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Phani Bhushan Gupta Vs. the State - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantPhani Bhushan Gupta
RespondentThe State
Excerpt:
- - 6 (the court inspector) endorsed the petition to the appellant after the latter certified the correctness of the petition. 1,000 with the sureties for a like sum. 6, the court inspector, in his turn endorsed it to the appellant as per ext. 1,000 with two sureties of a like sum. , under which he admitted that the petition for bail was endorsed to him on 25.4.1963 by p. , dated 7.10.1961, under which he condemned the practice of sending bail bonds after their acceptance by the magistrate to the police for preparing warrants of release. p-1, bail bond, was endorsed to him for his verification. i, that irregularity in a search and failure to obtain a warrant would always afford a ground for scrutiny, but that if after close scrutiny, the court comes to the conclusion that the articles..... c. jagannadhacharyulu, j.c.1. this is an appeal filed by the accused phani bhushan gupta in special court case no. 4 of 1963 against his conviction under section 161, i.p.c. and also under section 5(2) of the prevention of corruption act of 1947 and concurrent sentences to undergo rigorous imprisonment for one year under each count.2. the appellant, who was working as court sub-inspector no. 2 in the sadar criminal courts in agartala, was charged, firstly, under section 161, i.p.c., that he accepted a sum of rs. 12 on or about 9.5.1963 in the criminal court buildings in agartala from one abdul rajak of takarjala, police station bhishalgarh, as illegal gratification for doing his official act to-grant certificate of fitness to the said abdul rajak for standing as surety for one boxa ali,.....
Judgment:

C. Jagannadhacharyulu, J.C.

1. This is an appeal filed by the accused Phani Bhushan Gupta in Special Court Case No. 4 of 1963 against his conviction under Section 161, I.P.C. and also under Section 5(2) of the Prevention of Corruption Act of 1947 and concurrent sentences to undergo rigorous imprisonment for one year under each count.

2. The appellant, who was working as Court Sub-Inspector No. 2 in the Sadar Criminal Courts in Agartala, was charged, firstly, under Section 161, I.P.C., that he accepted a sum of Rs. 12 on or about 9.5.1963 in the Criminal Court buildings in Agartala from one Abdul Rajak of Takarjala, Police station Bhishalgarh, as illegal gratification for doing his official act to-grant certificate of fitness to the said Abdul Rajak for standing as surety for one Boxa Ali, an accused in G.R. Case No. 226 of 1963 in the Court of the S.D.M., Sadar. Secondly, he was charged that the offence also fell under Section 5(1)(d) of the Prevention of Corruption Act of 1947 and that he was liable to be punished under Section 5(2) of the said Act.

3. The case of the prosecution, briefly stated, is that the appellant was working as Court Sub-Inspector No. 2 in the Sadar Criminal Courts under P.W. 6 (Atul Ch. Gautam, Inspector of Police) in 1963. On 25.4.1963, an application for bail was moved by one Shri Gopendra Lai Singh, Pleader, engaged by P.W. 1 (Harekrislina Goswami, a pleader's clerk) at the instance of Abdul Rajak and Nayab Ali to release the latter's relation Boxa Ali, an accused in G.R. Case No. 226 of 1963, remanded in the jail under Section 14 of the Foreigners Act. The S.D.M. Shri S.R. Chakraborty passed an order on the same date directing P.W. 6 (the Court Inspector) to put up the petition with the records according to the usual practice obtaining in the local Criminal Courts, under which no bail would be granted, unless the petition was certified by the Police Prosecutor concerned to have been correctly written. P.W. 6 (the Court Inspector) endorsed the petition to the appellant after the latter certified the correctness of the petition. The S.D.M. passed an order that the accused Boxa Ali should be released on bail on his furnishing security for Rs. 1,000 with the sureties for a like sum. There was also another practice that unless the concerned Police Prosecutor certified the fitness of the sureties, the Magistrate would not actually release the accused. So, according to the said practice, P.W. 1 (Harekrishna Goswami) and the two sureties Abdul Rajak and Nayab Ali approached the appellant on the same day with a bail bond and some documents showing the fitness of the two sureties and requested him to certify on the bail bond their fitness. But, the appellant demanded a bribe of Rs. 20 and told them that he would not issue the certificate unless he was paid the sum. But, as the sureties had no money with them, they went away.

x x x x

(After reviewing the evidence (in para 4), the Judge proceeded—Ed.)

