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CRIMINALAPPELLATEJURISDICTION

SHRIDHARCHAVAN

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CRIMINALAPPEALNO.1069OF2013

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INTHEHIGHCOURTOFJUDICATUREATBOMBAY

..APPELLANT

Versus
THESTATEOFMAHARASHTRA

..RESPONDENT

ig
h

Mr.GirishKulkarni,AdvocatewithMr.M.G.Shukla,Advocatefor
theappellant.

Mr.DeepakThakre,APPfortheRespondentState.

CORAM:ABHAYM.THIPSAY,J.

JUDGMENTRESERVED:11 thAUGUST2015

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JUDGMENTPRONOUNCED:13thOCTOBER2015

JUDGMENT:

om

TheappellantwhowasworkingasaChobdaronthe

establishment of this Court, has appealed to this Court,

challengingthejudgmentandorderdeliveredbytheSpecialJudge
forGreaterMumbaiappointedunderSection3thePreventionof
CorruptionAct,1988(hereinafterreferredtoas'theP.C.Act'forthe
sakeofconvenience).Bythesaidjudgmentandorder,thelearned
Special Judge convicted the appellant of offences punishable
underSection7andsection13(2)readwithSection13(1)(d)of

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theP.C.Act,andsentencedhimtosufferRigorousImprisonment

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for1(one)year,andtopayafineofRs.2,000/oneachofthesaid

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twocounts.

ThecasearoseonacomplaintlodgedbyoneShriAnil

Bugde(PW1),anAdvocate.Theappellant,atthematerialtime,

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wasattachedtoanHon'bleJudgepresidingoverC.R.No.27.The
case,inbrief,maybestatedthus:

BugdehadfiledanapplicationinthisCourtonbehalf
ofoneSmt.Vaishali,hisclient.On8/10/2010,Bugdewenttothe

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CourtRoomNo.27,approachedthestaffandinquiredwiththem
as to whether he could get urgent circulation of the Criminal
Applicationfiledbyhim.Theaccused,atthattime,informedhim

om

thattheHon'bleJudgeusuallydidnotgranturgentcirculations,
butifurgentcirculationwasrequired,Bugdewouldhavetopay

an amount of Rs.1,000/. Bugde handed over an amount of

Rs.500/totheappellantimmediately.He,however,wasactually
not intending to give any bribe to the accused, and therefore,
lodgedacomplaintwiththeAntiCorruptionBureau(ACB)onthe
sameday. ThecomplaintwasrecordedbyShahajiShinde(PW
3), Assistant Commissioner of Police, the Investigating Officer.

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Shinde thereafter carried out the verification of the demand

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allegedlymadebytheappellant. Thisverificationwassoughtto

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be done by sending an independent witness panch Rahul

Shringare (PW 2) with the complainant, and by making
arrangementforrecordingtheconversationthatwouldtakeplace
betweenthecomplainantandtheappellant. Inthepresenceof

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panch Rahul Shringare, the appellant repeated his demand i.e.

demanded remaining amount of Rs.500/ on the same day i.e.
8/10/2010. After confirmation of the demand, the verification

panchnama was prepared, and a First Information Report was

registered on the basis of the complaint lodged by Bugde

ba
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(hereinafter referred to as 'the complainant'). A trap was

arrangedbyfollowingusualprocedure.Thepolicepartyandthe
panchasdecidedtotraptheappellanton11/10/2010whichwas

om

the nextworkingday. The complainantalongwith the panch

ShringareproceedednearCourtRoomNo.27.There,theymetthe

appellant in the corridor. That, at that time, the appellant

demandedandacceptedbribeofRs.500/fromthecomplainant.
Immediately,theappellantwasapprehendedonthecomplainant
giving a predetermined signal. The tainted money to which
Anthracin powder had been applied, was recovered from the
possession of the appellant. Traces of Anthracin powder were

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noticedonthehandsoftheappellantandalsoonthepantpocket

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oftheuniformwhichhewaswearing.Theposttrappanchnama

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wasdrawn.

Furtherinvestigationwascarriedout.Oncompletion

oftheinvestigation,achargesheetcametobefiledagainstthe

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appellant.

The prosecution examined four witnesses

duringthetrial. Thefirstoneisthe complainanthimself. The

second is the panch Rahul Shringare. The third is Shahaji

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Shinde the Investigating Officer. The fourth one is Vasant

Kondvilkar, a Sheristedar working on the establishment of this
Court,whowas,atthematerialtime,attachedtotheCourtRoom

om

No.27. Theappellant didnotexaminehimselfindefence. He,

however, filed a written statement. He also examined one

Smt.Smita Bhatkalkar, the Sheristedar who was attached to the

Court Room No.6 at the material time, as a witness for the
defence.

IhaveheardMr.GirishKulkarni,learnedcounselfor

theappellant. IhaveheardMr.DeepakThakre,learnedAPPfor

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theState.Withtheirassistance,Ihavecarefullygonethroughthe

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evidenceadducedduringthetrial.Ihavecarefullyexaminedthe

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entirerecordofthetrialCourt,andhavestudiedtheimpugned
judgment,carefully.

Mr.GirishKulkarni,learnedcounselfortheappellant

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contendedthattheconvictionoftheappellant,asrecordedbythe
learned Special Judge, is not in accordance with law. He
submittedthattherewereanumberofdoubtfulaspectsasregards

theprosecutioncase.Hesubmittedthatthecomplainant,though
anAdvocate,couldnotbetermedasareliablewitnessatall,and

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that his evidence is full of inconsistencies and contradictions.

Accordingto him, the learned Special Judge ought notto have
keptanyrelianceontheevidenceofthecomplainant.Mr.Kulkarni

om

also contended that there were some basic infirmities in the

prosecution case,andthat the evidence adduced makesitclear

that the complainant had no genuine grievance, and actually,

somehow,wantedtotrapsomememberofthestaffofthisCourt.
He, therefore, submitted that the appellant deserves to be
acquitted.

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Mr.Deepak Thakre, learned APP did concede that

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thereweresomebasicinfirmitiesinthecaseoftheprosecution.

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He, however, submitted that, that the appellant had actually

acceptedanamountofRs.500/from the complainanton11 th

October2010inthepresenceofthepanchRahulShringare(PW
2).wassatisfactorilyproved. Hesubmittedthatonthebasisof

accordancewithlaw.

Before going into the contentions raised by the

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the proof of this fact, the Court may decide the matter in

learnedcounselfortheappellant,itwouldbepropertoconsider

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theevidenceofthecomplainantinallthenecessarydetails.

Thecomplainant,inhisevidence,statedthathehad

om

beenpractisingasanAdvocatesincetheyear1995,mostlyonthe
Criminalside.That,hewaspractisinginallCourts,includingthe

High Court at Bombay. That, he had a client by name Smt.

Vaishali,whohadlodgedareportagainstherhusbandandinlaws
with the Agripada Police Station. After completion of
investigation,chargesheetinthatcasewasfiledintheCourtof
MetropolitanMagistrateatMazgaon. However,Smt.Vaishali,at
thattime,wasresidingatPune,wasnotwell,andwastherefore,

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unabletoremainpresentintheCourtatMazgaon,Mumbaifor

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givingevidence. That,onherinstructions,the complainanthad

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filedinthisCourt,aCriminalApplicationbearingNo.4301/2010
for transfer of the case from the Court of the Metropolitan
Magistrate, Mazgaon, Mumbai to the Court of a Magistrate at
Ghudegaon,PuneDistrict.That,thesaidApplicationwasfiledin

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the month of October 2010. That, as per the procedure, after

filingofthematter,itwasrequiredtobecirculatedforobtaining
necessaryordersfromtheCourt,andthattherefore,on8 thOctober

2010 at about 11.00 a.m, The complainant attended the High

Courtand went tothe CourtRoom No.27. He madeenquiries

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y

with the staff of Court Room No.27 about obtaining urgent

circulation.Heenquiredastowhetherhewouldhavetomention
the matter before the Hon'ble Judge for urgent circulation, or

om

whetheritwouldbepostedinduecourseasper rotation. The

appellantwasinCourtRoomNo.27atthattime,beingattachedto

thatCourtasa'Chobdar'.Thecomplainantmadeenquirieswith
himalso,regardingthecirculation,whentheappellantinformed
himthattheHon'bleJudgewouldnotgranturgentcirculation,but
thaturgentcirculationcouldbemanaged.Whenthecomplainant
asked him 'how would he be able to do this', he asked the
complainanttocomeoutoftheCourthall.Thecomplainantthen

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wenttothe corridorinfrontofthe Courtroomalongwiththe

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appellant. That,atthattime,theappellanttoldhimthatifthe

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complainant needed urgent circulation, he would have to pay

Rs.1,000/totheappellant. The complainantwasshockedand
confused because of the demand made by the appellant and
enquired with him whether that was the regular procedure for

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obtainingcirculation,whereupontheappellanttoldhimthatthose
who required urgent circulation were paying Rs.1,000/,
otherwise,thematterwouldbepostedintheroutinecourse.The

complainant decided to initiate action against 'such illegal

practice',andtolodgeareportagainsttheappellant.Hewasnot

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awareofthenameoftheappellantatthattime. He,however,
negotiatedthematterwiththeappellantwhentheappellanttold
him tohandover Rs.500/tohimimmediately,andtopaythe

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remainingamountofRs.500/afterwards.Thecomplainantthen
immediatelygaveonecurrencynoteofRs.500/denominationto

theappellantinthecorridorinfrontofCourtRoomNo.27,itself.
Healsohandedoverapraecipe(circulationslip)(Exhibit10)to
theappellant,alongwiththesaidcurrencynote.

