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Resham Singh Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Appeal No. 347 of 1977
Judge
Reported in1981CriLJ1691
ActsPrevention of Corruption Act - Sections 5(1) and 5(2); Indian Penal Code (IPC), 1860 - Sections 161; Code of Criminal Procedure (CrPC) , 1974 - Sections 313
AppellantResham Singh
RespondentThe State
Appellant AdvocateParty-in-Person
Respondent Advocate Harphul Singh Brar, Adv.
DispositionAppeal allowed
Excerpt:
.....forward by the appellant. for reasons best known to the investigating officer, he kept the same in his possession, throughout the time when the raid was conducted. 8) also failed to allege having witnessed the passing of the money. in the same sequence, the appellant has rightly argued that in a case like the present, the investigating officer should have associated with himself some independent persons of status considering the gravity of the charge levelled against the appellant. 11. for all the reasons noticed above, i find that the prosecution has failed to bring home the guilt against the appellant beyond reasonable doubt and the benefit of this doubt must go to him......it is further alleged that on the next day, i. e., january 18, 1971 at about 3-30 or 4 p. m. shri awasthi met avtar singh, deputy superintendent of police (c. i. d) (p. w. 9) in his office and told him about the talk with the appellant. it was settled that the deputy superintendent of police would visit the house of shri awasthi at 7 p. m. on the same day.5. in consequence of this arrangement, the police party headed by deputy superintendent of police avtar singh reached the house of the complainant. the party included two non-official witnesses, namely, ram chand (p. w. 8) and jagan nath who had not been produced on the ground that he was won over. the complainant handed over five currency notes of the denomination of rs. 10/- each to the deputy superintendent of police who put.....
Judgment:

Surinder Singh, J.

1. The spectre of an incident which took place as far back as January 18, 1971 has been hanging on the head of the appellant for over a decade now. Resham Singh appellant who was at the relevant time employed as a Telephone Inspector at Chandigarh, was prosecuted for the alleged commission of an offence under Section 5(2) of the Prevention of Corruption Act and Section 161, Indian Penal Code, by the Special Judge, Chandigarh, with the allegations that he accepted Rs. 50/- as illegal gratification from Shri Harnam Singh Awasthi, Advocate, Chandigarh, for showing him favour in regard to the installation of a telephone at his premises. In the earlier trial, the learned Special Judge (Mr. J.S. Mander) convicted the appellant as per judgment dated March 13, 1972. The appellant, however, carried an appeal to this Court which was decided on July 1, 1975 Reported in 1976 Chand LR (Cri) Punj & Har 169. The appeal was accepted on the ground that the sanction for the prosecution of the appellant had not been obtained from the competent authority. However, it was observed in the said judgment that it would be open to the State Government to prosecute the appellant after getting a proper sanction from the competent authority. Thereafter, a fresh sanction for the prosecution of the appellant was obtained from the Senior Superintendent, Railway Mail Service, as the appellant was found to hold a lien on the lower post of Sorter in that office. After obtaining the fresh sanction another challan was put up against the appellant. The preliminary objection raised by the appellant that the sanction had been obtained beyond the period of limitation was, however, dismissed. The appellant, therefore, faced a fresh charge under Section 5(1)(d) of the Prevention of Corruption Act, punishable under Section 5(2) of the Act, as also under Section 161. Indian Penal Code, on the allegations, already noticed. In consequence of his second trial, the Special Judge. Chandigarh, once again convicted the appellant under both the Counts, but considering the fact that the appellant was an M. A. in Psychology and had suffered in relation to his physical and mental health on account of a protracted trial, he was ordered to undergo rigorous imprisonment for a period of one year and a fine of Rs. 1000/- under Section 5(2) of the Prevention of Corruption Act, In default of payment of fine, he was ordered to undergo further rigorous imprisonment for six months. Under Section 161, Indian Penal Code, the appellant was sentenced to undergo one year's rigorous imprisonment. Both the substantive sentences of imprisonment were ordered to run concurrently. The appellant has, thus, filed the present appeal impugning his conviction and sentence aforesaid.

2. The present appeal, as is apparent from the record was filed by the appellant on March 25, 1977, but on account of one reason or the other, the same could not be heard by various Benches where it was listed.

3. The appellant has chosen to argue his appeal personally and it may be said to his credit that in spite of being not fully conversant with the intricacies of law, he has beer able to assist this Court to a considerable extent in coming to the final assessment of the matter. With the aid of the appellant, I have gone through the entire evidence produced in this case including some documents like the First Information Report which has in important bearing on the contentions put forward by the appellant.