5. P.W. 10 (Dy.S.P., S.B.) conducted the investigation. P.W. 2 (the S.P., S.B.) sanctioned the prosecution of the appellant. Vide Ext. P-4. So, P.W. 10 (Dy.S.P., S.B.) filed the charge-sheet after completing the investigation.

6. The case of the appellant is that he did not accept any illegal gratification, that there was no search, but that P.W. 10 (Dy.S.P., S.B.) called him and asked him to show the money with him, that he removed a money-purse from his pocket and handed over Exts. M-8 to M-11 consisting of Rs. 15 only and some change and keys, that there was bitter enmity between him and P.W. 10 (the Dy.S.P., S.B.) and that, therefore, the latter foisted the case on him.

7. After trial, the Special Judge found the appellant guilty of the two charges, convicted him thereunder and sentenced him to undergo rigorous imprisonment fox one year under each count and directed that the sentences should run concurrently. Hence the appeal.

8. The first ground urged by the learned Counsel for the appellant is that neither the Criminal Procedure Code nor any Police Regulation warrants a procedure as alleged by the prosecution, that whenever a petition is filed for bail, it must be sent to the Prosecuting Inspector for being checked by him, that later on after the petition is checked and found to be correct and after the S.D.M. passes an order granting bail, the bail bonds and the surety certificates should be sent again to the Prosecuting Inspector, that only after he certifies the fitness of the sureties the accused is released on bail and that, therefore, the entire case of the prosecution based on this alleged practice is false. But, P.Ws. 1 (Harekrishna Goswami) and 6 (the Court Inspector) deposed to this practice. P.W. 1 (Harekrishna Goswami) being a pleader's clerk could be expected to be conversant with this practice. P.W. 6, the Court Inspector, admitted that there is no provision in the Criminal Procedure Code or Police Regulations for such a practice, but that yet it is being followed. He deposed that the Magistrate would not accept a bail bond, unless the Prosecuting Sub-Inspector gave his certificate as to the correctness of the bail bond and that during the length of his service for seven years there was only one case in 1959 in which the Magistrate accepted the bail bond without the requisite certificate by the Prosecuting Sub-Inspector. That the evidence of P.Ws. 1 (Harekrishna Goswami) and 6 (the Court Inspector) about this practice is true is seen from the records and the order-sheet in G.R. Case No. 226 of 1963 on the file of the S.D.M., Sadar. Ext. P-1 is the petition for bail filed on behalf of Boxa Ali written by P.W. 1 (Harekrishna Goswami) and is dated 25.4.1963. There is an endorsement of the S.D.M. marked Ext. P- (2) under which the S.D.M. directed the Court Inspector (P.W. 6) to put up the petition with the record. P.W. 6, the Court Inspector, in his turn endorsed it to the appellant as per Ext. P-1 (3). Ext. P-5, order-sheet, reads that the S.D.M. passed an order op 25.4.1963 granting bail to Boxa Ali on his executing a bond for Rs. 1,000 with two sureties of a like sum. Exts. P-1 and P-5 go to prove the truth of the evidence of P.Ws. 1 (Harekrishna Goswami, the pleader's clerk) and 6 (Court Inspector). There is the statement of the appellant himself under Section 342, Cr.P.C., under which he admitted that the petition for bail was endorsed to him on 25.4.1963 by P.W. 6, the Court Inspector. The lower Court also referred to the said statement of the appellant and stated that there is therefore no inherent improbability of the appellant having been approached by P.W. 1 (Harekrishna Goswami, the pleader's clerk) and the surety Abdul Rajak with a bail bond to be certified by the appellant as correct. The learned Counsel for the appellant contended that the lower Court was not justified in dissecting the statement of the appellant and relying on it. He relied on Narain Singh v. State of Punjab 1964 (1) CriLJ 730 (SC), where it was held that the Court should not dissect the statement of an accused, but that the Court must consider his entire statement and that if the accused admits to have done an act, which would be, but for the explanation furnished by him, an offence, the admission cannot be used against him divorced from the explanation. This is not the case here. His admission that Ext. P-1, application for bail, was forwarded to him for his verification is not admission of any offence. It only proves the practice prevailing in the Criminal Courts. So, his statement can be looked into to test the truth of the evidence of P.W. 1 (Harekrishna Goswami, the pleader's clerk) and P.W. 6, the Court Inspector. The learned Counsel for the appellant, however, drew my attention to an order of my learned predecessor Shri T.N.R. Tirumalpad, J.C., dated 7.10.1961, under which he condemned the practice of sending bail bonds after their acceptance by the Magistrate to the Police for preparing warrants of release. He ordered that the release warrants should be prepared in the Magistrate's Courts themselves, after the bail bonds were accepted. But this order does not apply to the present practice under which the surety bonds are sent to the Court Inspector for being checked and for certifying the fitness of the sureties. Ordinarily, before the bonds are accepted, notice of the bonds and the surety certificates must be given to the Prosecuting Inspector, so that he too may know whether the security offered is sufficient or not. The surety bonds are not sent for preparation of release Warrants. So, the above order does not show that the evidence of P.Ws. 1 (Harekrishna Goswami) and 6 (the Court Inspector) is not true. In any event, the above practice was continued to be followed even after the circular was issued by this Court as can be seen from the statement of the appellant himself, that Ext. P-1, bail bond, was endorsed to him for his verification.

