Adverse inference drawn by Trail Judge not permissible in such cases.

The Judgment of the Bench was delivered by Sharfuddin Ahmed, J.

-The question that has been referred to us viz., ‘Whether the conduct of the accused can be taken into consideration when the crime is committed in the presence of the Police’ arose in Criminal Appeal No. 580 of 1965 before our learned brother Mohamed Mirza, J. The learned Judge felt that there was no direct case on the point and therefore referred it to the Bench. The facts necessary to appreciate the contentions on either side may briefly be stated.

The appellant in Criminal Appeal No. 580 of 1965 was working as Station Superintendent, Vijayawada, Southern Railways at the relevant period. On 21st June, 1964 he demanded and accepted a sum of Rs. 100 from one of his subordinates as illegal gratification for having posted him to Outward Parcel seat and for retaining him in that capacity. It was stated that P.W. 1, Senior Assistant Parcel Clerk in the Parcel Office, Vijayawada Railway Station was working in that capacity for 2½years. He was formerly in-charge of loading and unloading parcels on and from station platform. He had been working in the Outward Parcel seat since 20th May, 1964. The posting was done by the accused-appellant and subsequent to the posting, he called him and asked him to pay a bribe since the seat to which he was posted was a fetching seat in the sense that there was opportunity there to realise excess money. P.W. 1 accordingly paid Rs. 50 to the accused on 22nd May, 1964. Five days later the accused asked for a further amount. P.W. 1 was unable to meet the demand. The accused was frequently demanding P.W. 1 to part with some money. On or about 18th June, 1964, he demanded a sum of Rs. 100 and threatened to remove him from the Outer Parcel Seat if he did not pay the money. P.W. 1 contacted Deputy Superintendent of Police of the Special Police Establishment who was camping at Vijayawada on 20th October, 1964, and complained to him of the demands made by the accused. Accordingly a trap was arranged with the assistance of some Government servants. P.W. 1 was asked to go to the office of the Superintendent and pay the money in the presence of an accompanying witness. P.W. 1 was provided with ten currency notes of Rs. 10 denomination and their numbers were noted in the panchnama that was drawn by P.W. 3. The notes were treated with phenolphthalein powder. P.W. 1 was directed to proceed to the railway station and give the currency notes to the accused if he demanded to pay the money. P.W. 2 was asked to follow P.W. 1. The Deputy Superintendent of Police and other officers followed P.Ws. 1 and 2 to the railway station at some distance. According to this arrangement P.W. 1 entered the room of the accused and found him seated in his chair. P.W. 1 wished him and the latter asked if he had brought the money. Then P.W. 1 took out the money and handed it over to the accused. He took the money and put it in the right pocket of his trousers P.W. 2 witnessed the incident from the adjacent staff room. After delivering the money, the witness gave a pre-arranged signal and thereupon Deputy Superintendent of Police and Superintendent of Police and two mediators rushed into the room of the accused. Disclosing his identity, the Deputy Superintendent of Police recovered the amount from the right pocket of the trousers of the accused, which was seized under a mahazar. A tumbler full of water with Sodium Carbonate was brought and the accused was asked to put his fingers in the tumbler. The colour of the liquid became pink. The two mediators compared the number of currency notes and the relevant articles were seized under a mahazar.

On this material, a charge-sheet was framed against the accused under section 161, Indian Penal Code and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947. The accused denied the commission of the offence. He pleaded that as he was exercising strict control over the staff some members of the staff had co