Som Nath Vs. Union of India & ANR [1971]
INSC 160 (25 May 1971)
REDDY, P. JAGANMOHAN REDDY, P. JAGANMOHAN
MITTER, G.K.
VAIDYIALINGAM, C.A.
CITATION: 1971 AIR 1910 1971 SCR 848 1971 SCC
(2) 387
ACT:
Prevention of Corruption Act (2 of 1947), s.
5(1)(c)-Scope of.
Sanction for prosecution-Principles for
granting.
Practice and Procedure-Duty of prosecution to
examine all witnesses Scope of.
HEADNOTE:
The appellant who was a Major in the Military
Engineering Service, was in charge, of the expansion work of an air strip and
was given possession of the land acquired for that purpose, along with valuable
crops standing on the land. He postponed giving delivery of the land to the
contractor for the extension work. Instead, he allowed one of the owners of the
land to cut the crop and take it away without in an way accounting for it. A
charge-sheet was filed against the appellant under s. 5(1) (c) and s. 5 (1)(d)
read with s. 5(2) of the Prevention of Corruption Act, 1947. He was aquitted of
the offence under s. 5(1) (d) but was convicted for the offence under
s.5(1)(C)and the conviction was confirmed by the High Court.
In appeal to this Court, it was contended
inter alia (1) that the sanction given by the Government or his prosecution did
not cover the trial of the charge under s. 5(1) (c); and (2) the prosecution
did not examine all the witnesses necessary to unfold the story of the
prosecution.
HELD: (1) For a sanction to be valid it must
be established that the sanction was given in respect of the facts constituting
the offence with which the accused is proposed to be charged. It is desirable
that the facts should be referred to in the sanction itself. If they do not
appear on the face of it, the prosecution must establish aliunde by evidence
that those facts were placed before the sanctioning authority. The sanction
must disclose that the sanctioning authority had fully applied its mind to them
and the sanction should be correlated to the particular offence or offences
with which the amused is charged or convicted.
[852E-F] In the present case, the facts which
the Government considered for the purpose of granting sanction were :(a) that
the appellant was a public servant entrusted with crops standing on the land
acquired for the extension of an air field, (b) that by abusing his position as
a public servant he allowed standing crop to be cut from the said land, (c)
that by corrupt or illegal means and by abusing his position as a public
servant he obtained pecuniary advantage of about Rs. 2,000 as the value of the
crops that were cut from the land and that he dishonestly or fraudulently
misappropriated the same by converting it into his own use. Under s. 5(1) (c)
of the Act a public servant shall be said to have committed the offence of
misconduct-in his duties if he dishonestly allows any other person to convert
to his own use property which is entrusted to the said public servant.
The facts which have been set out in the
order granting the sanction are sufficient to indicate that the authorities
granting the sanction had the 849 offence under s. 5(1)(c) in their
contemplation. In fact, the order specifically mentions that provision while
granting sanction. Even if there was an inference or implication that the
persons cutting the crops were abetting the appellant in the offence the
sanction could not be held to be bad on that account. [854D, 855D] Bhagat Ram
v. State of Punjab, A.I.R. 1954 S.C. 621, Madan Mohan Singh v. State of U.P.
A.I.R. 1954 S.C. 637, Gokul Chand Dwarkadas Morarka v. The King, A.I.R., [1948]
P.C. 82 and Jaswant Singh v. State of Punjab, [1958] S.C.R. 762, referred to.
(2)With reference to each one of the person
who, according to the appellant, should have been called as witnesses there was
already evidence relating to the particular matter about which those persons
would have given evidence. In the circumstances the non-examination of other
witnesses, without anything more, could not be treated as a defect in the
prosecution. [863G]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No.102 of 1969.
Appeal by special leave from the judgment and
order dated April 9, 1969 of the Punjab and Haryana High Court in Criminal
Appeal No. 1055 of 1966.
Frank Anthony and K. B. Rohatgi, for the
appellant.
H. R. Khanna and R. N. Sachthey, for the
respondents.
