A Supreme Court Bench comprising of Justice Dipak Misra and Justice R.F. Nariman, while dismissing an Appeal and confirming the conviction of the appellant under Prevention of Corruption Act expressed their anguish over the manner in which trials in respect of serious offences relating to corruption are being conducted by the trial courts.
“It is imperative if the examination-in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial,” the Bench added.
It hence directed that the copies of the judgment should be sent to the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner, observing, “Let it be remembered that law cannot allowed to be lonely; a destitute.”
Highlighting the unacceptable practices, the Court noted that adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the Trial Courts grant time.
The law requires special reasons to be recorded for grant of time but the same is not taken note of. “If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The Court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-acceptable reasons,” the Bench observed.
During the trial, one of the witnesses had turned hostile after he was cross-examined after 1 year and 8 months. The delay, according to the Court, had given enough time for prevarication due to many a reason.
This laxity was chided by the Supreme Court, observing that, “A fair trial is to be fair both to the defence and the prosecution as well as to the victim. An offence registered under the Prevention of Corruption Act is to be tried with all seriousness. We fail to appreciate how the learned trial Judge could exhibit such laxity in granting so much time for cross-examination in a case of this nature.”
The Bench said that the cross-examination was deferred for no reason and took place after 20 months, when the witness had all the time in the world to be gained over.
The Court was hearing an Appeal against a judgment of Punjab and Haryana High Court at Chandigarh which had affirmed the judgment of a Special Judge, convicting the appellant, Vinod Kumar under the Prevention of Corruption Act. The appellant had allegedly demanded a bribe for allowing passage of tractor trolley within the municipal area of Rajpura.Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 554 OF 2012
Vinod Kumar Vs State of Punjab
Dated;JANUARY 21, 2015.
If one is asked a question, what afflicts the legally
requisite criminal trial in its conceptual eventuality in this
country the two reasons that may earn the status of
phenomenal signification are, first, procrastination of trial
due to non-availability of witnesses when the trial is in
progress and second, unwarranted adjournments sought
by the counsel conducting the trial and the unfathomable
reasons for acceptation of such prayers for adjournments
2
by the trial courts, despite a statutory command under
Section 309 of the Code of Criminal Procedure, 1973 (CrPC)
and series of pronouncements by this Court. What was a
malady
at
one
metamorphosed
time,
into
with
the
malignancy.
efflux
What
of
time,
was
a
has
mere
disturbance once has become a disorder, a diseased one, at
present.
2.
The instant case frescoes and depicts a scenario that
exemplifies how due to passivity of the learned trial Judge,
a witness, despite having stood embedded absolutely firmly
in his examination-in-chief, has audaciously and, in a way,
obnoxiously, thrown all the values to the wind, and paved
the path of tergiversation. It would not be a hyperbole to
say that it is a maladroit and ingeniously designed attempt
to strangulate and crucify the fundamental purpose of trial,
that is, to arrive at the truth on the basis of evidence on
record. The redeeming feature is, despite the malevolent
and injurious assault, the cause of justice has survived,
for there is, in the ultimate eventuate, a conviction which is
under assail in this appeal, by special leave.
3
3.
The narration of the sad chronology shocks the
judicial conscience and gravitates the mind to pose a
question, is it justified for any conscientious trial Judge to
ignore the statutory command, not recognize “the felt
necessities of time” and remain impervious to the cry of the
collective asking for justice or give an indecent and
uncalled for burial to the conception of trial, totally
ostracizing the concept that a civilized and orderly society
thrives on rule of law which includes “fair trial” for the
accused as well as the prosecution.
4.
In the aforesaid context, we may recapitulate a
passage from Gurnaib Singh V. State of Punjab.1
“...... We are compelled to proceed to reiterate the
law and express our anguish pertaining to the
manner in which the trial was conducted as it
depicts a very disturbing scenario. As is
demonstrable from the record, the trial was
conducted in an extremely haphazard and
piecemeal manner. Adjournments were granted
on a mere asking. The cross-examination of the
witnesses was deferred without recording any
special reason and dates were given after a long
gap. The mandate of the law and the views
expressed by this Court from time to time
appears to have been totally kept at bay. The
learned trial Judge, as is perceptible, seems to
have ostracised from his memory that a criminal
1
(2013) 7 SCC 108
4
trial has its own gravity and sanctity. In this
regard, we may refer with profit to the
pronouncement in Talab Haji Hussain v.
Madhukar Purshottam Mondkar2 wherein it has
been stated that an accused person by his
conduct cannot put a fair trial into jeopardy, for
it is the primary and paramount duty of the
criminal courts to ensure that the risk to fair
trial is removed and trials are allowed to proceed
smoothly
without
any
interruption
or
obstruction.”
5.
Be it noted, in the said case, the following passage
from Swaran Singh V. State of Punjab3, was reproduced.
“It has become more or less a fashion to have a
criminal case adjourned again and again till the
witness tires and gives up. It is the game of
unscrupulous lawyers to get adjournments for
one excuse or the other till a witness is won over
or is tired. Not only is a witness threatened, he is
abducted, he is maimed, he is done away with, or
even bribed. There is no protection for him. In
adjourning the matter without any valid cause a
court unwittingly becomes party to miscarriage of
justice.”
6.
In this regard, it is also fruitful to refer to the
authority in State of U.P. V. Shambu Nath Singh4,
wherein this Court deprecating the practice of a Sessions
2
3
4
AIR 1958 SC 376
(2000) 5 SCC 668
(2001) 5 SCC 667
5
Court adjourning a case in spite of the presence of the
witnesses willing to be examined fully, opined thus:
“9. We make it abundantly clear that if a witness
is present in court he must be examined on that
day. The court must know that most of the
witnesses could attend the court only at heavy
cost to them, after keeping aside their own
avocation. Certainly they incur suffering and loss
of income. The meagre amount of bhatta
(allowance) which a witness may be paid by the
court is generally a poor solace for the financial
loss incurred by him. It is a sad plight in the trial
courts that witnesses who are called through
summons or other processes stand at the
doorstep from morning till evening only to be told
at the end of the day that the case is adjourned
to another day. This primitive practice must be
reformed by the presiding officers of the trial
courts and it can be reformed by everyone
provided the presiding officer concerned has a
commitment towards duty.”
7.
With the aforesaid concern and agony, we shall
presently proceed to adumbrate the necessitous facts. We
have already stated that despite the impasse, there is a
conviction by the trial Judge and an affirmation thereof by
the High Court. Elucidating the factual score, be it noted,
the instant appeal is directed against the judgment and
order dated 13.10.2011 passed by the High Court of
Punjab and Haryana at Chandigarh in Criminal Appeal No.
