe
is lacking. At this juncture, it is relevant to note that the definite
case of the defence is that PW10 and Abdul Gafoor who were
posted under the DSC, Palakkad office for a long period might
have falsely used his name from the gullible subordinate staff.
PW10 has indeed given evidence that the appellant instructed
him to meet PWs5, 6 and 7 and inform them that they have to
pay `10,000/- for getting the transfer and accordingly collected
the amount from them and dealt with in the manner as per the
instruction of the appellant. But the evidence of PW10 cannot be
relied on without corroboration since he is an accomplice turned
approver. The combined effect of Section 133 and Illustration (b)
to Section 114 of the Indian Evidence Act is that though
conviction of an accused on the testimony of an accomplice is not
illegal, the court, as a matter of practice, will not ordinarily accept
his evidence without corroboration in material particulars. The
nature and extent of corroboration required of course must
necessarily vary with the circumstances of each case and
particular circumstances of the offence alleged in each case.
There need not be independent confirmation of every material
circumstance in the sense that the independent evidence in the
case apart from the evidence of the accomplice should, in itself,
be sufficient to sustain conviction. What is required is there must
be some additional evidence rendering probable that the
evidence of the accomplice is true, and it is reasonably safe to
act upon it to hold that the accused has committed the crime.
Here is a case where the trial court relied on the evidence of the
bribe givers, PWs5, 6 and 7 to corroborate the evidence of the
accomplice who is a bribe obtainer. A person who offers bribe in
order to get his work done and complains to the police is an
accomplice in respect of the crime committed [See
M.O.Shamsudhin v. State of Kerala (1995) 3 SCC 351]. Thus, to
act upon the evidence of the approver, the trial court relied upon
the evidence of other accomplices. One accomplice cannot
corroborate another. The corroboration of the evidence of
accomplices, if any, must come from independent source. There
is no other independent material evidence on record to prove the
demand and acceptance of bribe by the appellant through PW10.
There are also no other circumstances to suggest that the
demand and acceptance of bribe done by PW10 was for and on
behalf of the appellant or at the instance of the appellant. As
stated already, in the absence of demand and acceptance of
illegal gratification at least by circumstantial evidence, conviction
under Section 7 or 13(1)(a) of the PC Act will not lie. In the
absence of any proof or demand or acceptance of bribe, the
presumption under Section 20 of the PC Act cannot be drawn.
14. The evidence of PW10 is that he obtained `5,000/-
each from PWs5 and 6 in CC NO.4/2014 and `10,000/- each from
PWs8, 9 and 11 in CC No.2/2015, and this total amount of
`40,000/- was spent allegedly in depositing `26,975/- towards LIC
premium of the appellant and `5,000/- was given to PW4 Nishil,
Constable RPF, Palakkad for purchasing material for making a cot
for the appellant as instructed by him. The evidence of PW2, the
Branch Manager, LIC, Palakkad and Ext.P4 copy of the extract of
the cash book dated 27/4/2005 in respect of the policy of the
appellant would show that the premium amount of `26,975/- was
paid on 27/4/2005. PW6 Sankara Narayanan deposed that he paid
`5,000/- to PW10 at Palakkad. Ext.P6 Muster Roll would show that
he joined at Crime Intelligence Branch, Palakkad only on
9/5/2005. So, the payment can only be after that. Thus, it was
quite unlikely that the amount allegedly collected by PW10 from
PW6 was utilized for payment of LIC premium. That apart, even
though the evidence on record would establish that the LIC
premium was paid on 27/4/2005, PW10 consistently took the
stand in his statements recorded under Sections 161, 164 and
306 of Cr.P.C. that the LIC premium was paid on 8/5/2005.
15. To conclude, though there is evidence to prove the
demand and acceptance of bribe by PW10 from PWs5, 6 and 7,
however, evidence is lacking to prove that the said demand and
acceptance was done by PW10 for and on behalf of or at the
instance of the appellant. In short, there is no sufficient legal
evidence to prove the demand and acceptance of illegal
gratification by the appellant to attract the offence under Section
7 or 13(1)(a) of the PC Act. Hence, the conviction and sentence of
the appellant cannot be legally sustained.
16. In the light of the above findings, the conviction and
sentence of the appellant vide the impugned judgment are
hereby set aside. The appellant is acquitted of all the charges
levelled against him. His bail bond is cancelled.
The appeal stands allowed as above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
Rp