10

The complainantthenwenttotheofficeoftheAnti

Corruption Bureau (ACB) at Worli, and met Mr.Kaushik,

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Additional Commissioner of Police. Kaushik directed the

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complainanttotheDirectorGeneraloftheACB.Thematterwas

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discussedwithhim. ShahajiShinde, AssistantCommissionerof

Police (PW 3) was deputed for handling the complaint. The
complainant gave his complaint in writing (Exhibit11). ACP
Shinde then explained the procedure to the complainant by

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sayingthatthecognizanceofthecomplaint couldnotbetaken
withoutverifyingitscorrectness.TwopanchasRahulShringare
(PW 2) and Jambhulkar were called. The contents of the

complaint were explained to them. Shinde explained to the

complainantthattoverifythecorrectnessofhiscomplaint,Shinde

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himselfandboththepanchaswouldgototheHighCourtbuilding
alongwiththe complainant. Shindealsoplannedtorecordthe
conversationthatwouldtakeplacebetweenthecomplainantand

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the appellant; and, for that purpose, produced a blank CD,

recordedtheintroductoryvoiceofthe complainantandofboth

thepanchasbyusingaDigitalRecorder.RahulShringarewasto
accompanythecomplainant,anditwasdecidedtointroducehim
asthebrotheroftheapplicantSmt.Vaishali.Thecomplainant,the
panchasandACPShahajiShinde(PW3)wenttotheHighCourt
buildingatabout5.05p.m. Thecomplainanthadattachedthe
digitalrecorderprovidedtohim,insidehisshirt.Thecomplainant

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andthepanchShringarewenttoCourtRoomNo.27.Theywere

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standing in the corridor in front of Court Room No.27. The

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appellant arrived there from a wooden staircase. The

complainantmethim,introducedShringaretohimasthebrother
of applicant Smt.Vaishali. The complainant reminded the
appellant of hishavingbeen paid Rs.500/ in the morning and

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soughtadvicefromhimaboutthefurthercourseofaction. The
appellanttoldthecomplainantthatitwasnecessarytoverifyfrom
the Board Department, whereafter the complainant Rahul

Shringareandtheappellant,allwenttotheBoardDepartment.
The appellant enquired with the staff about the Criminal

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ApplicationNo.4301/10whenthestaffinformedthatthematter
had been fixed and placed before Court Room No.6 on

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11/10/2010.

11

Thecomplainant,theappellantandthepanchthen

came back in the corridor in front of Court Room No.27. The

appellant asked whether the complainant had brought the
remainingamountofRs.500/.Thecomplainant,aftermakinga
showofenquirywithpanchRahulShringare,said'No',andthe
panchRahulShringare,asdecided,saidthatRs.500/wouldbe
givenonMondayi.e.11/10/2010.

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APPEAL-1069-13(J).doc

The complainantandRahulShringarethenwentto

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theACBofficeatWorli.TheconversationrecordedintheDigital

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Recorderwhichwasprovidedtothecomplainantwasheard,and
atranscriptandaCDthereofwaspreparedintheofficeofthe
ACB.Thestatementofthecomplainantwasrecorded,andaFirst
Information Report was registered (Exhibit12). It was then

calledon11/10/2010.

On11/10/2010,whenthe complainantwenttothe

13

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decidedtolayatrap. The complainantandthepanchaswere

officeoftheACBatabout10.00a.m,apartfromACPShindeand

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someotherOfficers,boththepanchaswerealsoalreadypresent
there. The complainantwasexplainedtheprocedureoflaying
trap.Theconversationthatwouldtakeplaceduringthetrapwas

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toberecordedbyusingdigitalvoicerecorder. 5(five)currency
notes of Rs.100/ denomination were handed over by the

complainanttoACPShindeasthetrapamount.Byadoptingusual
procedure,thedetailsofwhicharegivenbythecomplainantinhis
evidence,atrapwaslaid. Anthracin powderwasappliedtothe
saidcurrencynotes.ThepropertiesoftheAnthracinpowderwere
explainedtothecomplainantandthepanchas.Thecomplainant
was instructed not to touch the said currency notes, till the

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appellantwouldmakeademandfortheamount. Afterhanding

14

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signalbyrollinghislefthandoverhishead.

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overtheamounttotheappellants,thecomplainantwastogivea

The police party and the panchas then proceeded

towardstheHighCourtbuilding. The complainantandpanch

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Shringarewerewalkingtogetherandtheothermembersofthe
raidingpartywerefollowingthemfromsomedistance.Whenthe
complainantandthepanchreachedinfrontoftheCourtRoom

No.27, they met the appellant who was present there. The
appellant informed the complainant that the matter had been

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placedbeforetheHon'bleJudge.Theappellantthensaidthatthe
complainant'sworkhadbeendoneanddemandedtheremaining
amountofRs.500/. The complainanthandedoverthetainted

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amountwhichtheappellantacceptedbyhisrighthandandkept
inhisleftsidepantpocket. Aftertheamountwasaccepted,the

complainantgavepredeterminedsignaltotheraidingpartyafter
whichtheappellantwasapprehended. Hewastakentoaroom
situateintheHighCourtbuildingusedasasecurityoffice.After
some inquiries were made with the complainant and panch
Shringare by ACP Shinde, all proceeded towards Azad Maidan
PoliceStation,andthentotheofficeoftheACB.

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The evidence of panch Rahul Shringare does show

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APPEAL-1069-13(J).doc

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that he had accompanied the complainant on 8/10/2010, and

thattheappellanthadinformedthecomplainantthattheworkof
circulationhadbeendone,andthematterwaslistedonMonday
(11/10/2010).AccordingtoShringare,theappellantalsoshowed

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the(cause)listtothe complainant,andshowedthathismatter
wasthere. That,somediscussionsthentookplacebetweenthe
complainantand the appellant,and that these discussions were

about listing the matter of the complainant before some other

Judge,andnotbeforetheHon'bleJudgepresidingoverC.R.No.6,

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beforewhomitwaslisted.Theappellantinformedthatthematter
hadbeenlistedthroughtheprocessofcomputerandnotmanually.
The appellant then demanded an amount of Rs.500/ from the

om

complainant,onwhichthe complainantrepliedthattheamount

wouldbegivenonMonday.

16

About the incident on 11/10/2010, Shringare does

speakaboutgoingnearCourtRoomNo.27.Accordingtohim,the
complainantwas notpresent in the CourtRoom, butwhen the
complainantandShringarewere waiting,he arrivedtherefrom
thestaircase.Shringarestatesaboutdiscussionsaboutthechange

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oftheCourtagaintakingplacebetweenthecomplainantandthe

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appellant. According to Shringare, thereafter, the appellant

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demanded the money paid by a gesture. That, when the

complainant paid the money to the appellant, and when the

appellantacceptedit,theappellantwastrapped.

The evidence of Shahaji Shinde (PW 3) is in

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17

accordancewiththecaseoftheprosecution.Hedoesspeakabout
the complainantreportingthemattertohim,thatthecomplaint

beingverified,atrapbeinglaidandtheappellantbeingtrapped.
Inthecrossexamination,certainadmissionsweregotelicitedfrom

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him,theeffectofwhichshallbediscussedatanappropriateplace.

18

The fourth witness Vasant Kondvilkar, Sheristedar,

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whowasattachedtoCourtRoomNo.27,atthematerialtime,was
examinedbyreopeningthe case thatwasclosedforjudgment.

When the case had been kept for judgment, the prosecution
movedanapplicationforhisexaminationwhichwaspermittedby
thelearnedSpecialJudge. ThroughKondvilkar,theCirculation
RegistermaintainedinCourtRoomNo.27wasproduced,anda
pageinthatregister,containingaparticularentrysupposedly
madebytheappellantwastenderedinevidenceandexhibited.

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Incidentally, Kondvilkar was on leave on 7/10/2010 and

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19

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8/10/2010.

TheevidenceofSmt.Bhatkalkar,(DW1)Sheristedar

showsthaton7/10/2010,shewasattachedtotheHon'bleJudge
presidingoverCourtRoomNo.6. Accordingtoher,theHon'ble

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Judge had authorized her to grant circulations. When the

praecipe(Exhibit10)wasshowntothewitness,shesaidthatit
wasforwardedtoherintheCourtRoomNo.6on7/10/2010,and

onthesameday,itwasgranted.Thepraecipeshowsthatshehad
puthersignaturethereon,andhadalsoputthedatebelowitas

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'7/10/2010'. Through her, the daily board was also produced.

Accordingtoher,theCriminalApplicationNo.4301/10regarding
whichthepraecipewasforwarded,hadnothingtodowithCourt

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RoomNo.27,andthataspertheroster,theCriminalApplication
wasrequiredtobedealtwithbytheHon'bleJudgepresidingover

theCourtRoomNo.6.

20

Itcanatoncebenoticedthatthereareanumberof

curiousaspectsofthematterregardingwhichnoanswerscanbe
found from the evidence that was adduced before the learned
SpecialJudge.

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Thefirstandforemostisthatthetransferapplications

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were not being dealt with by the Hon'ble Judge presiding over
CourtRoomNo.27,atall.Thenotificationshowingtherosterwas
producedbeforethetrialCourtandwasbyconsent,markedas
'Exhibit32'.Therostershowsthatthetransferapplicationswere

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tobe dealtwith by the Hon'ble Judge presiding over C.R.No.6.

ThetransferapplicationswouldnotbelistedbeforetheHon'ble
JudgepresidingoverC.R.No.27.Thisisnotindisputeatall.Any

evidenceinthatregardisstillfeltrequired,thesameisavailable
inthetestimonyofSmt.SmitaBhatkalkar,whoasaforesaid,has

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categoricallystatedthatthemattermentionedforcirculation,had
nothing to do with the C.R.No.27, and that, the assignment of
Criminal Applications for transfer, was with the Hon'ble Judge

om

presidingoverC.R.No.6.

22

The question that, therefore, arises is why did the

complainant go to the C.R.No.27 at all for seeking circulation.

This conduct of the complainant is mysterious, and no direct
answertothisisfoundfromtheevidence.Thecomplainantisan
Advocatepracticingsincequitesometime,andaccordingtohim,
hehadbeenpracticingintheHighCourtalso.Hewas,therefore,

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certainly expected to be aware of the fact that the Transfer

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Application which had been preferred by him on behalf of his

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client,wouldbedealtwithbytheHon'bleJudgepresidingover
C.R.No.6, and could not have been dealt with by the Hon'ble
JudgepresidingoverC.R.No.27.