6
1280-SB of 2001 (O&M) wherein the learned Single Judge
has given the stamp of approval to the judgment and order
dated 24.10.2001 passed by the learned Special Judge,
Patiala whereby he had convicted the appellant under
Section 7 and 13(2) of the Prevention of Corruption Act,
1988 (for brevity, ‘the Act’) and sentenced him to undergo
rigorous imprisonment for a period of two years and to pay
a fine of Rs.2,000/- with a default clause.
8.
The prosecution case, as has been unfurled, is that
Baj Singh, PW-5, used to bring earth in tractor trolley
within the municipal area of Rajpura. The appellant, at the
relevant time, was posted as Octroi Inspector and he
demanded Rs.20/- per trolley for permitting him to enter
into the municipal area. Eventually, a deal was struck that
the accused-appellant would be paid Rs.500/- per month
for the smooth operation. As the prosecution story further
unfolds, on 25.1.1995, Baj Singh met Jagdish Verma,
PW-7, and disclosed before him the fact about the demand
of the accused for permitting the entry of the tractor trolley
inside the municipal area and thereafter, as he was not
7
desirous of obliging the accused, he narrated the entire
story to DSP Vigilance, who in his turn, with the intention
to lay the trap, explained it to Baj Singh, PW-5, and
Jagdish Verma, PW-7 about the procedure of the trap. As
alleged, Baj Singh gave five notes of Rs.100/- to the DSP
Vigilance who noted the numbers of the notes and
completed other formalities like applying phenolphthalein
powder on the currency notes. Thereafter, they proceeded
to the place of the accused and a trap was laid. Eventually,
currency notes amounting to Rs.500/- were recovered from
the
trouser
of
the
appellant
and
were
taken
into
possession. The statements of the witnesses were recorded
and after completing the investigation chargesheet was
placed for the offences punishable under Sections 7 and
13(2) of the Act.
9.
To
bring
accused-appellant,
home
the
the
charges
prosecution
against
examined
the
eight
witnesses. PW-1 to PW-4 are formal witnesses. PW-5, the
complainant resiled from his previous statement and was
cross-examined by the prosecution. Sher Singh, PW-6, a
8
clerk in the office of Tehsildar, Rajpura had joined the
police party as an independent witness. He supported the
case of the prosecution in detail. Jagdish Verma, PW-7, in
his examination-in-chief, supported the prosecution case in
all aspects, but in cross-examination, resiled from his
examination-in-chief.
The witness, PW-7, was declared
hostile on a prayer being made by the Public Prosecutor
and was re-examined. Narinder Pal Kaushal, PW-8, DSP of
Vigilance Bureau who had led the raiding party on
25.1.1995, in his deposition, deposed in detail about the
conducting of the raid and recovery of the amount.
10.
The accused, in his statement under Section 313
CrPC, denied the allegations and took the plea of false
implication due to party faction and animosity. It was his
further stand that he was brought from his office and was
taken to the office of the Tehsildar and thereafter to the
Vigilance office.
11.
The learned trial Judge, on the basis of the evidence
brought
on
record,
came
to
hold
that
though
the
complainant had not supported the case of the prosecution
9
yet prosecution had been able to prove the demand and
acceptance of the bribe and the recovery of the tainted
money from the accused and, therefore, the presumption
as envisaged under Section 20 of the Act would get
attracted and accordingly convicted the accused and
sentenced him, as has been stated hereinbefore.
12.
In appeal, it was contended before the High Court that
when the testimony of Baj Singh, PW-5, and Jagdish
Verma,
PW-7,
the
shadow
witness,
was
absolutely
incredible, the same could not have been pervertedly
filtered
by
the
learned
trial
Judge
to
accused-appellant for the crime in question.
convict
the
It was also
urged that mere recovery of the currency notes would not
constitute the offence under Section 7 of the Act. It was
also propounded that the offence under Section 13(2) of the
Act would not get attracted unless the demand and
acceptance
were
proven.
Non-involvement
of
any
independent witness in the raid was also seriously
criticised. The High Court posed the question whether the
prosecution had been able to prove the factum of demand
10
of bribe, its acceptance and the recovery of the money from
the possession of the accused. With regard to demand of
bribe, the High Court placed reliance on the testimony of
the independent witness Sher Singh, PW-6, and the
examination–in-chief of Jagdish Verma, PW-7, and came to
hold that the demand of bribe had been proven.
It
appreciated the deposition of PW-7 and the documents,
especially, the Chemical Examiner’s report of the hand
wash liquid and came to hold there had been acceptance of
bribe. Relating to the recovery of the tainted money, the
High Court took note of the fact that the ocular testimony
had been duly corroborated by the documentary evidence
and hence, the recovery had been proved.
13.
Be it noted, the High Court placed reliance upon
Raghubir Singh V. State of Haryana5 and Madhukar
Bhaskarrao
Joshi
V.
State
of
Maharashtra6
and
eventually came to hold that the prosecution had proven its
case to the hilt and resultantly affirmed the conviction and
order of sentence passed by the trial Court, but reduced
the sentence of 2 years’ rigorous imprisonment to one year.
5
6
(1974) 4 SCC 560
(2000) 8 SCC 571
11
14.
Criticizing the conviction as recorded by the learned
trial Judge and affirmed by the High Court, it is submitted
by Mr. Jain, learned senior counsel for the appellant that
when the informant had not supported the case of the
prosecution, it was not justifiable on the part of the learned
trial Judge to record a conviction against the accused. It is
his submission that on the basis of the testimony of PW-6
to PW-8, the conviction could not have been recorded, for
Sher Singh, PW-6, is not a witness either to the demand or
acceptance of the bribe by the appellant and further the
version PW-7 requires careful scrutiny, regard being had to
the fact that he is a hostile witness. It is also urged that
the evidence of PW-8 deserves to be discarded as he is an
interested witness. To bolster the aforesaid submissions,
learned senior counsel has drawn inspiration from B.
Jayaraj
V.
State
of
Andhra
Pradesh7
and
M.R.
Purushotham Vs. State of Karnataka8.
15.
Apart from above, it is further put forth by him that
as PW-7 has not supported the prosecution story and
stated to have been tutored to give statement, his whole
7
8
(2014) 4 SCALE 81
(2014) 11 SCALE 467
12
testimony should have been thrown out of consideration
and no reliance should have been placed on it.
contended by
It is
him that the High Court has failed to
appreciate the importance of cross-examination of PW-7
and hence, the judgment affirming the conviction is
absolutely flawed. To buttress the said submission,
reliance placed
has
been
Administration9.
on
Sat
Paul
V.
