SHIV LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is an appeal preferred by Shiv Lal against the judgment of the Special Judge (Anti-Corruption Cases) Rajasthan, Jaipur, dated Aug. 22, 1975, by which the appellant was convicted under section 5(2) read with section 5 (1) (d) of the Prevention of Corruption Act, hereinafter referred-to as the Act, and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500.00, in default of payment of fine to further suffer rigorous imprisonment for three months.

(2.) The incident that led to the prosecution of Shiv Lal appellant may be briefly narrated as follows:- On June 5, 1973, Shiv Lal was an employee of the Excise Department at Sri Ganganagar. Being a public servant within the meaning of Sec. 21, I. P. C. and working as a Mohrir in the office of the Excise Inspector, Sri Ganganagar, he accepted a bribe of Rs. 15.00from Shri Gurbachan Singh son of Shri Ranga Sikh outside the office of the Excise Inspector as a motive for releasing his bicycle which was seized in a case against Gurbachan Singh and thereby committed an offence punishable under section 161,1. P. C. As the appellant obtained for himself an amount of Rs. 15.00, from Shri Gurbachan Singh outside the office of the Excise Inspector by corrupt and illegal means and by abusing his position as a public servant, he was charge-sheeted under section 5 (1) (d) read with section 5 (2) of the Act. Gurbachan Singh was arrested while he was carrying illicit liquor on a bicycle on June 3, 1973. The Excise Inspector Shri Mangal Singh caught him red handed and seized the illicit liquor and the bicycle on which it was being carried. In order to get his cycle released Gurbachan Singh contacted the appellant on June 4, 1973 and requested him to get the cycle released. The appellant demanded a sum of Rs. 40.00, as bribe for the release of the cycle, but Gurbachan Singh expressed his inability to pay the sum of Rs. 40.00, and requested the appellant to accept a lesser amount. The appellant, however, agreed to accept a sum of Rs. 15.00, for that purpose. As Gurbachan Singh was not willing to part with that amount, he approached the Additional Superintendent of Police, Anti-Corruption Department at Sri Ganganagar. The Additional Superintendent of Police was not available at Sri Ganganagar. So he met the Superintendent of Police, Sri Ganganagar and presented an application Ex. 1 before him the very day on June 4, 1973. The Superintendent of Police asked the Deputy Superintendent of Police Mr. Surolia to arrange a trap. Mr. Surolia read over the contents of the application Ex. P. 1 to Gurbachan Singh and obtained a sum of Rs. 15.00, from him in the presence of Raja Ram and Ram Singh Motbirs. The currency-notes were then initialled by the Deputy Superintendent of Police on June 5, 1973, and were handed over to Gurbachan Singh after getting them dusted with phenolphthalein powder in the presence of the aforesaid Motbirs. He then arranged a trap the very day on June 5, 1973, and gave necessary directions to the decoy to give the initialled currency notes to the appellant on his demand and thereafter to give a prearranged signal. The Deputy Superintendent of Police and his staff members accompanied by Motbirs took their positions near the office of the Excise Department and waited for the prearranged signal. Gurbachan Singh entered the office of the Excise Inspector and after a short while came out of the office along with the appellant and thereafter passed over the initialled currency-notes of Rs. 15.00, to the latter. Gurbachan Singh then gave the prearranged signal which attracted the Deputy Superintendent of Police and the Motbirs to the place where bribe was given. The Deputy Superintendent of Police Shri Surolia disclosed his identity to the appellant and asked the latter to produce the initialled currency notes which he had taken as bribe from Gurbachan Singh. The appellant took out currency notes of Rs. 15.00, from the pocket of his bush shirt which he was wearing on his body and produced them before the Deputy Superintendent of Police. The Deputy Superintendent of Police inspected the currency-notes and found that their numbers tallied with the numbers of the currency notes mentioned in the memo which he had prepared at the time of handing over the initialled currency-notes to the decoy. The Deputy Superintendent of Police then got the hands and pocket of the bush shirt of the appellant washed in sodium carbonate mixture which was prepared then and there. The hands and pocket of the appellant upon being washed were found positive for phenolphthalein. The washes were preserved and sealed in three bottles Articles 4, 5, and 6 and necessary memos containing details of the proceedings marked Ex. P. 5, P. 6, P. 7 and P, 8 were prepared at the spot in the presence of Motbirs. The appellant was arrested vide memo Ex. P. 9. The Deputy Superintendent of Police prepared a site-plan also and took a file of the Excise Department relating to the excise case, in which Gurbachan Singh was involved, in his possession. After obtaining necessary sanction for the prosecution of the appellant and collecting other necessary evidence the Deputy Superintendent of