The Judgment of the Court was delivered by
Jaganmohan Reddy, J.-This Appeal is by Special leave against the Judgment of
the High Court of Punjab and Haryana confirming the conviction of the accused
under Section 5(1)(c) of the Prevention of Corruption Act 1947 as also the
sentence awarded by the Sessions Judge of one year's Rigorous Imprisonment and
a fine of Rs. 2500, in default six months Rigorous Imprisonment.
The facts of the case in brief are that in
view of the Chinese invasion Air Field at Sirsa required to be extended for
which purpose the Ministry of Defence, Govt. of India took steps to acquire
some lands of agriculturists pursuant to which a Notification dated November
27, 1962 was issued under Section 4 of the Land Acquisition Act 1884 for
acquiring 51.79 acres of land situated in the State of Ahmedpur. On the next
day another Notification was issued under Section 6 of the Land Acquisition Act
on November 28, 1962 and in view of the emergency action under Section 17 was
taken for obtaining possession of the land With a view to its development. The
lands which were acquired belonged to several land holders including Moti Ram
and P.W. 12 Kewal Chand. The Collector gave his award on 26-2-63 (Ex. P. 26) in
respect of these lands, which actually measured 49.47 54-S. C. India/71 850
acres, at Rs. 1350 per acre amounting to Rs. 66,784.50 np.
Apart from this amount compensation was also
awarded for standing crop amounting to Rs. 11,073.13 np.
Before the land was actually acquired the
Appellant who was a Major in the Military Engineering-Service was working as a
Garrison Engineer and was inching of the extension. He had in anticipation of
acquisition and execution of the work appointed A. B. Ranadive, P.W. 14 as
Assistant Garrison Engineer who was to be responsible, for all the matters
connected with the acquisition of land, demarcation of boundaries as an
Engineer Inching for execution of the contract and responsible for the
maintenance of the Air Field. The work of the extension of aerodynamic was
entrusted to one Telu Ram, P.W. 8 Contractor, with whom the trusted to M.E.S.
Department entered into an agreement on December 3, 1962. This agreement was
signed both by the Appellant and P.W. 14. The work according to that agreement
was to be done in 2 phases-first phase was to commence on 10th January 1963 and
was to be completed by 9th October 1963. After the completion of the first
phase the second phase was to start on 10th October 1963 and completed by 9th
May 1964. Pursuant to this agreement it is said that -symbolic possession of
the land which was acquired was taken over by the Tehsildar on 1st February
1963, after which at any rate it appears from Ex. P. 24 that actual possession
of this land was handed over by the said Tehsildar on 13th February 1963 to the
appellant. The receipt Ex.P.24. 24 bears the signature of N. L. Handa, the
Tehsildar and of Sukhchain Lal jain, P.W. 11 on behalf of the Military Estate
Officer and the Appellant. From this receipt it is evident that possession of
50.12 acres was handed over by the Tehsildar and taken over by the Appellant
and the Military Estate Officer Sukhchain Lal Jain.
The case of the prosecution initially was
that after the land so acquired with the standing crop was taken possession of
by the Appellant he sold the crop to Moti Ram and Kewal Chand for Rs. 2500 and
facilitated the cutting and taking away of the crop by postponing the handing
over of the possession to the contractor till the 5th April 1963 and
misappropriated the money. In respect of this allegation the First Information
Report (Ex. P. 29) was issued on 14-1-64 in which the following statement is
relevant:"It is alleged that Major Som Nath accused who is a Garrison
Engineer Sirsa Air Field subsequently sometime in the months of March and April
1963 permitted the removal of the standing crop valued at Rs. 11073-13 by Shri
Moti Ram and Kewal Chand etc., after, accepting illegal gratification of Rs.
3000 from them. Major Som 851 Nath did not account for this amount in the Govt.
Revenues., He thus. abused his position as a public servant and caused
pecuniary advantage to said Shri Moti Ram and Kewal Chand by giving them
standing crops worth Rs. 13,000 for a consideration of. Rs. 3,000 only, which
amount he accepted for his personal use and thereby also abused his official
position and obtained pecuniary advantage, for himself in a sum of Rs. 3000.
