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GUJARAT HIGH COURT
S.G. Shah, J.
Shantaben S. Dave (deceased) through
LR —Appellant
versus
State of Gujarat —Respondents
Criminal Appeal No. 1022 of 1993 with Crl. Appeal No. 1033 of 1993
Decided on 28.11.2014
Counsel for the Parties:
For the Appellant Nos. 1 and 11:K.B. Anandjiwala, Advocate.
For the Respondent: Ms. Jirga Jhaveri, APP.
IMPORTANT POINT
When conviction under Section 15 of Prevention of Corruption Act is to be held then presumption clause would not be attracted.
Headnote:Prevention of Corruption Act, 1988—Sections 15 and 12—Appellant a police Sub-Inspector convicted for attempting to commit offence under Section 13(1)(d)(i)(ii) and appellant No.2 an Advocate convicted under Section 12—Appeal—Brother of complainant PW1 was arrested by appellant/accused No.1 for offence under Section 498A IPC and was brought to Court to be produced before Magistrate—Accused asked complainant to call his advocate—Complainant met advocate/accused No.2 and then accused No.2 had some conversation with accused No.1 and then asked complainant if he had brought money—Complainant gave Rs.500 to advocate and in the trap tainted money was recovered from accused No.2—There was no demand by any of accused before complainant met them in Court—Advocate accepted amount for his legal fee—Only because Advocate had a talk with IO accused No.1, demand by Advocate was not to be described as illegal gratification for police officer—When conviction was sought under Section 15 of the Act, presumption clause would not be attracted—Conviction was liable to be set aside. (Paras 7 to 9, 12 and 13)
Result: Appeal allowed.
JUDGMENT
S.G. Shah, J.— Heard Mr. K. B. Anandjiwala, learned Advocate for the appellants and Ms. Jhaveri, learned A.P.P. for the respondent State.
2. The appellants are convicted by impugned judgment and order dated 30.7.1993 in Special Case No. 12 of 1993 delivered by the learned Special Judge of City Sessions Court, Ahmedabad. The appellant in Criminal Appeal No. 1022 of 1993 - accused No.1, Shantaben Sharadkumar Dave is convicted under Section 15 of the Prevention of Corruption Act (hereinafter referred to ‘the Act’) for attempting to commit the offence under Section 13(1)(d)(i)(ii) of the Act and awarded sentence to undergo simple imprisonment (S.I.) for period of two years and to pay fine of Rs.500, in default of payment of fine, to undergo further S.I. for a period of two months. However, she has been acquitted of the charges under Sections 13(1)(d)(i)(ii) and 13(2) of the Act. Whereas the appellant in Criminal Appeal No. 1033 of 1993 accused No.2, Jahid Hussain Mohmedhussain Shaikh has been convicted for the offence punishable under Section 12 of the Act and awarded sentence to undergo S.I. for a period of two years and to pay fine of Rs. 500, in default of payment of fine, to undergo further S.I. for a period of two months.
3. Accused No. l Shantaben S. Dave is no more since she expired but as she was serving as a Police Sub-Inspector of Women Police Station at the relevant time, her legal heirs have opted to proceed further in the appeal instead of getting it abated, considering the fact that if she succeeds in the appeal, she would be entitled to service benefits, which were otherwise withheld because of such conviction. Therefore, at present her appeal is being carried further by her legal heirs.
Accused No. 2 Jahid Hussain Shaikh was practicing as an Advocate, and therefore he has also challenged the impugned judgment. For the sake of convenience, they are now referred as accused No.1 and accused No.2 respectively though they are appellants in different appeals.
4. Learned Advocate Mr. Anandjiwala for the appellants has referred the paper-book and submissions of their case and pointed out that in fact there was no demand at all by any of the accused, but this is a. case of presumption by the Investigating Officer (I.O.) regarding probability of acceptance of illegal gratification by someone in the women cell of Karanj Police Station of the City, and therefore, in absence of specific demand by any of the accused for any illegal gratification, the amount paid by the complainant during the raid to accused No.2, an Advocate, towards his legal fees and charges, for submitting a bail application for brother of the complainant cannot be considered as acceptance of any amount as illegal gratification either by the accused No.1 or abetment of such act by the accused No.2 in any manner whatsoever, and therefore, the conviction is absolutely not only improper, but illegal and against the basic principle of applicable law.
5. If we peruse the record including oral evidence by the witnesses and other documents as well as the impugned judgment, it seems that there is substance in the submission and argument made by learned Advocate Mr. Anandjiwala.
6. It is not disputed at all that the complainant had never met or was not knowing either of the accused before the actual incident of raid which was carried out as explained in the F.I.R., Panchnama as well as other evidence by IO and members of raiding party.
7. PW No. 1 at Ex. 13 is the complainant Kantibhai Amrutbhai Thakkar, who has in categorical terms and that too in his examination-in-chief confirmed that his brother was arrested for the commission of offence under Section 498A of the Indian Penal Code by the Women Cell of the Karanj Police Station and within 24 hours he was to be presented before the concerned Magistrate, and therefore, he and his brother Govindbhai had gone to Karanj Police Station; where Women Cell is functional, which has arrested their brother and when th