I have carefully examined the evidence of the

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23

complainant to see whether there exists any explanation of his

conduct of approaching the staff of the C.R.No.27 for seeking

circulation of a matter which pertained to the C.R.No.6. I am

unabletofindany. The complainantsimply,andasamatterof

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fact,saysthat on8/10/2010atabout11.00amheattendedthe
HighCourtandwaspresentinC.R.No.27. Heevendoesnotsay
that he, by mistake believed the matter to be pertaining to

om

C.R.No.27,andthat,inthatbelief,hehadgonetoC.R.No.27.

24

The second curiousaspectof the matter is that the

circulationhadalreadybeengrantedon7/10/2010itselfunder
the signature of the Sheristedar Smt.Smita Bhatkalkar (DW 1).
Thereisabsolutelynochallengetotheevidenceofthiswitness.
Moreover,thepraecipe(Exhibit10)itselfshowsanendorsement
asfollows:

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Circulationfor11/10/10.

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Signed
(Smt.SmitaBhatkalkar)
_________________
7/10/2010

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Coram:V.M.Kanade,J

The complainant has made an attempt to dispute that the

praecipewasgivenbyhimon7/10/2010,butinthelightofthe

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evidenceofSmitaBhatkalkarandtheendorsementmadebyherin
the normal course of her duties on 7/10/2010, it has to be

accepted that circulation of the matter was already ordered on

7/10/2010 for 11/10/2010. What, then, was the occasion to

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approachtheappellanton8/10/2010?

25

Another interesting aspect of the matter is that the

Criminal Application No.4301/10 for obtaining the urgent

om

circulation of which the whole matter arose, was actually

dismissed for nonappearance. The circulation of the said

application,asaforesaid,wasgrantedanditwaslistedonboard
on 11/10/2015. The complainantdidnotattendtheCourton
thatdate,andevensubsequently.Asadmittedbythecomplainant
in his crossexamination, the said Criminal Application was
dismissedforwantofprosecutioninthemonthofMarch2011.

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(a)

Thus,thefollowingfactors:
The complainant approached the

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staff of the C.R.No.27 for

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26

APPEAL-1069-13(J).doc

obtaining circulation of a matter

whichpertainedtotheC.R.No.6.
(b)

The praecipe seeking circulation

of the matter shows that

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circulation had been granted on

7/10/2010 itself, listing the
matter on 11/10/2010 before the

Hon'ble Judge presiding over

C.R.No.6.

Instead of remaining present

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y

(c)

before the Court on 11/10/2010,

andattendingthematterwhichwas
got circulated, the complainant

om

at that time, remained busy in

trappingtheappellant;andhedid
not even thereafter, pursue the
application, which ultimately got
dismissedfornonprosecution;

make it absolutely necessary to subject the evidence of the

complainanttoameticulousscrutinynotonlywithrespecttothe
factualdetails,butwithrespecttohismotivebehindmakingofthe
complaint.

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ThecomplainantbeinganAdvocatewasawareofthe

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fact that the circulation of a matter can be granted only by a

Judge,andthattoo,withrespecttothemattersthatpertainto
himaspertheroster.Thiscirculationcouldalsobegrantedbythe
Sheristedar attached to the concerned Court on being expressly

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authorizedtodobytheconcernedHon'bleJudge.Inspiteofthis,
the complainantattemptedtogetthe circulationofthematter
fromaChobdar.Obviously,hisintentionwasnottosecureurgent

circulationofthematterintheinterestofhisclient,whichisalso
clearfromthefactthatthesaidapplicationwasnotatallpursued,

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andwasverymuchpermittedtobedismissedfornonprosecution.
Hisintentionwasclearlyto'exposecorruptionthatisgoingonin

theHighCourt'. Infact,the complainanthasmadenosecretof

om

whatheactuallyintendedtodo. Inhiscomplaint(Exhibit11),
thecomplainanthasmentionedthesubjectas'complaintagainst

public servants'. The opening paragraph of his complaint

addressed to the Addl. Commissioner of Police, ACB reads as
under:
Sir,
Since1999Iamresidingattheabovementioned
placeandcarryingonmyprofessionalworkfrom

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also provide legal services to other government

Mumbai.(Emphasissupplied)

C
ou

agenciessuchasofficeofCommissionerofPolice,

rt

thesaidplace. Iamalawyerbyprofession and

The complaintthengivesthedetailsoftheapplicationfiledby
himonbehalfofhisclientSmt.Vaishali,andthenstatesasunder:

ig
h

On8/10/2010atabout11.15p.m(itshouldbe
a.m)whenIvisitedtheCourtofxxxxx(name
of Judge omitted) presiding in Court Room
No.27forthepurposeofcirculatingtheabove

matterforurgentorderson15/10/2010,Iwas
told by the Peon of the Court along with

ba
y

Sheristedar that xxxxxxx (Judge) does not

allow short period circulation, therefore, I
asked the remedies for the same. During

om

discussionwithpeon,hetoldmethat hecan

28

place my matter on 15/10/2010 with

consultation with his superior and thereafter
askedanddemandedRs.1,000/asabribefor
placingmycaseon15/10/2010.

Itisclearthatthecomplainantdidknowthatactually

the orders regarding urgent placing of matters on board were

requiredtobeobtainedfromtheHon'bleJudge.Hewas,however,
notreadytomentionthematterbeforetheHon'bleJudge,andsee

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whethercirculationwouldbegrantedornot,obviouslybecauseas

rt

discussedearlier,hewasnot,inreality,interestedinobtainingany

C
ou

circulation. Evenassumingthatthecomplainantindeedwanted
urgentcirculationofthematter,heoughttohavementionedthe
matterbeforetheHon'bleJudgeandacceptedthedecisionofthe
Hon'ble Judge, rather than making an attempt to improperly

29

ig
h

obtaincirculation.

It is evident that basically what the complainant

wantedtodoistopointout/provethatsuchwrongthingstake
placeintheHighCourt. Thatcirculationwasurgentlyrequired

ba
y

wasonlyanexcuseputforthbyhimtogetthethingsgoing.Itis
significantinthiscontextthathiscomplaintdoesnotmentionas
being against any particular individual or individuals, but

om

generallyagainstpublicservants.Thecomplainanthasadmitted
inthecrossexamination,thatthecomplaintlodgedbyhimwas

notonlyagainsttheaccused,butwasalsoagainsttheotherstaff,
thoughhelaterclaimedthathiscomplaintwasonlyagainstthe
accused. Duringthe crossexamination,he volunteeredto state
that in order to curb the illegal activities, he handed over an
amountofRs.500/totheaccused. Intheexaminationinchief
itself,hehasstatedthathedecidedtoinitiateactionagainstsuch

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illegal practice, and evidently, his main issue was 'fighting the

30

C
ou

thegrievanceinanyparticularworkormatter.

rt

corruptionandexposingthecorruptpublicservants'ratherthan

Theobjectofthe complainanttoexposecorruption,

isindeedlaudable.However,whenapersonispossessedbysuch

ig
h

a desire, and when he, though has a general grievance about

corrupt practices which are being adopted in any particular
institution,selectstargetsaparticularpublicservanttoprovehim

to be guilty of demanding and/or accepting bribe/illegal

gratificationtomakehispoint,thentheevidenceofsuchperson

ba
y

needstobescrutinizedwithmorethanordinarycare.

31

Itwillnotbeoutofplaceatthisstagetorefertothe

om

philosophy behind the Prevention of Corruption Act, and the

appreciationofevidencerelatingtotrapcases,ascanbegathered

fromtheauthoritativepronouncementsoftheHighCourts,andof
theSupremeCourtofIndia.

32

ThecasesarisingunderthePreventionofCorruption

Act,canbebroadlydividedintotwocategories.(i)trapcasesand
(ii) Nontrap cases. Nontrap cases include cases of Criminal

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misappropriation,obtainingofpecuniaryadvantagesbythepublic

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servantsforhimselforforothers,andcasesinvolvingpossessionof

C
ou

disproportionateassets.Amajorityofthecasescomingupbefore
theCourtsare,however,trapcases. Layingoftrapsisastepin
investigation.Theproprietyoflayingoftrapsindetectingacrime
has always been a matter of controversy and discussion by the

ig
h

SuperiorCourtsandtheApexCourt.Astudyofthecaselawupon
the subject reveals that these methods have been repeatedly
deplored by the Courts, though the Courts have regretfully

acknowledgedthenecessityofsuchmethods,onthegroundthat
otherwiseitwouldbeimpossible,oratleastdifficult,tobringto

ba
y

bookcorruptpublicservants(see ShivBahadurSinghVs.State
of Vidhya Pradesh 1, State of Bihar Vs. Basawan Singh 2,
RamanlalMohanlalVs.StateofBombay3,Ramkrishnav.Delhi

om

State,4andRamjanamSinghv.BiharState5.

33

InSomPrakashVs.StateofDelhi 6,TheirLordships

referredtolayingoftrapsasa'morallymurkymechanism',and
observed:

1
2
3
4
5
6

AIR 1954 SC 322

AIR 1958 SC 500
AIR 1960 SC 961
AIR 1956 SC 476
AIR 1956 SC 643
AIR 1974 S.C 989

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.......... Courts have frowned upon

since the participants are prone to

C
ou

beoveranxiousandunderaccrupulous

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evidenceprocuredbysuchexperiments

and the victims are caught morally

unawares.

Yet,layingoftrapshasbeenheldtobejustifiedasinevitablefor

ig
h

detecting a crime, and to collect evidence against a dishonest

public servant. However, the Courts have also recognized that

traps could be laid in different circumstances, and by different

typesofcomplainants.Inthesamecase,itwasobserved:

ba
y

Whereyouinterceptthenaturalcourse
of the corrupt stream by setting an
invisiblecontraptionitsethicsabove

om

board. On the contrary, to test the

moral fire of an officer whose
reputation is suspect, if you .lay a
crimeminewhichexplodeswhenhe,in
a weak moment, walks on it the whole
schemeistainted.

