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1993 Supreme(Del) 601
High Court Of Delhi
RAM AVTAR - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 312 of 1976
Decided On : 10/08/1993
S.Lal, USHA KUMARI
In order to establish guilt under Section 161 of the Indian Penal Code and Section 5(1)(d) of the Prevention of Corruption Act, the prosecution must prove that the public servant accepted illegal gratification as a motive or reward for doing or forbearing to do any official act in the exercise of his official functions, or that the public servant abused his position as a public servant for obtaining any pecuniary advantage.
Headnote:
PREVENTION OF CORRUPTION ACT - SECTION 5(2) READ WITH 5(1)(D) - SECTION 161 INDIAN PENAL CODE - PUBLIC SERVANT - ACCEPTING ILLEGAL GRATIFICATION - OFFICIAL ACT - ABUSE OF POSITION - PECUNIARY ADVANTAGE - EVIDENCE - INHERENT INFIRMITIES - CONTRADICTIONS - WITNESS CREDIBILITY - TRAP LAID - SCIENTIFIC DETECTION - PHENOLPHTHALEIN POWDER - CONVICTION OVERTURNED.
Fact of the Case:
The appellant, a constable driver, was convicted under Section 161 of the Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947, for allegedly accepting a bribe of Rs. 150 from the complainant, Rajesh, in exchange for providing him with information about his case. Rajesh had been accused of possessing stolen postal stamps and unused Service Stamps worth several thousand rupees.
Finding of the Court:
The court found several material contradictions and inherent infirmities in the prosecution's case. The complainant, Rajesh, was considered a partisan witness due to his own involvement in a serious case and his close association with DSP Ram Saran, who had a grudge against the appellant. The court also noted that the appellant, as a constable driver, had no access to information about Rajesh's case and could not have provided him with any useful information.
Issues: 1. Whether the prosecution had established beyond a reasonable doubt that the appellant accepted illegal gratification as a motive or reward for doing or forbearing to do any official act in the exercise of his official functions. 2. Whether the appellant abused his position as a public servant for obtaining any pecuniary advantage.
Ratio Decidendi: The court held that the prosecution had failed to prove the essential elements of the offenses charged under Section 161 of the Indian Penal Code and Section 5(1)(d) of the Prevention of Corruption Act. The court emphasized that the appellant, as a constable driver, was not in a position to provide any useful information to Rajesh and, therefore, could not have accepted the bribe as a motive or reward for doing or forbearing to do any official act. The court also found it improbable that the appellant would have visited Rajesh's house to collect the bribe without Rajesh's consent, given that Rajesh had not explicitly agreed to the visit.
Final Decision: The court allowed the appeal, set aside the conviction, and acquitted the appellant. The court discharged the appellant's bail bonds.
( 1 ) THIS criminal Appeal is directed against the judgment/order dated 19-8-76/20-8-76 of the learned Special Judge, Delhi by which he convicted the appellant under Section 161 of the Indian Penal Code and under Section 5 (2) read with Section 5 (l) (d) Prevention of Corruption. Act, 1947 (hereinafter called the Act, and sentenced him to Rigorous Imprisonment (Rl) for one year under first count and a similar sentence with finis of Rs. 100 or in default to suffer further Rl for one month under the second count. The substantive sentences of imprisonment were made to run concurrently.
( 2 ) THE prosecution case is based upon a complaint made by Rajesh PW7 to the Superintendent of Police, CBI, Kota House, New Delhi. He stated in the complaint as follows: "i am running my philately business for the last about 3 years. On 22nd July, 1974 my house No. A-45, East of Kailash, New Delhi-24 was searched by Shri Ram Saran Malik, DSP Economic Offences Wing, Jam Nagar House, New Delhi. After the search I was arrested and was bailed out on 25th July, 1974 by the court. The DSP had come to my house in a jeep which was driven by Shri Ram Avtar, driver (appellant in this appeal ). After 10 15 days of the search of my house I was called in Jam Nagar House by Shri Ram Saran Malik DSP. I reached there at 10. 00 A. M. and remained there till 4. 30 P. M. Shri Ram Saran Malik DSP did not record my statement and at 4. 30 P. M. only asked, me to again come to his office next day at 4. 00 P. M. When I came out of the oftice, the said driver of the jeep approached me and told that nothing would happen against me. Next day i again went there at about 4. 00 P. M. but Shri Ram Saran Malik DSP was not present in his office. The driver informed me that DSP was not present and directed me to come again to the office next day with some money and he would give me some information of my interest. I again went to the said office next day at about 3. 30 P. M- Shri Ram Saran Malik asked me that he does not requite me at present. The driver was present who asked me to go to India Gate where he would also be coming. Accordingly I went there and the driver also arrived within 5-10 minutes. He told me that there was nothing in the case and I should not worry at all. Thereafter he demanded a sum of Rs. 150 and further told that he would supply me useful information about my case. I put him off by saying that I have no money at present and would certainly please him. I was again called by,shri Ram Saran Malik DSP on 23rd August, 1974 at 11. 00 A. M. He was present in his office but asked me to wait for sometime as he was busy with some other important work. I told him that I was not feeling well and after his permission I returned to my house. As soon as I came out of his office the driver approached me arid again demanded a sum of Rs. 150 and told that he would supply me very useful information pertaining to my case. I pat him off on the pretext that I. have no money with me at the moment. Thereupon he told me that he would come to my residence on 25 august,1974 at about 6. 00 P. M. and would collect the money to which I consented. I am not in favour of giving bribes. Necessary action may kindly be taken. Yours faithfully, Dated 24-8-74 sd/- Rajesh Kumar A-45, East of Kailash, Delhi-24. " 1725 HCD/94 19.
( 3 ) RAJESH submilted this complaint to DIG Mr mukherjee on the same day, who called DSP Chander Bhan of the CBI in the presence of Rajesh. Mr. Mukherjee handed over the complaint bx. PW5/a of Rajesh to Chander Bhan and asked him to investigate. formal FIR Ex. PW5/b was recorded. The DSP directed Rajesh to see him on the following day in CBI office, Safdarjung Enclave at about 3. 30 P. M. and bring along the bribe money amounting to Rs. 150. He also gave direction to lnspeclor Joshi and HC Harbans Lal to see him at CBI office on the following day at about 11. 00 A. M. On the next day, he proceeded to police post Sector 8, R. K. Puram in a staff car at a
