Sunday, April 8, 2018

Mahatma Gandhi Assassination-Reopening of Case-SLP-Dismissed


Mahatma Gandhi Assassination -Fourth Bullet Theory- -Reopening of Case-ALP-Dismissed

This SLP was filed in Hon'ble Supreme Court  as the Hon'ble High Court declined to entertain the petition and go into two questions raised i.e.
  • Whether the four bullets were fired as alleged -fourth bullet theory. 
  • Whether the Kapur Commission Report should be reopened after the period of 46 years.
 
SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL)8293 OF 2018
[Arising out of D. No. 15103/2017]

Dr. Pankaj Kumudchandra Phadnis

Vs

Union of India Ministry of Law and Justice 

O R D E R

S.A.BOBDE & L.NAGESWARA RAO, JJ.

1. Mahatma Gandhi was assassinated on 30.1.1948; about 70 years ago. 9 accused were tried for the conspiracy and murder of Gandhiji. After trial the judgment was delivered by Learned Special Judge, Delhi on 10.02.1949 convicting seven accused and acquitting one. Accused Nathuram Godse and Narayan Apte were given death sentence, four of the accused were given life sentence and remaining one was given a sentence of seven years of Imprisonment. The conviction was challenged in Punjab High Court in Appeal, High Court vide judgment dated 21.06.1949 upheld the conviction for five of the accused persons and acquitted two of the accused persons. None of the accused are alive today.

2. The petitioner who describes himself “An Engineer, Management Graduate, Ph.D and a Researcher with  passion” approached the High Court by filing a Writ Petition in the year 2016. The High Court declined to entertain the petition and go into two questions raised i.e. whether the four bullets were fired as alleged and whether the Kapur Commission Report should be reopened after the period of 46 years.


3. The delay with which the petitioner has raised this issue is gross. According to the petitioner, he moved the court after doing some research about the circumstances in which Gandhiji’s assassination took place and got convinced about the involvement of an unseen hand in the assassination. We are, however, not satisfied that new research into a long concluded matter justifies a re-initiation of criminal investigation or that anything that might be stated should be allowed to reopen a case such as this. Criminal cases which result in conviction and even execution of death sentences and the demise of those who have served life sentences ought not to be reviewed, neither is there a provision in law for review. But it was argued before us that the assassination of Gandhiji was an event of far reaching consequences in the world and the nation has the right to know the truth. While undoubtedly the nation has right to know the truth, such a right cannot be invoked where the truth is already well known merely because some academic research raises a different perspective in law. This would amount to reopening issues based on hearsay. 
4. We are constrained to make this observation because Nathuram Godse was convicted on the basis of the evidence of eye-witnesses who were present at the prayer meeting. Th meeting itself was attended by innumerable people. Each one of the eye-witnesses described how Godse moved forward and shot Gandhiji. 

All the evidence reveals that three shots entered the body. It further revealed that:

(a)    One injury on the right side of the chest near nipple.

(b)    One injury below the chest on the right side.

(c)     One injury on the right side of the abdomen.


There were two exit wounds, one bullet did not exit the body. Thus, only two spent bullet were found at the place of occurrence. No fourth spent bullet or empty cartridge was found at the place of occurrence.

5. The FIR registered at 5.45 pm mentions firing of three shots. The inquest report prepared by Lt. Col. Taneja showed that Gandhiji had suffered bullet injuries from three bullets only. There were six eye witnesses; PW-31 (Amar Nath), PW-32 (Nandlal Mehta), PW-34 (Ratan Singh), PW-37 (Dharam Singh), PW-76 (Raghunath Naik), PW-82 (Sardar Gurbachan Singh). Each one of them mentions that three shots were fired by the sole assailant Nathuram Godse. No one from either side i.e. the prosecution or defence suggested that four bullets were fired or that there was a second assailant. The report submitted by Learned Amicus Curiae Shri Amrendra Sharan, Senior Advocate contains a detailed reference to all the relevant evidence in this regard.