34

ThepronouncementsoftheHighCourtsandSupreme

Courthaveclassifiedthetrapsinto'legitimate'and'illegitimate'.
Illegitimate traps are viewed with disapproval by the Courts.

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Illegitimatetrapsarethosewhicharisewhenapublicservantis

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deliberately tempted to accept a bribe/illegal gratification by

C
ou

offeringtohimsuchbribeorgratificationthoughheneverwent
outofhiswaytomakeanysuchdemand. Itmustbeunderstood
clearly that the provisions of the P.C. Act are not designed for
ascertaining whether a public servant is honest or not. Traps

ig
h

cannotbelaidfordecidingthegeneralhonestyandintegrityofa
publicservant.Trapscannotbeorganizedforobservingwhethera
publicservant,ifofferedmoneycanbeluredintodoingsomething

whichheotherwise,wouldnothavedone. In RamjanamSingh
Vs.TheStateofBihar7,itwasobservedasfollows:

ba
y

Whateverthecriminaltendenciesofa
man may be, he has a right to expect
that he will not be deliberately

om

temptedbeyondthepowersofhisfrail
endurance and provoked into breaking
the Law; and more particularly by
thosewhoareguardiansandkeepersof
thelaw.

Inthesaidcase,thereferenceas'guardiansandkeepersofthelaw'
wastothepolice,butthesaidobservationsareextremelyrelevant
inthepresentcasealsowherethecomplainantisanAdvocate
7

AIR1956SC643

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treated as an Officer of the Court and the appellant is an

rt

employeeapublicservantworkingontheestablishmentofthe

C
ou

High Court; and the question is whether the complainant had

tempted and provoked the appellant a Chobdar to do
somethingwrongforamonetarygain.

Judicial Pronouncements have also recognized that

ig
h

35

there are various types of complainants. The one whose

complaintisnotvalidorjustifiable,andisnotincompliancewith

theestablishedoracceptedrulesandstandards,isbelievedtobe,
often having ulterior intentions in levelling corruption charges

ba
y

against a public servant. Courts have taken great caution in

ascertainingthenatureandtypeofthecomplainant,indeciding
whether an accused is guilty in a given case. The one who

om

mischievouslysetsbaittooneormorepublicservantsandthen,
traps them after they have acted on the luring of such

complainant,isrecognizedasa'fishingcomplainant'.Suchtraps
are deprecated as practically amounting to the abetment of an
offence,andartificiallycreatingacrime. Insuchcases,itwould
bethedutyoftheCourttoproperlyscrutinizetheevidenceofthe
complainanttoascertainthevalidity/reliabilityofhisclaimsand
to unmask his ulterior intentions. The appreciation of the

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36

C
ou

bekeepinginmindthetypeofthecomplainant.

rt

evidenceofthecomplainantinatrapcase,isrequiredtobedone

Intheinstantcase,whenthe complainantcertainly

knew that the mater did not pertain to the assignment of the
Hon'ble Judge presiding over Court Room No.27, his act of

ig
h

attemptingtotakeacirculationofthematterbeforethatHon'ble
Judge, is itself suspicious. At the cost of repetition, it may be
observedthatitis not thecaseofthe complainantthathe,by

mistakebelievedthemattertobepertainingtotheassignmentof
theHon'bleJudgepresidingoverthatCourt.Hesimply,andasa

ba
y

matter of fact, speaks of going to the Court Room No.27 for

obtainingcirculationofthematter.Alookatthecomplaintmade
bythe complainantwiththeACB(Exhibit11)showsthateven

om

thatdoesnotlikehisevidencediscloseastowhatprompted
himtoabruptlygototheCourtRoomNo.27,andseekcirculation

ofthematter. Hedidnoteventrytoascertainthenameofthe
personwhohaddemandedanamountofRs.1000/forsecuring
urgentcirculation.Hedescribedtheappellantasa'peon',andnot
asa'Chobdar'whichmeansthathedidnoteventrytoascertain
thedesignation,didnotbotheraboutanyparticularpublicservant
and wasmore concerned with the fact that 'somebody from the

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employeesoftheHighCourthadmadeademand'. Hiscomplaint

rt

showsthatitwasgenerallylodgedagainsttheHighCourtstaffas

C
ou

evidentfromtheexpressionthemusedbyhimintheconcluding
partofthecomplaint.

37

That the complainant wanted to establish that bad

ig
h

practicesareprevailingintheHighCourt,andthatHighCourt
staffobtainsmoneyand/orthatcirculationsofmattersaregranted
irregularly,illegallyandafteracceptingbribe,isfurtherconfirmed

fromthestatementsmadebythecomplainantinhisevidence.In
thecrossexamination,thisiswhathehassaid:

ba
y

AftertalkingwiththeaccusedasI
realisedthatillegalprocedurefor
granting circulation was being
takeupthatissue andtherefore,I
hadnotmentionedthematterbefore
theCourt.

(Emphasissupplied)

om

adopted. I, therefore, decided to

During the course of the crossexamination, he

volunteeredtostatethattheamountofRs.500/wasgiventothe
appellantbyhimbeforelodgingofthecomplaintinordertocurb
theillegalactivities.

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Thereisanothermysteriousaspectofthematter.The

rt

38

APPEAL-1069-13(J).doc

C
ou

evidenceindicatesthatthecomplainantwantedthemattertobe
listed before the Court Room No.27 itself. The insistence for
gettingthematterplacedbeforethatCourtwhenaspertheroster,
thematterwasrequiredtobeplacedbeforeCourtRoomNo.6,is

ig
h

alsocurious. Theevidenceofthe complainantandalsothatof

Shringare,showsthatthe complainantenteredintoadiscussion
withtheappellantaboutlistingofthematterbeforeCourtRoom

No.27andexpressed,afterlearningthatithadbeenlistedbefore
CourtRoomNo.6,thathedidnotwantittobelistedthere. As

ba
y

observedearlier, theconductofthecomplainantdoesnotshow
thattherewasanygenuinedesiretoobtaintheurgentcirculation
ofthematter,andtherefore,thisinsistenceofthe complainant

om

was, obviously, only for further checking 'whether the illegal

practicescangototheextentofplacingthematterbeforewrong

bench'.Thus,thecomplainant,undoubtedly,wasmakingasurvey
oftheworkingofthisCourt,andwantedtoknowtowhatextent
illegalitiescantakeplacebypayingbribetotheHighCourtstaff.

39

Whenthecomplainanthadtakenuponhimselfsucha

task,andwantedtotestthemoralfiberofthepersonsworkingon

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the establishment of the High Court, it is only natural that the

rt

complainant would be over anxious and try to ensure that his

C
ou

effort to expose the corruption, is successful. It is in this

backgroundthattheevidenceofthecomplainant,andthatofthe
otherprosecutionwitnesses,isrequiredtobeexamined.

Itiswellknownthatintrapcases,thereshouldbe

ig
h

40

satisfactoryevidenceoftheinitialdemandofillegalgratification
bythepublicservantconcerned. Thedemandhasbeenheldtobe

theveryfoundationoftrapcases. Itiswellsettledthatevenwith
respecttotheoffencepunishableundersection13(2)oftheP.C.

ba
y

Actreadwithsection13(1)(d)thereof,thenecessityoftherebeing
evidenceofapreviousdemand,cannotbedoneawaywith.Itis
well settled that unless the evidence of the initial demand is

om

satisfactory, the whole evidence obtained by laying a trap is

requiredtobeviewedcautiously.Sincethelegalpositioniswell

settled,itisnotnecessarytoelaboratethisaspectofthematter
anyfurther.

41

Inthiscase,accordingtothecomplainant,hepaidan

amountofRs.500/totheappellanton8/10/2010inthemorning
itself. At that stage, of course, the complainant cannot be

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expected to have any corroborative evidence, and one has to

rt

decidethematteronthebasisoftheappreciationoftheevidence

C
ou

ofthe complainanthimself. Consideringthepeculiaraspectsof

thematter,asdiscussedearlier,itwouldbeunsafetorelysolelyon
thewordofthecomplainantinthatregard.Therefore,thisaspect
is to be judged in the light of the other evidence i.e. of the

theInvestigatingOfficer.

After reporting the matter to the ACB, the

42

ig
h

complainantregardingthefurtherhappenings,ofthepanchandof

complainantcamebacktotheHighCourtpremisesatabout5.05

ba
y

p.m along with panch Shringare. The fact of the complainant

alreadyhavingpaidanamountofRs.500/totheappellant,was
repeated in the presence of Shringare. In the presence of

om

Shringare,theappellantissupposedtohavemadeademandfor
theremainingamountofRs.500/. Theevidenceinthatregard,

needstobecarefullyexamined.

43

According to the complainant, when he and

Shringare reached the High Court, and were standing in the

corridor, appellant arrived there from the wooden staircase.
According to Shringare, however, the appellant was inside the

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CourthallandthecomplainantcalledhimoutsidetheCourthall.

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Panch Shringare has categorically stated that it is on the

C
ou

complainant'scallinghimoutsidetheCourthallthattheappellant
cameout. Thus,theversionofthe complainantandthatofthe
panch Shringare about where did they meet the complainant
when they had gone to the High Court for verification of the

44

ig
h

demandofillegalgratification,isnotuniform.