9. The next contention of the learned Counsel for the appellant is that Ext. P-8, warrant of search said to have been issued by the S.D.M. Sri S.R. Chakraborty, does not bear the seal of his Court, that the S.D.M. was not examined to prove that he ever issued any warrant and that no numbers of Exts. M-1 to M-7 were also incorporated in it. It is true to say that the S.D.M. was not examined and that Ext. P-8 does not bear the seal of his Court. The explanation of P.W. 10 (the Dy.S.P., S.B.), who proved the signature of the S.D.M. on Ext. P-8, search warrant, for not obtaining the seal of the Court is that he had to proceed to lay the trap secretly, so that the information might not be leaked out to the appellant, that he met the S.D.M. in his chambers and obtained his signature on Ext. P-8 and that he did not get the seal put to keep the matter confidential. But, even if his evidence is true, he could have made the S.D.M. put the seal on Ext. P-8, warrant of search. So, the warrant is illegal. But the law is that the search proceedings are not illegal on this ground. Sohoni in his commentary on the Criminal Procedure ode, 1965 Edn., states in Note 21 at p. 303 of Vol. I, that irregularity in a search and failure to obtain a warrant would always afford a ground for scrutiny, but that if after close scrutiny, the Court comes to the conclusion that the articles were recovered from the possession of the accused, the conviction would be sound. There is a direct decision of the Supreme Court reported in Radha Kishan v. State of Uttar Pradesh : (1963)IILLJ667SC . It was held that it may be that where the provisions of Sections 103 and 165, Cr.P.C., are contravened, the search can be resisted by the person whose premises are sought to be searched and that it may also be that, because of the illegality of the search, the Court may be inclined to examine carefully the evidence regarding the seizure, but that beyond these two consequences no further consequence ensues and that the seizure of the articles is not vitiated. So, if, on a -scrutiny, the evidence regarding the alleged seizure of Exts. M-l to M-7, said to have been given to the appellant as bribe, is believable, then the fact that Ext. P-8, search warrant, is not a valid one is of no consequence.