6. Another submission made by the petitioner is that this Court should review the Kapur Commission findings. G.V. Ketkar, grandson of Lokmanya Balgangadhar Tilak, made a statement that he had knowledge about the conspiracy to assassinate Mahatma Gandhi prior to the incident. This raised a political storm and the Kapur Commission was set up inter alia to inquire into the conspiracy to assassinate Mahatma Gandhi. The commission headed by former Judge of this Court Shri Jivanlal Kapur submitted its report in 1969. According to the petitioner, the following finding of Kapur Commission in its report is unfair since it hurts the sentiments of the followers of Shri Savarkar:-
“All these facts taken together were destructive of any theory other than the conspiracy to murder by Savarkar and his group” He, therefore, prayed for a review of this finding or setting up of a new commission.
7. The Learned Amicus Curiae submitted that this finding was rendered after the demise of Shri Savarkar and no opportunity was given to Shri Savarkar or any of his  representatives. He submitted that the finding is unfair since Shri Savarkar had been acquitted at the trial. There is no doubt that this finding does not in any way interfere with the acquittal and is a general observation probably made since Godse and others were found to have been associated with Shri Savarkar. It cannot have the effect of overturning of the finding of the criminal court which acquitted Shri Savarkar. Constitution bench of this Court in Ram Kishan  Dalmia v. Justice S.R.Tendolkar  considered the effect of the findings of a Commission as follows:-
“The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore.” Further, the Constitution bench declined to act on the findings in the report of Commission of Inquiry;  “But seeing that the Commission of Inquiry has no judicial powers and its report will purely be recommendatory and not effective proprio vigore and the  statement made by any person before the Commission of Inquiry is, under s.6 of the act, wholly inadmissible in evidence in any future proceedings, civil or criminal, there can be no point in the Commission of Inquiry making recommendations for taking action “as and by way of securing redress or punishment” which, in agreement with the High Court, we think, refers, in the context, to wrongs already done or committed, for redress or punishment for such wrongs, if any, has to be imposed by a court of law properly constituted exercising its own discretion on the facts and circumstances of the case and without being in any way influenced by the view of any person or body, howsoever august or high powered it may be.” The submission of the petitioner that Shri Savarkar has been held guilty for the murder of Gandhiji is misplaced.


8. We are, however, not inclined to enter into the correctness or fairness of the findings in this report. That would be  another exercise in futility and would none the less pan new fires of controversy. This Court must at all cost be vary of such contentious issues and must not allow its jurisdiction to be invoked for such purposes.
9. We are, therefore, not prepared to accept the fourth bullet theory propounded by the petitioner. Learned Amicus Curiae categorically submitted that perusal of original photograph at the museum leads to no such inference. We consider the petitioner’s attempt to reopen this controversy as an exercise in futility. Since the person who took the photograph cannot be examined and any statement about the photograph made by any expert would not be admissible at this stage.
10. The court is beholden to Shri Amrendra Sharan, Ld. Amicus Curiae who has painstakingly examined the entire record of the case & even exhibits of the national museum for the assistance of the court.


11. We see no merit in this SLP and hereby dismiss the same.


J.S.A. BOBDE
J.L. NAGESWARA RAO
NEW DELHI
MARCH 28

Sunday, December 24, 2017

Disabled Rights -Supreme Court Directions

S.C issues directions on three issues relating to disabled rights   :

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 292 OF 2006

DISABLED RIGHTS GROUP & ANR.                            .....PETITIONER(S)

VERSUS

UNION OF INDIA & ORS.                                              .....RESPONDENT(S)
WRIT PETITION (CIVIL) NO. 997 OF 2013 

Three issues are raised in this petition which is filed in public interest, for the benefit of persons suffering from ‘disability ’ as per the definition contained in the Persons with Disabilities (Equal Opportunities,Protection of Rights and Full Participation Act) 1995 (hereinafter referredto as the ‘Disabilities Act, 1995’) which now stands repealed and is replaced by the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the ‘Disabilities Act, 2016’). 

The first issue related to the non-implementation of 3% reservation of seats in educational institutions as provided in Section 39 of the Disabilities Act, 1995 and Section 32 of the Disabilities Act, 2016.
Second equally important issue raised in this petition, which is intimately connected with the first issue, is to provide proper access to orthopedic  disabled persons so that they are able to freely move in the educational institution and access the facilities.  

Third issue pertains to pedagogy i.e. making adequate provisions and facilities of teaching for disabled persons, depending upon the nature of their disability, to enable them to undertake their studies effectively. 