Whathappenedthereafter,isalsostateddifferentlyby

the complainant and by Shringare. According to the

complainant, he introduced Shringare to the appellant as the

ba
y

brother of the applicant Vaishali, then said about the appellant

havingbeenhandedoverRs.500/inthemorning,andaskedthe
appellant about what should be done thereafter. That, the

om

appellantthensaidthattheywouldhavetoverifyfromtheBoard
Department.That,thecomplainantShringareandtheappellant

thereafter went to the Board Department and made enquiries

regardingthesaidCriminalApplication. That,atthattime,the
staffintheBoardDepartmentinformedthemthatthematterhad
beenplacedbeforeC.R.No.6on11/10/2010.Shringare,however,
narratestheeventsdifferently.It,mayberecalled,thataccording
toShringare,theappellantwasinsidetheCourthall,andcame

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out,whenthecomplainantcalledhimoutside.Shringare'sversion

rt

is that as soon as the appellant came out, he informed the

C
ou

complainantthathisworkofcirculationhadbeendone,andthe
matter was listed on Monday. Shringare speaks about the
appellanttakingthemtoaroom(perhapsBoardDepartment)only
thereafter, and also speaks about one list (probably cause list)

ig
h

beingshowntothecomplainantinwhichthesaidapplicationwas
shown. This variation in the version is not inconsequential or
immaterial, inasmuch according to the complainant, even the

appellantdidnotknowastowhetherthematterhadbeenlisted
onboardtilltheyallwenttotheBoardDepartmentandverified

ba
y

thesame,whileaccordingtoShringare,theappellantwasalready
awareofcirculationhavingbeengranted.

om

45

Thereisnouniformversionevenwithrespecttothe

circumstancesandthemannerinwhichtheallegeddemandofthe

remaining amount of Rs.500/ was made by the appellant.

Accordingtothecomplainant,aftercomingbackfromtheBoard
Department,andwhiletheyallwerestandinginthecorridorin
front of C.R.No.27, the appellant asked him whether he had
brought the remaining amount of Rs.500/ and demanded the
same.Thecomplainant,thereuponenquiredwithShringarewho

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hadbeenintroducedasthebrotheroftheapplicantSmt.Vaishali

rt

astowhetherhewashavingRs.500/.That,Shringaresaidthat

C
ou

hewasnothavingthesame,andaskedthecomplainantwhether
the complainant was having that much amount. That the
complainantalsosaid'no',andthereafter,Shringaresaidthatit
wouldbegivenonMonday.That,thecomplainantthentoldthe

ig
h

appellantthattheamountwouldbegivenonMonday.Shringare,
however,doesnotspeakofanycommitmentmadebyhimtogive
theamountonMonday.Shringaresimplysaysthattheappellant

demandedtheremainingamountfromthecomplainanttowhich

ba
y

thecomplainantsaidthatitwouldbegivenonMonday.

46

Thesevariationsbythemselvesmightnothavebeen

very significant. However, there are two reasons which make

om

these variations a factor throwing doubt on the prosecution

version.Thefirstis,asaforesaid,thathecomplainantwasbent

uponexposingtheillegalpracticesgoingonintheHighCourtand
was,therefore,likelytobeoveranxiousandfillinthedetailsof
thehappeningsaswouldsupportthetheorypropoundedbyhim.
Secondly,appreciation ofevidenceintrapcaseshastobedone
somewhat differently from other cases where 'that the
offence is likely to take place', is not previously

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knowntothewitnessesorthevictim.Intrapcases,everythingis

rt

previously planned. Guidance is taken from the Investigating

C
ou

Agency who are well experienced in such matters. The

complainanthasalreadydecidedtoexposetheculpritandhedoes
knowwhatis required to be established. Apanchwhois told
aboutwhatisexpectedtohappen,issentwiththecomplainant

ig
h

specifically to observe the happenings, and note them carefully.

Thus,thewitnessesintrapcasesarespecificallyexpectedto,and
are told to watch the happening of the events including the

sequencethereofcarefully.Whenthewitnessesareobservingthe
happeningscarefully,soastobeabletogiveevidenceofwhatwas

ba
y

happening,thevariationsintheirtestimonywouldbemuchmore
significantthaninothercaseswherethewitnessesarenotacting
accordingtoapreplan.Thevariationswhichmightbejustifiably

om

ignoredasnotverymaterialorsignificantinothercases,maynot

soeasilybeignoredintrapcases.

47

However, even these discrepancies and variations is

not the crucial aspect of the matter. It may be recalled that

arrangementshadbeenmadeforrecordingtheconversationthat
wouldtakeplacebetweenthecomplainantandtheappellanton
8/10/2010asalsoon11/10/2010.Theprosecutioncaseisthat

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theconversationthattookplaceon8/10/2010hadbeenrecorded,

rt

andtheallegeddemandmadebytheappellantwasverifiedonthe

C
ou

basisofsuchrecording.Accordingtotheprosecution,theDigital
VoiceRecorderwasplayed,atranscriptoftheconversationthat
had taken place was made, and a record thereof was also got
madeinaC.D. Thetranscriptsoftheconversationfindplacein

ig
h

the record of the verification panchnama dated 8/10/2010

(Exhibit14) and the pretrap panchnama dated 11/10/2010
(Exhibit16). The complainantaswellasthe panchShringare

have given their versions of the conversations that took place

between them and the appellant on both these occasions.

ba
y

Surprisingly,therecordofeitheroftheseconversationswasnot
tenderedinevidenceatall.Inspiteoftherebeingarecordofthe
conversation which would corroborate the version of the

om

complainantandofthepanchregardingthe allegeddemandof
bribemadebytheappellant,theconversationwasnotplayedover

during the trial. No transcript of the conversation was got

prepared,andnoattempttotenderthesamebeforetheCourtwas
made.Thisismoresurprisingbecausetheconversationhadbeen
recorded, obviously, as and by way of evidence to support the
claimthatwasbeingmadebythecomplainantandthepanch.It
was put to the complainant, panch, and also the Investigating

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Officerintheirrespectivecrossexaminationsthatthereexistedno

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suchrecord. That,inspiteofsuchdirectchallengegivenbythe

C
ou

defencetotheveryexistenceofsuchrecordedconversations,the
relevant record was not produced, makes it all the more
surprising. When the recordofthe conversation wasavailable,
thatitshouldnotbeproducedbeforetheCourtduringevidence,

ig
h

leadstoaninferencethatthesaidrecord,ifproduced,wouldnot
havebeenfavourabletotheprosecution.

Inthelightofthefactthatthecomplainanthadlaida

48

fishingtrapwhichhasbeenfrownedupon,timeandagain,bythe

ba
y

SuperiorCourts;thatthetestimonyofthe complainantandthat
ofthepanchaboutthehappeningsintheeveningof8/10/2010;
donotmatchregardingsomeparticulars;andthattherecordof

om

the conversationthattookplace betweenthe complainant,the

appellantandthepanchthoughsaidtobesupportingthecase

of the prosecution, and though said to be available was not

producedbeforethetrialCourt,makeithazardoustoacceptthe
storyoftheappellanthavingacceptedanillegalgratificationof
Rs.500/ in the morning of 8/10/2010, and of his having
demandedanillegalgratificationofRs.500/intheeveningonthe
sameday.

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Sincethedemandofillegalgratificationhasnotbeen

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49

APPEAL-1069-13(J).doc

C
ou

satisfactorily proved, the whole prosecution case gets seriously

affected. However, I have still examined the evidence of the
acceptanceofthebribebytheappellant,andIfindthesamealso

50

ig
h

unsatisfactory.

Thecomplainanthasstatedaboutthehappeningson

11/10/20100 since the time he reached the Anti Corruption

Bureauatabout10.00a.m.Accordingtohim,thepanchaswere
alreadypresentthere. Afterspeakingaboutthehappeningsthat

ba
y

tookplacethere,theinstructionsgiventohimandthepanchas
etc,henarrateswhattookplaceafterheandShringarecameto
the High Court. The complainant and Shringare proceeded

om

towardsthefirstfloornearC.R.No.27whowerebeingfollowedby
theteamoftheACBOfficersfromsomedistance.Accordingtothe

complainant,whenheandShringarereachedinfrontofC.R.No.27,
theappellantwaspresent,anddiscussionstookplacebetweenhim
andtheappellant.Surprisingly,accordingtothecomplainant,the
appellantinformedhimthathismatterhadbeenplacedbeforethe
Hon'ble Judge a fact which had already been informed by the
appellanttothe complainanton8/10/2010itself,andwhichhad

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even been verified by the complainant. According to the

rt

complainant,Shringarewasagainintroducedasthebrotherofthe

C
ou

applicantVaishaliwhichisalsoratherunusual.Itis,atthattime,
the appellant made a demand of the remaining amount of
Rs.500/.

WhatShringaresaysishowever,different.Shringare

ig
h

51

does not categorically state whether when he went to the ACB

office,thecomplainantwasalreadypresentornot,butareading

of his evidence gives an impression that the complainant was

alreadypresent.ShringaresaysthatheandJambhulkararrivedin

ba
y

theACBofficepriorto10.00a.m,andthattheymetACPShinde
(PW 3) when the complainant was also present. Regarding the
happeningsafterreachingtheHighCourtbuilding,Shringaresays

om

that on going to C.R.No.27, the complainant peeped inside the

Court room, but the appellant was not there. According to

Shringare, the appellant then arrived there from the staircase.

Thattheappellantwascarryingoneregisterinhishandatthat
time,andthatwhilestandinginthecorridorinfrontofC.R.No.27,
the complainant, the appellant and the panch had discussion
aboutthecirculationofthematter.Shringaresaysthattherewere
also discussions about the change of the Court. Shringare then

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statesthattheappellantbygesture

(thatisbyrubbinghisthumb

rt

overhisindexfinger)demandedthebribeamount. Thus,apart

C
ou

from the minor variations, there is a major variation as to the

manner in which the demand was made. According to the
complainant,itwasaplainandcategoricaldemand.
Thisiswhatthecomplainantsaid.

ig
h

Atthattime,accusedtoldmethatmy
work has been done by him and he
demanded

amount

of

Rs.500/.

remaining

Thiscannotbeconstruedasademandbygestureasspokenabout

ba
y

byShringare.