Delhi
It is the further stand of Mr. Jain,
learned senior counsel that the evidence of the trap
witnesses, PW-6 and PW-8 should have been wholly
ignored as they are partisan witnesses and their statements
could not have been given any credence to inasmuch as
there has been no corroboration. In this context, he has
commended us to the authorities in State of Bihar V.
Basawan Singh (CB)10,
Major E.G. Barsey V. State of
Bombay11, Bhanupratap Hariprasad Dave V. State of
Gujarat12 and MO Shamshuddin V. State of Kerala13.
9
(1976) 1 SCC 727
(1959) SCR 195
11
(1962) 2 SCR 195
12
(1969) 1 SCR 22
13
(1995) 3 SCC 351
10
13
16.
basis
Learned senior counsel would contend, solely on the
of
evidence
of
recovery,
a
conviction
is
not
sustainable and in the obtaining factual matrix, the
presumption under Section 20 of the Act would not be
attracted.
To substantiate the said proposition, strength
has been drawn from C.M. Girish Babu V. C.B.I., Cochin14
and Benarsi Das V. State of Haryana15.
17.
The last plank of submission of Mr. Jain, is that in
the instant case, the prosecution was launched by Narinder
Pal Kaushal, PW-8, who has investigated into the case and,
therefore, the concept of fair investigation, has been totally
marred as a consequence of which, the trial is vitiated.
Learned senior counsel would contend that a person who is
a part of the trap party is an interested witness and he
would be enthusiastic to see that the trap is sustained in
every manner and in such a situation, it is per se an unfair
and biased investigation that frustrates the essential
principle inhered under Article 21 of the Constitution and
eventually the trial.
14
15
(2009) 3 SCC 779
(2010) 4 SCC 450
14
18.
Mr. Madhukar, learned senior counsel appearing for
the State of Punjab, per contra, would contend that the
view expressed by the learned trial Judge and the High
Court cannot be found fault with, for a conviction under
the Act can be based on the evidence of trap witnesses, if
they are trustworthy and the ingredients of the offence are
satisfied and in the case at hand, the High Court on x-ray
of the evidence has so recorded. It is urged by him that
neither the learned trial Judge nor the High Court has
fallen into error by applying the principle of presumption as
engrafted under Section 20 of the Act. It is canvassed by
Mr. Madhukar that the evidence of the hostile witness can
be placed reliance upon by the prosecution and in the
obtaining factual matrix, the testimony of PW-7, one of the
shadow
witnesses,
renders
immense
assistance
for
establishing the case of the prosecution. He has with great
pains, taken us through the evidence to substantiate the
stand that the conviction recorded against the appellant is
totally defensible.
15
19.
Keeping in abeyance what we intend to say on the
facet of anguish expressed by us in the beginning, we shall
proceed to deal with the proponement of Mr. Jain that
when the investigation conducted by Mr. Narinder Pal
Kaushal, PW-8, is vitiated on the foundation that he has
lodged the FIR, the trial is also vitiated. Though the said
submission has been raised and taken note of by us as the
last plank, yet we think it seemly to deal with it first as it
goes to the root of the matter. On a perusal of the material
on record, it is manifest that PW-8 is a part of the raiding
party, a shadow witness, and admittedly had also sent the
complaint through a Constable to the concerned police
station for lodging of FIR. This being the factual score, we
are required to take note of certain authorities in this
regard. In Basawan Singh (supra), the Constitution
Bench, after referring to the decision in Shiv Bahadur
Singh V. State of Vindhya Pradesh16, opined that the
said decision does not lay down an invariable rule that the
evidence of the witness of the raiding party must be
16
AIR 1954 SC 322
16
discarded in the absence of any independent corroboration.
The larger Bench proceeded to state thus:
“......The correct rule is this: if any of the
witnesses are accomplices who are particeps
criminis in respect of the actual crime charged,
their evidence must be treated as the evidence of
accomplices is treated; if they are not
accomplices but are partisan or interested
witnesses, who are concerned in the success of
the trap, their evidence must be tested in the
same way as other interested evidence is tested
by the application of diverse consideration which
must vary from case to case, and in a proper
case, the Court may even look for independent
corroboration before convicting the accused
person. If a Magistrate puts himself in the
position of a partisan or interested witness, he
cannot claim any higher status and must be
treated as any other interested witness.”
20.
In Major E.G. Barsey (supra), while dealing with the
evidence of a trap witness, the court opined that though a
trap witness is not an approver, he is certainly an
interested witness in the sense that he is interested to see
that the trap laid by him succeeds. The Court further laid
down that he can at least be equated with a partisan
witness and it would not be admissible to rely upon his
evidence without corroboration, but his evidence is not a
tainted one.
17
21.
In Bhanupratap Hariprasad Dave (supra), the
Court observed that the police witnesses can be said to be
partisan witnesses as they are interested in the success of
the trap laid by them, but it cannot be said that they are
accomplices. Thereafter, the Court proceeded to state that
their evidence must be tested in the same way as any other
interested witness is tested and in an appropriate case, the
Court may look for independent corroboration before
convicting the accused person.
The three-Judge Bench
reiterated the principle thus:
“....It is now well settled by a series of decisions
of this Court that while in the case of evidence of
an accomplice, no conviction can be based on his
evidence unless it is corroborated in material
particulars but as regards the evidence of a
partisan witness it is open to a court to convict
an accused person solely on the basis of that
evidence, if it is satisfied that that evidence is
reliable. But it may in appropriate case look for
corroboration”.
22.
In
MO
Shamshuddin
(supra),
the
Court,
after
referring to the decisions in DPP V. Hester17 and DPP V.
Kilbourne18, made a distinction between accomplice and
an interested witness. The Court, referred to the authority
17
18
(1972) 3 All ER 1056
(1973) 1 All ER 440
18
in Basawan Singh (supra) at length and eventually
adverted to the concept of corroborating evidence. In that
context it has been ruled thus:
“.......Now coming to the nature of corroborating
evidence that is required, it is well-settled that
the corroborating evidence can be even by way of
circumstantial evidence. No general rule can be
laid down with respect to quantum of evidence
corroborating the testimony of a trap witness
which again would depend upon its own facts
and circumstances like the nature of the crime,
the character of trap witness etc. and other
general requirements necessary to sustain the
conviction in that case. The court should weigh
the evidence and then see whether corroboration
is necessary. Therefore as a rule of law it cannot
be laid down that the evidence of every
complainant in a bribery case should be
corroborated in all material particulars and
otherwise it cannot be acted upon. Whether
corroboration is necessary and if so to what
extent and what should be its nature depends
upon the facts and circumstances of each case.
In a case of bribe, the person who pays the bribe
and those who act as intermediaries are the only
persons who can ordinarily be expected to give
evidence about the bribe and it is not possible to
get absolutely independent evidence about the
payment of bribe.”