S.C's  Directions issued: 

[i]While dealing with the issue of reservation of seats in the educational institutions, we have already given directions in para 8 above that the provisions of Section 32 of the Disabilities Act, 2016 shall be complied with by all concerned educational institutions. In addition to the directions mentioned therein, we also direct that insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar Council of India (BCI) as well. Other educational institutions will notify the compliance, each year, to the UGC. It will be within the discretion of the BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not.
(ii) Insofar as suggestions given by the petitioner in the form of “Guidelines for Accessibility for Students with Disabilities in Universities/Colleges” are concerned, the UGC  shall consider the feasibility thereof by constituting a  Committee in this behalf. In this Committee, the UGC would be free to include persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. This Committee shall undertake a detailed study for making provisions in respect of accessibility as well as pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc. The Committee shall also lay down the time limits within which such suggestions could be implemented. The Expert Committee may also consider feasibility of constituting an in-house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as well as for implementation of the Schemes that would be devised by the Expert Committee. This exercise shall be completed by June 30, 2018.
(iii) Report in this behalf, as well as the Action Taken Report, shall be submitted to this Court in July, 2018. On receipt of the report, the matter shall be placed before the Court.


15th December ,2017
Supreme Court of India

Sunday, April 2, 2017

Land Mark Hon'ble Supreme Court Order on Bharat stage IV vehicle


Land Mark  Hon'ble Supreme Court Order on Bharat Stage IV vehicles : Registration of Pollution-Free Vehicles only allowed 

What it appears to be a land mark judicial pronouncement on the issue of fundamental right  ,pollution-free air to all , which changes the lives of the people ,Right to Life means Right to pollution-free air ,of late air  pollution has engulfing almost all major cities and creating health hazards to all  ,it has been observed dangerous smoke emissions from the vehicles are the  main source of air pollution in all cities.  

 The Following Directions by Hon'ble Supreme Court on BS-IV Vehicles :

1. No registration of vehicles which do not meet requirement of  Bharat Stage -IV with effect from 1st April,2017

2. Non -BS -IV registration is allowed vehicles purchased before 31st March ,2017  

 

Full Text of Hon'ble Supreme Court order :





IN THE SUPREME COURT OF INDIA
 CIVIL ORIGINAL JURISDICTION
I.A.NO. 487/2017, I.A. NO. 491/2017, I.A. NO. 494/2017, I.A. NO. 489/2017, I.A. NO. 495/2017
in
Writ Petition(Civil) No.13029/1985
M.C.MEHTA                                          ...PETITIONER(s)

 
VERSUS
          UNION OF INDIA & ORS.                        ...RESPONDENT(s)
 
