JUDGMENT

Dr. AR. Lakshmanan, J.-This appeal is directed against the judgment and order dated 16.01.2001 passed by the High Court of Rajasthan at Jodhpur in S.B. Criminal Appeal No. 198 of 1983 whereby the High Court allowed the appeal filed by the respondent herein. The said appeal before the High Court was directed against the order dated 03.05.1983 passed by the Special Judge, Anti Corruption Cases, Udaipur in Criminal Case No. 47 of 1978 convicting the respondent herein - Shambhoogiri for the offence under Section 161 I.P.C. and Section 5(1)(d) and (2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as "the PC Act") and sentencing him to undergo two years R.I. and a fine of Rs. 250/- on each count and in default of payment of fine to further undergo six months simple imprisonment. Both the sentences were ordered to run concurrently.

2. The case of the prosecution is as follows:

The respondent was working as Head Constable Police, Arnod, District Chittorgarh. One Fakir Chand PW-1 was the resident of the same local police station, where the respondent/accused was posted. There was some pending case against Fakir Chand PW-1 and his friends before the SDM, Pratap Garh, where he used to come in the Court of the SDM. The respondent arrested PW-1 under Section 110 of the Cr.P.C. and demanded illegal gratification of Rs. 500/- from him and further threatened him for lodging more complaints for not doing so. Therefore, PW-1 had to give Rs. 100/- to the respondent. The respondent had to produce PW-1 before the SDM, Pratapgarh on 12.09.1977 and on the same day PW-1 had to give him Rs. 200/- more. On that date, before appearance in the Court, PW-1 met PW-7 and told him about the accused/respondent, who advised PW-1 to give the entire details in written complaint with Rs. 200/- currency notes. PW-1 did so. Thereafter, PW-7 had given the written complaint with Rs. 200/- currency notes to the SDM, Pratapgarh. PW-6, who noted the numbers of the currency notes in his diary and after getting initials of the SDM, these notes were given to PW-1 and he was asked to give these currency notes to the respondent/accused. When the respondent demanded money from PW-1, the same was given in the presence of PW-5 and PW-7 to him. Thereafter, PW-5 informed the SDM PW-6 who called the accused in his chamber and asked him to produce Rs. 200/- from his pocket. The accused is said to have produced that Rs. 200/- before the SDM who verified the numbers of the currency notes from the entries noted in his diary, which was found the same. The SDM prepared a recovery Memo of those notes and thereafter sent the memo of recovery along with the notes to the Collector, Chittorgarh and also sent this information to the Superintendent of Police. Thereafter, the Superintendent of Police sent this information to the Anti Corruption Department and the case was registered under Section 161 I.P.C. and Section 5(1)(d) and 5(2) of the PC Act. The Deputy S.P. Anti Corruption Department collected the entire documents and after seeking permission filed the challan against the accused. On 11.09.1978, charges were framed against the accused in the Court of the Special Judge Anti Corruption, Jaipur. The respondent denied the charges and claimed the trial. The case was committed in the Court of Special Judge, Anti Corruption, Udaipur.

3. The prosecution examined eight witnesses in support of its case. The trial Court came to the conclusion that the respondent/accused being a public servant was guilty for the offence under Section 161 I.P.C. and Section 5(1) and 5(2) of the PC Act of having accepted Rs. 200/- as bribe and convicted him vide judgment dated 03.05.1983 in Criminal Case No. 47 of 1978.

4. Aggrieved against the conviction, the respondent preferred an appeal before the High Court in which a question of law was raised on behalf of the respondent that as per Section 5-A of the PC Act the investigation has to be taken by a person not below the rank of Deputy