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TMI Blog2005 (7) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt may be enumerated in the following manner: On 25th of June, 1985, Harendra Kumar Singh, the complainant (PW6) filed an application (Exhibit 8) alleging that the appellant who was, at the material point of time, posted as an Assistant Electrical Engineer, Electric Supply Sub-division No.3, Patna in the State of Bihar, demanded bribe of Rs. 500/- for giving electric supply line for 5 H.P. motor for his agricultural work, and he had, under pressure, given Rs. 100/- on 11.06.1985 to the appellant. The Assistant Sub- Inspector of Police, Mundrika Choudhary (PW5) was directed on 25th of June, 1985 to verify the information, and according to the verifier, the informant again paid Rs. 100/- as bribe to the appellant. Thereafter the accused demanded the balance amount on 28.06.1985 in the morning and thus, the appellant by demanding bribe for giving electric supply to the complainant, had committed an offence under section 161 of the IPC and also under section 5(2) of the Act. The further prosecution case was that on 28th of June, 1985 in the morning the informant (PW6) met the raiding party near the inspection bunglow at Sitamarhi where the informant produced Rs. 150/- meant for givi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment for one year each under each Act while the sentences were directed to run concurrently. Feeling aggrieved by this judgment of the Special Judge (Vigilance), North Bihar, Patna, the appellant preferred an appeal to the High Court of Patna which was also dismissed against which the present appeal has been preferred in this Court by the accused appellant. It is now, therefore, an admitted fact that concurrent findings of fact for conviction of the appellant under section 161 of the IPC read with section 5(2) of the Act were arrived at by the High Court as well as by the Special Judge (Vigilance), North Bihar, Patna. Since this appeal relates to interference by this Court under Article 136 of the Constitution against the concurrent findings of fact, it would be appropriate for us to consider the scope of Article 136 of the Constitution in such a situation before going to the merits of the appeal. It is now well settled that power under Article 136 of the Constitution of this Court is exerciseable even in cases of concurrent findings of fact and such powers are very wide but in criminal appeals this Court does not interfere with the concurrent findings of the fact save in except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... save in exceptional circumstances. In Arunachalam Vs. P.S.R. Sadhanantham, 1979(2) SCC 297 this Court while agreeing with the views expressed on the aforesaid mentioned decisions of this Court has thus stated : "The power is plenary in the sense that there are no words in Article 136 itself qualifying that power. But, the very nature of the power has led the court to set limits to itself within which to exercise such power. It is now the well established practice of this Court to permit the invocation of the power under Article 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a decision shocks the conscience of the court. But within the restrictions imposed by itself, this Court has the undoubted power to interfere even with findings of fact, making no distinction between judgments of acquittal and conviction, if the High Court, in arriving at those findings, has acted "perversely or otherwise improperly"." In Nain Singh Vs. State of UP, 1991(2) SCC 432 in which all the aforesaid decisions as referred to herein above were considered and after considering the aforesaid decisions on the question of exercise of power under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law as enunciated and settled by the aforesaid series of decisions of this Court, we shall now examine the evidence adduced by the parties and the materials on record and see in view of the nature of offence alleged to have been committed by the appellant whether the concurrent findings of fact call for interference in the facts and circumstances of the case. Questioning the propriety of the judgment under appeal Mr. Sanyal, the learned senior counsel appearing for the appellant had raised two-fold submissions before us. The first submission was that the absence of a legal sanction under section 6 of the Act would vitiate the entire proceeding notwithstanding the fact that the absence of sanction had not resulted or occasioned in failure of justice. The second submission was that the findings of fact arrived at by the Special Judge which were confirmed by the High Court were liable to be set aside on the ground that such findings of fact were not based on due and proper consideration of the materials on record and proper appraisal of evidence, and that there was failure on the part of the High Court as well as of the Special Judge in coming to a proper conclusion of fact on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt), Patna, Bihar on the basis of which a watcher of the department Shri Mundrika Choudhary was deputed to verify the allegation. A report was submitted by the watcher ( Ext. 6) dated 26th June 1985 to the Superintendent of Police (Vigilance ) who by his order dated 26th June 1985 directed the Deputy S.P. (Vigilance ) to institute a case, take up investigation and organize a raiding party. The report of the watcher also disclosed, inter-alia, that the amount of Rs. 100/- was accepted by the accused as bribe and he had also asked the appellant in presence of watcher to manage Rs. 400/- more. According to the prosecution case the complainant had undertaken to pass the aforesaid sum of Rs. 200/- on 28th June 1985 at about 8.00 a.m. A raiding party was organized consisting of 12 persons including Shri Baidahi Sharan Mishra, a Magistrate and a Deputy Superintendent of Police and Shri Verma was heading the raiding party. On 27th June 1985 they proceeded towards Sitamarhi and reached there at night. At Sitamarhi the aforesaid