O R D E R
We have heard the learned Solicitor General, learned  Amicus  Curiae, learned counsel for the interveners who are manufacturers of vehicles(two wheelers,three wheelers,four wheelers and commercial vehicles –for short referred to as ‘such vehicles’)and learned counsel for the  association  of dealers of such vehicles.
The seminal issue in  these  applications  is  whether  the  sale  and registration and therefore the commercial interests of  manufacturers and dealers of such vehicles that do not meet the  Bharat  Stage-IV  (for  short 'BS-IV') emission standards as on 1st April, 2017 takes  primacy  over  the health hazard due to increased air pollution of  millions of our country  men and women. The answer is quite obvious.
The controversy relates to the sale and  registration  (on  and  after 1st April, 2017) of such vehicles lying in stock with the manufacturers  and dealers that meet the Bharat Stage III emission standards (for short  BS-III standards) but do not meet the BS-IV emission standards.
Briefly, according  to  the  manufacturers, they  are  entitled  to manufacture such vehicles till 31st March, 2017 and they have  done  so.  In so doing, they say that they have not violated any prohibition or  any  law.
Hence, the sale and registration of such vehicles on  and  from  1st  April, 2017  ought  not  to  be  prohibited. They  say  that  they  will  not   be manufacturing any vehicle that does  not  comply  with  the  BS-IV emission standards from and after 1st April, 2017 and therefore  the  only  issue  is the sale and registration of  the  existing  stock  of  such  vehicles  that comply with BS-III emission standards.They  say  that  they  may  be  given reasonable time to dispose of the existing stock of such vehicles.
On the other hand, according to the learned  Amicus,  permitting  such vehicles to be sold  or  registered  on  or  after  1st  April,  2017  would constitute a health hazard to millions of  our  country  men  and  women  by adding to the air pollution levels in the country (which are  already  quite alarming). It is her submission that  the  manufacturers  of  such  vehicles were fully aware, way back in 2010, that all vehicles would have to  convert to BS-IV fuel on and from 1st April, 2017 and therefore, they had more  than enough time to stop the production of BS-III compliant vehicles  and  switch over to the manufacture of BS-IV compliant  vehicles.  In  fact,  the  major manufacturer of 4 wheeler vehicles, Maruti Sazuki  had  completely  switched over to the manufacture  of  BS-IV  compliant  vehicles  a  few  years  ago.
However, for reasons best  known  to  manufacturers  of  such  vehicles  and entirely at their peril, they did not  make  a  complete  switch  (though  a partial switch has been made)  even  though  they  had  the  technology  and technical know-how to do so.  Therefore, keeping the larger public  interest in mind and the potential health hazard to millions of our country  men  and women due to increased air pollution, there is no justification for  any  of the manufacturers  not  shifting  to  the  anufacture  of  BS-IV  compliant vehicles well before 1st April, 2017.
It has been brought to our  notice  that  on  5th  January,  2016  the learned  Solicitor  General  on  behalf  of  the  Government  of  India  had submitted before this Court that requisite quality fuel for BS-IV  compliant vehicles would be available (all over the  country)  with  effect  from  1st April, 2017.[1] This was confirmed and reiterated by the  learned  Solicitor General during the course of hearing and he stated that now from 1st  April,2017 requisite quality fuel for BS-IV compliant vehicles would be  available all over the country. He  also  pointed  out  that  the  refineries  of  the Government of India had incurred an expenditure of  about  Rs.30,000  crores for producing requisite fuel for BS-IV compliant vehicles.
On balance, in our opinion,  the  submission  of  the  learned  Amicus deserves to be accepted keeping in mind the potential health hazard of such vehicles being introduced on the road affecting millions of our  people  in the country. The number of such  vehicles  may  be  small  compared  to  the overall number of vehicles in the country but the health of  the  people  is far, far more important than the commercial interests of  the  manufacturers or the loss that they are likely to  suffer  in  respect  of  the  so-called small number of such vehicles. The  manufacturers  of  such  vehicles  were fully aware that eventually from 1st April, 2017 they would be  required  to manufacture only BS-IV compliant vehicles  but  for  reasons  that  are  not clear, they chose to sit back and declined  to  take  sufficient  pro-active steps.

Accordingly, for detailed reasons that will follow,we direct that:
(a)On and  from  1st  April, 2017 such vehicles  that  are  not  BS-IV compliant shall not be sold in India by any manufacturer or dealer, that  is to say that such vehicles whether two wheeler, three wheeler,  four  wheeler or commercial vehicles will not be sold in  India  by  any  manufacturer  or dealer on and from 1st April, 2017.
(b)All the vehicle registering authorities under the Motor Vehicles  Act, 1988 are prohibited for registering such vehicles on  and  from  1st  April, 2017 that do not meet BS-IV emission standards, except on proof that such  a vehicle has already been sold on or before 31st March,2017.As mentioned above,detailed reasons  for  the  above  order  will  be given in due course.
............................J.
(MADAN B. LOKUR)
.............................J.
(DEEPAK GUPTA)
NEW DELHI
MARCH 29, 2017
-----------------------
[1]
[2]               M.C. Mehta v. Union of India, (2016) 4 SCC 269



Courtesy : Supreme court of India Website 




Saturday, September 19, 2015

Anti-Corruption Case -Demand of illegal gratification Essential -S.C

Anti-Corruption Case -Demand of Illegal Gratification Essential -S.C

Moot Points : 
  • Possession of money is not basis of conviction.
  • Demand for Illegal Gratification is Essential.
  • Prosecution fails to prove the demand of illegal gratification,thus case of graft fails due to absence of demand . 
 
 Full Text of Judgement 


IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 31 OF 2009
P. SATYANARAYANA MURTHY …APPELLANT
VERSUS
THE DIST. INSPECTOR OF POLICE
AND ANR. …RESPONDENTS
J U D G M E N T
AMITAVA ROY, J.

