1992 ALLMR ONLINE 935
BOMBAY HIGH COURT
M.F. SALDHANHA, J.
Omprakash Shankarlal Sharma Vs. The State of Maharashtra
299 of 1991
22nd October, 1992
Petitioner Counsel: R. M. Nakhwa,
Respondent Counsel: S. B. Patil, A.P.P., .
Criminal P.C. (1973),S. 326(1), Evidence Act (1872),,S. 165 Prevention of Corruption Act (1947),S. 6 Prevention of Corruption Act (1947),S. 5, Evidence Act (1872),,S. 3
1992 Cri LJ 1144 (Bom) : 1992 Mah LJ 979 (Relied on) [Para 7]
1991 Cri LJ 3146 (Bom) : 1991 Mah LJ 1040 (Relied on) [Para 7]
1979 Cri LJ 633 : (1979) 4 SCC 172 : AIR 1979 SC 677 (Relied on) [Para 6]
1956 Cri LJ 879 : AIR 1956 Bom 504 [Para 5]
JUDGMENT :-Issues of some consequence concerning the conduct of a serious trial have been raised in this proceeding and, having regard to the vehemence with which they were contested and the seriousness of the errors that have been complained about, it is essential for this Court to decide those issues which I am summarizing as follows :-
(a) Whether it is open to the Presiding Judge in the course of a criminal trial who comes across an apparent infirmity in the prosecution case to suggest to the Prosecutor to lead evidence in order to get over that lacuna and to thereafter permit the prosecution to reopen its case and introduce material in evidence.
(b) Whether a sanctioning authority, who is apparently not invested with the jurisdiction to accord sanction, can be permitted to get over this handicap and to bolster up the prosecution case at a stage when the judgment in the proceeding is part-delivered.
2. Disturbing as some of the developments in this proceeding, are they requires an adjudication. On 5-2-1983, the Accused, who was a Senior Travelling Ticket Collector with the Western Railways having put in about 20 years of service, was apprehended by the complainant, Narendrakumar Kukreti (PW 3), who, at the relevant time was a student. Kurkreti was caught by the Accused on a charge that he was travelling on a season ticket belonging to a friend of his. Kurkreti initially tried to lie his way out of the situation, but the Accused persisted and after questioning him found out that the pass in question did not belong to him. It is alleged that the Accused demanded a sum of Rs. 750/- from him and that the bargaining went, on, as the train was proceeding, until the Accused made Kurkreti got out of the train at Lower Parel Station. Kukreti kept pointing out that he is a student and that he is a poor person, and the prosecution case is that as a result of all this bargaining, the Accused took a statement from Kukreti in writing admitting that he had travelled on a pass belonging to his friend, that he took charge of the season ticket and that he is also alleged to have taken the marks-sheet and examination form from the student who had by then agreed to collect an amount of Rs. 50/- and come back with it. He had been instructed to come with the amount to the office of the Assistant Station Master at that same Station on that same evening. According to Kukreti, the Accused had taken charge of a sum of Rs. 12/- which was all the money that he possessed and that out of pity the Accused returned Rs. 2/- to him and that he also gave him a return ticket between that Station and Churchgate Station. Kukreti's father was apparently an ex-railway employee and he had attempted to get out of the problem by referring to this fact which unfortunately did not succeed. He thereupon came to the, Western Railway Headquarters and contacted one clerk by name Sharma who, in turn, took him to one Shri Kaul, who was the Chief Vigilance Officer. Kukreti lodged a complaint with Shri Kaul alleging that Rs. 50/- had been demanded as a bribe. Shri Kaul did not ask him to follow the usual procedure, namely, to give his complaint in writing and to register it, but he is alleged to have straightway phoned up the Central Bureau of Investigations and Devidas Bhenda (P.W. 11), a C.B.I. Officer, on receiving the phone call, left his office and straightway came to the Railway Headquarters. He thereafter arranged for a pretrap Panchanama to be drawn up because Kukreti is alleged to have borrowed Rs. 50/- and produced that much money. Two Panchas, Shri Sharma (PW. 5) and Shri Bhagatsingh Bisht (PW 4), had been caught hold of by them and the notes were treated with phenolphthalein powder, a panchanama drawn up, the usual instructions given to the complainant and the Panchas and the raiding party went to the Lower Parel Station. In spite of spending something like two hours on that evening, the raiding party could not come in contact with the Accused. Another attempt was made on the next morning and thereafter on the 6th February, 1983 when the Accused was seen on the platform. The complainant went up to him, accompanied by Panch Bisht. There was