High Court
Case Details
Crl.A. 25/2012 BEFORE HON’BLE MRS JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL) Heard Mr. SU Mazumdar, learned counsel appearing for the appellant. Also heard Ms. B Bhuyan, learned Additional Public Prosecutor, Assam for the respond ent State. 2. This appeal is directed against the judgment and order dated 06.02.2012 passed by the learned Special Judge, Assam, Guwahati in Special Case No.6/2009 t hereby convicting the appellant under Section 7 of the Prevention of Corruption Act (PC Act for short), 1988 and sentencing him to undergo rigorous imprisonment for 6(six) months with fine of Rs.5000/- in default to undergo rigorous impriso nment for another 3(three) months.
Legal Reasoning
The prosecution case in brief is that on 03.06.2002 one Sayed Omar Ali l 3. odged a written complaint before the Deputy Commissioner, Kamrup, Guwahati stati ng that as first party of case No.192(M) 2002 under Section 107 Cr.P.C., he appl ied for a certified copy of an order passed by Magistrate and the dealing clerk of Magistracy Branch, Ataur Rahman (the appellant herein) demanded Rs.500/- as b ribe. Thereafter the Additional Deputy Commissioner Sri SK Roy being in-charge o f Magistracy Branch decided to lay a trap to nab the employee (the appellant her ein) to be caught red-handed. Accordingly, Sri Roy put his initial on a fifty ru pee currency note given by Sayed Omar Ali so as to deliver it to the appellant. On 03.06.2002 at about 11.A.M., Sayad Omar Ali delivered the 50/- Rupee note to the appellant in his office and without delay the Executive Magistrate Sri Hites h Dev Sarma and one Senior Police Officer searched the person of appellant and r ecovered the said currency note from his possession in presence of witnesses. On the following day, Additional Deputy Commissioner, Kamrup lodged a formal ejaha r with Panbazar Police Station along with written complaint submitted by Sayed O mar Ali, wherein a case was registered being Panbazar P.S. Case No. 186/2002 und er Section 7 of PC Act and the police immediately took up investigation of the c ase. 4. In course of investigation, the Investigating Officer (’I.O.’ for short) recorded the statement of witnesses and on completion of the investigation, the Deputy Commissioner, Kamrup, granted sanction to prosecute the appellant under Section 7 of PC Act. Accordingly, the IO submitted charge sheet against the appe llant under Section 7 of the PC Act. 5. The learned trial court, upon perusal of the materials on record, framed charge against the accused appellant under Section 7 of the PC Act. The charge so framed being read over and explained to the accused, he pleaded not guilty an d claimed to be tried. 6. ence adduced none. Defence case is of complete denial. During trial, prosecution examined as many as 11 witnesses. However, def 7. PW-1, Dr. Tilaka Das, is Senior Scientific Officer in Forensic Science L aboratory (’FSL’ for short), Guwahati. She has stated that on 12.09.2008, she ha s submitted one report regarding Panbazar PS Case No. 186/2002 under Section 7 o f the PC Act after carefully and thoroughly going through the relevant documents with scientific instrument. In her opinion, (cid:28)the person who wrote the blue encl osed signatures with figures stamped and marked as S1 to S3 also wrote the red e nclosed signatures with figures similarly stamped and marked as Q1. (cid:29) Her opinion was positive. Ext.1 is her expert opinion wherein Ext.1 (1) is her signature. During cross examination, she has stated that she has given her report o n the basis of specimen signatures as admitted signature is not necessary to sub mit the report. She has denied the suggestions put to her that her report is not based on scientific datas but it is a perfunctory one.