The instant appeal calls in question the judgment and order dated 25.4.2008 rendered by the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No. 262 of 2002, sustaining the conviction of the appellant under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Prevention of Corruption Act 1988 (for short hereinafter referred to as “the Act”) and sentence thereunder, however setting aside his conviction and sentence under Section 7 of the Act.
2. We have heard Mr. A.T.M. Ranga Ramanujam, learned senior counsel for the appellant and Ms. Prerna Singh, learned counsel for the respondents.
3. The prosecution case stems from a complaint laid by one S. Jagan Mohan Reddy (since deceased) to the Deputy Superintendent of Police, Anti Corruption Bureau, Kurnool alleging that the appellant who, at the relevant time was the Assistant Director, Commissionerate of Technical Education, Hyderabad had on 3.10.1996  demanded by way of illegal gratification Rs. 1000/- for effecting renewal of the recognition of his (complainant) typing institute, being run in the name and style of Rama Typewriting Institute in Laxminagar B. Camp, Kurnool since 1992. The complaint disclosed that on negotiation, the demand was scaled down to Rs. 500/- and the appellant asked him (complainant) to meet him on 4.10.1996 in Room No. 68 of Meenakshi Lodge, Kurnool with the money demanded. Acting on the complaint, a case was registered and a trap was laid on 4.10.1996 and he tainted currency notes were recovered, in the process thereof, from the possession of the appellant. On  completion of the investigation, charge-sheet was filed against the appellant, whereafter the charges under Sections 7 & 13(1)(d)(i) & (ii) read with Section 13(2) of the Act were framed against him to which he pleaded “not guilty”. At the trial, the prosecution examined seven witnesses and also adduced documentary evidence in support of the charges. As the complainant- S. Jagan Mohan Reddy had expired prior thereto, he could not be examined by the prosecution.
4. After the closure of the evidence of the prosecution, the appellant was examined under Section 313 Cr.P.C. and was confronted with all the incriminating materials brought on record. He, however, denied the same.
5. The learned trial court, on an elaborate analysis of the evidence available, convicted the appellant under Sections 7 and 13(1)(d)(i) & (ii) read with Section 13(2) of 3 the Act and sentenced him to undergo R.I. for one year on each count and to pay fine of Rs. 1000/-, in default to suffer S.I. for three months for each offence. The sentences of imprisonment were, however, ordered to run concurrently.
6. As adverted to hereinabove, the High Court in the appeal preferred by the appellant, while upholding his conviction under Section 13(1)(d)(i) & (ii) read with Section13(2) of the Act, did set at naught his conviction under Section 7 of the Act. The sentence qua his conviction under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Act was, as a corollary, sustained.
7. The learned senior counsel for the appellant has insistently urged that the prosecution had failed to prove any demand for the alleged illegal gratification involved and, thus, the vitally essential ingredient of the offences both under Sections 7 and 13 of the Act being conspicuously absent, the appellant ought to have been acquitted of the charge on both counts. The learned senior counsel has maintained that even assuming without admitting that the recovery of the tainted notes from the appellant had been established, sans the proof of demand which is a sine qua non for an offence both under Sections 7 and 13 of the Act, the appellant’s conviction as recorded by the High Court is on the face of the record unsustainable in law and on facts. Without prejudice to the above, learned senior counsel has asserted that the money shown to have been recovered from the possession of the appellant was by no means an illegal gratification demanded by him, but was towards fees for renewal of the recognition of the complainant’s typing institute together with penalty and incidental expenses, and thus, his conviction under Section 13(1)(d)(i) & (ii)) read with Section 13(2) of the Act as sustained by the High Court, if allowed to stand, would result in travesty of justice.
8. Learned senior counsel for the appellant to buttress his contentions, placed reliance on the decision of this Court in B. Jayaraj vs. State of Andhra Pradesh (2014) 13 SCC 55.
9. Learned counsel for the State, as against this, has assiduously argued that the evidence of the prosecution witnesses, taken as a whole, demonstrably proved the demand, receipt and recovery of the illegal gratification sought for and as such no interference with the appellant’s conviction is warranted. According to the learned counsel, having regard to the office held by the appellant at the relevant point of time, he was even otherwise not authorized to receive any deposit towards the renewal of recognition of the complainant’s typing institute and that the evidence adduced by the prosecution did prove the complicity of the appellant in the offence for which he has been charged, beyond a reasonable doubt. In reinforcement of her pleas, learned counsel has drawn our attention to the relevant excerpts of the evidence on record more particularly that of PW1-S. Udaya Bhasker and PW3-G. Sudhakar.
