Narmada Prasad Dubey v. State Chhattisgarh

SINGLE BENCH: HON'BLE SHRI RAJESHWAR LAL JHANWAR, J. Criminal Appeal No.1233/1992 Appellant Accused Respondent Narmada Prasad Dubey, aged about 65 years, S/o Late Shri Teekaram Dubey; Retired Sub- Inspector of Police; (The then SHO, Police Station- Bankimogra, Tah.- Katghora, Distt- Bilaspur) Cherital, present, Damohnaka, Jabalpur R/o Versus through Special Police The State of M.P. Establishment, Lok A^kta Office, Bhopal, BILASPUR. Appeal under Section 374 (21 ofthe Code ofCriminal Procedure, 1973 read with Section 27 of the Prevention of Corruption Act, 1988 Present:- Smt. Meena Shastri, counsel for the appellant. Shri D.K. Gwalre, Govt. Advocate for the State. JUDGMENT (Delivered on ^/09/2009)

1. This criminal appeal is directed against the judgment of conviction and order of sentencedated 25A November, 1992 passed by the learned Special Judge, Bilaspur in Special Criminal Case No.3/1985, whereby the learned Speeial Judge has convicted the appellant for commission of offence punishable under Section 161 of the IPC and Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 (for short the ((Act of 19479} and sentenced him to undergo R.I. for 1 year and to pay a fine of Rs.1000/-, in default of payment of fine to further undergo S.I. for 3 months under Section 161 of the I.P.C. and R.I. for 1 year and fine of Rs.1000/-, in default of payment offine to further undergo S.I.^for 3 months under Section 5 (1) (d) read with Section 5 (2) of the Act of 1947 with a further dlrection to run both the sentences concurrently.

2. The prosecution story, in brief, is that on 5.11.1982 Kushal Singh P.W. 7 lodged a report that on 4.11.1982 when he was returning along with Budhwar Das after watching the movie, he was assaulted by Umend Das Panka by knife. Police recorded rojnamcha sanha No. 108 on 5.11.1982 and sent him for medical examination.After receiving medical report, police registered case under Section 324 ofthe IPC, but did not investigate the matter. Thereafter, Veer Singh (P.W.2), brother the injured - Kushal Singh, on 10.11.1982 approached the appellant, who was the in-charge of P.S. Bankimongara and was responsible for conducting further investigation of case lodged by Khushal Singh. Appellant demanded illicit gratification for further action in the case. Veer Singh made a complaint to the taking Commissioner Bilaspur and on his compliant trap was arranged by late Shri C.P. Shukla, the then D.S.P. Lokayukt. The trap was conducted in the presence of witnesses P.D. Chandaiya (P.W.5), Brij'Bihari Mishra (P.W.13) , Ramayan Singh (P.W.3), Budhram (P.W.6), Shivratan (P.W.8), I.B. Singh, M.K. R.S. Bhoi Hiradhar (both not examined). In trap proceedings, one currency note denomination of Rs.100/- was obtained from Veer Singh and the same (P.W.9) Shankar Singh Gour (P.W.10), was treated with phenolphthalein powder. The number of note was noted in Preliminary Panchanama, Ex. P-2, and the same was kept in ^ the shirt's pocket of complainant. They also instructed complainant not to shake hands with anyone and give the said currency note to the appellant on demand. The complainant was also instructed that after giving the money to the appellant he will give signal to the trap party by keeping his hands over his head. Necessary demonstration ofchemical regLCtion of phenolphthalein powder with solution of sodium carbonate was conducted and necessary formalities of taking those solutions under sealed condition were also done. Whole proceedings were recorded in preliminary Panchnama, Ex. P-2 with the signatures of Trap party after doing necessary complainant and witnesses. formalities went for conducting trap along with Veer Singh and reached Bankimongara.