Legal Reasoning
8. PW-2 is Sri Paresh Ch. Chakravarty who was serving as UD Assistant in th e Deputy Commissioner (M) Office, Guwahati at the relevant time. He has stated t hat the accused Ataur Rahman is known to him and at that time he was serving as Bench Assistant in the Court of SDO, Sri Rama Phukan dealing in the cases under Sections 107, 145 & 147 Cr.P.C. On that day, accused was also present in his off ice. At about 11.30 A.M., one police officer seized Xerox copy of the order date d 25.06.2003 in connection with 192(M)/02 under Section 107 Cr.P.C., from him. E xt. 2 is the seizure list and Ext.2(1) is his signature. On that day, Nabajyoti Kalita was serving as Junior Assistant. However, while deposing before the Court , he has not seen the document seized by police from him. During cross examination, he has simply stated that he does not know any thing about the facts of the case. 9. PW-3, Sri Ujjal Baruah is I.O., who has stated that on 04.06.2002, he wa s the Officer-in-Charge of Panbazar Police Station. On that day, Additional Depu ty Commissioner, S.K. Roy forwarded the ejahar lodged by one Umar Ali for regist ering a case. Ext. 3 is the forwarding letter and Ext.3(1) is the signature of A DC SK Roy. Ext.4 is the FIR lodged by Omar Ali. On the basis of this ejahar, Pan bazar PS Case No. 186/2002 under Section 7 of the PC Act was registered by him. Ext.4(1) is the registration note with his signature. PW 3 recorded the statemen t of complainant Omar Ali. On that day at about 1 P.M., he was on duty near DC O ffice, Guwahati and then he got a telephonic information from ADC SK Roy, he imm ediately went to his office and found accused Ataur Rahman being detained. As pe r version of the ADC accused demanded Rs.500/- from the complainant Omar Ali and then the complainant made a written complaint before the ADC. The ADC put his s ignature in a fifty rupee note purported to be delivered to accused Ataur Rahman . As soon as the fifty rupee note was handed over to accused Ataur Rahman, he wa s caught red-handed by the ADC. On the basis of the information given by ADC, he searched the person of Ataur Rahman and recovered one fifty rupee currency note in an envelope from his pocket. Ext. 5 is the seizure list and Ext.5(1) is his signature. The seizure was made in presence of witnesses, namely, Paresh Chakrab orty, Dipen Deka and Hitesh Dev Sarma, Executive Magistrate. Material Ext. 1 is the said fifty rupee note recovered from the possession of the accused person. E xt.1(1) is the signature of the ADC SK Roy. As PW 3 was the OC of Panbazar Polic e Station on that day, he himself took up the case for investigation. In course of investigation, he recorded the statement of witnesses, namely, Umar Ali (comp lainant) Dipen Deka and Paresh Chakravorty (seizure witnesses) and Hitesh Dev S arma (Executive Magistrate). As he was transferred from Panbazar PS, Case diary was handed over to his successor who endorsed the case for investigation to othe r investigating officer. During cross examination, he has stated that at the time of recovery of fifty rupee note from the pocket of the accused person, complainant was present. At the time of signing the fifty rupee note by the ADC, PW 3 was not present. H e found the complainant on the spot. As soon as the accused was apprehended by h im, the accused handed over the envelope to him. 10. PW-4 is Sri Bedanta Madhab Rajkhowa. He has stated that on 18.02.2003, h e was entrusted with the investigation of the case by the SP, when he was servin g as DSP of Panbazar Division. He did not examine any witness and simply wrote a letter to DC through the SP for sanction to prosecute the accused. In the meant ime, he was transferred and so the case diary was handed over to SP, Guwahati ci ty on 15.11.2003. Defence declined to cross examine PW-4. 