10. Learned counsel for the respondents sought to distinguish the decision rendered in B. Jayaraj (supra) contending that in the face of persuasive evidence of  demand on record, the same is of no avail to the appellant.
11. The materials on record have been duly traversed by us in order to adequately appreciate and weigh the  competing contentions. Though dealt with exhaustively by the two courts below, having regard to the profuse reference to the evidence on record made in the course of the arguments, we consider it to be apt to advert thereto in bare essentials and to the extent indispensable.Admittedly, the complainant S. Jagan Mohan Reddy, the then Principal of the Rama Typewriting Institute, Laxminagar, B. Camp, Kurnool could not be examined as a witness for the prosecution, as he had expired before the trial. To reiterate, in his complaint lodged with the Deputy Superintendent of Police, Anti Corruption Bureau, Kurnool Range, Kurnool on 3.10.1996, he alleged that on the same date, the appellant, who was then the Assistant Director, Commissionerate of Technical Education, Hyderabad, had visited his institute and had pointed out that because of his omission to file an application for renewal of recognition thereof for the year 1997, cancellation of recognition would  ensue resulting in loss of seniority of the institute. According to the complainant, situated thus, he requested for the assistance of the appellant who assured that it  would be possible only if he was paid Rs. 1000/-.  According to the complainant, he pleaded his inability to pay such amount. On this, the appellant reduced his demand to Rs. 500/- and instructed him (complainant) to meet him on 4.10.1996 in Room No. 68, Meenakshi Lodge,  Kurnool along with challan of Rs. 360/-, being Rs. 60 as renewal fee and Rs. 300 as penalty. The complainant, being disinclined to pay the illegal gratification as demanded, lodged a complaint with the Deputy Superintendent of Police, Anti Corruption Bureau, Kurnool and sought action against the appellant.
 12. After registering the complaint, the investigating agency initiated a proceeding for laying a trap on 4.10.1996 at the venue indicated by the appellant. In the course of preparatory steps, five currency notes of denomination of Rs. 100/- were arranged on which phenolphthalein powder was applied and were handed over to the complainant to be paid to the appellant on demand. PW1-S. Udaya Bhaskar was identified to accompany the complainant as an aspiring owner of a new proposed typewriting institute. The Me mbers of the trap team were briefed accordingly and instructions were given to the complainant to flag a signal in time for the interception of the appellant after he had received the tainted notes. Accordingly, the complainant accompanied by PW1-S. Udaya Bhaskar went to the place agreed upon i.e. Room No. 68, Meenakshi Lodge, Kurnool on 4.10.1996 with the trap team waiting outside for the signal to intervene. According to the prosecution, the complainant and PW1-S. Udaya Bhaskar did meet the appellant in Room No. 68, Meenakshi Lodge, Kurnool and on reaching the room, the complainant gave one renewal application along with the challan to the appellant who  enquired as to whether he (complainant) had brought the amount which he had directed him to bring on the previous day. On this, the complainant took out Rs. 500/- from the pocket of his shirt on which the phenolphthalein powder had been applied and handed over the same to the appellant. The prosecution version is that the appellant, accordingly, kept the amount in the pocket of his shirt and it was then on signal being received by the trap team, he was interepted and apprehended with the money accepted by him.
13. PW1-S. Udaya Bhaskar has stated on oath that at the relevant point of time, he was the Assistant Engineer in Panchayat Raj Department, Orvakal and that as planned by the investigating agency to entrap the appellant, he along with the complainant had gone to room No. 68, Meenakshi Lodge, Kurnool on 4.10.1996 for meeting the appellant. Both of them entered into the room of appellant, whereupon the complainant handed over one renewal application along with the challan to the appellant.This witness stated that on this, the appellant enquired as to whether the complainant had brought the amount which he had directed him to bring on the previous day. The witness stated that the complainant then took out the currency notes amounting to Rs. 500/- from the pocket of his shirt as arranged and did hand over the same to the complainant, who after counting the same, kept those in the pocket of his shirt. The witness also testified, that he then told the appellant that he too had started a typing institute and would require a license. The appellant, in  reply, asked him to do the needful as others had been doing. According to this witness, while he was talking to the appellant, as previously arranged, the complainant signalled the trap team, whereupon the appellant was apprehended and the currency notes were recovered from him. On verification, the said notes tallied with those which had been decided to be used in the trap operation. The fingers of the hands of the appellants, when dipped in the sodium carbonate solution also turned pink. The pocket of the shirt of the appellant, as testified by this witness, also turned pink when rinsed in sodium carbonate solution.