52

Apart from this, the conflict in the version as to

whether the appellant was present when complainant and

om

ShringarearrivedatC.R.No.27,isalsoquitesignificant,because
theevidencedoesnotshowthatanyplaceortimewasfixedfor

paying the remaining amount of the illegal gratification. The

evidenceonlyshowsthatthematterhadalreadybeenlistedon
boardon11/10/2010,andthatthecomplainantwhowasmade
awareofiton8/10/2010itself,hadpromisedtopaythebalance
onMondayi.e.on11/10/2010.Whenandwherehewastomeet
theappellant,isnotclear,andthereisnoevidencethatitwasat

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all, decided. There is no reason to disbelieve the version of

rt

Shringaretotheeffectthattheappellantwasnotpresentwhen

C
ou

theyreachednearC.R.No.27particularlybecauseadmittedly,the
appellantwasalsocarryingaregisterwithhimwhenhecamein
contactwiththecomplainantandShringare.Ittherefore,appears
thatthecomplainanthastriedtosuppressthefactthatactuallyit

ig
h

washewhowaslookingfortheappellant.Thecomplainantcould
haveattendedthematterinC.R.No.6andcouldhaveleftwithout

53

comingacrosstheappellant.

Apartfromthesevariations,whichthemselvesmight

ba
y

not have been significant, there is a serious infirmity in the

evidence of the complainant as regards the acceptance of the
taintedamountbytheappellant.Thecaseoftheprosecution,as

om

canbegatheredfromtherecordofthepanchnama(Exhibit18)is
thattheappellantacceptedthetaintedamountbyhisrighthand,

and kept it in his right side pant pocket. The complainant's

version, in that regard is varying. Initially, he said that the
appellantacceptedtheamountbyhisrighthand,andplaceditin
his leftside pantpocket. Shringaresaidthattheappellantwho
washoldingaregisterinrighthand,shifteditinhisleftarmpit,
andacceptedtheamountbyhislefthand.AccordingtoShringare,

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theappellantthenshiftedthesaidamounttohisrighthand,and

rt

kept the same in his right side pant pocket. When he was

C
ou

confrontedwiththerelevantportioninthepanchnama,hesaid
that it was 'partly correct, and partly incorrect'. According to
Shindealso,theappellantacceptedthebribeamountbyhisleft
hand,thentransferredthesameinhisrighthandandthenkeptit

ig
h

intherightsidepantpocket.Whenhowever,itwaspointedoutto
him that the panchnama did not speak so, and spoke of the
acceptanceoftheamountbyrighthand,andkeepingthesamein

therightsidepantpocket,heclaimedthatitwas'aninadvertent
mistake'. He had to admit in the crossexamination that an

ba
y

identical'inadvertentmistake'hadtakenplacealsointhe
supplementarystatementofthecomplainantthatwasrecordedin

om

thecourseofinvestigation.

54

Theevidenceshowsthattracesof Anthracin powder

werenoticed onboththehandsoftheappellant,theregister,his
mobile telephone and the right side pocket of his pant when
checked under ultravioletrays. Thepossibilityofthewitnesses
having changedtheir version to explain the traces of Anthracin
powder onboththehandsoftheappellant,cannotberuledout,
particularlybecauseithasbeenthedefenceoftheappellantthat

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the complainant forcibly tried to thrust money in his pocket,

C
ou

55

rt

whichheresistedbybothhishands.

Thedoubtinthatregardismagnifiedbecauseofthe

seriousinfirmitiesintheevidenceofthe complainantregarding
theactualacceptanceofbribebytheappellant.Asaforesaid,the

ig
h

complainantinitiallysaidthattheappellantacceptedthetainted
amountbyhisrighthand,andthenkeptitinhisleftsidepant
pocket. The complainant then voluntarily stated before the

ba
y

reproducinghere:

Court,asisreflectedinthenotemadebytheCourtwhichisworth

witness narrated that he is lefty

therefore he slight confused about

om

the hand by which accused accepted

theamountandaboutthepantpocket
whetheritwasleftorright

Thataleftypersonwillnotbeabletounderstandthedifference
between right and left, and that he would not be able to
distinguishbetweenrighthandandlefthand,isdifficulttodigest.
The same is not supported by any scientific data or research.
Anyway, the complainant then said that he did not remember

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preciselywhethertheamountwasacceptedbytheappellantbyhis

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lefthandorrighthand,andwhetherithadbeenkeptbyhimin

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ou

therightpocketorleftpocket.Inhisfurtherexaminationinchief,
when he was asked about the recording of his supplementary
statement on 14/10/2010, he abruptly stated before the Court
abouthis'confusedstateofthemind',about bywhichhand the

ig
h

taintedamounthadbeenacceptedbytheappellant.Thelearned
Special Judge has made a note in that regard which is worth

reproducinghere:

Atthisstagewitnessnarratedthatas
he is performing his all acts by left

ba
y

hand which are normally performed by

right hand,he is still in confused
stated of mind about the pant pocket

om

where the amount was kept by accused.

He further submitted that in order to
refresh his memory he be permitted to
read his previous writing. Ld. Adv.
Juvekar, holding for Adv.Kulkarni,
strongly objected for permitting the
witnesstorefreshhismemory.
Consideringthatasitisexplainedby
the witness he is lefty such sort of
confusioncanbethere,thereforethere
isnoharminpermittingthewitnessto

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go through his previous writing to

righttocrossexaminedthewitnesson

C
ou

thispoint.Thesupplementarystatement

rt

refresh his memory. The defence has

of complainant is provided to the

complainantforreading.

Thisisindeedshocking.Inthefirstplace,theviewofthelearned

ig
h

SpecialJudgethatsincethewitnessislefty,thatsortofconfusion
couldbethere,isbaselesswithoutanyscientificdataorresearch.
Further,allowingawitnesstoreadhissupplementarystatement

recordedbythepoliceinthecourseofinvestigation,forrefreshing
hismemory,isinexpressviolationoftheprovisionsofsection162

ba
y

oftheCode.Apartfromthis,therewasnoquestionof'refreshing
memory',asmemorycanberefreshedonlyinthecircumstances
mentionedinsection159oftheEvidenceAct,andtherewasno

om

evidence that the conditions requisite for permitting the

complainanttorefertohissupplementarystatementrecordedby

thepolicehadbeenfulfilled. Thisisapartfromtheexpressbar
created by section 162 of the Code, which would override the
provisionsofsection159oftheEvidenceAct.ThelearnedSpecial
Judge,thereafter,recordedtheevidenceofthecomplainantasto
the happenings, whereupon the complainant stated that the
appellantwasholdingoneregisterinhislefthand,hekeptthe

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saidregisterinhisrightarmpit,thenacceptedthesaidamountby

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hislefthand,andtransferredthesameinhisrighthand,andthen

C
ou

byhisrighthand,keptthesaidamountinhisrightpantpocket.
However,surprisingly,thisversion,whichheadvancedsupposedly
after refreshing his memory on reading his supplementary

56

ig
h

statement,isnotinconsonancewithhissupplementarystatement.

Accordingtothecomplainant,assoonasthetainted

amount was delivered to the appellant, he gave the pre

determinedsignaltotheraidingparty. Hehasspecificallyused
the word 'immediately' in describing the happening. However,

ba
y

Shringare states that after the amount was handed over,

conversation took place between the complainant and the
appellant.Shringarehasevenstatedastowhattheconversation

om

wasviz.thatthecomplainantenquiredwiththeappellantasto
whethertheappellantwouldkeeptheamountofRs.1,000/for

himself,orwhetherhewouldbegivingittosomeotherpersons;
and that the appellant then gave the names of 2 3 persons,
includingthenameoftheSheristedar,andotherstaffmembers.

57

Theevidenceshowsthatafterthetaintedamountwas

handedovertotheappellant,appellantreceivedatelephonecall,

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andwastalkingonhismobiletelephone.However,whetherthis

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was before or after giving a predetermined signal, is not very

C
ou

clear. The complainant does not refer to any such telephone

conversation,atall.Accordingtohim,assoonastheamountwas
paid, the signal was given, and immediately, the appellant was
apprehended.Shringaresaysthatafterthesignalwasgiven,the

ig
h

telephone call was received by the appellant, and that, he was

talking on the mobile. Shinde says that after the amount was
given to the appellant, the appellant had been talking on the

mobiletelephoneandalsowiththe complainant,andthat,the
predetermined signal was given by the complainant after this

ba
y

conversationwasover.

58

There is also one more aspect of the matter. The

om

evidence clearly shows that Shinde and the members of the

raidingpartywereatashortdistancefromthecomplainantand

Shringare. Thehappeningswereclearlybeingseenbythem. In
fact, the suggestion specifically given in the crossexamination
'that due to the 'L' shape of the corridor, the complainant and
Shringare were not visible to the raiding party', was denied by
Shinde. Hisevidenceevenotherwisemakesitclearthathehad
beenobservingthehappenings.Thus,whenhecouldseethatthe

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amount had been actually paid by the appellant to the

rt

complainant, where was the question of waiting for the pre

C
ou

determinedsignaltobegivenbythecomplainant?Allthisshows
thattheevidencehasbeengiveninamechanicalmanner,andas
per the happenings that take place usually in trap cases, and
therefore,maynotbereflectingthe actual happenings. Atany

59

ig
h

rate,itistooartificial.

Thedefenceoftheappellant,asiscategoricallytaken

by him by filing a written statement, is that he had neither

demandednoracceptedanyamountfromthecomplainant.That,

ba
y

hehadnotmettheappellanton8/10/2010atall. Accordingto
him,thatthecomplainanthadcometoC.R.No.27on7/10/2010,
buttheHon'bleJudgepresidingoverthatCourt,wasnotavailable

om

onthatdate. That,thecomplainantthenaskedtheappellantto
take the circulation praecipe, and give circulation when the

appellant told him that the Hon'ble Court did not give any
circulation,exceptinurgentmatters,andthatthematterwould
havetobementionedtotheCourt,andthen,dependingonthe
urgency,theCourtmaygrantorrefusecirculation. Accordingto
the appellant, complainant was still repeatedly insisting that
circulation should be given, and therefore, he told the

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complainant that he was an Advocate, and should understand

rt

these things, whereupon the complainant got angry, and

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ou

threatenedthat'hewouldshowhim'. That,on11/10/2010,the
complainantmethimoutsideC.R.No.27whentheappellantwas
busyinhiswork. That,the complainantstoppedhimandtold
himthathehadgotthecirculation.That,hereceivedatelephone

ig
h

callinthemeantime,andwhilehewasspeakingonthephone,
suddenlythecomplainantwasnoticedbeingputtingsomethingin
theappellant'spocket.Theappellantresistedthesamebyhisboth

hands,andatthatmoment,twopersonsapprehendedhim. The
appellantcategoricallystatedthatheneverdemandedanymoney,

ba
y

and he never accepted money, and that he had been falsely

implicated.

om

60

Consideringthenatureoftheevidenceonrecord,the

prosecutioncasecannotbeheldtohavebeensatisfactorilyproved.