11. PW-5 is Sri Dipen Deka. He was the peon of the Office of the DC, Kamrup. He has stated that the accused is known to him as he was working in the office of the Magistracy Branch of DC Kamrup. On 04.06.2002 at about 11.30 A.M., while he was working in the election branch, he went to the lavatory and when came out , he saw a gathering in the Magistracy Branch along with police personnel, he wa s called by Magistrate, Hitesh Dev Sarma. As instructed by Mr. Sarma, he put his signature in the seizure list Ext.5 in the chamber of ADC, Mr. Roy. Ext. 5(2) i s his signature. However, PW-5 was declared hostile. PW 5 has denied that he did not state before the IO that police searched the person of accused Ataur Rahman and brought out one white envelope containing fifty rupee note from his pocket and police seized that envelope in his presence and he put his signature in the seizure list. He has further denied the fact that he has concealed the real fact to save the accused. During cross examination, PW 5 stated that he simply put his signature i n the seizure list as instructed by the Magistrate in the chamber of the ADC, Mr . Roy. PW-6 is Sri RC Jain, who has stated that on 4.6.2009, he was serving as 12. Deputy Commissioner, Kamrup at Guwahati. During the year 2002, accused Ataur Rah man was serving as Senior Assistant in the office of DC, Kamrup, Guwahati. The i ncident took place on 04.06.2002. The allegation against the accused person was that he accepted Rs.50/- as bribe from one Omar Ali. Before according sanction a ll the relevant papers were placed before him and he had gone through the invest igation report submitted by the DSP, City, Guwahati. After applying his mind on those document, he found a prima facie case against the accused person and accor dingly, he accorded sanction for prosecution under Section 7 of the PC Act vide Ext. 6. Ext. 6(1) is his signature. During cross-examination, he has stated that every Assam Government serv ant is governed by Assam Civil Service Rules. At the time of granting prosecutio n sanction, he did not go through the Assam Civil Service Rule. He has further d enied the fact that he did not apply his mind and accorded sanction mechanically . 13. PW-7 is Smti Mirenda Ingti, who was holding the post of DSP on 07.12.200 5. The then SP endorsed her Panbazar PS Case No.186/2002 for investigation. Afte r going through the case diary when she found that prosecution sanction was not obtained, she took steps for granting prosecution sanction. Later on, her succes sor received the prosecution sanction from the DC, Kamrup as she was transferred in the meantime. Defence declined to cross examine PW-7. 14. PW-8 is Sri Hitesh Dev Sarma, the Executive Magistrate. PW-8 was serving as Executive Magistrate, Guwahati on 04.06.2002. On that day, one Sri SK Roy wa s serving as Additional Deputy Commissioner, who was also in-charge of Magistrac y Branch. On that day, one Sri Omar Ali complained before the ADC stating that o ne employee of Magistracy Branch was demanding money for supplying a certified c opy of the order of a case. The complainant made the allegation in writing, wher ein Sri Roy made an endorsement by putting his initial. Ext. 4(2) is his signatu re. The said ADC in the meantime brought police to detect the case. Thereafter, the complainant went inside the Magistracy Branch and delivered the amount to th e accused. After delivering the amount, PW 8 along with police official entered the room and searched the person of Ataur Rahman who was holding clerical post. In his presence, one DSP searched the person and recovered one envelope containi ng fifty rupee currency note from the accused Ataur Rahman. Prior to going to th e Magistracy Branch, ADC, Sri Roy put his initial on the fifty rupee note to be delivered by the complainant to the accused Ataur. M.Ext. 1 is the said fifty ru pee note and M. Ext.1(1) is the initial of ADC, Sri Roy which is known to him. T hat currency note was seized by police vide seizure list Ext. 5 and Ext.5 (3) is the signature of PW-8 as witness. After the incident, the accused was arrested by Police. His statement was also recorded by police. In the cross examination, he has stated that on that day most probably, Sri Absar Ali Hazarika was the Deputy Commissioner. The envelope was not sealed. It was brown in colour. There was no address or name of any person on the envel ope so far he remembers. He has further stated that the fifty rupee currency not e belonged to the complainant i.e. Omar Ali who gave it to the ADC in his presen ce. From time to time, signature varies. He does not know who had in fact given the envelope to the ADC. 15. PW-9 is Sri Jagat Chandra Nath, who on 15.10.2008, was serving as Second Officer at Panbazar PS. As the earlier I.O. was transferred, the