VASANT MARUTI WAIKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS Criminal Appeal, along with companion Criminal Appeal No. 695 of 1989, has been preferred against convictions and sentences imposed on the two accused in Special Case No. 3 of 1986. The facts are most distressing, concerning as they do, with corrupt practices often indulged in by lawyers and clerks around the courts who collect money from litigants on the assurance of securing favourable verdicts and ruin the reputation of the Judge and the judiciary in general, but the redeeming factor being the exemplary manner in which the learned Judicial Magistrate, First Class, Miraj, and the learned Special Judge, Kolhapur, both of whom I will have occasion to compliment in the course of the judgment, have handled the complaints that went up to them. The present appellant, who was Accused No. 1, is a Senior Advocate from Kolhapur, and in addition to this was also functioning as a Senior Police Prosecutor assigned to the Judicial Magistrates Court at Satara. Accused No. 2 at the relevant time was an Advocates clerk attached to the Court at Miraj. The incident in question took place in the month of March 1984. The learned Judicial Magistrate, First Class, Miraj, Mr. Bhosale, was at that time hearing Criminal Case No. 129 of 1981, which case pertained to a prosecution instituted by the Miraj Railway Police in relation to the theft of aluminium wire in the year 1980. Originally, there were as many as 14 accused in that case, but some of them are supposed to have died in the course of the trial. The evidence in the matter and the arguments were apparently over and it appears that the decision in that case was expected in the month of March 1984. The Police Prosecutor appearing on behalf of the State was one Advocate Raja and the defence Advocate was Mr. Narwadkar. It appears that the learned defence Advocate had informed the two accused with whom we are immediately concerned, one Sakhalchand and Shantilal, that the decision was likely to be against them and that they were likely to be convicted in that proceeding. Thereupon Sakhalchand is alleged to have contacted accused No. 2, who was an Advocates clerk at the Court and who appeared to have been the regular Court clerk of Advocate Shah and he is supposed to have asked accused No. 2 as to what could be done under the circumstances to avoid a conviction. Accused No. 2 is alleged to have stated that though he was helpless in the matter that he would take Sakhalchand and Shantilal to one Advocate at Kolhapur, i. e. , accused No. 1, who would "do their work". At the meeting with accused No. 1, it is alleged that he agreed to do the needful, i. e. , to ensure that these two accused were acquitted provided they paid a sum of Rs. 5,000/- each which, in turn, accused No. 1 was to hand over to the learned Judicial Magistrate. Pursuant to this arrangement, the prosecution alleges that on 17-3-1984, accused Nos. 1 and 2, accompanied by Sakhalchand, went by a taxi to Miraj in the evening. Accused No. 1 went to the residence of Judicial Magistrate Bhosale and came back stating that he had gone out and would be back in an hours time. Once again accused No. 1 went to the residence of Judicial Magistrate Bhosale and after half an hour came back and told these persons that they would have to come again as the Judicial Magistrate was busy and he could not talk to him.

(2.) THEREAFTER on 19-3-1984, it is alleged that once again the same group of persons made a trip to Miraj, and on this occasion accused No. 1 met the learned Judicial Magistrate when he was leaving the chambers. After exchanging some pleasantries, he brought up the subject of the theft case and told the learned Judicial Magistrate that there was practically no evidence in that matter. The learned Judicial Magistrate immediately reacted, rather strongly, and told accused No. 1 not to talk about the pending proceeding and that this would be decided on merits. Accused No. 1 excused himself by requesting the learned Judicial Magistrate not to take the matter amiss and came back to the taxi where accused No. 2, Shantilal and the driver were waiting. According to the prosecution, on the way from Kolhapur, Shantilal handed over to accused No. 1 an amount of Rs. 10,000/-, which was in notes of Rs. 50/- denomination. On reaching Miraj, accused No. 1 asked accused No. 2 to get the notes changed to those of Rs. 100/- denomination as the earlier bundle was too bulky. Accused No. 2 accordingly complied.

(3.) THE prosecution further alleges that on the way back, pursuant to Sakhalchands enquiry, accused No. 1 assured him that his work would be done, but accused No. 1 told him that the amount was still with him and Sakhalchand is alleged to have told accused No. 1 that he could give the money to the learned Judicial Magistrate at his own convenience. The judgment in this case, which was scheduled for 22-3-1984, was thereafter adjourned to 29-3-1984 on which date Judicial Magistrate Bhosale pronounced the judgment convicting both Sakhalchand and Shantilal. It is alleged that accused No. 1 had attended the Miraj Court on that date and that he was met by several of his colleagues who asked him the purpose of his visit to which accused No. 1 stated that since he was known to a particular litigant that he had come in connection with that case. After the judgment was pronounced, it is alleged that Sakhalchand and Shantilal insisted that since their work had not been done that accused No. 1 should use that money to pay the fine of Rs. 5,000/- and Rs. 2,000/- respectively that were imposed on them. Accused No. 1 stated that he did not have any money with him whereupon an argument ensued and it is alleged that in the course of this altercation that Sakhalchand referred to the fact that accused No. 1 had taken money from them on the pretext of paying the same to the learned Judicial Magistrate. This altercation was overheard by Advocate Mohammed Hanif Shaikh (P. W. 3) and he is alleged to have instructed witness Ilahi Usman Kurne (P. W. 1), who was a peon attached to the learned Judicial Magistrate, to bring this fact to the notice of the learned Judicial Magistrate. Kurane is supposed to have informed the learned Judicial Magistrate on the evening of 30th March 1984, i. e. , the day after the judgment, that accused No. 1 had collected money from the litigants in the name of the learned Judicial Magistrate. On 3-4-1984, Sakhalchand saw the learned Judicial Magistrate in chambers and informed him of the fact that accused Nos. 1 and 2 have been instrumental in collecting an amount of Rs. 10,000/- in the name of the learned Judicial Magistrate for the purpose of securing acquittal of himself and Shantilal and that not only had this amount been wrongfully retained by those persons but that they were refusing to return the same. The learned Judicial Magistrate immediately had the complaint recorded and took down the signature of Sakhalchand on the document. On 5-4-1984, the learned Judicial Magistrate sent a written complaint to the learned District Judge recording the fact that a serious incident had taken place whereby accused Nos. 1 and 2 had collected a large amount of money in the name of the learned Judicial Magistrate on the pretext that the same would be paid to him as a bribe. The learned District Judge took a serious view of the matter and instructed Judicial Magistrate Bhosale to send for the remaining persons who had knowledge of the facts of this case and to record all their statements. It was pursuant to this instruction that Judicial Magistrate Bhosale took the unusual step of sending for Advocate Shaikh (P. W. 3 ).