Thequestionisnotwhetherthedefenceoftheappellantistrue,
but whether upon considering the matters before it, the Court,
entertainsarationalandreasonabledoubtaboutthetruthofthe
prosecutioncase.Suchadoubtcanariseevenwhenthedefence
theorycannotbefullyaccepted.Inthebackgroundofthefactthat
thecomplainantwasonthelookoutfortrappingcorruptpublic

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servants,(althoughwithallgoodintentions)thepossibilityofhis

61

C
ou

acceptanceofillegalgratification,cancertainlynotberuledout.

rt

havingtargetedtheappellanttoseewhetherhecouldbeluredinto

The evidence of Vasant Kondvilkar (PW 4), who as

aforesaid, wasexamined after the case was fixed for judgment,

ig
h

showsthatitwastheappellantwhohadcarriedthepraecipegiven
bythecomplainanttotheBoarddepartment.Thisisbasednoton
thepersonalknowledgeofKondvilkar,butonthebasisofthefact

thatthenumberofthesaidapplicationi.e.'4301/10',aswrittenin
the circulation register, is in the handwriting of the appellant.

ba
y

Kondvilkarhassaidthatthefigure'4301'hasbeenwrittenbythe
appellant,andthishesaidfromhisacquaintancewiththewriting
oftheappellant.Kondvilkar,however,alsoadmittedthathewas

om

not certain about it. However, assuming that the praecipe

whichhadalreadybeenplacedbeforeC.R.No.6,andonthebasis

ofwhichordergrantingcirculationhadalreadybeenpassedon
7/10/2010 wasactuallytransmittedtotheBoardDepartment
fromthecirculationregistermaintainedinC.R.No.27,itdoesnot
indicatethattheappellanthaddemandedand/oracceptedabribe
inrespectofanofficialact.Inanycase,itdoesnotestablishthat
theprosecutionversionistrueandcorrect. Theinvestigationin

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thematterhasbeenfarfromsatisfactory.TheInvestigatingOfficer

rt

evendidnotascertainwhetherthematter,thecirculationofwhich

C
ou

wassought,indeedpertainedtotheassignmentoftheHon'bleJudge
presidingoverC.R.No.27. Shindedidnotbothertoquestionthe
complainant as to how his praecipe had an endorsement dated
7/10/2010,andthat,inthatcase,whatwasthereasonforhimto

ig
h

have approachedthe staffofC.R.No.27on8/10/2010. Shinde

alsodidnotverifyastowhohadtakenthepraecipetotheBoard
Department.Shindealsodidnotascertainwhethertherewasany

other praceipe that had been given by the complainant to the

appellant,inasmuchasthe complainantdidspeakofapraecipe

ba
y

giventothe appellanton8/10/2010. Thatthe circulationwas

granted,isevidentfromthefactthatthematterwasactuallylisted
on board on 11/10/2010, and this was known on 8/10/2010

om

itself.

62

When the investigation was carried out in such a

perfunctory manner, and when the evidence adduced by the

prosecutionisnotsatisfactory,eitherwithrespecttothedemand
ofbribe,ortheacceptancethereofitwasnotpossibletoholdthe
appellantguiltyoftheallegedoffences.Theprosecutionevidence
had inherent weaknesses in it, and the very foundation of the

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prosecution case was based on facts which could be termed as

rt

mysterious.Theappreciationofevidence,asdonebythelearned

parameters,experienceandlogic.

63

C
ou

Special Judge, was not in accordance with the well accepted

There is one aspect of the matter which needs a

ig
h

mention.Itisthatnopermissionforlayingatrapinthepremises
of this Court was obtained from the Hon'ble The Chief Justice.
This is indeed shocking. According to the Investigating Officer

Shinde (PW 3), he gave a letter in a sealed envelope to Police

Constable Shri Chandanshive with a direction to hand over the

ba
y

same to the P.A. of the Hon'ble The Chief Justice, and further
instructedhimtoinformShindeimmediatelyonShinde'smobile
telephoneaboutthehandingoverofthesaidletter.Itisnobody's

om

case that any permission of the Hon'ble The Chief Justice was
obtainedbytheInvestigatingAgencybeforelayingthetrap,but

whethereventheintimationhadactuallybeentotheHon'blethe
ChiefJusticebeforelayingthetrap,isalsonotclear. Theonly
evidenceinthatregardisthatalettergivingintimationaddressed
to the Hon'ble The Chief Justice was handed over by a police
constable to the Personal Assistant of the Hon'ble The Chief
Justice.TheInvestigatingOfficerdidnotcontacttheRegistrarof

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thisCourtoreventhePrincipalSecretaryortheSecretarytothe

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Hon'bleTheChiefJusticeforthatmatterandsuchcontactwas

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ou

donebyaPoliceConstablebysimplydeliveringtheletter.Thisis
highlyobjectionable.

64

The propriety of arranging and laying traps in the

ig
h

Court premises, without the permission of the Judge incharge

Judge of the administration of the Court concerned, or the
PrincipalDistrictJudge,ortheHighCourt,needstobeseriously

considered. Tomyknowledge, 'whetheratrapcanbelaidinthe

courtpremiseswithoutthepermissionoftheJudgeinchargeofthe

ba
y

administrationofthatcourt,ortheDistrictcourt,ortheHighCourt,'
hasnotbeendealtwithdirectlyinanydecisionsoftheSupreme
court of India. The Manual of Instructions issued by the

om

'Maharashtra State Anti Corruption and Prohibition Intelligence

Bureau',GovernmentofMaharashtra,dealswiththisandprohibits

onlythelayingofatrapinacourtroom,whilethecourtisin
session. The instructions in the Manual do not contemplate
raidingorlayingatrapinthepremisesoftheHighCourtwhichis
the highest court in the State and has been conferred with
constitutionaljurisdiction.Theinstructionsdealwiththelayingof
trapsinsubordinatecourtsandlaydownthatsuchtrapsshouldbe

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laidaftergivinginformationtotheDistrictJudgeortothesenior

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mostJudicialOfficerinthestationabouttheproposedtrap,before

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ou

it is actually laid. Whether giving of information would be

sufficient,orwhetherapreviouspermissionwouldbenecessary
needsconsiderationandasecondlookattheinstructionsinthe
Manualbytheconcernedauthorities,appearstobeessential. In

ig
h

thiscase,theappellantwhowastobetrappedwasattachedtoan
Hon'bleJudgeofthisCourt. TheHon'bleJudgewasverymuch
presentintheCourtpremisesdischargingjudicialfunctions.The

staffattachedtoaJudgedischargesdutiesundertheinstructions
oftheJudge.IfPoliceOfficerswhosesubordinationtotheJudicial

ba
y

Officersevenofthelowestrungisevidentfromtheprovisions
oftheCodeofCriminalProcedure,andwhofrequentlyvisitthe
Courtsasrepresentingapartyi.e.theState,oraswitnesses,are

om

allowed to raid the Court premises without permission of the

PresidingOfficeroftheCourt,orthePrincipalDistrictJudgeorthe

High Court, there is every possibility of a serious threat to the

administration of justice and independence of judiciary being
posed. This would apply even to the subordinate Courts, but
layingatrapintheHighCourtpremiseswithoutthepermissionof
theHon'bletheChiefJustice,isallthemoreserious.

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APPEAL-1069-13(J).doc

Normsofproprietywerenotfollowedinthiscaseby

rt

theInvestigatingAgency,asisevidentfromanumberoffactors.

C
ou

Theappellantwasapprehendedandtakenawayafterthetrapwas
saidtohave been successful withoutbotheringabout the effect
thereofontheworkingoftheCourt. Asamatterofcuriosity,I
haveexaminedtheletterwrittentotheHon'bletheChiefJustice,

ig
h

which, as aforesaid, was transmitted by a Constable to the

SecretarytotheChiefJustice.Thisletterhasbeensignedbythe
InvestigatingOfficerhimself.TheInvestigatingOfficerwhowasof

a rank of Assistant Commissioner of Police, ought not to have

addressedalettertotheHon'bletheChiefJustice,whoisahigh

ba
y

constitutional functionary. Writing of such letter under the

signature of the Assistant Commissioner of Police, is not in
accordance with the norms observed in government

om

correspondence.Theletterisimpolite.Itcurtlymentionsthat'in
respect of C.R.No.53/10 regarding the offences punishable under

section 7, 13(1)(d) read with section 13(2) of the Prevention of

CorruptionAct,atrapisbeingarrangedintheHighCourtcampus
on11/10/2010'.Itdoesn'tevenmentionthat'anoteofthesame
may kindly be taken' leave apart seeking even a formal
permission.