3. Veer Singh went to New Punjab Hotel, where the appellant was waiting for him. Appellant demanded bribe. Veer Singh handed over him currency note of RslOO/- which was kept in his pocket given by the trap party. On receiving signal from Veer Singh, trap party entered inside the hotel, gave their introduction to appellant and started searching. The currency note of Rs.lOO/- bearing number 7 C Q 04 1 967 was seized from appellant's pocket. After tallying the number of recovered note, with its number earlier recorded by trap party, it was found that note recovered from the pocket of appellant was the same. Appellant's hands, pocket of his full-pant and currency note were separated and put them under chemical solution of sodium carbonate which turned pink colour. Other necessary chemical formalities were »v^ L also done. All solutions were sealed and final Panchnama WQLS recorded i.e. Ex.P-4 and note of Rs.100/- was seized according to seizure memo Ex.P-5 in the presence of witnesses. Panchanama £x.P-4 has been prepared in the presence P.D. Chandaiya (P.W.5), Brij Bihari Mishra (P.W.13), Ramayan Singh (P.W.3), Budhram (P.W.6), Shivratan (P.W.8), R.S. Bhoi (P.W.9) and Shankar Singh Gour(P.W.lO) and complainant Veer Singh (P.W.2). Late Shri C.P. Shukla, DSP Lokayut also recorded unnumbered FIR {dehatinalishi, Ex.P-6) on the spot. Unfortunately, before concluding the investigation Shri C.P. Shukla, DSP Loka^t died.

4. On oral instructions given by S.P., further investigated by Shankar Singh Gour (P.W.10), Inspector (Vigilance), who recorded statements of some witnesses under Section 161 Cr.P.C. the matter was and completed the investigation. After completion of investigation and after obtaining necessary sanction from the competent authority charge sheet was filed in the Court of Special Judge, Bilaspur.

5. The learned Special Judge, Bilaspur framed charge under Section 161 of the IPC and Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 against the appellant, which was read over and explained the same to the appellant, who abjured the guilt and pleaded that he hasbeen falsely implicated in the case. ^

6. Learned trial Court considered the evidence adduced by the prosecution and defence and also considered the argument advanced by both the parties, and thereafter relying on the prosecution witnesses, held that the appellant demanded bribe and obtained Rs.100/- from the complainant Veer Singh (P.W.2). The said amount was received by him for taking further action on the report lodged by Kushal Sing, brother of Veer Singh. Learned trial Court accordingly held the appellant's guilty for the offence punishable under Section 161 IPC and 5 (1) (d) read with Section 5(2) of the Prevention of Corruption it convicted and sentenced the appellant as Act, 1947. Thereafter, stated above.

7. I have heard learned counsel for both the parties at length and perused the record of the trial Court.

8. Appellant's first contention is the investigation has been conducted by Shankar Singh Gour (P.W.10) who was not authorized to @ conduct the investigation. Therefore, the whole proceedings vitiate and the appellant deser^es to be acquitted. Learned counsel appellant placed reliance on (Jagan M. Seshadri Vs. State of Tamil Nadu), AIR 2002 Supreme Court 2399, Rajendra Jonko Vs. The Superintendent ofPolice, CBI, Mumbai and other, 2004 CRI. L. J. 3703 and State ofPunjab Vs. Sohan Singh, 2009 AIR SCW 3386.

9. On the other hand, learned counsel for the State submits that major part of the investigation has been conducted by authorized officer late Shri C.P. Shukla, the then DSP Lokayukt. After his death some formalities under oral direction of S.P. have been done by Shankar Singh Gour (P.W.10), therefore proceeding did notvitiate. matter of

10. Hon'ble the Apex Court while dealing with situations like this in the (1) Major B.G. Barsay Vs State of Bombay (1962) 2 SCR 195; (AIR 1961 SC 1762); (2) Munna Lal Vs. State of Uttar Pradesh (1964) 3SCR 88 (AIR 1964 SC 28); (3) Khandu Sonu Dhobi Vs. State of Maharashtra (1972) 3 SCR 510 (AIR 1972 SC 958) has held that although Section 5 (A) of the Act is mandatory and not directory therefore investigation conducted in violation thereof is illegal, but that illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the Court for trial and the investigation although bear the stamp of illegality does not vitiate the trial unless miscarriage ofjustice has been caused to the accused. On facts and circumstances of this case, the law laid down by Hon'ble the Apex Court in the matters of (Jagan M. Seshadri Vs.State of Tamil Nadu)f AIR 2002 Supreme Court 2399, (Rajendra Jonko Vs. The Superintendent of Police, CBI, Mumbai and other) 2004 CPI. L. J. 3703 is distinguishable.