Police filed a charge-sheet against him in the court of the Special Judge, Anti-Corruption Cases under section 161, I. P. C. and under section 6 (2) read with S. 5 (1) (d) of the Act. The Special Judge for Anti-Corruption Cases tried the appellant for the aforesaid offences and upon conclusion of the trial and hearing final arguments in the case, came to a conclusion that the appellant did not accept the amount of Rs. 15.00, from Gurbachan Singh as bribe but obtained the same by corrupt and illegal means and by otherwise abusing his position as a public servant on the pretext that the amount was to be spent by him for initiating proceedings in the court for getting the cycle released. The Special Judge accordingly acquitted the appellant of the offence punishable under Sec. 161, I.P.C. and convicted and sentenced him under section 5 (2) read with Sec. 5(1) (d) of the Act, in the manner stated above. 4. I have carefully perused the record and heard Mr. N.K. Sharma for the appellant and Mr. Shivraj Behari Mathur, Public Prosecutor for the State. It was strenuously urged before me by the learned counsel for the appellant that the prosecution utterly failed to make out a case under section 5 (3) read with section 5 (1) (d) of the Act against the appellant. It was further urged that the Special Judge ignored the explanation of the appellant which he gave regarding the purpose for which he accepted the amount of Rs. 15.00, and committed a grave error of law in drawing a presumption under section 4 (1) of the Act against the appellant, especially when the prosecution could not succeed in discharging the burden of proving the allegations levelled against him. Mr. Shivraj Behari Mathur, Public Prosecutor, on the other hand, urged that there is ample evidence on the record to show that the appellant abused his position and by illegal and corrupt means obtained a sum of Rs. 15.00, from Gurbachan Singh on the false pretext that he would spend that sum in getting the bicycle released from the court. 5. I have considered the above contentions. At the outset I may observe that the trial Judge acquitted the appellant of the offence punishable under section 161, IPC. on the ground that the prosecution could not adduce reliable evidence to prove that the appellant accepted the amount of Rs. 15.00, as bribe from Gurbachan Singh decoy. The learned trial Judge, however, came to a finding that the appellant accepted the amount of Rs. 15.00, for incurring an expenditure in initiating proceedings in the court of law for getting the bicycle released. Consequently, he was of the view that the appellant was guilty of misconduct in the discharge of his duty as a public servant inasmuch as he accepted the amount of Rs. 15.00, from Gurbachan Singh by corrupt and illegal means and by abusing his position as a public servant. It is, therefore, necessary to find out upon materials on the record whether the appellant committed an offence of criminal misconduct as defined in section 5 (1) (d) of the Act and whether he was rightly convicted and sentenced for that offence. Gurbachan Singh decoy, P. W. 6, stated in his deposition at the trial that he was held up by Excise Inspector Mangal Singh while he was carrying liquor on his bicycle. The Inspector seized the liquor and the bicycle also. Thereupon, he went to the office of the Excise Inspector and talked to three or four clerks who were sitting therein. The clerks told him that the bicycle would be released by the court and he would have to spend Rs. 15.00, or Rs. 20.00 for getting the bicycle released. Gurbachan Singh further stated that he did not want to give a bribe. So he approached Ram Singh, petition writer, and demanded a sum of Rs. 15.00, or Rs. 20.00, from him for the purpose of getting his bicycle released. Ram Singh gave him a sum of Rs. 15.00, and accompanied him to the office of the Excise Inspector at Sri Ganganagar. In the office Gurbachan Singh gave the sum of Rs. 15.00, to the appellant and asked the latter to get the bicycle released from the court. The appellant thereafter was caught by the Deputy Superintendent of Police Anti-Corruption. Gurbachan Singh was declared hostile by the court at the request of the Public Prosecutor. In his cross-examination by the learned counsel for the appellant Gurbachan Singh clearly admitted that he gave the appellant Rs. 15.00 for getting the application written for release of the bicycle by the court. He has further admitted that the appellant told him that he would get his cycle released from the court if he assisted him in catching hold illicit wine in one or two cases. Gurbachan Singh promised him to render the required assistance. Ram Singh P. W. 2, also supported the defence version that the appellant had told Gurbachan Singh that an amount of Rs. 15.00 at least would be required to be spent in getting the cycle released from the court and Gurbachan Singh gave this sum to the appellant. He further admitted that the appellant told Gurbachan Singh that if the latter assisted him in catching hold of illicit wine in one or two cases, he would soon get his cycle released. The admissions made by Ram Singh in his cross-examination are quoted below in extenso :