From the aforesaid authorities it is clear that a trap
witness is an interested witness and his testimony, to be
accepted and relied upon requires corroboration and the
corroboration
would
depend
upon
the
facts
and
19
circumstances, nature of the crime and the character of the
trap witness.
23. There is no doubt that the status of PW8 is that of an
interested witness. There is no cavil over the fact that he
had sent the FIR and conducted the investigation, but the
question posed is whether the investigation by him is
vitiated. In this context we may, with profit, refer to the
decision in
Bhagwan Singh V. State of Rajasthan19,
where one Ram Singh, who was a Head Constable, was the
person to whom the offer of bribe was alleged to have been
made by the appellant therein and he was the informant
who had lodged the First Information Report for taking
action against the appellant. He himself had undertaken
the investigation. In that factual backdrop the Court ruled
thus:
“Now, ordinarily this Court does not interfere
with concurrent findings of fact reached by the
trial court and the High Court on an appreciation
of the evidence. But this is one of those rare and
exceptional cases where we find that several
important circumstances have not been taken
into account by the trial court and the High
Court and that has resulted in serious
miscarriage of justice calling for interference from
19
(1976) 1 SCC 15
20
this Court. We may first refer to a rather
disturbing feature of this case. It is indeed such
an unusual feature that it is quite surprising
that it should have escaped the notice of the trial
court and the High Court. Head Constable Ram
Singh was the person to whom the offer of bribe
was alleged to have been made by the appellant
and he was the informant or complainant who
lodged the first information report for taking
action against the appellant. It is difficult to
understand how in these circumstances Head
Constable
Ram
Singh
could
undertake
investigation of the case. How could the
complainant himself be the investigator? In fact,
Head Constable Ram Singh, being an officer
below the rank of Deputy Superintendent of
Police, was not authorised to investigate the case
but we do not attach any importance to that fact,
as that may not affect the validity of the
conviction. The infirmity which we are pointing
out is not an infirmity arising from investigation
by an officer not authorised to do so, but an
infirmity arising from investigation by a Head
Constable who was himself the person to whom
the bribe was alleged to have been offered and
who lodged the first information report as
informant or complainant. This is an infirmity
which is bound to reflect on the credibility of the
prosecution case”.
24.
In Megha Singh V. State of Haryana20, the Court
noticed the discrepancy in the depositions of PW-2 and
PW-3 and absence of independent corroboration.
Be it
noted, the Court was dealing with an offence under Section
6(1) of the Terrorist and Disruptive Activities (Prevention)
20
(1996) 11 SCC 709
21
Act, 1985.
In that context the Court observed that the
testimony of the said witnesses did not inspire confidence
about the reliability of the prosecution’s case. Proceeding
further, the Court held:
“.... We have also noted another disturbing
feature in this case. PW 3, Siri Chand, Head
Constable arrested the accused and on search
being conducted by him a pistol and the
cartridges were recovered from the accused. It
was on his complaint a formal first information
report was lodged and the case was initiated. He
being complainant should not have proceeded
with the investigation of the case. But it appears
to us that he was not only the complainant in the
case but he carried on with the investigation and
examined witnesses under Section 161 CrPC.
Such practice, to say the least, should not be
resorted to so that there may not be any occasion
to suspect fair and impartial investigation”.
25.
In
this
regard,
it
is
useful
to
refer
to
the
pronouncement in State vs. V. Jayapaul21 wherein the
Court posed the question whether the High Court was
justified in quashing the criminal proceedings on the
ground that the police officer, who had lodged/recorded the
FIR
regarding
the
suspected
commission
of
certain
cognizable offence by the respondent should not have
investigated the case.
21
(2004) 5 SCC 223
The case against the accused was
22
that he was indulging in corrupt practices by extracting
money from the drivers and owners of the motor-vehicles
while conducting check of the vehicles and making use of
certain
bogus
notice
forms
in
the
process.
The
charge-sheet was filed under Sections 420 and 201 I.P.C.
and Section 13(2) read with Section 13(1)(d) of the Act. The
Court referred to the decision in the State of U.P. V.
Bhagwant Kishore Joshi22, wherein it has been ruled
thus:
“Section 154 of the Code prescribes the mode of
recording the information received orally or in
writing by an officer in charge of a police station
in respect of the commission of a cognisable
offence. Section 156 thereof authorises such an
officer to investigate any cognisable offence
prescribed
therein.
Though
ordinarily
investigation is undertaken on information
received by a police officer, the receipt of
information is not a condition precedent for
investigation. Section 157 prescribes the
procedure in the matter of such an investigation
which can be initiated either on information or
otherwise. It is clear from the said provisions
that an officer in charge of a police station can
start investigation either on information or
otherwise.”
26.
After reproducing the said paragraph, the Court
proceeded to state thus:
22
AIR 1964 SC 221
23
“Though there is no such statutory bar, the
premise on which the High Court quashed the
proceedings was that the investigation by the
same officer who “lodged” the FIR would
prejudice the accused inasmuch as the
investigating officer cannot be expected to act
fairly and objectively. We find no principle or
binding authority to hold that the moment the
competent police officer, on the basis of
information received, makes out an FIR
incorporating his name as the informant, he
forfeits his right to investigate. If at all, such
investigation could only be assailed on the
ground of bias or real likelihood of bias on the
part of the investigating officer. The question of
bias would depend on the facts and
circumstances of each case and it is not proper
to lay down a broad and unqualified proposition,
in the manner in which it has been done by the
High Court, that whenever a police officer
proceeds to investigate after registering the FIR
on his own, the investigation would necessarily
be unfair or biased. In the present case, the
police
officer
received
certain
discreet
information, which, according to his assessment,
warranted a probe and therefore made up his
mind to investigate. The formality of preparing
the FIR in which he records the factum of having
received the information about the suspected
commission of the offence and then taking up the
investigation after registering the crime, does not,
by any semblance of reasoning, vitiate the
investigation on the ground of bias or the like
factor. If the reason which weighed with the High
Court could be a ground to quash the
prosecution,
the
powers
of
investigation
conferred on the police officers would be unduly
hampered for no good reason. What is expected
to be done by the police officers in the normal
24
course of discharge of their official duties will
then be vulnerable to attack.”
Be it noted, the Court distinguished the decisions in
Bhagwant Kishore Joshi (supra) and Megha Singh
(supra).
27.
At this juncture, it would be fruitful to refer to
S.Jeevanatham V. State (through Inspector of Police,
T.N.)23.