11. Here in the instant case, appellant at the fag end of the trial while cross-examining Shankar Singh Gour, (P.W.10) Inspector, has questioned about his competency to investigate the matter. Prom his trap proceedings were conducted by evidence, authorized police officer late Shri C.P. Shukla, DSP Lokaayukt. After trap, even material witnesses have been examined and their statements is clear have been recorded by late Shri C.P. Shukla. From his statement, it is also evident that only statements of some of the witnesses have been recorded by him after the death of Shri C.P. Shukla that too under the direction of S.P. From his statement, it is also clear that complete trap ^ was conducted by authorized officer i.e late C.P. Shukla, D.S.P. and thereafter substantial part of the investigation has been conducted l)y him. Only some part of the investigation has been conducted by Shankar Singh, (P.W.10).

12. From perusal of statements of all the prosecution witnesses, there appears nothing to substantiate that any prejudice hasbeen caused to the appellant as a result of part of investigation conducted by Inspector Shankar Singh (P.W.10). Even the appellant in his plea and his defence never complained that any prejudice has been caused to him because investigation conducted by Shankar Singh (P.W.IO). of part of Appellant during trial for testing the veracity of witnesses used the statements of Shankar Singh (P.W.10), P.D. Chandiya (P.W.5), Veer Singh (P.W.2), Brj Bihari Mishra (P.W.13), Kushal Sing (P.W.7), Budhram (P.W.6) recorded by late Shri C.P. Shukla who was authorized officer to conduct the investigation. Appellant also used statements ofwitnesses recorded by Shankar Singh(P.W.lO) for testing veracity of the witnesses. From conduct of the appellant itself, it is clear that appellant during trial has exercised his right of defence without complaining any prejudice.

13. From perusal of complete record and above discussion, I am of the opinion that substantial part of investigation has been conducted by late Shri C.P. Shukla, authorized D.S.P., Lokayukt and only minor part of investigation has been done by Shankar Singh (P.W.10) under the direction of S.P. that too after the death of C.P. Shukla. Appellant in the whole of trial could not bring any material to establish that any prejudice has been caused to him or in any way miscarriage of justice has been occurred. In absence ofprejudice or miscarriage ofjustice the trial concludedby trial Court does not vitiate.

14. Learned counsel for the appellant argued thatalthough the Act of 1947 has been repealed by Section 30 of the Prevention of Corruption the aAct of 1988"), however, the trial Court Act, 1988 (for short proceeded with the trial up to the date of decision of the case i.e. 25.11.1992, therefore, judgment of conviction and sentence passed by learned trial Court was without jurisdiction. On the other hand learned counsel for the State argued that the repealing clause and Section 6 of the General Clauses Act protect vitiation of proceedings. ( r '^

15. Section 30 of the Prevention of Corruption Act 1988 is reproduced hereunder:-

30. Repeal and Saving(l) The Prevention of CormptionAct, 1947 (2 of 1947) and the Criminal Law AmendmentAct, 1952 (46 of 1952) are hereby repealed. \ (2) Notwithstanding such repeal, but without prejudice application of section 6 of the General Clauses Act, 1987 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act. Section 6 of the General Clauses Act, 1897 is reproduced

16. '^'- hereunder:- 6, Effect of repeal _ Where this Act, or any [Central Act] or Regulation made after fhe commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done of suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or «- (e) affect any investigation, legal proceeding or remedy in respect of any forfeiture or liability, penalty, such right, privilege, obligation, punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