some talk and the Accused took them to the office where he is alleged to have returned the season ticket along with the marks-sheet and the examination form in exchange for the amount of Rs. 50/-. On a sign from the complainant, the raiding party rushed in and apprehended the Accused who according to the complainant had by then thrown the notes on the floor. The prosecution alleges that two glasses of lime water were prepared and that both the hands of the Accused were dipped in those glasses and that the water turned pink in both the glasses. The water was preserved in two sealed bottles and Panchanama was drawn up. Thereafter the investigations were completed and a complaint was filed before the learned Special Judge under charges of corruption. The learned trial Judge, after an abnormally protracted trial and after putting something
like 226 questions which, inter alia, account for the size of the paper-book, accepted the prosecution evidence and convicted the Accused. For the charge under Section 161 of the Indian Penal Code, he was given a sentence of simple imprisonment for one day and to pay a fine of Rs. 250/-, in default, to undergo simple imprisonment for one month. For the charge under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, he was sentenced to simple imprisonment for one day and to pay a fine of Rs. 250/-, in default, to undergo simple imprisonment for one month. Obviously when the order was passed on 14-2-1991, the learned Special Judge took note of certain circumstances, namely, the fact that the incident had taken place in February 1983, that eight long years had passed and that the conviction itself would have its inevitable result. The present appeal challenges the validity of the convictions and sentences.
3. Shri Nakhwa, learned Counsel appearing on behalf of the appellant-accused, and Shri S. B. Patil, the learned A.P.P. a very senior and experienced Counsel in his own right, have both referred in extenso to the record of this case and have advanced detailed submissions both with regard to the points of fact and the points of law. Shri Nakhwa seriously questioned the propriety of what he termed as a totally wrong and unprecedented action on the part of the learned trial Judge in having suggested to the Prosecutor at the time when the judgment was part-delivered that there appeared to be a serious difficulty in the way of the prosecution on the sanction point, that he permitted the Prosecutor to make an application at that stage of the proceedings to recall PW 1 and to tender three sets of documents Exhibits 41, 42 and 43. It is true that in spite of objections from the defence having been overruled, the defence was afforded an opportunity to cross-examine this witness, but Shri Nakhwa has submitted that this procedure is unheard of and that it is impermissible and that this Court must come down strongly on such a state of affairs. He has taken me through the various notings made by the learned Special Judge. He pointed out the application made by the learned A.P.P., the objection to it and what transpired thereafter. The justification that emerges from the judgment put forward by the learned Special Judge is that such a procedure is permissible having regard to the provisions of Section 326(1) of the Code of Criminal Procedure, 1973. It is difficult, on a clear reading of Section 326 of the Code of Criminal Procedure, to fathom as to how and under what circumstances this Section could at all apply. I have asked Shri Patil, the learned A.P.P., as to whether he can defend the position and Shri Patil in all fairness did try to do so, but was unable to point out to me how Section 326(1) of the Code of Criminal Procedure could permit the stoppage of a judgment and reintroduction of evidence to bolster up the prosecution case.
4. The second ground on which this procedure has been justified by the learned Special Judge is that Section 165 of the Evidence Act would sanction such a course of action. This particular provision of the Evidence Act concerns a situation where a Judge may put question to a witness for purposes of eliciting information or material that the Court considers necessary and which has not come on record in the course of the evidence led by either of the parties. Section 165 of the Evidence Act would have no application in a situation where the evidence is concluded, where the prosecution has closed its case, where the judgment has commenced and where it appears to the Court at that point of time that the prosecution has failed on a material aspect. I fail to see how the evidence could have at all been reopened at this point of time and Section 165 of the Evidence Act cannot be pressed into service for this purpose.
"311. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case."