In the said case, the appellant was found guilty
under Section 8(c) read with Section 20(b)(ii) of the Narcotic
Drugs and Psychotropic Substances Act, 1985. One of the
contentions that was canvassed was that PW-8, who lodged
the FIR had himself conducted the investigation and hence,
the entire investigation was vitiated. The Court referred to
the decision in Jayapaul (supra) and opined thus:
“In the instant case, PW 8 conducted the search
and recovered the contraband article and
registered the case and the article seized from the
appellants was narcotic drug and the counsel for
the appellants could not point out any
circumstances by which the investigation caused
prejudice or was biased against the appellants.
PW 8 in his official capacity gave the information,
registered the case and as part of his official duty
later investigated the case and filed a
charge-sheet. He was not in any way personally
23
(2004) 5 SCC 230
25
interested in the case. We are unable to find any
sort of bias in the process of investigation.”
28.
In the instant case, PW-8, who was a member of the
raiding party had sent the report to the police station and
thereafter carried the formal investigation. In fact, nothing
has been put to him to elicit that he was anyway personally
interested to get the appellant convicted. In our considered
view, the decision in S. Jeevanatham (supra) would be
squarely applicable to the present case and, accordingly,
without any reservation we repel the submission so
assiduously urged by Mr. Jain, learned senior counsel for
the appellant.
29.
The next aspect which requires to be adverted to is
whether testimony of a hostile evidence that has come on
record should be relied upon or not.
Mr. Jain, learned
senior counsel for the appellant would contend that as
PW-7 has totally resiled in his cross-examination, his
evidence is to be discarded in toto.
On a perusal of the
testimony of the said witness, it is evincible that in
examination-in-chief, he has supported the prosecution
story in entirety and in the cross-examination he has taken
26
the path of prevarication. In Bhagwan Singh V. State of
Haryana24, it has been laid down that even if a witness is
characterised
has a hostile witness, his evidence is not
completely effaced. The said evidence remains admissible
in the trial and there is no legal bar to base a conviction
upon his testimony, if corroborated by other reliable
evidence. In Khuji @ Surendra Tiwari V. State of
Madhya Pradesh25, the Court after referring to the
authorities in Bhagwan Singh (supra), Rabindra Kumar
Dey V. State of Orissa26 and Syad Akbar V. State of
Karnataka27, opined that the evidence of such a witness
cannot be effaced or washed off the record altogether, but
the same can be accepted to the extent it is found to be
dependable on a careful scrutiny thereof.
30.
In this context, we think it apt to reproduce some
passages from Rammi @ Rameshwar V. State of Madhya
Pradesh28, where the Court was dealing with the purpose
24
25
26
27
28
(1976) 1 SCC 389
(1991) 3 SCC 627
(1976) 4 SCC 233
(1980) 1 SCC 30
(1999) 8 SCC 649
27
of re-examination.
After referring to Section 138 of the
Evidence Act, the Court held thus:
“There is an erroneous impression that
re-examination should be confined to clarification
of ambiguities which have been brought down in
cross-examination. No doubt, ambiguities can be
resolved through re-examination. But that is not
the only function of the re-examiner. If the party
who called the witness feels that explanation is
required for any matter referred to in
cross-examination he has the liberty to put any
question
in
re-examination
to
get
the
explanation. The Public Prosecutor should
formulate his questions for that purpose.
Explanation may be required either when the
ambiguity remains regarding any answer elicited
during cross-examination or even otherwise. If
the Public Prosecutor feels that certain answers
require more elucidation from the witness he has
the freedom and the right to put such questions
as he deems necessary for that purpose, subject
of course to the control of the court in
accordance with the other provisions. But the
court cannot direct him to confine his questions
to
ambiguities
alone
which
arose
in
cross-examination.
Even if the Public Prosecutor feels that new
matters should be elicited from the witness he
can do so, in which case the only requirement is
that he must secure permission of the court. If
the court thinks that such new matters are
necessary for proving any material fact, courts
must be liberal in granting permission to put
necessary questions”.
28
31.
We have reproduced the aforesaid paragraphs to
highlight that when the prosecution has such a right in the
process of re-examination, as a natural corollary, the
testimony of a hostile witness cannot be brushed aside. On
the contrary, both the prosecution and the defence can rely
for their stand and stance. Emphasis on re-examination by
the prosecution is not limited to any answer given in the
cross-examination, but the Public Prosecutor has the
freedom and right to put such questions as it deems
necessary to elucidate certain answers from the witness. It
is not confined to clarification of ambiguities, which have
been brought down in the cross-examination.
32.
Mr. Jain, learned senior counsel has propounded that
testimony of PW7 deserves to be discredited, and the
learned trial Judge as well as the High Court having not
ignored have committed a grave error. We will be dealing
with the aspect whether the evidence of PW-7 should be
totally ignored or not while we will be dwelling upon the
credibility and acceptability of his testimony.
29
33.
As a contention has been raised that once the
informant has resiled totally from his earlier statement no
conviction can be recorded on the basis of evidence of the
trap witnesses, it required to be carefully dwelled upon. In
this regard, reference to the authority in Hazari Lal v.
State (Delhi Administration)29 would be apt. In the said
case a police Constable was convicted under Section 5(2) of
the Prevention of Corruption Act, 1947 on the allegation
that he had demanded and received Rs.60/- from the
informant who was examined as PW-3 and had resiled from
his previous statement and was declared hostile by the
prosecution.
Official
witnesses
had
supported
the
prosecution version. Keeping in mind the evidence of the
official witnesses the trial Court had
convicted the
appellant therein which was affirmed by the High Court. A
contention was raised that in the absence of any direct
evidence to show that the police constable demanded or
accepted bribery no presumption under Section 4 of the
Act, 1947 could be drawn merely on the strength of
recovery of the marked currency notes from the said police
29
(1980) 2 SCC 390
30
constable.
Chinnappa
Reddy,
J.
speaking
for
two-Judge Bench observed as follows:-
“...It is not necessary that the passing of
money should be proved by direct evidence.
It may also be proved by circumstantial
evidence. The events which followed in quick
succession in the present case lead to the
only inference that the money was obtained
by the accused from PW 3. Under Section
114 of the Evidence Act the court may
presume the existence of any fact which it
thinks likely to have happened, regard being
had to the common course of natural events,
human conduct and public and private
business, in their relation to facts of the
particular case. One of the illustrations to
Section 114 of the Evidence Act is that the
court may presume that a person who is in
possession of the stolen goods soon after the
theft, is either the thief or has received the
goods knowing them to be stolen, unless he
can account for his possession. So too, in the
facts and circumstances of the present case
the court may presume that the accused who
took out the currency notes from his pocket
and flung them across the wall had obtained
them from PW 3, who a few minutes earlier
was shown to have been in possession of the
notes. Once we arrive at the finding that the
accused had obtained the money from PW 3,
the presumption under Section 4(1) of the
Prevention of Corruption Act is immediately
attracted.”
the
31
34. It is pertinent to note here that in the aforesaid case
the decision
rendered
in
Sita
Ram
v.