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APPEAL-1069-13(J).doc

Inmyopinion,trapsinthepremisesoftheCourton

rt

workingdays,cannotbeorganizedwithoutthepermissionofthe

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ou

JudgewhoisinchargeoftheadministrationofsuchCourt,orthe
Principal District Judge, or the HighCourt. The working of the
courtsoflawisdistinguishablefromtheofficesofthegovernment
departments.Inthecourtpremises,thereispresenceofadvocates

ig
h

andadvocates'clerks,who,quiteoftenlawfullyandforlawful
purposes receive amounts in cash from the litigants or their
representatives.Noreceiptsregardingsuchamountsarepassed

atleastnotatthattime.Themembersofthestaffofthecourt,are
quiteoftenrequiredtoassistthelitigantsortheadvocates,andto

ba
y

provide answers to their queries. Implicating a member of the

court staff falsely, with respect to the accusation of his having
demanded and/or accepted illegal gratification is easier than

om

implicatingpublicservantsworkinginotherdepartments. Ifthe
policearepermittedtolaytrapswithoutsuchpermission,itcan

indeedposeaseriousthreattotheadministrationofjusticeand
independenceofjudiciary.Onthecontrary,noharmcanpossibly
besufferedbyseekingthepermissionoftheconcernedJudgeor
his superior, or the High Court. The impermissibility of laying
such traps was considered by the Allahabad High Court in

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SurendraSahaiandOrs.Vs.StateofU.P8anditwasheldthat

rt

such traps ought not to be organised. In my opinion, it was

C
ou

absolutelyimproperinthiscaseonthepartoftheInvestigating
Agencytohavelaidatrapwithoutseekingapreviouspermission
oftheHon'bleTheChiefJustice.

ThelearnedSpecialJudgeappearstohavedeparted

ig
h

67

from the normal and usual approach towards the matter, as is

evidentfromtheimpugnedjudgment;andthiscouldbeduetoa

number of reasons, including the pressure put on the learned

Judgebytheattitudeandconductofthecomplainant.Sincethe

ba
y

matter is of considerable general importance, apart from being

relevant for appreciating the evidence of the complainant and
understandingtheapproachofthetrialCourttowardsthematter,

om

the same needs to be mentioned here in necessary details. It

appearsthatononedate,i.e.24/6/2013,whenthecasewas

fixed for recording of the evidence before the trial Court, the
complainant was absent. The learned Special Judge, therefore,
issuedabailablewarrantinthesumofRs.2,000/againsthimso
astoprocurehispresence. Theroznamaof24/6/2013reflects
thattheCourtfeltthenecessityofissuingabailablewarrant,as
81997Cr.L.J1670,

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the programmeofthe case hadalreadybeenfixed,andon the

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nextdate,thepanchwitnesshadbeencalled. Itappearsthatthe

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ou

complainantflaredupbecauseoftheissuanceofabailablewarrant
againsthim. He madeanapplicationtothetrialCourtonthe
nextdatecastingaspersionsonthetrialCourtforanactionwhich
was perfectly in accordance with law. In this application

ig
h

(Exhibit8), he proclaimed himself to be an 'activist lawyer' and

'making himself responsible for eradicating the corrupt practices
committed by the public servants in the institutionalized public

sectorareas'.Itwouldbeappropriatetoreproducecertainpartsof

ba
y

thesaidapplication.

I say that I am an Activist Lawyer

and making myself responsible for

om

eradicating the corrupt practices

committed by the public servants in
the institutionalized public sector
areas and towards the said goal I
made an effort to clean up the
judicialsystemassomeofthecourt
staffs are deeply involved into the
corrupt practices and thereby the
above accused who was working as
ChopdarintheHon'bleHighCourtin
the Court of Justice xxxxx (name

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omitted), above accused was caught

amount from me and therefore the
him.(Emphasissupplied)

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above case was registered against

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redhandedbyacceptingillegalbribe

In the later paragraphs, the complainant expressed his anguish

over the issuance of bailable warrant against him, and a bare

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reading of the application gives an impression that the

complainantexpectedtobetreatednotasanordinarywitness,but

as a highly privileged person by the trial Court. It would be

appropriate to reproduce paragraph nos.8 and 9 of the said

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applicationhere:

Isaythatnowinviewoftheapproach

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adopted by this Hon'ble Court as above

tocausemementalstresswhiledeposing
before this Hon'ble Court which I am
deposing for the interest of general
publicandduetosuchseriousorderof
issuance of warrant against the
complainant the interest of public to
expose corruption in public sector is
gotseriouslyjeopardizedandhenceIam
notinapositiontodeposemystatement
before this Hon'ble Court in the above
matter.

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Hon'ble Court the above matter may be

officeofPrincipalJudge.

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redirected for assignment before the

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I, therefore, request to this

Fortheinterestofnaturaljustice
thecomplainantasabovepraysthat:
a)

TheBailableWarrantissuedbythis

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Hon'bleCourton24/06/2013againstthe
complainant may be stayed or in
alternatively may be cancelled if this
b)

Hon'bleCourtmaydeemfitproper.
Thatfortheinterestofjusticethe

above case may be redirect for

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assignmentforhearingintheofficeof
Ld. Principal Judge, City Civil and
SessionsCourt,Gr.Bombay.

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(Emphasissupplied)

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It is worth making a reference to the roznama of

25/6/2013. The learned Judge observed that the application

(referred to earlier) had not been signed by the complainant
thoughithadbeenfiled.ThisiswhattheCourthasobservedin
theroznamaabouttheconductofthecomplainant:
Hearguemuchandinformedthis
court that, he has fixed appointment
with Hon'ble Chief Justice, he also

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submitted that this court has

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prosecuted prosecution witnesses and

the rate of conviction is only 7% he

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being vigilant citizen, does not want

to proceed with this matter before
thisCourt.
The

complainant

try

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pressurized this court by threating

andnottalkinginpropermanner.

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Considering his submission this

matter is adjd to 7.8.2013, for
further instruction and steps.

(Emphasissupplied)

Later,onthesameday,thecomplainantsubmittedthathedidnot

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intend'toraisetheissues',andthathewantedtoproceedwiththe
matter. He,however,didnotgiveevidenceonthatdaythough
was present in the Court, and got the matter adjourned to

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27/6/2013. The conduct of the complainant was undoubtedly

suchastohaveatendencytoaffectthenormal,fairandobjective

assessment of the matter by the learned Special Judge. The

mention of the 'low conviction rate' and referring to his
appointment with the Hon'ble the Chief Justice was absolutely
uncalledfor,unjustandimproper.

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69

APPEAL-1069-13(J).doc

Aperusaloftheimpugnedjudgmentshowsthatthe

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learnedSpecialJudge,inherjudgmentreferredtoanumberof

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decisionswhichwerenotcitedbyeitheroftheparties.Though,
principally,therecannotbeanyobjectiontorefertothejudgments
notcitedby,orrelieduponbypartiesprovidedopportunityis
giventothepartyaffectedbytheratioofthejudgmenttoreply

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theretointhepresentcase,thejudgmentsrelieduponbythe
learnedSpecialJudgearetotallyirrelevant. ThelearnedSpecial
Judge cited the case of R.S. Nayak Vs. A.R. Antulay9 and

reproducedapassagefromthejudgmentinthesaidcasewhich
emphasizes the necessity of adopting a construction that would

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advance the object underlying the act i.e. to make effective

provision for prevention of bribery, and corruption, and at any
rate,notdefeatit'. Theimpugnedjudgmentdoesnotshowthat

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any dispute or necessity regarding the construction of any

particular provision in the Act, had arisen before the learned

SpecialJudge. TheobservationsmadebytheirLordshipsofthe
Supreme Court, which the learned Special Judge went on to
reproduceintheimpugnedjudgment,wereinthecontextofthe
followingquestionwhichhadfallenfortheconsiderationoftheir
Lordshipsi.e.Whatistherelevantdatewithreferencetowhich
9

1984(2)SCC183,

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a valid sanction is a prerequisite for the prosecution of a

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publicservantforoffencesenumeratedinSection6ofthe1947

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Act(nowsection19ofthepresentP.C.Act)?Therewassimplyno
occasiontoreproducethesaidobservations.ThelearnedSpecial

Judgealsoreferredtothe decision of this Court in Dattatraya

Krishnaji Joshi Vs. State of Maharashtra 10 and quoted the

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followingfromthejudgment.

Thereappearstobenosuchprecedent

and what has to be appreciated is

thatthemakingofthedemandhasto
be a matter of understanding not

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between the accused and any third

personbutthepersonwhodemandsand
thepersonwhoproceedstopayorwho

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ispay.

Inthatcase,thequestionthathadarisenwaswhetherthewords

'astowhathadhappenedtohiswork'asutteredbytheaccused,
could be treated as evidence of demand of illegal gratification.
ThisCourtheldthatthedemandneednotbesocrudeandexpress
suchashaveyoubroughttheamount,giveittome,andthe
observationreproducedabove,weremadeinthatcontext.Inthis

10 1991 (2) BomCR 49,

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case,therewasabsolutelynooccasion toconsider whetherany

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particular words used by the accused amounted to demand of

70

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illegalgratificationornot.

ThelearnedSpecialJudgealsoreferredtofourmore

judgments, reproducing passages therefrom which deal with

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certaingenerallegalprinciples/propositions.ThelearnedSpecial
Judgefeltthenecessityofreproducingtheobservationsmadeby
the Superior Courts and the Apex Court, as a justification for

ignoringthediscrepanciesandinfirmitiesintheevidence,andstill
convicting an accused 'as a means to eradicate corruption'.

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Noneofthoseobservationscanbeunderstoodtomean that'even
where there would be no satisfactory evidence, it is desirable to
convict a person, as corruption is admittedly on increase; and

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convicting a person accused of an offence punishable under the

P.C.Act,wouldhelperadicatingthecorruption,whetherornot,he

wasactuallyguiltyoftheallegedoffences'. Suchanapproachwas
entirelyunjustifiedandcontrarytolaw.

71

Theappreciationofevidenceasdonebythelearned

Special Judge, and the conclusion arrived at by her, is not in

accordancewithlaw.Thiswasacasewheretheprosecutioncase

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hadnotbeensatisfactorilyproved. Theappellantwastherefore,

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entitledtobeacquitted.

TheAppealisallowed.

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Theimpugnedjudgmentandorderissetaside.

74

Theappellantisacquitted.

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Hisbailbondsaredischarged.

76

Fine,ifpaid,berefundedtohim.

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(ABHAYM.THIPSAY,J)

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CERTIFICATE

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Certified to be true and correct copy of the original signed

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Judgment/Order.

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