He submitted that the clauses "at any stage" given the Court an absolute power to re-open the evidence and that this would include a situation where the judgment is part-delivered. One does not have to approach this situation in abstract because the real issue canvassed by Shri Nakhwa before me is not the question as to whether witnesses can be recalled or evidence can be re-opened, but the question is as to whether in the course of the judgment the Court can permit the prosecution to cover up an obvious lacuna. It is in that context that the argument of Shri Patil will have to be examined. Shri Patil also referred to the last clause of Section 311 of the Code of Criminal Procedure "essential to the just decision of the case" and he submitted that where something is left out that it is certainly open to the Court to permit the completion of the record. He maintained that in essence the defence had challenged the jurisdiction of PW 1 to have accorded sanction amongst other aspects on the ground that he was not the appointing authority of the Accused and that he, therefore, did not have the power to grant sanction. The defence had also relied on a Division Bench decision of this Court in the case of Mohanlal Keshavlal v. State, AIR 1956 Bom 504 : (1956 Cri LJ 879), wherein the Court had examined the provisions applicable to a Clause III railway servant and had held that it was the General Manager alone who was the competent authority. Under these circumstances, the apparent problem faced by the prosecution was that PW 1 Dube, who was the Senior Divisional Commercial Superintendent, had accorded the sanction and it was his competency that was questioned. When the defence had disputed the right of PW 1 Dube, it was open to the prosecution to have at the point of time or through any other witness during the trial pointed out to the Court that PW 1 Dube did possess the requisite powers. Neither of these courses of action were adopted and when this insurmountable difficulty became apparent, the learned trial Judge took it upon himself to point out to the Prosecutor the inevitable consequences thereof then permitted him to make an application for recall of the witness and to lead further evidence. The learned A.P.P. justified all this on the ground that it is in the interest of a fair and just decision in the trial. To my mind, what was done was neither fair nor just nor could it result in a proper decision of the trial. The Code of Criminal Procedure provides/prescribes by law the manner in which a criminal trial is required to be conducted and it is in keeping with the provisions of that Code that the prosecution and the defence are obliged to comply with the provisions of law. There are stages in a criminal trial and after the stage for adducing evidence is complete and after the arguments have been heard, all that remains is for the learned Judge to decide the matter in the course of the judgment. It is not the function of the Presiding Judge of a Court to take sides. The duty of the Presiding Judge is to decide the matter fairly and correctly on the basis of the material placed before him. There are numerous instances when the prosecution may be unable to prove something or where there exists a lacuna in the prosecution case, the law is to the effect that there is finality to the stage of adducing evidence and that the prosecution shall not be permitted to reopen its case thereafter. If the present courses of actions were to be sanctioned, it would be tantamount to undoing the entire defence and it would be tantamount to offering to the prosecution an unfair advantage which is downright illegal. As long as there is a rule of law, the provisions of law will have to be observed and cannot, under any circumstances, be bent or by-passed.
6. Shri Nakhwa has relied on a decision of the Supreme Court which, to my mind, is very relevant to the situation that has arisen in this case. The decision in question is reported in the case of Mohd. Iqbal Ahmad v. State of A.P., (1979) 4 SCC 172 : (1979 Cri LJ 633), which in terms states at page 636 (of Cri LJ):
"In a criminal case, the Supreme Court or for that matter any Court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. The liberty of the subject was put in jeopardy and it cannot be allowed to be put in jeopardy against the instance of the prosecution which failed to avail of the opportunity afforded to it."
In keeping with the principle enunciated in this decision, it will have to be held that the learned Special Judge was in error in having permitted the reception of any further evidence in the midst of the judgment. As a necessary consequence, all that part of the record will have to be ignored. Taking the record as it existed in its original form, it will not be possible to hold that PW 1 Dube possessed the requisite authority to accord the sanction. Shri Nakhwa has also submitted that the sanction was accorded without due application of mind. There is considerable justification in this submission, but I do not consider it necessary to give any concrete finding in view of what has been already held above.