State
of
Rajasthan30 was pressed into service. In the case of Sita
Ram (supra) the complainant had turned hostile in the
court of Special Judge. However, the trial Judge convicted
the accused who was tried along with another accused,
namely, Vikram Singh. The High court on appreciation of
the evidence acquitted Vikram Singh but maintained the
conviction against Sita Ram.
This Court opined that the
presumption under Section 4(1) of the 1947 Act could not
be drawn in the facts of the case.
The question, whether
the rest of the evidence was sufficient to establish that the
accused had obtained the money from the complaint was
not considered.
The Court in Hazari Lal (supra)
distinguished the pronouncement in Sita Ram (supra) by
stating thus:-
“...The question whether the rest of the
evidence was sufficient to establish that the
accused had obtained the money from the
complainant was not considered. All that was
taken as established was the recovery of
30
(1975) 2 SCC 227
32
certain money from the person of the accused
and it was held that mere recovery of money
was not enough to entitle the drawing of the
presumption under Section 4(1) of the
Prevention of Corruption Act. The Court did
not consider the further question whether
recovery of the money along with other
circumstances could establish that the
accused had obtained gratification from any
person. In the present case we have found
that the circumstances established by the
prosecution entitled the court to hold that the
accused received the gratification from PW 3.
In Suraj Mal v. State (Delhi Admn.)31, also it
was said mere recovery of money divorced
from the circumstances under which it was
paid was not sufficient when the substantive
evidence in the case was not reliable to prove
payment of bribe or to show that the accused
voluntarily accepted the money. There can be
no quarrel with that proposition but where
the recovery of the money coupled with other
circumstances leads to the conclusion that
the accused received gratification from some
person the court would certainly be entitled to
draw the presumption under Section 4(1) of
the Prevention of Corruption Act. In our view
both the decisions are of no avail to the
appellant and as already observed by us
conclusions of fact must be drawn on the
facts of each case and not on the facts of
other cases.”
35.
In this context it would be germane to understand
what has been stated in M. Narsinga Rao v. State of
A.P32. In the said case, allegations against the accused-
31
32
(1979) 4 SCC 725
(2001) 1 SCC 691
33
appellant were that one Satya Prasad, PW1 therein was to
get some amount from Andhra Pradesh Dairy Development
Cooperative Federation for transporting milk to or from the
milk chilling centre at Luxettipet (Adilabad District).
He
had approached the appellant for taking steps to enable
him to get money disbursed.
The appellant demanded
Rs.5000/- for sending the recommendation in favour of
payment of the amount due to PW1.
As the appellant
persisted with his demand PW1 yielded to the same. But
before handing over the money to him he lodged a
complaint with DSP of Anti-Corruption Bureau.
On the
basis of the said complaint all arrangements were made for
a trap to catch the corrupt public servant red-handed.
Thereafter the Court adverted how the trap had taken
place. The court took note of the fact that PW1 and PW2
made a volteface in the trial court and denied having paid
any bribery to the appellant and also denied that the
appellant demanded the bribe amount. The stand of the
accused before the trial court under Section 313 of CrPC
was that one Dr. Krishna Rao bore grudge and had
34
orchestrated a false trap against him by employing PW1
and PW2. Be it stated, in his deposition PW1 had stated
that he had acted on the behest of one Dr. Krishna Rao. It
was further the stand of the accused-appellant that the
tainted currency notes were forcibly stuffed into his pocket.
The trial court and the High Court had disbelieved the
defence evidence and found that PW1 and PW2 were won
over by the appellant and that is why they turned hostile
against their own version recorded by the investigating
officer and subsequently by a Magistrate under Section 164
of CrPC.
The Special Judge ordered the witnesses to be
prosecuted for perjury and the said course suggested by
the trial Judge found approval of the High Court also.
While dealing with the controversy this court took note of
the fact that the High Court had observed that though
there was no direct evidence to show that the accused had
demanded and accepted the money, yet the rest of the
evidence and the circumstances were sufficient to establish
that the accused had accepted the amount and that gave
rise to a presumption under Section 20 of the Prevention of
35
Corruption Act that he accepted the same as illegal
gratification, particularly so, when the defence theory put
forth was not accepted. It was contended before this court
that presumption under Section 20 of the Act can be drawn
only when the prosecution succeeded in establishing with
direct evidence that the delinquent public servant had
accepted or obtained gratification.
It was further urged
that it was not enough that some currency notes were
handed over to the pubic servant to make it acceptance of
gratification and it was incumbent on the part of the
prosecution to further prove that what was paid amounted
to gratification.
In support of the said contention reliance
was placed on Sita Ram (supra) and Suraj Mal v. State
(Delhi Admn.)33.
The three-Judge Bench referred to
Section 20(1) of the Act, the pronouncements in Hawkins
v. Powells Tillery Steam Coal Co. Ltd34 and Suresh
Budharmal Kalani v. State of Maharashtra35 and
adverted to the facts and came to hold as follows:-
33
(1979) 4 SCC 725
(1911) 1 KB 988 : 1911 WN 53
35
(1998) 7 SCC 337
34
36
“From those proved facts the court can
legitimately draw a presumption that the
appellant received or accepted the said currency
notes on his own volition. Of course, the said
presumption is not an inviolable one, as the
appellant could rebut it either through
cross-examination of the witnesses cited against
him or by adducing reliable evidence. But if the
appellant fails to disprove the presumption the
same would stick and then it can be held by the
court that the prosecution has proved that the
appellant received the said amount .”
36.
It is apt to note here the three-Judge Bench referred
to the observations in Hazari Lal (supra)
and opined
thus:-
“The aforesaid observation is in consonance
with the line of approach which we have
adopted now. We may say with great respect
to the learned Judges of the two-Judge Bench
that the legal principle on this aspect has
been correctly propounded therein.”
37.
In this regard Mr. Jain has placed reliance on the
authority B. Jayaraj (supra). In the said case the
complainant did not support the prosecution version and
had stated in his deposition that the amount that was paid
by him to the accused was with a request that it may be
deposited in the bank as fee for renewal of his licence for
37
the fair price shop. The court referred to Section 7 of the
Act and observed as follows:-
“Insofar as the offence under Section 7 is
concerned, it is a settled position in law
that demand of illegal gratification is sine
qua non to constitute the said offence and
mere recovery of currency notes cannot
constitute the offence under Section 7
unless it is proved beyond all reasonable
doubt that the accused voluntarily
accepted the money knowing it to be a
bribe.
The above position has been
succinctly laid down in several judgment
of this Court.