10. The third contention of the learned -counsel for the appellant is that Abdul Uajak, who is said to have paid the illicit gratification of Rs. 12 to the appellant, was not examined and that from the non-examination of a material witness like Abdul Rajak an adverse inference has to be drawn against the prosecution under Section 114, Illustration (g), of the Indian Evidence Act. There is absolutely no doubt whatsoever that Abdul Rajak is a material witness, because, according to the prosecution, it was be who paid the bribe money to the appellant. There is always a duty cast on the prosecution to examine the material witnesses, who unravel the prosecution story. If a material witness is deliberately or unfairly withheld, a serious! reflection is cast on the propriety of the' trial. But, it is not as though the prosecution is bound to call all the witnesses, who1 might be aware of the occurrence, and duplicate the evidence. Vide Habeeb Mohammad v. State of Hyderabad : [1954]1SCR475 ; Jamser Ali v. State of Tripura AIR 1954 Tripura 11; Lalua Dom v. State : AIR1955Cal461 ; Ghansa Singh v. State ; and Narain v. State of Punjab : 1959CriLJ537 . According to the prosecution, Abdul Rajak left India for East Pakistan. To prove the same, the prosecution examined P.W. 7, a constable and P.W. 8, A.S.I, of Takarjala Police outpost. P.W. 7, the constable, deposed that he was entrusted with the summonses to be served upon Abdul Rajak and Nayab Ali of Takarjala, that he went to their houses in Bairagi Tilla in the village of Takarjala, but that he learnt that the witnesses had gone to East Pakistan and that, therefore, he could not serve the summonses on them. Ext, P-6 is the return made by him. The evidence of P.W. 8, A.S.I, of Takarjala Police outpost is that on receiving a radiogram, on 14.8.1964, to enquire about the two witnesses, so that they might be produced in the police station in Bishalgarh, he went to their houses and found that they had already gone away to East Pakistan. Ext. P-7 is the report sent by him to the Bishalgarh Police Station. The contention of the appellant's counsel is that their evidence cannot be believed. But, there is no reason for disbelieving them. If really Abdul Rajak had gone away to East Pakistan, then the prosecution cannot be stated to have suppressed a material witness like Abdul Rajak and no adverse inference can be drawn against it.

X X X X

(After reviewing the evidence (Paras 11 and 12) the Judge proceeded—Ed.)

13. Out of the six witnesses who attested Ext, P-3, seizure list, five were examined by the prosecution. They are P.Ws. 1 (Harekrishna Goswami), 3 (Dinesh Ch. Chakraborty), 4 (Harendra Kr. Roy Barman), 5 (Swadesh Ranjan Paul) and 9 (Chandraday Deb). Besides these five witnesses, P.W. 6, the Police Court Inspector and P.W. 10, Dy.S.P., S.B., also deposed to the seizure proceedings and the fact of seizure of Exts. M-1 to M-7 along with Exts. M-8 to M-11 from the left-side pocket of the shirt of the appellant. Now, their evidence has to be scrutinised to find out whether they spoke to the truth or gave false evidence. There is something which can be said so far as P.Ws. 1 (Harekrishna Goswami), 6 (the Court Inspector) and 10 (Dy.S.P., S.B.) are concerned. P.W. 1 (Harekrishna Goswami) admitted that he worked as a constable and mat he was dismissed from service. The suggestion of the appellant made to him is that he is a police 'source' (otherwise called as police informant). But, he denied the suggestion. But, there is no evidence to show that P.W. 1 (Harekrishna Goswami) is inimically disposed towards the appellant. P.W. 1 (Harekrishna Goswami) can be said to be in the position of an accomplice, because it was he who was said to have been present throughout, before whom the money was paid by Abdul Rajak to the appellant. As a matter of prudence, the evidence of an accomplice requires corroboration. Vide In re K.V. Ayyaswamy : AIR1965AP105 and Subba Rao v. Brahmananda Reddy : AIR1967AP155 . But as laid down in Ram Sarup Charan Singh v. State : AIR1967Delhi26 , a conviction can be based on the testimony of a person with a shady character, provided the evidence is cogent and believable. In the absence of any enmity between P.W. 1 (Harekrishna Goswami) and the appellant, it cannot be stated that P.W. 1 (Harekrishna Goswami) perjured himself against the appellant. So tar as P.W. 6, the Court Inspector, is concerned, it may be noted that he did not attest Ext. P-3, though he was said to have been present. He admitted that when he was in service in Khowai and Belonia, he was placed under suspension on 5 or 7 occasions, that he was prosecuted twice or thrice in the Courts, but that he was ultimately acquitted in all the cases. The suggestion is that the appellant was an investigating officer in some of the cases filed against him. But, he stated that he did not remember if the appellant was the investigating officer. So, the evidence of P.W. 6, the Court Inspector, about the seizure may not be taken into account. So far as P.W. 10, Dy.S.P., S.B., is concerned, the case of the appellant is that one Kanu Dey alias Kanu Lal Dey married one of the daughters of P.W. 10, Dy.S.P., S.B., that Kanu Dey was involved as an accused in a rioting case, that he filed a petition for bail, but that though P.W. 10, Dy.S.P., S.B., requested the appellant not to oppose granting bail on the date of arrest, the appellant refused to comply with his request and that, therefore, P.W. 10, Dy.S.P., S.B., was inimically disposed towards the appellant. Though P.W. 10, Dy.S.P., S.B., denied that Kanu Dey is his son-in-law, P.W. 6, the Court Inspector admitted that Kanu Dey is a son-in-law of P.W. 10, Dy.S.P., S.B., that his application for bail in the rioting case was referred to the appellant and that it was rejected. The learned Public Prosecutor stated that P.W. 10, Dy.S.P., S.B., is a Brahmin, while Kanu Dey is a non-Brahmin, that P.W. 10, Dy.S.P., S.B., might have felt shy to admit the marriage between his daughter and Kanu Dey and that his mere denial should not be a ground for rejecting his evidence. But, from the evidence of P.W. 6, the Court Inspector, it is clear that there must have been some enmity between the appellant and P.W. 10, Dy.S.P, S.B. So, the evidence of P.W. 10, Dy.S.P., S.B., will have to be weighed with caution.

