STATE Vs. B B SAXENA

JUDGEMENT

(1.) B. B. Saxena, functioned as Income tax inspector under the Income tax Officer, C-ward, Ajmer, with effect from March 17, 1971. In that capacity he was required to make inquiries into sundry complaints of evasion of income tax. A complaint was made by Saligram Mittal against one Ratnchand, son of Sunderdas, Chand Baori, Ajmer, about evasion of income tax. Income tax Officer C-ward, Ajmer, entrusted the inquiry to accused B. B. Saxena. The accused contacted Ramchand on April 26, 1971, at his shop situate on Plaza Road, Ajmer. Saxena undertook to hush up the complaint provided Ramchand agreed to pay him Rs. 200/- as illegal gratification. Ramchand expressed that he being indigent was unable to pay Rs. 200/ -. He, however, agreed to part with Rs. 100/ -. Ramchand then made a written complaint to T. B. Singh, Inspector, Special Police Establishment, Jaipur (Camp Aimer ). Thereafter on April 20, 1971, a trap was arranged and laid by T. B. Singh, assisted by two Inspectors of the Special Police Establishment, Amar Singh and Ganeshlal. Two independent witnesses J. B. Sengar, Dy. Post-master, Ajmer and B. K. Banerji, Inspector, complaints P & T. , Ajmer, were also associated with the onset. At 6 p. m. , on April 30, 1971, accused Saxena approached Ramchand at his shop and demanded peremptorily Rs. 100/- from him. Ramchand gave him G. C. notes of the donomination of Rs. 10/-, each. Soonafter T. B. Singh made a raid. The currency notes were recovered from the possession of B. B. Saxena from the pocket of his bush-shirt. After necessary investigation and after having obtained requisite sanction from the Commissioner Income tax Deptt. Rajasthan, Jaipur, in accordance with the provisions of sec. 6 (l) (c), Prevention of Corruption Act, 1947, the Special Police Establishment, Ajmer, submitted a challan to the court of the Special Judge for Rajasthan, Jaipur. The accused was charged by learned Special Judge, on December 7, 1971, of the offence punishable under sec. 161, I. P. C. read with sec. 5 (2)/5 (l) (d), Prevention of Corruption Act, 1947, to which he pleaded not guilty and claimed trial. In support of its case the prosecution examined 9 witnesses. The accused was interrogated under sec. 342 Cr. P. C. In his defence he examined 4 witnesses. Arguments, though not completed, were heard on March 29, 1972. Thereafter some more dates were fixed. On April 29, 1972, an application was moved by the Public Prosecutor, Special Police Establishment, under sec. 540 Cr. P. C. to - (a) summon sub-Postmaster, Assembly, Hostel post office, Jaipur, along with relevant register ; (b) recall D. W. 4 Surendra Singh, sub-Post master Nagra, Ajmer, with despatch register of the Nagra post-office for April and May, 1971 ; (c) summon dealing clerk of the Ajmer G. P. O. with duty roster of April 30, 1971 and leave record for April, 1971, of D. W. 3 Vahdumal as also dealing clerk with Postal Union Meeting proceedings of April 30, 1971 ; (d) recall P. W. 6 Ramchand along with his radio repair register for April and March, 1971. On the above application the following order was passed by learned Special Judge - - "the case had been practically argued on behalf of the accused on 29-3-72. Thereafter three adjournments were made for one reason or another. The prose-cution by this application wants to take second inning to plug the loopholes of its case lapses of cross examination after having heard the defence case. It is far from bonafide. The allegations made in the application are mere allegations and not supported by any documents. It is not the purpose of the provision of sec. 540, Cr. P. G. , to give an additional opportunity to the prosecution to which full opportunity had already been given. For these reasons this application does not merit acceptance. It is hereby rejected. "

(2.) AGAINST the above order the present revision petition has been filed by the State. The contention of learned counsel for the applicant is that the lower court has erred in law in not accepting the prosecution prayer, made u/s. 540 Cr. P. G. and that such rejection is likely to result in miscarriage of justice The court below should have, counsel adds, applied its judicial mind to the phrase "at any stage", appearing in S. 540 Cr P. G. This phrase includes the stage even when evidence of both the sides has been closed and the case has been adjourned for judgment. The production of the postal record, as prayed for, would have falsified the defence plea raised by the accused. Under 'he second part of S 540, Cr. P. C. , it was mandatory for the trial court to summon or examine or recall the witnesses along with the connected record. Learned counsel, in support of his arguments, cited State vs. Jamnadas (l), Ranjeet vs. The State (2 , and Shreelal Kajaria vs. The State (3 ). The contention of learned counsel for the State was opposed with unusual emphasis by Mr. M. B. L. Bhargava, representing accused B. B. Saxena.