By way of illustration
reference may be made to the decision in
C.M. Sharma v. State of A.P.36 and C.M.
Girish Babu v. C.B.I.37”
After so observing, the court proceeded to state thus:-
“In the present case, the complainant did
not support the prosecution case insofar
as demand by the accused is concerned.
The prosecution has not examined any
other witness, present at the time when
the money was allegedly handed over to
the accused by the complainant, to prove
that the same was pursuant to any
demand made by the accused. When the
complainant himself has disowned what
he had stated in the initial complaint
(exbt. P-11) before LW-9, and there is no
other evidence to prove that the accused
had made any demand, the evidence of
PW-1 and contents of Exbt. P-11 cannot
be relied upon to come to the conclusion
that the above material furnishes proof of
36
37
(2010) 15 SCC 1
(2009) 3 SCC 779
38
the demand allegedly made by the
accused. We are, therefore, inclined to
hold that the Ld. Trial court as well as the
High Court was not correct in holding the
demand alleged to be made by the
accused as proved.
The only other
material available is the recovery of the
tainted
currency
notes
from
the
possession of the accused. In fact, such
possession is admitted by the accused
himself. Mere possession and recovery of
the currency notes from the accused
without proof of demand will not bring
home the offence under Section 7. The
above also will be conclusive insofar as
the offence under Section 13(1)(d)(i)(ii) is
concerned as in the absence of any proof
of demand for illegal gratification, the use
of corrupt or illegal means or abuse of
position as a public servant to obtain any
valuable thing of pecuniary advantage
cannot be held to be established.”
38.
The
said
principle
has
been
followed
in
M.R.
Purushotham v. State of Karnataka38. On an attentive
and cautious reading of the aforesaid decisions it is
noticeable that the court disbelieved the story of the
prosecution as no other evidence was brought on record.
In N. Narsinga Rao case the accused was charged for the
offences punishable under Sections 7 read with Section
13(1)(d) & (2)
38
2014 (11) SCALE 467
of the Act.
The court, as we have stated
39
earlier, had referred to section 20(1) of the Act and opined
that from the proven facts the court can legitimately draw a
presumption that the delinquent officer had received and
accepted money.
As we notice, the authorities in B.
Jayaraj (supra) and M.R. Purushotam (supra) do not lay
down as a proposition of law that when the complainant
turns hostile and does not support the case of the
prosecution,
the
prosecution
cannot
prove
its
case
otherwise and the court cannot legitimately draw the
presumption under Section 20 of the Act.
Therefore the
proposition, though industriously, presented by Mr. Jain
that when Baj Singh, PW5, the complainant, had turned
hostile the whole case of the prosecution would collapse is
not acceptable and accordingly hereby rejected.
39.
Presently, we shall refer to the evidence of PW6, a
clerk in the office of Tehsildar, Rajpura. He has deposed
that on 25.1.1995, on the day of the raid, he joined the
police party headed by Narinder Pal Kaushal, DSP, on the
instruction of Tehsildar. He was introduced to Baj Singh,
the complainant and Jagdish Verma, a shadow witness.
40
Thereafter, the complainant and the shadow witness,
Jagdish Verma, were sent to the octroi post and he stopped
at some distance along with Narinder Pal Kaushal who was
waiting for signal and on receiving signal they went inside
the octroi post. As per his testimony Narinder Pal Kaushal
introduced himself as DSP and thereafter a glass of water
was procured and sodium was added to it. Both the hands
of the accused were dipped in the glass of water and the
water turned pink. On search of the accused Rs.500/- in
the denomination of Rs.100/- were recovered.
The
numbers tallied with the numbers mentioned in the memo,
Ex. PE. The notes were taken into possession vide Ex. PH.
As is manifest that the said witness has supported the
story of the prosecution in toto.
The submission of Mr.
Jain is that he is merely a witness to recovery and solely on
the basis of recovery no conviction can be recorded.
There
can be no quarrel over the proposition that on the basis of
mere recovery an accused cannot be found guilty.
It is the
settled principle of law that mere recovery of the tainted
money is not sufficient to record a conviction unless there
41
is evidence that bribe had been demanded or money was
paid voluntarily as bribe.
In the absence of any evidence
of demand and acceptance of the amount as illegal
gratification, recovery would not alone be a ground to
convict the accused.
This has been so held in T.
Subramanian v. The State of Tamil Nadu39, Madhukar
Bhaskarrao Joshi v. State of Maharashtra40, Raj
Rajendra Singh Seth v. State of Jharkhand and Anr. 41,
State of Maharashtra v. Dnyaneshwar Laxman Rao
Wankhede42, C.M. Girish Babu v. C.B.I., Cochin 43, K. S.
Panduranga v. State of Karnataka44 and Satvir Singh
v. State of Delhi45.
The fact remains that PW6 has
supported the recovery in entirety. He has stood firm and
remained unshaken in the cross-examination and nothing
has been elicited to dislodge his testimony. His evidence
has to be appreciated regard being had to what has been
deposed by Jagdish Verma, PW7. In examination-in-chief
he has deposed that he had met the
39
AIR 2006 SC 836
(2000) 8 SCC 571
41
AIR 2008 SC 3217
42
(2009) 15 SCC 200
43
AIR 2009 SC 2011
44
(2012) 3 SCC 721
45
(2014) 13 SCC 143
40
DSP, Narinder Pal
42
Kaushal who had introduced him to Sher Singh, PW6. He
has further stated that he and PW5, Baj Singh, went inside
the octroi post where Vinod Kumar demanded bribe from
Baj Singh whereupon Baj Singh gave Rs.500/- to him, and
at that juncture, he gave the signal to the vigilance party to
come inside where after and they came and apprehended
the accused.
Apart from stating about the demand and
acceptance he had also stated that the hands of the
accused were dipped in that water and the colour of the
water had turned light pink.
It was transferred into a
quarter bottle and was sealed and was taken into
possession vide recovery memo Ex.PG which was attested
by him and Baj Singh.
The amount of Rs.500/- was
recovered from right side pant pocket of the accused. After
making the arrangement for the pant of the accused, the
right side pocket of the pant of the accused was dipped in
the mixture of water and sodium and its colour turned light
pink. It was also transferred into a quarter bottle which
was duly sealed and was taken into possession vide
recovery memo Ex.PJ.
The pant was also taken into
43
possession vide recovery memo Ex.PJ. The notes recovered
from the accused were compared with the numbers
mentioned in the memo and those tallied. The notes were
taken into possession vide recovery memo Ex.PF. A sum of
Rs.310/- was recovered from the further search of the
accused which was taken into possession vide recovery
memo Ex.PK.