4. Let us notice the factual allegations as put in the words of the complainant Shri H.S. Awasthi, Advocate, (P. W. 3). The witness deposed that in the year 1971 he was residing in House No. 177, Section 18-A, Chandigarh, and had applied for a telephone connection for his residence for which purpose he had submitted an application to the Telephone Office. According to the wit-ness on January 17, 1971 Resham Singh appellant came to his house for making enquiries about his application Exhibit P B. It is the prosecution case it-self that this enquiry was done by the appellant in the normal course of his duties. According to Shri H.S. Awasthi, the appellant asked him that the former should pay the appellant Rs. 150/- so that he may submit a favourable report which would enable him to obtain the connection in a short time. The witness, however, expressed his inability to pay the amount to the appellant. However, on the insistence of the appellant the witness told him that he should come to his house on the next day when the wit-ness would tell him as to whether he would pay him the bribe or not. There-after, the appellant left the house of the witness. It is further alleged that on the next day, i. e., January 18, 1971 at about 3-30 or 4 p. m. Shri Awasthi met Avtar Singh, Deputy Superintendent of Police (C. I. D) (P. W. 9) in his office and told him about the talk with the appellant. It was settled that the Deputy Superintendent of Police would visit the house of Shri Awasthi at 7 p. m. on the same day.

5. In consequence of this arrangement, the police party headed by Deputy Superintendent of Police Avtar Singh reached the house of the complainant. The party included two non-official witnesses, namely, Ram Chand (P. W. 8) and Jagan Nath who had not been produced on the ground that he was won over. The complainant handed over five currency notes of the denomination of Rs. 10/- each to the Deputy Superintendent of Police who put his initials on those notes. These notes were then returned to the complainant for being passed on to the appellant. Memo. Exhibit PC is said to have been prepared in this behalf. It was agreed that after the money had been passed on to the appellant in the adjoining room, the complainant would give a signal by switching on a transistor lying on the table. After about fifteen minutes of the arrival of the police party, the appellant came to the house of the complainant through a separate entrance. The police party were sitting in the drawing room of the house. The appellant was taken to the dining room adjoining the drawing room and was engaged in a talk by the complainant, The complainant then passed on a sum of Rs. 50/- being part-payment of the total bribe amount of Rs. 100/-and told him that the remaining amount will be paid after the completion of the job. The appellant took the money and put the same in the inner right side pocket of the coat which he was wearing, Shri Awasthi then switched on the transistor and the raiding party headed by Avtar Singh Deputy Superintendent of Police entered the dining room. According to the Deputy Superintendent of Police, he offered search of his own person and thereafter he searched the person of the appellant and recovered the incriminating currency notes from the inner pocket of his coat. On comparison, the numbers of the currency notes were found to tally with those mentioned in the Memo. Exhibit P. C. The notes were taken into possession vide Memo, Exhibit P D which was attested by two non-official witnesses Ram Chand and Jagan Nath also. Some more money and some other papers including a diary be-longing to the appellant were also taken into possession vide Memos. Exhibit P D and P E. The coat of the appellant was also taken into possession. This is in a nutshell, the prosecution version of the occurrence.

6. The crucial witnesses examined by the prosecution with a view to bring home the charge against the appellant are Shri Harnam Singh Awasthi (P. W. 3), Sardari Lal Malhotra (P. W. 7) who issued the fresh sanction for prosecution, Karri Chand (P. W. 8) a Peon from the office of Director of Industries. Punjab, the non-official witness and Avtar Singh Deputy Superintendent of Police, the Investigating Officer.

7. The appellant denied the prosecution allegations put to him under Section 313, Code of Criminal Procedure, and explained his own version of the occurrence in answer to the various questions. According to him when he questioned Shri Awasthi in regard to the various points on which he had to submit his report, the latter got annoyed with this procedure and threatened the appellant. The appellant also pleaded innocence. He produced some witnesses in defence and tendered certain documents in evidence, mainly with a view to show that the fresh sanction for his prosecution was issued by a person not competent to do so.

8. During the course of his arguments, the appellant has high-lighted certain points which I proceed to notice in seriatim. At the outset, the appellant has emphasised that the whole trial against him is vitiated on account of a glaring illegality committed in this case. The contention is that after the complainant Shri Awasthi reported the matter to the Deputy Superintendent of Police, the, latter did not record any First information Report before taking up the investigation of the case in hand. This is indeed so as is obvious even from a bare perusal of the First Information Report itself. The complainant has taken up the stand that he presented a written report to the Deputy Superintendent of Police for the first time on January 18, 1971 when the police party visited his house. No explanation whatsoever had been given as to why his report was not forwarded to the Police Station for registration of the case. For reasons best known to the Investigating Officer, he kept the same in his possession, throughout the time when the raid was conducted. After the completion of the formalities of investigation of the raid, the Deputy Superintendent of Police chose to make an endorsement on the report giving the details of the incident in his own words and it was then that the papers were sent to the Police Station for registration of the case. The First Information Report recorded in such circumstances loses all its sanctity and goes a long way to indicate all the doubts which have been expressed by the appellant in regard to the occurrence and which he is quite justified in entertaining. The second criticism of the appellant is in regard to the formalities of the search effected upon his person. He has rightly argued that at the time of the raid, the Investigating Officer had not offered his personal search before effecting the search of the appellant and this infirmity is quite fatal to the case of the prosecution. Indeed, the Investigating Officer tried to depose in his statement made before the Court that he had actually offered his personal search to the appellant, but if this was so, the fact would find mention in the detailed report of the Deputy Superintendent of Police appended to the First Information Report itself. In the said report, there is no such mention. It can, therefore, be safely presumed that the Investigating Officer did not observe the legal formalities of search before the alleged recovery of the incriminating notes from the person of the appellant. In regard to the testimony of the Investigating Officer, the appellant has rightly pointed out a very material discrepancy in regard to the time when the complainant had met him on the first occasion. According to an earlier statement made by Shri Avtar Singh, Deputy Superintendent of Police, the Investigating Officer at the previous trial, Shri Awasthi had visited him a day earlier to the raid and apprised him of all the facts of the case. The Investigating Officer, however, controverted his above statement with which he was confronted, by saying that he had not met Shri Awasthi on January 17, 1971 and had met him only at the time of the raid. The two statements are irreconcilable.