The facts disclose the commission of the
offence of criminal misconduct as defined in Section 5(1)(d) read with Section
5(2) of the Prevention of Corruption Act 1947 by Major Som Nath accused. A
regular case, is therefore registered and entrusted to Inspector Baldev Rai
Handa for investigation." After this F.I.R. certain statements were
recorded by the Military authorities being DA to DE,DM, DM/ 1, DN & DL of
Mani gain, Mulkh, Raj, Ganpat Ram, Telu Ram, Kewal Chand and Sukhchain Lal
Jain. A chargesheet was filed against the Appellant under Section 5 (1) (c) and
5 (1) (d) read with 5 (2) of the Prevention of Corruption Act on 5-8-1966 after
obtaining sanction from the Govt. of India, Ministry of Home Affairs on llth
April, 1966 as per Ex. P.23. The Special Judge acquitted the Appellant of the
second charge namely that being a public servant he had by corrupt or illegal
means or by otherwise abusing his position as a public servant obtained for
himself a sum of Rs. 2,500 from Moti Ram of Sirsa for cutting the crops and
thereby committed ,offence under Section 5(1)(d) punishable under Section 5(2).
The accused was however convicted under the first charge for an offence under
Section 5(1)(c) in that he being a Garrison Engineer incharge of the Air Field
Sirsa and in that capacity entrusted with standing crops of Sarson, Gram and
Lusan on 30 acres of land a part of 49 acres of land acquired by the Govt. and
which had been valued at Rs. 11,073.13 by the Revenue authorities, dishonestly
or fraudulently allowed Moti Ram of Sirsa to misappropriate the said standing
crop and thereby contravened Section 5(1)(c) of the Prevention of Corruption
Act punishable with Section 5(2) of that Act. Against that conviction and
sentence he -appealed to the High Court which maintained the conviction and
sentence.
The learned Advocate for the Appellant has
meticulously taken us through the entire documentary and oral evidence and
commented at length upon the various contradictions and incongruities in the
case of the prosecution with a view to establishing that when the Appellant
took possession of the land there was no crop standing on it-that tile
possession of the land 'was in fact delivered to Telu Ram, Contractor on
10-1-1963; that the said Contractor had admitted 'that possession of the entire
land 852 was received by him; that he carried on the construction work in
extending the Aerodrome; that 200/250 donkeys were also used for doing the work
by reason of which the crop was damaged before Tehsildar had put the Appellant
in possession of the land and as a matter of fact there was no crop thereon
when he got the possession of the land. It was also contended that the High
Court had not considered the contradictions in the earlier statement made by
some of the witnesses to the Military authorities and that it relied on many of
the documents for affirming the conviction of the Appellant without their
actually being put to, him under Section 342.
Before we consider these contentions it is
necessary to determine another submission of the learned Advocate for the
Appellant which goes to the root of the jurisdiction of the Court to try the
offence, under Section 5(1)(c). If this contention is valid then the conviction
of the accused cannot stand and therefore it is necessary to deal with this
matter first. It may be mentioned that though a complaint was made in the
application for a certificate for leave to appeal to this Court that the
learned Single Judge of the High Court should have acquitted the Appellant on
the sole ground that there was no proper sanction for the prosecution of the
Appellant under Section 5(1) (c) of the Prevention of the Corruption Act, this
question does not seem to have been urged before the High Court. In any case we
do not think that there is any validity in the submission that the sanction
given by the Govt. of India does not cover the trial of the charge under
Section 5(1)(c) of the Prevention of Corruption Act. For a sanction to be valid
it must be established that the sanction was given in respect of the facts
constituting the offence with which the accused is proposed to be charged.
Though it is desirable that the facts should be referred to in the sanction
itself, nonetheless if they do not appear on the face of it, the prosecution
must establish aliunde by evidence that those facts were placed before the
sanctioning authorities. It is therefore necessary to first examine the order
of sanction to ascertain on what facts it has been accorded.