14. The evidence of PW3-S. Sivaiah Naidu is to the effect that he, on 6.8.1996 had made an application to the Technical Board for recognition of his institute, whereafter on 3.10.1996, the appellant in the capacity of Assistant Director of Technical Education, inspected his institute and verified all records. According to this witness, when he enquired about the recognition certificate, the appellant stated that unless some amount was paid to him way of gratification, he would not issue the recognition certificate. The witness alleged that he too was asked to meet the appellant in Room No. 68, Meenakshi Lodge,Kurnool at 8.30 P.M  15. PW7-Iliyase Sait, who at the relevant time was posted as Deputy Superintendent of Police, Kurnool Range, Kurnool, in his evidence narrated in detail the steps taken to arrange for the trap to nab the appellant, instructions to the members of the trap team, recovery of five currency notes amounting to Rs. 500/- smeared with phenolphthalein powder from the possession of the appellant and submission of charge-sheet against him on completion of the investigation.
16. The evidence of other witnesses being not essentially related to the aspect of demand, receipt and recovery of the amount of illegal gratification with which the appellant had been charged, does not call for a detailed reference.17. It is expedient at this juncture to set out the relevant extracts of Sections 7 (as it stands today) and 13 of the Act under which the appellant had been charged. “7. Public servant taking gratification other than legal remuneration in respect of an official act: Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine.”
13. Criminal misconduct by a public servant
(1)A public servant is said to commit the offence of criminal misconduct,-         
(d) if he,-
(i)by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;”
18.This Court in A. Subair vs. State of Kerala (2009)6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act 14 ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
19.In State of Kerala and another vs. C.P. Rao (2011) 6 SCC 450, this Court,reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
20.In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d) (i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
21.The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.
23. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW1-S. Udaya Bhaskar. The substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the appellant the renewal application, the latter  enquired from the complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon the complainant took out Rs. 500/- from the pocket of his shirt and handed over the same to the appellant. Though, a very spirited endeavour has been made by the learned counsel for the State to co-relate this statement of PW1- S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW1- S. Udaya Bhaskar is accepted on the face value, it  falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoined by law to hold that the offence under Section 7 or 13(1)(d)(i)&(ii) of the Act has been proved.True it is,that on the demise of the complainant, primary evidence, if any,of the demand is not forthcoming. According to the prosecution, the demand had in fact been made on 3.10.1996 by the appellant to the complainant and on his complaint, the trap was laid on the next date i.e. 4.10.1996. However, the testimony of PW1- S. Udaya Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence under Section 7 or 13(1)(d)(i)&(ii) of the Act against the appellant has been proved beyond reasonable doubt.
24. In our estimate, to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 and 13(1)(d)(i)&(ii) has been proved, would be an inferential deduction which is impermissible in law. Noticeably, the High Court had acquitted the appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i)&(ii) of the Act,  thus, had been to underscore the indispensability of the proof of demand of illegal gratification.
25. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas vs. State of Assam (2013)12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
26. The materials on record when judged on the touch stone of the legal principles adumbrated here in above, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly un-safe to sustain the conviction of the appellant under Section 13(1) (d)(i)&(ii) read with Section 13(2) of the Act as well. In the result, the appeal succeeds. The impugned judgment and order of the High Court is hereby set-aside. The appellant is on bail. His bail bond stands discharged. Original record be sent back immediately.
.CJI. (H.L. DATTU)
J.(V. GOPALA GOWDA)
J.(AMITAVA ROY)
NEW DELHI;
SEPTEMBER 14, 2015.

Total Pageviews

Follow by Email

Blogadda

BLOGGED

LAW AND SOCIETY