14. So far as the remaining witnesses, namely, P.W. 3 (Dinesh Ch. Chakraborty), P.W. 4 (Harendra Kr. Roy Barman), P.W. 5 (Swadesh Ranjan Paul) and P.W. 9 (Chandra dey Deb) are concerned, there is no reasonable ground to disbelieve their evidence. P.W. 3 (Dinesh Ch. Chakraborty) was an employee of the contractor for the construction of the new buildings for the Police-office. His evidence shows that he was present on 9.5.1963 supervising the work of construction, that on seeing him P.W. 10, Dy.S.P., S.B., called him, that a number of Police officers also came and that all of them entered into the room of P.W. 6, the Court Inspector. He corroborated the evidence of the other witnesses as to what had happened. Only two suggestions were made to him. Firstly, it was suggested to him that he was a police 'source'. But, he denied the suggestion. It is not possible to believe that besides being an employee of a contractor, he was also working as a police 'source' or 'informant'. Secondly, it was suggested to him that being a friend of P.W. 10, Dy.S.P., S.B., he gave false evidence. He admitted that he was acquainted with him and denied having given false evidence at his instance. There is no enmity between him and the appellant. As rightly observed by the lower Court, which had the opportunity of seeing the demeanour of the witnesses, he is an independent witness. Also he is a natural' witness, being a person present exactly at the buildings supervising the construction of the same, in one of the rooms in which the seizure took place. So, his evidence carries much weight. With regard to P.Ws. 4 (Harendra Kr. Roy Barman) and 5 (Swadesh Ranjan Paul), two Sub-Inspectors of Police attached to the Special Branch, the suggestion of the appellant is that they gave false evidence against him expecting: promotion in the department. As rightly pointed out by the learned trial Judge, it is not possible to believe that they would have given false evidence against a co-police officer, unless the things happened as stated by them, in anticipation of some promotion. So far as P.W. 9 (Chandraday Deb, Circle Inspector) is concerned, the suggestion is that, when he worked in Sonamura as A.S.I., there was an allegation that certain-cloth seized by the armed guards was found to be short and that there was an enquiry against P.W. 9 on a complaint said to have been made by the appellant for shortage. He denied the allegations. There is no proof worth the name about the same. So, P.W. 9 (Chandraday Deb), Circle Inspector, S.B., is also an independent witness. The Supreme Court held in Aher Raja Khima v. State of Saurashtra : 1956CriLJ426 , that the presumption that a person acts honestly applies as much in favour of a police officer as of other persons, that it is not a judicial approach to distrust and suspect him without good grounds therefor, that such an attitude could do credit neither to the magistracy nor good to the public and that it can only run down the prestige of the police administration. Vide also Tarsen Lal v. The State AIR 1965 Punj 27, to the same effect.