9. A third point which is also quite vital to the decision of the case, which has been urged by the appellant is that except for the bare testimony of the complainant Shri Awasthi, there is no evidence whatsoever regarding the passing of the money to the appellant. In this behalf, a reference to the testimony of the Investigating Officer would show that even he has not claimed to have witnessed the passing of money to the appellant. This is rather unnatural as the complainant Shri Awasthi had deposed that from the place where he was sitting, he was within the view of the police party and if Shri Awasthi had passed on the money to the appellant, this fact would certainly have been noticed by the Investigating Officer or some other members of the police party. The only other non-official witness of the raid, i. e. Ram Chand (P. W. 8) also failed to allege having witnessed the passing of the money. In fact, there is a serious doubt in regard to another fact as to whether the coat of the appellant from which the incriminating notes are said to have been recovered had actually been worn by him or lying at the spot. In the vernacular record, the word used when translated, would mean the coat wearable by the appellant while in the English record, the same has been mentioned to be the coat which was worn by the appellant. The discrepancy has not been reconciled by anyone. It may be mentioned here that it is the case of the appellant that his coat was lying on his chair from which some money was re-covered. In the same sequence, the appellant has rightly argued that in a case like the present, the Investigating Officer should have associated with himself some independent persons of status considering the gravity of the charge levelled against the appellant. Ram Chand (P. W. 8) the only non-official witness admitted that he had previously known Inspector Joginder Singh for the last 8 or 9 years. He also admitted that in the year 1963 he became a member of the Punjab Home Guards and in the year 1971 he was Section Leader of the Pun-jab Home Guards. At that time, Avtar Singh Deputy Superintendent of Police, the Investigating Officer in the present case was the Commander of the Punjab Home Guards. The witness corrected himself by saying that both he and the Investigating Officer were members of the Union Territory Home Guards and not of the Punjab Home Guards. Be that as it may, the past association of the witness with the Investigating Officer has been fully brought on the record and, as such, the witness cannot be deemed to be an independent person. The appellant has also made a grievance that the other non-official witness, namely, Jagan Nath was not allowed by the trial Court to be examined even as a Court witness to the ground that it would delay the completion of the trial. A cumulative effect of the above circumstances does raise a real doubt in regard to the whole matter.

10. A word may also be said in regard to the fresh sanction which has been relied upon by the prosecution in this case. As already noticed, this sanction has been issued by Shri Sardari Lal Malhotra, Senior Superintendent, Railway Mail Service (P. W. 7). The witness stated in his examination-in-chief that he was the appointing and dismissing authority of Sorters which was the category of the appellant. During the course of his cross-examination, the witness admitted that he had merely read the notes on the file and had not seen any other papers before granting the sanction. In fact, he did not remember what were the exact papers on the record of the file. The witness also admitted that the name of the appellant was missing from the current gradation list of their Division on the date of the grant of sanction. Another material admission made by the witness is that all Senior Superintendents of Railway Mail Service are always Class-I Officers, but the witness was only officiating as a Class-I Officer on ad hoc basis. In fact, his lien was still as an Assistant Superintendent of N. W. Circle which is n non-gazetted post. In such a situation, it is again doubtful whether the witness was competent enough to grant the sanction.

11. For all the reasons noticed above, I find that the prosecution has failed to bring home the guilt against the appellant beyond reasonable doubt and the benefit of this doubt must go to him. The appeal succeeds and the appellant is acquitted of the charges for which he has been convicted and sentenced. He is discharged from the obligation of his bail bond. The fine, if paid by him shall be refunded to him.

12. Criminal Miscellaneous No. 5968 of 1979 was also filed during the pendency of this appeal with a prayer that two documents Annexures 'A/1 and A/2' to the application may be placed on the record of the Criminal Appeal. There is no occasion to place this new material on the record at the appellate stage nor would it serve any useful purpose as the appeal has otherwise been accepted. The application is therefore, declined.


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