7. There is another angle to the sanction, namely, the aspect of properiety. The accused at the relevant time was the Senior most Travelling Ticket Collector and had put something like 20 years service. The charge against him taken at its highest was that he is alleged to have demanded and received a paltry amount of Rs. 50/-. Having regard to the fact that it was a single isolated instance and that there was no other instance of misconduct against the Accused, the sanctioning authority ought to have considered as to whether the misconduct alleged against him was grave enough to warrant a prosecution wherein the law prescribes a minimum sentence of one year rigorous imprisonment. The law in this regard has been considered in some detail by me in an earlier decision of this Court in the case of Bhagwan Jathya Bhoir v. State of Maharashtra, 1992 Mah LJ 979 : (1992 Cri LJ 1144). The view taken there was that in situation of this type, the ends of justice could certainly have been adequately served by instituting disciplinary proceedings and that in so far as the sanctioning authority had not considered this all important aspect of the matter that it cannot be said that he has applied his mind judicially to the facts of the case. In yet another earlier decision of this Court in the case of Vishwanath Mahadev Karkhanis v. State of Maharashtra, 1991 Mah LJ 1040 : (1991 Cri LJ 3146), where certain public servants had been put on trial on the ground that lose to the railways was caused of a trifling amount, this Court took the view that Section 4(3) of the Prevention of Corruption Act, 1947, which is a provision parallel to Section 95 of the Indian Panel Code, would be governed by the doctrine of trivality and that the prosecution was not the appropriate remedy. In the light of this position, it will have to be held that the grant of sanction in the present case suffers from total non-application of mind and is, therefore, liable to be struck down.
8. The learned A.P.P. did advance an argument to the effect that this Court should not take a lenient view of the proven acts of corruption merely because the amount involved was small. He advanced an age-old argument that it is these several small amounts that add up to larger amount and it would only make petty corruption the order of the day. This is an argument in the vacuum because it is nobody's case that the Accused before the Court had misconducted himself on any other occasion and, therefore, where the charge relates to a single isolated instance, this Court cannot take judicial note of anything else. For that matter, there is nothing on record to indicate that the career of the Accused was in any manner blemished.
9. Coming to the merits of the case, the most important witness for the prosecution is the complainant, Narendrakumar Kukreti (P.W. 3). Shri Nakhwa has submitted that the complainant, admittedly, as on the wrong side of the law, that the accused had apprehended him and that the accused used his discretion for purposes of giving him an opportunity of paying up the penalty amount and that this witness, Narendrakumar Kukrati (P.W. 3), got incensed by the fact that he had been caught and, therefore, went and lodged a false complaint which ultimately ended up in this proceeding. He has also pointed out that as far as this witness and the Panch are concerned, neither of them is of any assistance because the accused was required to recover the penalty amount and it was against this amount alone that he held the season ticket which had been seized from the complainant. He stated that even assuming without admitting that anthracene powder was found on the hands of the accused, it would at the highest indicate that the amount of Rs. 50/- was tendered to him. In the present case, admittedly, Narendrakumar Kukreti had been travelling not once but on a second occasion on a pass which he was not entitled to use. In this view of the matter, the accused was within his right to have either collected the penalty amount from him or to have handed him over to the Police. Considering that he was a student, to my mind, the accused acted correctly in having retained the pass and to have given him (the complainant) time to fetch the money which was a small amount. The fact that the complaint shows that the complainant is alleged to have complained to the Central Bureau of Investigation would not change the complexion of the matter. Shri Patil has submitted that this defence is false and that the amount of Rs. 50/- bore no relation to the penalty which the complainant had to pay. He further submitted that if that was so, the accused would have straightway issued a receipt and that he would not have thrown the money down. Shri Patil further submitted that there is no reason why the Court should disbelieve the complainant when he stated that the accused had asked or Rs. 50/- as a bribe.
10. If one were to assess the evidentiary value of the complainant who in the present proceedings is in the legal position of an accomplice, I am sorry to have to observe that the credibility of this complainant is extremely low. That again would be an under statement because he has admitted on oath that he was trying to hoodwink the railway by travelling on someone else's pass. He was aged 28 years at that time. He was a college student and claimed to be the son of an ex-Vigilance Officer of the Railway. A person of this type is not expected to indulge in such conduct. He further went on to state that even when he was caught he told lies to the accused and tried to contend that the pass belonged to him and that the same contained his signature. The tenor of his evidence, apart from this aspect of the matter, is such that it doe not inspire any confidence. Strongely enough after having been apprehended by the accused in the commission of an illegal act this man instead of honestly coming back to the Travelling Ticket Collector and tendering the penalty amount and thanking him for having afforded him the opportunity of being able to go and fetch the money, though the accused could have handed him over to the Police, he instantly goes to the Western Railways Headquarters and lodges a complaint against the accused. These facts make very distateful reading, and to my mind it would be impossible for this Court to attach any weight of whatsoever nature to the evidence of this witness. He is sought to be supported by the Panch. I do not need to labour on the lengthy arguments advanced by Shri Nakhwa who has tried to discredit the evidence of the Panch or for that matter the submissions of the learned A.P.P. who vigorously contended that the evidence is trustworthy. It has come on record that for some mysterious reason the Investigating Officer from the Central Bureau of Investigation went to the Western Railways Headquarters and started everything from there obviously because of his friendship with the officers of that department.