17. From reading of both the above provisions together, it is clear that if any investigation or legal proceedings havebeen initiated under the old i.e.. the Act of 1947 that shall continue and on conviction, Act punishment may be imposed as if repealing Act has not been passed. Learned trial Court has framed charge and recorded statements of all the prosecution witnessesbefore 1987 i.e. before enforcement of the Act of 1988. From the above discussion, I am of the considered view that the trial which was conducted under the old Act has completely been concluded in accordance with old Act i.e. the Act of1947. 7'^^^.. ^:^%..'t ^ 1 ^' ^f ^'

18. The appellant further argued that the he has already taken action appellant, on Rojnamcha Sahna, Ex. P-14 on the report of brother of the the question of demanding illegal gratification does not arise. The learned trial Court has elaborately dealt with the therefore, said contention and recorded its finding, whereby he has reacted the above defence. The appellant has taken shelter of documents Rojnamcha Sanha, Ex.P-12, 13 and 14. These documents are copy of the original Rojnamcha Sanha. From perusal ofthe above document&, it is clear that Kushal Singh lodged complaint against Umend Das. Kushal Singh was medically examined and police recorded crime on 9.11.1982, but further the accused was neither arrested nor _k' investigation was done. Therefore, it cannot be said that the appellant, who was In-charge of Police Station- Bankimongara, had no opportunity to demand illegal gratification. Thus, material to interfere with the finding recorded by trial Court on this I do not find any count.

19. Finally, the appellant questioned the reliability of the evidence adduced by prosecution. Appellant's contention is that witnesses have contradicted and omitted their earlier versions, therefore, the testimony of those witnesses were not reliable. On the other hand, learned counsel the State opposed that is settled law that minor contradictions do not affect the reliability of witnesses.

20. This case is based on the trap and the trap was conducted according to scientific method prescribed for that.

21. From the statements ofwitnesses P.D. Chandiya (P.W.5), Veer Singh (P.W.2), Brij Bihari Mishra (P.W.13), Kushal Sing (P.W.7) , Budhram (P.W.6), it is clear that demand was made and necessary complaint was lodged by Veer Singh. Trap was arranged and currency note of Rs.100/- after application of phenolphthalein powder was put inside the pocket.of Veer Singh with necessaiy direction. Veer Singh went and when the appellant demanded, he took out the said note and gave it to the appellant while giving signal to the trap party. The trap party took the appellant in custody immediately and recovered Rs.100/- from him. Then it was put in the solution of Sodium carbonate and hands of appellant and complainant were also got washed in the solution, solution turned into pink colour. After completing required formalities, panchnama W£LS prepared and report wasrecorded. After applying /'^%'\ ^^syss^^ "^^^^, ^ i--:.. ^' '<:, ^. '':. '^s.S'^'-' HB 11

22. inside the pocket of complainant, phenolphthalein powder on currency note of Rs.100/- and when it was its number was noted in preliminary panchnama.On recovery of the note from appellant, number of the note was tallied and it was found that number of note was the same. So far as contradiction and omissions are concerned from perusal of the statements of witnesses, contradictions and omissions are not on material point. The learned trial Court in detail has dealt with the omissions and contradictions the view that I am of and also held that those omissions and contradictions are not material. After going through the statements of witnesses, substantial material to discredit their versions. From statements of I do not find any witnesses, it was proved that phenolphthalein powder was applied on the note and it was used for the trap and the same note has been recovered from the pocket of appellanf. From the evidence, it is also proved that appellant demanded illegal gratification, and therefore, the said note was given to him and the same has been recovered from his pocket. Here in the instant case not only oral evidence is there but those oral evidence has also been corroborated with documentary evidence and also with the recovery of money from the appellant which was used in the trap proceedings. The evidence adduced by the prosecution was completely reliable and learned trial Court correctly appreciated and relying upon those witnesses has correctly recorded its finding. No other substances have been raised by any ofthe party.

23. In the result, there is no substance in the appeal, therefore it deserves to be dismissed and is accordingly dismissed. The conviction and sentenced recorded by the trial Court are maintained. f 8d/- R.L. 3hanwr Judge ^•i Sinha