1981 Supreme(Raj) 462
RAJASTHAN HIGH COURT
K.Bhatnagar, J.
Prem Swaroop - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Appeal No. 483 of 1975.
Decided On : 14-09-1981
In a trap case, the prosecution must discharge its initial burden of proving that the accused received the bribe and that the accused's explanation is not plausible. Once the prosecution has discharged its burden, the presumption under Section 4 of the Prevention of Corruption Act is attracted and the accused must rebut the presumption.
Headnote:
PREVENTION OF CORRUPTION ACT - SECTION 4 - PRESUMPTION - SECTION 5(1)(D) - BRIBE - SECTION 161 IPC - PUBLIC SERVANT TAKING GRATIFICATION - EXPLANATION - BURDEN OF PROOF - TRAP CASE - INDEPENDENT WITNESSES - PHENOLPHTHALEIN POWDER - CORROBORATION.
Fact of the Case:
Appellant, a Head Warder in a Sub-Jail, was caught receiving a bribe of Rs. 10 from a decoy who wanted to meet his brother-in-law, an undertrial prisoner. The appellant was convicted under Sections 161 IPC and 5(1)(d) read with 5(2) of the Prevention of Corruption Act.
Finding of the Court:
The court held that the prosecution had discharged its initial burden of proving that the appellant had received the bribe and that the appellant's explanation was not plausible. The court also held that the presumption under Section 4 of the Act was attracted and that the appellant had failed to rebut it.
Issues: 1. Whether the prosecution had discharged its initial burden of proving that the appellant had received the bribe. 2. Whether the appellant's explanation was plausible. 3. Whether the presumption under Section 4 of the Act was attracted. 4. Whether the appellant had rebutted the presumption.
Ratio Decidendi: 1. The court held that the prosecution had discharged its initial burden by proving that the appellant had received the bribe from the decoy and that the appellant had thrown the bribe away on seeing the trap party. 2. The court held that the appellant's explanation that the bribe was forcibly planted in his pocket by the decoy was not plausible. 3. The court held that the presumption under Section 4 of the Act was attracted because the appellant was a public servant who had received a bribe. 4. The court held that the appellant had failed to rebut the presumption because his explanation was not plausible.
Final Decision: The court dismissed the appeal and upheld the appellant's conviction and sentence.
JUDGMENT
1. - Appellant Prem Swaroop was tried by the learned Special Judge for ACD cases, Rajasthan, Jaipur for the offences under section 161 Indian Penal Code and 5 (1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter to be referred as the Act). The learned trial Judge by the judgment dated July 21, 1975 convicted the appellant for these offences and sentenced him to six months rigorous imprisonment and a fine of Rs. 300/- in default to undergo one months rigorous imprisonment for the first count and one years rigours imprisonment and a fine of Rs. 500/- in default of payment of fine to undergo rigorous imprisonment for two months for the second count with an order that the substantive sentences awarded on both the counts shall run concurrently.
2. Succinctly narrated the facts of the case giving rise to this appeal are as under:-One Amarjeet Singh, brother-in-law of Shivraj Singh (PW. 1) was in judicial look-up at Sub-Jail Karanpur as an under trial prisoner. Shivraj Singh used to go there for an interview with Amarjeet Singh Appellant Prem Swaroop was posted as Head Warder there. On December 21, 1973 and January 4, 1974 Shivraj Singh had 1o give Rs. 10/-each day to the appellant for allowing the interview. On January 11, 1974 Shivraj Singh again wanted to meet with his brother-in-law Amarjeet Singh. A demand of Rs. 10/- was made by the appellant. Shivraj Singh did not like to part with the money and therefore, approached the Deputy Superintendent of Police, Anti Corruption Department, Ganganagar, K.P. Srivartava (PW. 8) and complained about the demand made by the appellant. The Deputy Superintendent of Police in the presence of motbirs Pritpal Singh (PW. 7) and Mohanlal a ked Shivraj Singh to give him a currency note of Rs. 10/- denomination. The Deputy Superintendent of Police initialled the currency note given by Shivraj Singh and treated it with phenolphthalein powder. Mixing the powder in water react was demonstrated The currency note treated with the powder was made over to the decoy Shivraj Singh for being given to the appellant, lie was asked to give a signal by placing his hand on bis turban on the appellant receiving the currency note. Necessary memos for all these proceedings were prepared by the Deputy Superintendent of Police. On the same day at about 4.15 p.m. Shivraj Singh went to the Sub-Jail and when the appellant reached the gate he had a talk with him. Shivraj Singh gave the currency note intended to be used for the trap. The appellant received it in his right hand and placed it in the right side outer pocket of his cost. Pritpal Singh (PW. 7) and Mohanlal, the motbirs, remained standing at a little distance from the decoy and the appellant and saw Shivraj Singh handing over the money to the appellant and the latter putting it in the pocket of is coat. The trap party remained at a little distance waiting for the signal from the decoy. When the appellant received the money, Shivraj Singh gave the preplanned signal. The Deputy Superintendent of Police K.P. Srivastava (PW. 8). Nahar Singh (PW. 4) Sub Inspector, Hukam Chand (PW. 6) and Khuman Singh (PW. 3) constable rushed towards the place where the appellant and the decoy were. On seeing them the appellant lock to heels, but was apprehended by Hukam Chand and Khuman Singh con tables. Being caught hold of by the trap party, the appellant took out the incriminating currency note from his pocket and threw it on the ground. Magha Ram constable was deputed to watch the currency note lying on the ground. Bherusingh (PW. 2), Assistant Jailor of that Sub-Jail also reacted there. In the presence of the motbirs and the Assistant Jailor the appellant was asked to dip bis right hand in a glass of water mixed with sodium carbonate. It revealed the contents of powder because of the water changing into pink colour. The left hand of the appellant was also got dipped in another glass of water. It revealed no reaction The appellant was asked t
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