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HIGH COURT OF MADHYA PRADESH
H.G. Mishra, J.
Madhusudan Prasad Gupta
v.
State of M.P.
Cr. A. No. 129 of 1977 against judgment passed by Shri Ravi Verma, Additional Sessions Judge, Shivpuri
Decided on : 8-5-1980
In order to constitute an offence of 'Criminal misconduct' falling within section 5 (1) (a) and (b) of the Act, inter alia it has to be proved that the accused 'habitually accept-s or obtains any illegal gratification other than legal remuneration as a motive or reward such as mentioned in section 161 of the Indian Penal Code. The word 'habitually' means 'usually', generally or "according to custom'. It does not refer to the frequency of occasions but rather to the invariability of practice. Accordingly, the word 'habitually' occurring in section 5 (1) (a) & (b) of the Act has to be regarded not to refer an isolated act of ‘criminal misconduct' but to indicate persistency in doing the acts of accepting or obtaining of illegal gratification. [Para 10
(2) Prevention of corruption Act, 1947 - S.6 – sanction for prosecution under - validity of-illusory satisfaction recorded mechanically-sanction not valid.
K.D. Kathuria (PW 4) has stated that the facts relating to the case were orally stated by some police officer whose name he is unable to state. It was on the basis of that oral narration of facts and on the basis of letter of the Police (Ex. D 7) that he had granted the aforesaid 'sanction'. He has further clearly admitted that except Ex D7 and the aforesaid oral information no other documents were placed before him at the time when he accorded the 'sanction', (Ex P-17).
It appears that the act of grant of the sanction was considered by him to be mere an idle formality or an acrimonious exercise and not a solemn and sacrasanit act, the prosecution cannot escape the consequences following from leading such evidence. As such the satisfaction appears to be wholly 'illusory' and expression with regard to the 'satisfaction' contained in Ex. P-17 is virtually para phrase of the letter of the Superintendent of Police Ex. D-7). Thus the validity of the sanction stands considerably shaken. AIR 1979 SC 677 followed. [Para 8
(3) Criminal P.C., 1973 - S.51 -search of accused person - how to be made - search officer neither giving nor taking the search of witnesses- Possibility of planting not ruled out, From the evidence afforded by Pyarelal (P.W. 1) and Govind Singh (PW 9) it is clear that the Search Officer did not convince the witnesses that he was empty handed. Accordingly, the possibility of Planting of the notes (Art. 2 to 10) cannot be ruled out. As such, the recovery the Notes from the person of the accused appears to be surrounded by a cloud of suspicion and the factum of recovery is shaken. [Para 11
(4) Practice (Criminal) - seizure memo - place of preparation contradicted by prosecution witnesses - fact of recovery - admissible My of. [Para 11
(5) Words & Phrases-word 'habitually' mea s 'usually', 'generally' or ‘according to custom. [Para 10
Mishra, 1. - This is an appeal by the accused-appellant against his conviction and sentence awarded by the Special Judge (Additional Sessions Judge), Shivpuri, in Sessions Trial No.1 of 1977 under Sec. 161 I. P. C. and Sec. 5(1) (a) and (b) read with Sec. 2 of the Prevention of Corruption Act, 1947, (hereinafter referred to as the 'Act'), sentencing him to one years rigorous imprisonment in respect of each of that aforesaid offences and imposing a fine of Rs.100/- only, in default of payment of which three month's rigorous imprisonment is to be undergone.
2. The Prosecution case, briefly stated, is as under:-
Pyarelal (P.W.1), Ramcharan (P.W. 2), Gajanlal (P.W. 7), Chatura, Gulla, Rammu, Angad and others used to work as labourers on road in the National Park, Shivpuri. At the relevant time accused-appellant Madhusudan Prasad Gupta was time keeper in the said National Park. Accused was sent on deputation to the aforesaid post vide order (Ex. P.4) dated 14-3-1965 from the post of Time-keeper in Pichhore sub-Division in P.W.D. (Block No. 1), Pichhore to the aforesaid post in the Forest Department by order of the then Executive Engineer, Shri S.M. Shrivastava, Pyarelal (P.W. 1). Ramcharan (P.W. 2). Gajanlal (P. W. 7) along with certain other persons approached Shri Atul Sinha, Collector and District Magistrate, Shivpuri (P. W. 3), with a complaint (Ex. P-1) which was signed by Pyarelal, Ramcharan, Gajanlal and others against the accused-appellant Madhu Sudan Prasad Gupta to the affect that he asks from each one of them by way of bribe Rs. 5/- per month on the threat of either not taking them on work or marking them absent for 2-3 days. In the said complaint, it was also stated that they have collected Rs. 50 for being given as bribe to the accused-appellant. On receipt of this complaint, the District Magistrate, Shivpuri marked it to the Superintendent of police, Shivpuri, On : 3/9/1976 with the endorsement ('C' to 'C')" for necessary action. I have signed nine Dotes of denominations 10/-,5/21-and 1/, given to complainant.
3. On being approached, Shri J.C. Johri, D.S.P. (H.Q.) Shivpuri (P.W. 8) marked the application to Shri R.S. Margekar (P.W. 10), D.S.P. (Administrative) with the following endorsement:
"Please take necessary legal action". Thereafter, Pyarelal and other persons approached R.S. Margekar (P.W. 10) and presented the application (Ex. P. 1) to him and nanded over three notes of Rs. 10/- each, three notes of Rs. 5/- each, two notes of Rs. 2/- each and one note of Rs. 1/-. Bearing the following numbers :-
Notes of 10/- (1) No. G/78-676282
(2) No. G/78-786824
(3) No. G/78-676229
Notes of Rs. 5/- (1) No. C/13-062536
(2) No. C/71- 589197
(3) No. C/71-691395
Notes of Rs. 2/- (1) No. T/36-409704
(2) No. W/30-519619
Note of Rs. 1/- (1) No. K/38-898119 G.
Seizure memo was prepared at 10. OC hours on 3/6/1976, which is Ex. P.2 by Shri R.S. Margeka (P.W 10). He directed Pyarelal and the aforesaid persons to contact him at 8 A.M. on 4/9/1976 Thereafter, at 8 A.M. on 4/9/1976, Pyarelal, Gajanlal, Ramcharan contacted R.S Margekar (P.W.10) and told him that their other colleges having gone on their work have not come-Pyarelal informed him that the accused-appellant was at that time at his residence. Thereupon R.S. Margekar (P.W. 10) handed over the aforesaid notes bearing signatures of the District Magistrate. Shivpuri dated 3/9/1976 to Pyarelal and asked him to raise his hand after the aforesaid money was given by him and accepted by the accused-appellant He further told him that they will be waiting in the lane outside the house of the accused. Accordingly, Pyarelal went inside the house of the accused-appellant and gave the aforesaid signal by raising hand after the said notes were handed over by him to the accused-appellant by way of bribe On signal being given by Pyarelal. R.S. Margekar (P.W. 10) in presence of Govind Singh (P.W. 9), and Kamarlal went inside the house of the accused and disclosed his identity. After gi
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