raiding party met the complainant Harendra Kumar Singh in the morning of 28th June 1985 who informed them that they should be ready with Rs. 150/- to be given to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant. So far as the second instalment of Rs. 100/- as bribe on 25th June 1985 is concerned, the courts below relied on the evidence of the watcher Mundrika Choudhary and held that the said amount was received by the appellant in favour of the watcher Mundrika Choudhary. The courts below also relied on the report of the watcher which was Ext.C and also on the evidence of PWs5 and 6 and therefore concluded that the appellant had accepted bribe to the extent of Rs. 100/- on 25th June 1985. In our view, this alleged payment of Rs. 100/- as bribe on 25th June 1985 could not be satisfactorily proved by the prosecution in view of the fact that it is an admitted position that appellant had filed an application for grant of casual leave for going to Darbanga to see his married ailing sister. It also appears from the statement made by the appellant under section 313 of the Cr.P.C. that the appellant also stated categorically that he was not present in the office on 25th June 1985. In order to prove that he had taken casual leave the appellant not only produced the application for casual leave from the record it also examined Shri Satya Narayan Lal who deposed on his behalf in this case. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact arrived at by the courts below that he was present in the office on 25th June 1985 and accepted bribe for a sum of Rs. 100/- from the complainant cannot be accepted. Accordingly, the courts below had acted improperly to come to a conclusion of fact on the aforesaid factual aspect of the matter which shocks the conscience of this Court and which lead us to hold that the evidence adduced by the prosecution in this respect fell short of the test of reliability and acceptability and therefore it was highly unsafe to act upon it. Let us now turn to another aspect of the matter. Let us examine whether the evidence from the prosecution side conclusively proved payment of Rs. 150/- by the complainant to the appellant on 28th of June, 1985 in presence of two witnesses and the watcher. On this also, we are of the view that the High Court and the Special Judge were in error by holding that the prosecution had been able to prove its case to the hilt. It is true that in the statement made under section 313 of the Cr.P.C. the appellant admitted the presence of the watcher and the complainant on 28th June, 1985 but his defence was that as soon as he put on the flying shirt hanging on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aghbir Singh Vs. State of Punjab (1976) 1 SCC 145 while discarding the oral and documentary evidence laid on behalf of the prosecution is not such as to inspire confidence in the mind of the court, the Supreme Court observed at paragraph 11 as follows: "We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked current notes, which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is something of a dubious character for the purpose of deciding the fate of the public servant." (Emphasis is ours) We must not forget that in a trap case the duty of the officer to prove the allegations made against a Government officer for taking bribe is serious, and therefore, the officers functioning in the Vigilance Department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the Court is not left in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the appellant, such connection was given to the complainant on 22nd June 1985. If this restoration of electric connection dated 22nd June 1985 to the complainant can be accepted to be correct then there could have been no occasion for demand and acceptance of bribe either on 25th June 1985 and 28th June 1985 for the supply of electric connection. As noted hereinearlier, according to the prosecution case and also from the materials on record the electric connection to the complainant was alleged to have been given on 8th July 1985. As noted hereinearlier, the appellant however took a stand that the electric connection was made on 22nd June 1985. The necessary entry regarding electric connection was proved by the appellant by relying on Ext.F. Ext.G was also relied on by the appellant which was an intimation by Shri Bachhu Tiwary bearing endorsement of the appellant to the effect that connection was given on 22nd June 1985. However, the complainant refused to give any certificate and thereby the appellant advised Shri Tiwary to get certificate from Local Mukhia which is Ext.C in the present case. Ext.K is an application of Ram Deo Rai to the Executive Engineer stating that elec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case against the complainant, the trap case was initiated by the vigilance department at the instance of the complainant. It is not in dispute that a complaint at the instance of the appellant was made against the complainant and another for alleged theft of electricity and the complainant was found guilty which was however set aside in appeal. In the background of this fact and other circumstances as noted hereinearlier can it not be said that the defence case was more probable than that of the prosecution case and that in the facts and circumstances and evidence on record the defence case must be accepted The aforesaid dramatic case was initiated by the vigilance department at the instance of the complainant. On consideration of the entire materials on record and in view of our discussion made hereinabove, we are therefore of the view that courts below including the High Court had acted in a manner which was not warranted and the defence of the accused- appellant was probable and therefore no conviction could be made against the accused-appellant. We are also of the view that it is more probable that in order to put the appellant into trouble in his service the trap case was in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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