BHANWAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal by special leave has been brought up by bhanwar Singh appellant whose conviction and sentence under Section 409, indian penal code and Section 5 (l) (e) of the Prevention of Corruption Act, 1947, by the special Judge, Bharatpur, were upheld by the High court of Rajasthan by dismissing his appeal summarily. Since the High court dismissed his appeal summarily, we have in this case to first examine the question whether it was a fit case for summary dismissal of the appeal and if not whether it would be appropriate to remand this case to the High court for a fresh hearing.

(2.) Since the appeal was dismissed summarily by the High court, the order of that court is not a speaking order and gives no indication of the reasons which led the High court to dismiss the appeal. So far as the judgment of the Special Judge is concerned, on the face of it, it contains matters which, in our opinion, require serious consideration by the High court. The Special judge did not attach value to the evidence of two witnesses, DW 1 and DW 3 on the ground that they were subordinate to the appellant, but failed to take notice of and consider circumstance that both of them as well as the appellant were subordinates of Public Witness 4, Chimanlal, who according to the case of the appellant, was the person with whom the money remained after it was brought out by him from the Malkhana under his order, because he forgot to take it back from him. The Special Judge further expressed the opinion that a deputy superintendent of police of the anti-corruption department alone was competent to investigate the case and that the sub-inspector Chiman Lal was not competent to do so and on that ground the action of the appellant in bringing the currency notes out of the Malkhana under the orders of sub- inspector Chimanlal was not justified. The Special Judge did not consider the position in which the appellant was placed when his immediate superior admittedly ordered him to bring out the currency notes which were required not for the purpose of investigation of any case but only for the purpose of being shown to a person whom the sub-inspector wanted to help in laying down a new trap.

(3.) Apart from these questions on the merits) it is also clear from the judgment of the Special Judge that three important questions of law arise even if the findings recorded by the Special Judge are accepted. The Special judge did not record a positive finding that these currency notes were misappropriated by the appellant and in fact proceeded on the basis that he allowed them to be misappropriated by Chimanlal. Once there was no definite finding of misappropriation by the appellant, it had to be considered whether the appellant could be convicted for the offence of criminal breach of trust under Section 409, I PG. On the second offence for which the appellant has been convicted, the Special Judge held that the appellant was guiltyeven if he allowed the money to be misappropriated by Chimanlal, but does not seem to have recorded any finding that he allowed Chimanlal to do so dishonestly or fraudulently which are essential ingredients for constituting an offence under Section 5 (l) (c) of the Prevention of Corruption Act. Lastly, the special Judge gave a consolidated sentence of two years' rigorous imprisonment and a fine of Rs. 100. 00 for two distinct offences punishable under two different laws, namely. Section 409, I PG and Section 5 (l) (c) of the Prevention of Corruption Act. He did not give separate sentences and make them concurrent or consecutive. It had to be considered by the High court whether the award of such a sentence was legally correct. In the circumstances, the order of summary dismissal by the High court was clearly unjustified. We set it aside and remand the case to the High court for a proper hearing of the case after examining the full record. The appellant will continue on bail furnished by him to this court unless the High court asks for fresh bail from him.