Thus, from the aforesaid testimony it is
absolutely clear that he has supported in entirety about the
demand, acceptance and recovery of money.
necessary,
though
painful,
to
note
that
It is
PW7
was
examined-in-chief on 30.9.1999 and was cross-examined
on 25.5.2001, almost after 1 year and 8 months. The delay
in said cross-examination, as we have stated earlier had
given enough time for prevarication due to many a reason.
A fair trial is to be fair both to the defence and the
prosecution as well as to the victim. An offence registered
under the Prevention of Corruption Act is to be tried with
all seriousness. We fail to appreciate how the learned trial
Judge could exhibit such laxity in granting so much time
for cross-examination in a case of this nature.
It would
44
have been absolutely appropriate on the part of the learned
trial Judge to finish the cross-examination on the day the
said witness was examined.
As is evident, for no reason
whatsoever it was deferred and the cross-examination took
place after 20 months. The witness had all the time in the
world to be gained over. We have already opined that he
was declared hostile and re-examined. It is settled in law
that the testimony of a hostile witness can be relied upon
by
the
prosecution
as
well
as
the
defence.
In
re-examination by the public prosecutor this witness has
accepted about the correctness of his statement in the
court on 13.9.1999. He has also accepted that he had not
made any complaint to the Presiding Officer of the Court in
writing or verbally that the Inspector was threatening him
to make a false statement in the Court. It has also been
accepted by him that he had given the statement in the
Court on account of fear of false implication by the
Inspector.
He has agreed to have signed his statement
dated 13.9.99 after going through and admitting it to be
correct. It has come in the re-examination that he had not
45
stated in his statement dated 13.9.99 in the Court that
recovery of tainted money was not effected in his presence
from the accused or that he had been told by the Inspector
that amount has been recovered from the accused. He had
also not stated in his said statement that the accused and
witnesses were taken to the Tehsil and it was there that he
had signed all the memos.
40.
Reading the evidence in entirety, his evidence cannot
be brushed aside.
resulted
in
The delay in cross-examination has
his
examination-in-chief.
pre-varication
But,
a
from
significant
one,
the
his
examination-in-chief and the re-examination impels us to
accept the testimony that he had gone into the octroi post
and had witnessed about the demand and acceptance of
money by the accused.
In his cross-examination he has
stated that he had not gone with Baj Singh to the vigilance
department at any time and no recovery was made in his
presence. The said part of the testimony, in our considered
view, does not commend acceptance in the backdrop of
entire
evidence
in
examination-in-chief
and
the
46
re-examination.
The evidence of PW6 and PW7 have got
corroboration from PW8. He in all material particulars has
stated about the recovery and proven the necessary
documents
pertaining
to
phenolphthalein powder.
the
test
carried
with
The fact remains that the
appellant’s pocket contained phenolphthalein smeared
currency notes when he was searched.
It is apt to take
note of the fact that the currency notes that have been
recovered from the right side of the pant pocket were
actually
prepared
by
PW8
phenolphthalein powder.
by
smearing
them
with
The appellant was caught
red-handed with those currency notes.
In is statement
recorded under Section 313 of CrPC he has taken the plea
that he is innocent and has been falsely implicated due to
animosity. No explanation has been given as regards the
recovery.
Therefore, from the above facts, legitimately a
presumption can be drawn that the accused-appellant had
received or accepted the said currency notes on his own
volition. The factum of presumption and the testimony of
PW6 and 7 go a long way to show that the prosecution has
47
been able to prove demand, acceptance and recovery of the
amount. Hence, we are inclined to hold that the learned
trial Judge and the High Court have appositely concluded
that the charges leveled against the accused have duly
been proven by the prosecution. It is not a case that there
is
no
other
complainant.
evidence barring
On contrary
the
the
evidence
there
are
of
the
adequate
circumstances which establish the ingredients of the
offences in respect of which he was charged.
41.
Before parting with the case we are constrained to
reiterate what we have said in the beginning.
We have
expressed our agony and anguish the manner in which
trials in respect of serious offences relating to corruption
are being conducted by the trial courts. Adjournments are
sought on the drop of a hat by the counsel, even though
the witness is present in court, contrary to all principles of
holding a trial. That apart, after the examination-in-chief
of
a
witness
is
over,
adjournment
is
sought
for
cross-examination and the disquieting feature is that the
trial courts grant time. The law requires special reasons to
48
be recorded for grant of time but the same is not taken note
of.
As has been noticed earlier, in the instant case the
cross-examination has taken place after a year and 8
months allowing ample time to pressurize the witness and
to gain over him by adopting all kinds of tactics. There is
no cavil over the proposition that there has to be a fair and
proper trial but the duty of the court while conducting the
trial to be guided by the mandate of the law, the conceptual
fairness and above all bearing in mind its sacrosanct duty
to arrive at the truth on the basis of the material brought
on record. If an accused for his benefit takes the trial on
the path of total mockery, it cannot be countenanced. The
Court has a sacred duty to see that the trial is conducted
as per law. If adjournments are granted in this manner it
would tantamount to violation of rule of law and eventually
turn such trials to a farce. It is legally impermissible and
jurisprudentially abominable. The trial courts are expected
in law to follow the command of the procedure relating to
trial and not yield to the request of the counsel to grant
adjournment for non-acceptable reasons. In fact, it is not
49
all appreciable to call a witness for cross-examination after
such a long span of time.
It is imperative if the
examination-in-chief is over, the cross-examination should
be completed on the same day.
If the examination of a
witness continues till late hours the trial can be adjourned
to the next day for cross-examination. It is inconceivable in
law that the cross-examination should be deferred for such
a long time.
It is anathema to the concept of proper and
fair trial. The duty of the court is to see that not only the
interest of the accused as per law is protected but also the
societal and collective interest is safe-guarded.
It is
distressing to note that despite series of judgments of this
Court, the habit of granting adjournment, really an
ailment, continues. How long shall we say, “Awake! Arise!”.
There is a constant discomfort.
Therefore, we think it
appropriate that the copies of the judgment be sent to the
learned Chief Justices of all the High Courts for circulating
the same among the learned trial Judges with a command
to follow the principles relating to trial in a requisite
manner and not to defer the cross-examination of a witness
50
at their pleasure or at the leisure of the defence counsel, for
it eventually makes the trial an apology for trial and
compels the whole society to suffer chicanery.
Let it be
remembered that law cannot allowed to be lonely; a
destitute.
42.
In the ultimate analysis, we perceive no merit in the
appeal and consequently the same stands dismissed. As
the appellant is on bail, his bail bonds are cancelled. He be
taken into custody forthwith to suffer the sentence.
........................................J.
[DIPAK MISRA]
........................................J.
[ROHINTON
FALI
NARIMAN]
NEW DELHI
JANUARY 21, 2015.
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