OC of Panbazar PS endorsed the Panbazar PS Case No.186/2002 to him for investigation. On that day, he went to the Office of the DC, Kamrup (M) Guwahati and seized one order s heet dated 25.06.2003 in connection with Case No.192(M)02 under Section 107 Cr.P .C. Ext. 2 is the seizure list and Ext. 2(2) is his signature. The said document was seized from UD Assistant Sri Paresh Chakravorty, Magistracy Branch. Ext.2(3 ) is the signature of Sri Nabajyoti Kalita. During cross examination, he has stated that the case was first investig ated by Ujjal Baruah, Inspector of Police cum in charge of Panbazar PS. He had o nly collected the FSL report. Later on, he investigated the Panbazar PS Case No. 186/2002. 16. On 04.06.2009, PW-10 Sri Ujjal Pratim Baruah was serving as DSP at Panba zar Division, Guwahati. The Panbazar PS Case No.186/2002 was endorsed to him by the SP for investigation. When he received the case diary he found the investiga tion of the case was almost complete but prosecution sanction was not obtained. On 04.06.2009, prosecution sanction was obtained and then after perusing the sta tement of the witnesses, he filed the charge sheet against the accused Ataur Rah man under Section 7 of the PC Act. During cross-examination, he has stated that he did not personally write the contents of the charge sheet and as per his dictation one of his subordinat e SI has written the contents. However, he has stated that what he had stated in the contents of the charge sheet is absolutely correct. 17. PW-11 is Sri Supriyo Kr. Roy, who on 04.06.2002, was serving as Addition al Deputy Commissioner, Kamrup. He has stated that on that day one Sayed Omar Al i came to him and lodged a written complaint stating that Office Assistant Ataur Rahman of DC office, Kamrup had demanded Rs.500/- for furnishing copy of the or der under section 107. Ext. 4 is the written complaint given by Sayed Omar Ali a nd Ext. 4(2) is his signature. When asked, he told him that he did not have Rs.5 00/- but only have Rs.50/-. Thereafter PW-11 put his initial on the fifty rupee currency note. M. Ext. 1 is the said fifty rupee note and M.Ext.1 (1) is his sig nature thereon. In the meantime, he called the DSP and one Executive Magistrate. At that time, Sri Absar Ali Hazarika was the DC of Kamrup. Sayed Omar Ali deliv ered the said currency note to the accused. Thereafter the Executive Magistrate and the Police Officer reportedly searched the person of Ataur Rahman and recove red the currency note from his possession. After getting the information from th e Executive Magistrate, he lodged a formal ejahar with the Panbazar Police Stati on. Ext. 3 is the said ejahar and Ext. 3(1) is his signature. At that time, he w as in charge of the Magistracy Branch at the DC Office. During cross examination, he has stated that the complaint was addressed to DC and as he was in charge of the Magistracy Branch the matter came to him. He was entrusted to look after the Magistracy Branch by the DC. After the incide nt he submitted a written report to the DC. The DC had already distributed the d ifferent works to his subordinates. PW-11 has denied that he was not entrusted b y the DC to look after the matter. He further stated that he was not aware wheth er the copy applied for by Omar Ali was actually given to him by the Office Assi stant. He also does not know as to whether Sayed Omar Ali had delivered the fift y rupee note in an envelope to the accused. Just after the incident the accused Ataur Rahman was placed under suspension, but he has no information whether the accused has been reinstated or not. 18. After closure of the prosecution witnesses, the trial court recorded the statement of the accused under Section 313 Cr.P.C., wherein the accused has den ied the charge leveled against him. He has further stated that on the date of in cident Omar Ali took the copy of the first order under section 107 Cr.P.C., late r he gave the accused an envelope addressing (cid:28)Imam Bura Maszid (cid:29) and he took the envelope without knowing its contents. After sometime, OC of Panbazar PS and Exe cutive Magistrate, Hitesh Dev Sarma took him to the chamber of ADC, Sri SK Roy. They also took the envelope given to him by Omar Ali and on that day, he was arr ested by police and on the following day, he was sent to jail. 19. The learned trial court on appreciation of the oral evidence as well as documentary evidence available on record passed the judgment of conviction which is under challenge in the instant appeal. 