The sanction that has been accorded is in the
following terms:
11th April 1966.
"Whereas it is alleged that Major Som
Nath...... while functioning as Garrison Engineer, M.E.S., Air Field at Sirsa
from 13-2-63 to 54-1963 by corrupt or illegal means or by otherwise abusing his
position, as such public servant, obtained pecuniary advantage of Rs. 2500 for
allowing the standing crops to be cut from the land acquired for the extension
of Air Field Sirsa; and or he dishonestly or fraudulently realised and
misappropriated Rs. 2500 during the aforesaid period as the value of the 853
crops cut from the land acquired for the extension of Air Field Sirsa, which
crops had been entrusted to him as a public servant and he instead of
depositing the said sale price into the Govt. Treasury converted it to his own
use;
And whereas the said acts of Major Som Nath..
constituted offences punishable under Section
5(2) of the Prevention of Corruption Act, read With Section 5 (1) (c) and (d)
(Act No. 11 of 1947) of the said Act and Section 409 of the I.P.C.
And whereas the Central Govt. after fully and
carefully examining the materials before it in regard to the said allegations
and circumstances of the case, consider that Major Som Nath...... should be
prosecuted in a court of law for the said offences.
Now therefore, the Central Govt both hereby
accord sanction under Section 197-Code of Criminal Procedure (Act No. 5 of
1898) and Section 6(1)(a) of the Prevention of Corruption Act, 1947 (Act II of
1947) for the prosecution of Maj. Som Nath for the said offences and for any
other offences punishable under the provision of law in respect of the
aforesaid acts by the Court of competent jurisdiction.
By order and in the name of the President.
Sd/(A. P. Veera Raghavan) Deputy Secretary to
the Govt. of India." From the above order it is apparent that the facts
which the Central Govt. considered for the purposes of according sanction were
(a) that the Appellant as a public servant was entrusted with crops situated on
the land acquired for the extension of Air Field, Sirsa ;
(b) that by abusing his position as a public
servant he allowed the standing crops to be cut from the said land ;
(c)that by corrupt or illegal means and by
abusing his position as a public servant he obtained pecuniary advantage Of Rs.
2500as the value of the crops to be cut from the land and/or he dishonestly or
fraudulently misappropriated that sum by converting it into his own use instead
of depositing the said sale price in the Govt. Treasury.
On these facts and after applying its mind as
spoken to by P.W. 10 Kalra the Government accorded its, sanction for
prosecution of the offences punishable under Section 5(2) read with 854 Section
5(1)(c) and 5(1)(d). The question therefore Would be whether these facts were
sufficient to sustain the sanction under 5(1)(c) even if the charge under
5(1)(d) had failed. This question in turnwill depend upon what are the
ingredients of the offences under 5(1)(c) and (d) read with Section 5(2). Under
5(1)(c)-A Public servant is said to commit the offence of misconduct in the
discharge of his duty if he dishonestly or fraudulently misappropriates or
otherwise converts for' his own use any property entrusted to him or under his
control as a public servant or allows any other person so to do, and under (d)
if he by corrupt or illegal means or by otherwise abusing his position as a
public servant, obtains for himself or for any other person any valuable thing
or pecuniary advantage.
It would be seen therefore that under Section
5(1)(c) a public servant will be said to commit the offence of misconduct in
hi& duties if he dishonestly allows any other persons to convert to his own
use property Which is entrusted to the said public servant The facts which have
been set out in the order granting the sanction certainly are sufficient to
indicate that the authorities granting the sanction had the offence under
Section 5(1)(c) also in their contemplation. In fact the order specifically
mentions this provision while granting sanction.
