ISMAILKHAN RASULKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal arises out of the judgment and order dated 3-7-1995 passed by the learned Special Judge, Bharuch, in Special Case no.6 of 1989 whereby the appellant-original accused-Ismailkhan Rasulkhan Pathan was sentenced to suffer R.I. for one year and to pay fine of Rs.100/-, in default, to suffer further R.I. for one month for the offence punishable under Section 161 of the Indian Penal Code ( the Code for short), He was also sentenced to undergo R.I. for one year and to pay fine of Rs.100/- , in default further R.I. for one month for the offence punishable under Section 5(1)(d) r.w.s. 5(2) of the Prevention of Corruption Act, 1947 (the Act for short). Both the sentences were ordered to run consecutively.

(2.) Briefly stated, the facts of the case giving rise to this appeal may be enumerated as under:

(3.) The complainant along with his family members at the relevant time was residing at Harijan Vas, Valanda Koti, Bharuch and serving as a Security Supervisor with Oriental Steel Corporation located at G.I.D.C., Bharuch. It is the case of the prosecution that the wife of the complainant was working as an additional labourer for cleansing toilets with Bharuch Nagarpallika , Ward no.4 , since about 10 years prior to the date of the complaint on 13-7-1987. According to the prosecution, the present appellant-accused was the Sanitary Inspector of Ward no.4 in Bharuch Nagarpallika, at that time, but was transferred to Ward no.9 on 15-6-1987. As per the case of the prosecution, according to the report of the present appellant who was the Sanitary Inspector any of the labourers could be removed from service as based on such report the Chief Officer used to accord sanction for continuing as additional labourer. It is alleged that the present appellant had given threats to Lalitaben the wife of the complainant in June, 1987 to the effect that she would have to pay Rs.100/- for obtaining sanction to continue her as an additional worker. Accordingly, Lalitaben had agreed to pay the said amount of Rs.100/- as illegal gratification upon receipt of her salary for the month of June, 1987, however, the present appellant-accused having been transferred to Ward no.9, Lalitaben, the wife of the complainant had not paid the amount, and therefore, on 12-7-1987 the appellant-accused sent one labourer named Kishorebhai to the house of Lalitaben asking her to meet him. Lalitaben then told the complainant to meet the present appellant-accused. Thereupon, the complainant went and met the present appellant-accused at Ward no.4 of Bharuch Nagarpallika at Lal Bazaar. At that time, the present appellant-accused enquired of his wife Lalitaben and told the complainant that he had got the sanction for continuing the services of his wife and that she had agreed to pay Rs.100/- from the salary for the month of June, 1987 but she did not pay the same to which the present appellant replied that there is difficulty at present and that he shall make arrangement of the money within two days. It is further the case of the prosecution that the present appellant had again met the complainant on 13-7-1987 at 11-30 a.m. near Bharti Talkies, and enquired of him as to what happened with regard to the amount and demanded the same. The complainant promised to pay the amount on the next day. The present appellant then told the complainant to meet him in front of Tashkant Beauty Tailor's shop at Valanda Koti to which the complainant agreed. Thereafter, realizing that the present appellant was bent upon receiving illegal gratification on the pretext of obtaining sanction for continuing the services of his wife, went to the ACB Police Station, Bharuch, at 5.30 p.m. of 13-7-1987 and lodged the complaint. On the basis of the said complaint a trap came to be laid between 10.15 a.m. and 12.15 noon of 14-7-1987 near Tashkant Beauty Tailor's Shop at Valanda Koti, Bharuch, after following the necessary formalities of carrying out the experiment on the two currency notes produced by the complainant, giving necessary instructions to Panch no.1 after placing the tainted currency notes on the left pocket of the bush-shirt worn by the complainant and drawing of preliminary Panchnama etc. as required under law, the present appellant-accused was caught red handed accepting the amount of Rs.100/- from the complainant. Two currency notes of Rs.50/- each aggregating Rs.100/- was recovered from the left pocket of cuffni worn by the present appellant-accused by Govindbhai on instructions from PI. The numbers of the currency notes tallied with the number of the currency notes mentioned in the preliminary Panchnama. Thereafter, these currency notes were viewed under ultraviolet lamp and light blue coloured flourescent marks were visible. On such experiment being carried out presence of anthracene powder was also found on the right hand fingers and palm of the present appellant accused as also the cuffni worn by the present appellant-accused which was seized. The person of the present appellant when searched certain articles were found and seized. The second part of the Panchnama was prepared at the spot, and thereafter the statements of witnesses came to be recorded. Upon completion of the investigation, sanction was obtained by the police from the President of the Nagarpallika, after which, chargesheet was submitted and the case was numbered as Special Case no.4 of 1988. During the course of recording of evidence of witnesses, the accused filed an application Exh.15 stating that the sanction accorded by the President of the Nagarpallika is illegal and prayed for dropping of the proceedings. The learned Special Judge by his order dated 6-9-1989 discharged the accused by holding that the sanction is not legal and valid. Thereafter, a second sanction order was obtained on 5-12-1989 whereupon a revised charge-sheet came to be submitted along with the fresh sanction order and the case was numbered as Special Case no.6 of 1989. However, when the trial commenced an application under Section 300 of the Criminal Procedure Code was filed on behalf of the accused stating that a second trial is not permissible as the accused was earlier discharged and the evidence was also recorded earlier. This application came to be dismissed on 2-8-1993. The learned Special Judge framed charge Ex.5 against the accused on 26-4-1993 for the offences punishable under Section 161 of the Code and under Section 5(1)(d) r.w.s.5(2) of Act. The charge was read over and explained to the accused who pleaded not guilty to the charge and claimed to be tried.