15. With regard to the above witnesses, viz., P.Ws. 1 (Harekrishna Goswami), 3 (Dinesh Ch. Chakraborty), 4 (Harendra Kr. Roy Barman), 5 (Swadesh Ranjan Paul), 6 (Atul Ch. Gautam, the Court Inspector) and 9 (Chandraday Deb), the contention of the appellant's counsel is that they are all trap witnesses and that material corroboration of the evidence of a trap witness by independent witnesses is necessary. He relied on Ganpat Singh v. The State . In : AIR1967Delhi26 , already referred to, it was held that the evidence of trap witnesses, police officers and persons with a shady character should not be automatically rejected as tainted without scrutiny. Now, out of the innumerable trap witnesses P.Ws. 1 (Harekrishna Goswami), 3 (Dinesh Ch. Chakraborty), 4 (Harendra Kr. Roy Barman), 5 (Swadesh Ranjan Paul), 6 (Atul Ch. Gautam), 9 (Chandraday Deb) and 10 (Dy.S.P., S.B.), there is no reason for holding that the entire host of witnesses, namely, P.Ws. 1 (Harekrishna Goswami), 3 (Dinesh Ch. Chakraborty), 4 (Harendra Kr. Roy Barman), 5 (Swadesh Ranjan Paul), 6 (Atul Ch. Gautam), 9 (Chandraday Deb) and 10 (Dy.S.P., S.B.), all conspired against the appellant. Even disregarding the evidence of P.Ws. 6 (Atul Ch. Gautam), 9 (Chandraday Deb) and 10 (Dy.S.P., S.B.), still, there remains the evidence of P.Ws. 1 (Harekrishna Goswami, 3 (Dinesh Ch. Chakraborty), 4 (Harendra Kr. Roy Barman) and 5 (Swadesh Ranjan Paul). Even disregarding the evidence of P.Ws. 4 (Harendra Kr. Roy Barman) and 5 (Swadesh Ranjan Paul) also there is still the evidence of P.Ws. 1 (Harekrishna Goswami) and 3 (Dinesh Ch. Chakraborty), who are not police officers. So, it is not possible to reject their evidence as false, concocted and fabricated and that they all made a common cause against the appellant.

16. The learned Counsel for the appellant contended that the prosecution did not examine other witnesses and police officers, namely, Shri Gopendra Lal Singh, Pleader (to whom P.W. 1 alleges, information was given even on 25.4.1963 that the appellant demanded bribe), Sunil Kr. Mukherjee (Sub-Inspector of Police), Amarendra Bose (Circle Inspector of Police), Sudhir Saha (Sub-Inspector of Police) and Nirmal Majumdar Officer-in-cnarge of Kotwali Police Station). The conviction depends upon the veracity and the reliability of the evidence of the witnesses already examined. The evidence is not to be counted but has to be tested and weighed. It is the quality which is material. If the evidence of the witnesses examined by the prosecution is reliable, then it is not a tenable ground that the prosecution should have examined some more witnesses, encumbering the records with oral evidence. So, I do not consider that the non-examination of the other witnesses mentioned above belies the evidence of the Other witnesses examined and referred to above.