We should have thought this Was an obvious
conclusion but the learned Advocate for the Appellant strenuously contended
that the charge against the Appellant was of a motiveless offence and in any
case the facts as disclosed show that not only at the time when the First
Information Report was given but even at the time when sanction was accorded
that the prosecution wag merely concerned with the charge that the appellant
bad allowed the crops to be cut on the condition that Rs. 2500 will be paid and
received the money and misappropriated or converted it to his own use by not
paying it into the Govt. treasury. There is therefore no basis for sanction for
a charge under Section 5(1)(c). it is further contended that the stand taken by
the prosecution was that 'the persons who we're permitted to cut the crops bad'
not committed any offence. If so a charge under Section 5(1)(c) would implicate
those persons also in the commission of an offence which certainly would not
have, been in the contemplation of the authorities granting the sanction. In
support of this contention three decisions have been cited before us namely
Bhagat Ram v. State of Punjab(1), Madan Mohan Singh V. State of U. P. and
Gokulchand Dwarkadas Mordrka v. The King (1) A. I.R. 19-54 S. C. 621.
(3) A. 1. R. 1948 Privy Council 82.
(2) A. I.R. 1954 _.C. 637.
855 Bhagat Ram's case was not concerned with
the sanction but only with the question, whether the offence could be altered
to one of abetment of an offence of Section 409 I.P.C. from one under Section
409 simpliciter. It was held that an alteration of the Appellant's conviction'
under Section 409 I.P.C. into one of abetment thereof would imply a definite
finding against the subordinate Judge who is not before the Court and as such
it would be unfair to make such an alteration. We do not see how this case can
assist the appellant because in the first ace there is no question of an
alteration, of the charge and secondly the circumstance that someone who is not
a public servant abetted the appellant is hardly relevant. But even so the
offence with which the appellant is charged under Section 5(1)(c) does not
necessarily involve ,An abetment with the person whom he had dishonestly
allowed to cut and take away the crop. For instance it is quite possible that
the person whom he allowed to cut the crop may be his own relation or friend in
whom he may be interested and who may, however, not know that the accused was
doing something dishonest in permitting him to cut the crop. in any case the
facts which have been stated, in the sanction clearly indicate that the
appellant has dishonestly allowed the crops to be cut so that there is no
question of any inference or implication that the persons cutting the crops
were abetting him in the offence. Even if it were so the sanction cannot be
held to be had on that account.
Gokulchand Dwarkadas's case also is of no
assistance to the appellant because in that case the sanction did not disclose
the facts on which it was given but merely sanctioned the prosecution for a
breach of certain provisions, Sir John Beamont delivering the Judgment of the
Judicial Committee, observed at page 84:
"But if the facts constituting the
offence charged are not shown on the face of the sanction, the prosecution must
prove by extraneous evidence that those, facts were placed before the
sanctioning authority......
Nor, in their Lordships' view, is a sanction
given without reference to the facts constituting the offence a compliance with
the actual terms of cl. 23. Under that clause sanction has to be given to a
prosecution for the contravention of any of the provision of the Order. A
person could not be charged merely with the breach of a particular provision of
the Order; he must be charged with the commission of certain acts which
constitute a breach, and it is to that prosecution that is for having done acts
which constitution breach of the Order-that the sanction 'is required. In the
present case -there is nothing on the face ,of the sanction, and no extraneous
evidence, to show that the sanctioning authority knew the facts alleged to 856
constitute a breach of the Order, and the sanction is invalid." The case
of Jaswant Singh v. The State of Puniab(1) was also cited by the Respondent's
advocate in support of the contention that the trial of two offences requiring
sanction was not valid. In that case sanction was given under Section 6 of the
Prevention of Corruption Act 47 for the prosecution of the appellant for having
received illegal gratification from one Pal Singh. He was charged with and
tried for two offences under Section 5(1) (a) of the Act for habitually
accepting or obtaining illegal gratification and under Section 5(1)(d) for
receiving illegal gratification from Pal Singh. The Session Judge had found
that both charges were proved. While in Appeal the High Court held that the
Appellant could neither be tried nor convicted of the offence under 5(1)(a) as
no sanction had been given in respect of it but upheld the conviction under
Section 5(1)(d) for which sanction had been given. A perusal of the sanction
would show that the sanctioning authority had applied their mind to only one
instance but the prosecution were seeking to make the sanction cover the
offence of a habitual bribe taker which clearly implies that the sanctioning
authorities must consider the number of instances when the accused took bribes
and on what occasions as would justify a charge of his being a habitual bribe
taker. Sinha, J, as he then was while dismissing the appeal observed at page
766:"In the present case the sanction strictly construed indicates the
consideration by the sanctioning authority of the facts relating to the
receiving of the illegal gratification from Pal Singh and therefore the
appellant could only be validly tried for that offence.