20. In the case in hand, I have found that PW 2 and PW 5 were declared hosti le. They have stated that they were called by PW 5 to the chamber of the ADC and the ADC directed them to sign as witnesses in the seizure list (Ext 5). PW 8 ha s stated that the alleged amount of Rs.50/- was handed over to the accused in an envelope, however, surprisingly the said envelope was not seized. On the other hand, in the statement made by the accused under Section 313 Cr.P.C., the accuse d has specifically stated that in the envelope it was written as (cid:28)Imam Bura Masz id (cid:29). But the learned trial court did not take into consideration this aspect of the matter. While discussing the prosecution case at paragraph 14, the learned t rial court has come to a categorical finding that the amount of Rs.50/- was give n to the accused as bribe whereas the accused had specifically stated in his sta tement made under Section 313 CrPC that an amount was given to him by Sayed Omar Ali, the complainant, in an envelope wherein it was written as (cid:28)Imam Bura Maszi d (cid:29) and therefore, without knowing the contents he took it from the complainant a nd put it in his pocket, but the said envelope was not seized. The learned trial court has not given any finding on that count and passed the judgment of convic tion only on the ground that the accused Ataur Rahman demanded Rs.500/- for furn ishing a certified copy of the order under Section 107 Cr.P.C., and the complain ant has given Rs.50/- for that certified copy. On the other hand, the person, i. e. the complainant who had in fact delivered the fifty rupee currency note in an envelope to the accused person, could not be examined, as the complainant expir ed in the meantime i.e. on 27.03.2010 which is a very vital fact for deciding th e case for and or against the accused. The alleged occurrence took place on 3.6. 2002, but surprisingly enough the prosecution sanction was granted on 4.6.2009, i.e. after seven years by the District Magistrate, Kamrup. There is nothing to s how on record as to why such a long period was taken for granting or obtaining p rosecution sanction. The evidence of PW 1 was recorded on 8.9.2010 while the com plainant died prior to that, i.e. on 27.3.2010. In other words the prosecution t ook eight years time to begin the trial in the court as a result of which it los t the star witness of the case. It is, of course, settled position in criminal j urisprudence that statement or plea taken by accused at the time of the examina tion under Section 313 CrPC cannot be treated as evidence, but fact remains that the prosecution must prove its case beyond reasonable doubt. It is clear from t he prosecution evidence that the alleged bribe was given to the accused by the c omplainant in an envelope and the envelope was also recovered from the person of the accused- appellant. But no explanation whatsoever, has been rendered by the prosecution as to why the alleged envelope was not seized and produced before t he court. In such event this Court cannot but have to take into consideration th e plea of the accused appellant that the alleged money was meant for (cid:28)Imam Bura Maszid (cid:29) and if that be so, the accused appellant cannot be held guilty of the of fence charged. Apart from that due to non-examination of the complainant who was the star witness of the case, the defence could not cross-examine him and thus it caused great prejudice to the accused appellant for no fault on his part and a doubt arises regarding payment of Rs.50/- as donation in the name of (cid:28)Imam Bur a Maszid (cid:29). Therefore, the benefit of doubt should go in favour of the accused. A ccordingly, I found that the prosecution has failed to prove its case beyond rea sonable doubt and hence the judgment and order passed by the learned trial court is interfered with. 21. 22. The appeal is accordingly allowed on benefit of doubt. It is stated at the Bar that the accused is on bail in view of the order passed by this Court on 24.02.2012 in Crl. M.C. No.150/2012. His bail bond stan ds discharged. 23. Send down the lower court record.