BHAV NATH UPADHYAY Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) BY a judgment and order dated 18-7-1983, the appellant Bhav Nath Upadhyay has been found guilty of the offences under Section 161 IPC and Section 5 (2) of the Prevention of Corruption Act in a Special Trial No. 6 of 1981 by the III Additional Sessions Judge, Bijnor. He has been sentenced to 6 months' R. I. and a fine of Rs. 200/- and in default further R. I. of one month under each count.

(2.) SRI Bhav Nath Upadhya was working as a public servant, Education Superintendent in the Nagar Chhetra of Bijnor on 19-1-1978. There was a teacher under the Basic Shiksha Scheme, namely, Ram Prakash Sharma. According to the prosecution version on 19-1-1978 SRI Ram Prakash Sharma complained to the District Magistrate, Bijnor that SRI Bhav Nath Upadhya was demanding illegal gratification which he was not willing to pay and consequently after getting his statement recorded by SRI C. S. Bakshi, Extra Magistrate, a trap was laid with the help of SRI Som Dutt Tyagi, Vigilence Inspector. The application to the District Magistrate conveyed that SRI Upadhya had asked for payment of Rs. 100/- in a hotel at about 5 p.m. and accordingly the arrangement of trap was made in the form that the Vigilence Inspector SRI Som Dutt Tyagi along with few constables reached there and soiled the notes with phenolphathalein powder and tallied the number thereof which had already been noted by the Magistrate SRI Bakshi. The facts as proved were that at the proper time that is at about 5 p.m. SRI Upadhya reached the hotel and sat there and then asked SRI Ram Prakash Sharma who was already there, if the arrangement had been made, whereupon SRI Ram Prakash Sharma gave him two fifty rupees currency notes which he accepted in the left hand and said that now the job will be done. In the meanwhile, Vigillence Inspector and the witnesses came out from the rear portion of the hotel and arrested the accused appellant.

(3.) THE defence contention has been, as already said above, that there was actually no demand and since Ram Prakash Sharma desired to get his mischief hushed up, he falsely implicated the accused by arranging the trap and then put the money in his pocket despite the protest of Sri Bhav Nath Upadhya. This has been suggested to (PW 2) Som Prakash as well as (PW 4) Nand Ram the two persons of hotel. Both of them had given such a statement in the examination-in-chief itself but were declared hostile and it was also suggested to them that they desired some gratification from Ram Prakash Sharma in order to give proper statement. Be it whatever it may be, the evidence of such persons would not in any case support the contention of the accused as they could not be said to be reliable persons. Apart from the statements made by them, there is one factor that Sri Bhav Nath Upadhya had reached the hotel, at the relevant time which had already been declared by Ram Prakash Sharma in his application to the Magistrate and he could not have known the visit of Bhav Nath Upadhya in the hotel unless it was so fixed. It was attempted to be argued during the course of arguments before this court that Bhav Nath Upadhya had gone there for his food but it was never stated by any witness that he was taking his food regularly in that hotel. If it was not a regular affair, the visit to that hotel having been known to Ram Prakash Sharma, would be a clinching factor. In any case, why should Ram Prakash Sharma tell a lie against Bhav Nath Upadhya. A person may think of a false prosecution, a false oath, to achieve something or to avenge something that had happened. In the instant case, there was no question of revenge as even if Sri Bhav Nath Upadhya was proceeding against Ram Prakash Sharma in avoiding his transfer, there could be no occasion for a false prosecution and obviously no purpose could be achieved by bringing this prosecution. He has simply invited wrath of the entire department by ringing the same. We see no reason to disbelieve him or (PW 5) Som Dutt Tyagi. It is material to note here that Sri Som Dutt Tyagi was not a person interested in prosecution like any other police officer but was a deputed person to remain in evidence in the laying of a trap.