17. Thus, there is material corroboration of the evidence of P.W. 1 (Harekrishna Goswami) by the evidence of P.W. 2, the S.P., S.B., and Ext. P-2 and the evidence of the other witnesses mentioned above to show that the appellant accepted Rs. 12 Exts. M-1 to M-7, as bribe to issue a certificate of fitness on the bail bond on 9.5.1963. In this regard the contention of the learned Counsel for the appellant is twofold: Firstly, he urged that Ext, P-2 is the First Information Report in this case, as the investigation must be said to have started on the basis of Ext. P-2, that Ext. P-9 is not the F.I.R. and that, therefore, the whole case which proceeded on the basis that Ext. P-9 was the F.I.R., collapses. He relied on H.N. Rishbud v. State of Delhi : 1955CriLJ526 , wherein the Supreme Court laid down when an investigation starts. It was held that under the Cr.P.C, investigation consists of the following steps: (1) proceeding to the spot; (2) ascertainment of the facts and circumstances of the case; (3) discovery and arrest of the suspected offender; (4) collection of evidence relating to the commission of the offence; (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and, if so, taking the necessary steps for the same by the filing of a charge-sheet. But, under Section 154, Cr.P.C., the first information is a cognizable case relates to the commission of such an offence. In the present case no cognizable offence was committed when Abdul Rajak met P.W. 2, the S.P., S.B., and gave him information as per Ext. P-2 that the appellant was demanding payment of bribe. It was still in the initial stage of preparation. The actual offence was committed when the appellant received the bribe. So, it is not correct to state that Ext. P-2 is the F.I.R. Vide also in this connection Mani Mohan Ghosh v. Emperor AIR 1931 Cal 745 (Division Bench), relied on by the trial Judge also. The second contention of the appellant's counsel is that the prosecution did not produce the bail bond said to have been handed over by Abdul Rajak to the appellant, that unless the bail bond was produced, the motive for the appellant to accept the bribe cannot be said to have been established and that, therefore, his conviction cannot stand, He relied on Madan Mohan Singh v. State of Uttar Pradesh : AIR1954SC637 and Dharam Singh v. State of U.P. 1964 (1) CriLJ 78 (SC). He also pointed out that even the earlier bail bond written by P.W. 1 (Harekrishna Goswami) on 25.4.1963 was also not produced, though P.W. 1 (Harekrishna Goswami) deposed that he had it with him. It is correct to state that there is a lacuna in the investigation due to the non-production of the bail bonds. For, the appellant is said to have taken bribe for making endorsement of fitness on the bail bond dated 9.5.1963 and so it must have been seized, though the production of the bail bond dated 25.4.1963 is not very material. The learned Public Prosecutor stated that in Ext. P-8, search warrant, P.W. 10, Dy.S.P., S.B., was not asked to seize the bail bond, that P.W. 10, Dy.S.P., S.B., made some search for a short time and that if he had searched the room and the files, he would have traced the bail bond, but that he did not do so, as there was no direction to seize the bail bond. It is, no doubt, true that there was no direction in Ext. P-8 to P.W. 10, Dy.S.P., S.B., to seize the bail bond also. It is possible that the bail bond might have been in the files brought by the appellant, when he came from the Criminal Courts to his office room. But, its non-seizure and non-production in the lower Court does not throw any doubt over the evidence of P.W. 1 (Harekrishna Goswami) supported by the evidence of P.W. 2, S.P., S.B., Ext. P-2 and the evidence of other witnesses. For, the illicit gratification was paid to the appellant, so that he might make an endorsement of fitness on the bail bond. It was not paid for any other purpose. So, I do not think that the non-seizure of the bail bond is fatal to the case.

x x x x

(After reviewing the evidence (Para 18), the Judge proceeded—Ed.)

19. The learned Public Prosecutor contended that when once the prosecution proved that Exts. M-1 to M-7, currency notes of Abdul Rajak were seized from the person of the appellant, the presumption under Section 4(1) of the Prevention of Corruption Act of 1947 that the appellant received gratification other than legal remuneration arises and that the burden lies on the appellant to prove how he came to be in possession of Exts. M-l to M-7. No doubt, the presumption raised under Section 4(1) of the Act will be sufficiently rebutted if the appellant is able to establish even by a preponderance of probabilities as in civil proceedings and it is not necessary for him to establish his case by the test of proof beyond reasonable doubt. Vide Sajjan Singh v. State of Punjab : 1964CriLJ310 ; Dhanvantrai Balwantrai v. State of Maharashtra : 1964CriLJ437 ; V.D. Jhingan v. State of Uttar Pradesh : [1966]3SCR736 ; and Ravishanker Keshavji Dave v. State of Gujarat : AIR1966Guj293 . The dictum laid down in Sarwan Singh Rattan Singh v. State of Punjab : 1957CriLJ1014 , that it is no doubt a matter of regret that a foul cold-blooded and a cruel murder should go unpunished, that there may also be an element of truth in the prosecution story against the accused, that it may be true, but that between 'may be true' and 'must be true' there is inevitably a long distance to travel and that the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted, cannot apply to a case of this type, inasmuch as it is for the appellant to rebut the presumption raised under Section 4(1) of the Prevention of Corruption Act of 1947. The decision in Deepchand Jot Ram v. State 1966 CriLJ 796 : AIR 1966 Punj 302, relied on by the learned Counsel for the appellant also has no application to the facts of this case, as the accused took the bribe after bail was granted.

20. The learned Special Judge wrote an exhaustive judgment after carefully considering all the points raised in the case. I do not find any ground for interference. It is rather unfortunate that a Police Sub-Inspector, who is the guardian of the public and is in charge of maintenance of law, should have mis-conducted himself by collecting a bribe. The sentence of one year awarded by the lower Court cannot be said to be excessive, as it is the minimum one under the Prevention of Corruption Act of 1947.

21. In the result, the appeal fails and is accordingly dismissed.


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