The contention that a trial for two offences
requiring sanction is wholly void, where the sanction is granted for one
offence and not for the other, is in our opinion unsustainable. Section 6(1) of
the Act bars the jurisdiction of the Court to take cognizance of an offence for
which previous sanction is required and has not been given.
The prosecution for offence under S. 5(1)(d)
therefore is not barred because the proceedings are not without previous
sanction which was validly given for the offence of receiving a bribe from Pal
Singh, but the offence of habitually receiving illegal gratification could not
be taken cognizance of and the prosecution and trial for that offence was void
for want-of sanction which is a condition precedent for the Courts taking
cognizance of the offence alleged to be committed and therefore the High Court
has rightly set aside the conviction for that offence." (1) [1958] S. C.
R. 762.
857 These cases instead of supporting the
contention of the learned Advocate amply demonstrate that the facts which formed
the basis of the sanction and which was accorded after the sanctioning
authority had fully applied its mind to them, should be correlated to the
particular offence or offences with which the accused is charged or convicted.
In our view there is no justification for
holding that the conviction under Section 5(1)(c) read with 5(2) is bad for
want of the requisite sanction.
Now on the merits of the case as we said
earlier the learned Advocate for the appellant has referred to the evidence in
meticulous detail and has commented thereon, at length but this Court
ordinarily does not re appropriation the evidence with a view to arriving at
its own finding as if it was a Court of fact and does not ordinarily upset the
findings of the High Court which has on an evaluation of the evidence affirmed
the trial court's conviction and sentence. It has been contended firstly that
the High Court was in error in relying on certain evidence for convicting the
accused which was not put to him. Secondly the evidence that was necessary to
unfold the story of the prosecution has not been produced by the prosecution
but the Trial Court and the High Court ignored this lacunas in the prosecution
case.
Thirdly the Judgments show that there was
utter confusion in respect of the date on which possession of the acquired land
was given to the Appellant and the date on which it was given to the Contractor
for carrying on the work, as also in respect of the fact whether there was any
crop standing when the Appellant took possession of the land and at what period
of time the crop was cut and the work commenced.
Before we deal with the contentions urged on
behalf of the Appellant it is necessary to have a clear picture of certain
broad features of the case. The Air strip which was being extended is in one
straight line with Taxi-ways. P.W.14 Ranadive tells us that if one were to go
from the entrance of Air Field to the acquired land one would have to pass
through RD 4500 to 1200. The acquired land extended from RD 1200 to RD 00.
According to P.W. 8 Telu Ram, he acquired possession of the land of the length
from RD 4500 to RD 1200 on 10th January 1963 and that tile possession of the
acquired land was not delivered to him as it had not been acquired by that
time. Ex. DO review report which is headed Technical Administration Contract
shows that the date of review was 9th February 1963. In this document the date
of the conclusion of the contract is given as 3rd December'62 and date of
commencement of work as 10th January'63, date of completion of 1st phase 9th
October, '63 and second phase 9th 858 May 1964. To the Question "Have all
sites been handed over on due date" the answer shown was an affirmative
'yes'.
There is However nothing in this document to
show what is the site of' which possession was handed over to and taken by Telu
Ram on 10th January '63. It is not the case of the Appellant that acquisition
of the land on which the crop was standing had taken place nor could possession
of it been handed over to him because he denies that there was any crop on the
land when the possession of the land was handed over to him. That there was
crop on 'the land is amply born out by a letter of the Appellant dated 12th
February 1963 addressed to Mr. G. L. Nagpal, Sub-Divisional Magistrate, Sirsa.
In this letter he says: "12th Feb. 1963.