Normally, a corruption charge would have to be routed through the Anti-Corruption Bureau and this is one more of the instances where the Central Bureau of Investigation seems to have volunteered to take note of a telephonic message. Regardless of that fact the two Panchas who have been picked up, Sharma and Bisht, both belong to the same community to which the complainant belongs. The complainant has been good enough to admit that the Panch Sharma is known to him. Bisht, the second Panch who has been examined, admits that he is a very good friend of the other Panch and the connection, therefore, is very clear. I refuse to examine any other aspect of the matter beyond pointing out that neither of these two Panchas can come within the category of "independent persons". The solitary purpose of relying on the evidence of Panchas is on the ground that they are disinterested persons. In the present case, if it is demonstrated that the investigating officer has picked known persons who obviously harbour interest in the prosecution, there can be no question of relying on the evidence of these witnesses.
11. The entire charge in the present case revolves around the allegation that the accused as offered a bribe of Rs. 50/- and that he had accepted the same. It is also in evidence that he was apprehended immediately on this happening. Shri Nakhwa has pointed out to me that the accused has stated in his statement recorded under Section 313 of the Code of Criminal Procedure that he had given the complainant, Narendrakumar Kukreti (P.W. 3), an opportunity of bringing the penalty amount payable by him and that he had taken Kukreti and his companion to the office for purposes of taking the penalty from him and returning his pass to him. In the circumstances of this case where the amount in question more or less tallies with the amount of penalty that could have been levied, it would be hazardous to hold that even assuming the amount had been tended that the accused had demanded it or that he had received it as an illegal gratification. Shri Patil has submitted that the circumstances on record unmistakably indicate that the amount in question had nothing to do with the penalty. To this extent, he has relied on the evidence of various witnesses to say that the accused could not have retained any property until the penalty was tendered to him and, furthermore, that the penalty in question could not have been Rs. 50/-. On this last aspect, I need to note that none of the witnesses for the prosecution has specifically dealt with the aspect of penalty. We are, therefore, left with a situation whereby they depose to the effect that it was open to the accused to have collected the penalty or to have handed over the accused to the Police. None of the witnesses have stated that the accused would have acted wrongly if he had granted requisite time to the complainant to go and fetch the money which is precisely what he did in the present case.
12. Dealing generally with corruption cases in which the accused person is entitled to collect a certain amount of money by way of tax or whether it is a penalty or a revenue collection from the complainant, it would be most advisable for the investigating authorities to take special note of this aspect of the matter and to ensure that whatever amount is tendered pursuant to an alleged demand for a bribe that it is independent and distinct from whatever can be legally and legitimately collected. Unless this precaution is taken, it would be impossible for a Court in a case such as the present one to hold otherwise if it is pointed out that the amount tendered was none other than what was legally due. Shri Nakhwa was right when he submitted that the essence of a corruption charge flows from the fact that the amount involves in the corruption offence has got to come within the legal definition as a "tainted collection" or an "illegal gratification". Merely because money has passed it does not mean that the offence is complete. There may be valid explanation for that money, and if the explanation is plausible it is a principle of criminal jurisprudence that the Court must accept that explanation, particularly if it is in favour of an accused person.
13. In the light of this position, the findings recorded by the learned Special Judge are liable to be set aside. The appeal accordingly succeeds. The conviction and sentence imposed on the accused-appellant are set aside. Fine, if paid, is directed to be refunded to him. Bail bond of the appellant-accused to stand cancelled.