My dear Mr. Nagpal, I am writing to you With
regard to.
acquisition of land for Sirsa Airfield. As,
you know, the Additional Deputy Commissioner, Hissar will be visiting his
location on 13th Feb. 1963. The Military Estates Officer, Delhi, Mr. K. K.
Gamkhar will also be here on 13th morning., It is desirable that entire
proceedings With regard to acquisition of land and determining compensation for
standing crops for the total area of 39.58 acres in Mirpur and Ahmadpur villages
tire finalised an this date. As I have told you personally, we are keen to
finalise the proceedings for the total area to be acquired by us and not by
phses. This is interest of the project. I therefore request you to issue
suitable instructions to, your staff so that all the relevant papers may be
suitably prepared." Even if Exhibit DQ gave a correct picture, it could be
in relation to the airstrip already in existence, as this would be necessary
for a contractor who is charged with duty to carry out extension work to go on
the site collect materials and get everything ready to execute his contract. In
fact as we have noticed earlier this is what Telu Ram says in his evidence,
namely that on loan January'63 no delivery of possession of the remaining land
other than RD 4500 to 1200 (the land in which there is the existing run-way)
was given.
It was then that he wrote on 23-1-1963 as per
Ex. 8 to the Assistant Garrison Engineer complaining that the possession of the
whole of the land had not been delivered to him. A copy of this letter was sent
to the Garrison Engineer-the Appellant. This letter shows two things (a) that
complete site 4500 to 0 ft. has not yet been handed over "as it was
presumed 859 that the possession of the land could not be had so for" and
(b) that as levels have not been given, the final excavation of the foundation
cannot be done and all subsequent operations are therefore withheld.
This letter clearly indicates that some
excavation was being done as otherwise there is no meaning in saying that final
excavation cannot be done. This Is also consistent with the other evidence that
some work was in progress Which gain is in accord with the evidence of Telu Ram
P.W. 8 that he got the possession of RD 4500 to RD 1200. The extension of the Airstrip
would mean that the existing Airstrip is being extended, so that the initial
work can be started and continued on the existing Airstrip. It is not as if the
existing Airstrip ends at the boundary of RD 4500 to RD 1200, so that the work
of extension can go on in the existing Airstrip even before possession of the
acquired land was given. This is further confirmed by a perusal of the letter
written by the Appellant to Telu Ram P.W. 8 in reply to his letter dated 28th
February'63 (not produced) that "Necessary possession of the, runway and
taxi track has already been given to you. You are therefore requested to set
out the work and get the same approved by the Engineerin-charge before starting
the work". This shows that no work had in fact been undertaken on the land
acquired and also that possession of the existing runway and track had already
been given. Nothing is specifically mentioned about possession of the acquired
land being given to him on that date. The work on that land is only at the stage
of getting approval.
Now the next question is When was the
possession of the acquired land obtained by the Appellant and when did he
deliver it to P.W. 8. P.W. 14, says that symbolic possession was delivered to
him in respect of the acquired land on the 1st February'63. It would however
appear from Exh. P. 24 that actual possession was delivered to the Appellant on
13th February '63 as per the delivery receipt executed by him, the Tehsildar
and P.W.11, a representative of the Military Estate office and that even
according to his letter already referred to Ex. P.13 there wag standing crop on
the land as otherwise there is no meaning in the Appellant saying therein that
it is desirable that entire proceedings with regard to acquisition of land and
determining compensation for standing crops for' the 'total area of 3958 acres
are finalised on the 13th February.
There is also credible evidence that
possession of the acquired land was not handed over to the contractor till late
in, March '63 though, it was handed over to and, taken over by the Appellant on
13-2-63. The Khasra Girdawari Ex. P.3 would show that there was a crop of
Sargon (Mustard) Gram and Lusan, at any rate on 860 20th March 63 at a time
when the land has been shown therein to have been in possession of the Military
authorities. Ex. P. 2 is a certified copy by the Tehsildar dated 18-9-63 which
shows that as per the Girdawari on 20-3-63 crops were standing on the lands in
the village Ahmedpur acquired by the Military authorities for Sirsa 3 Airfield
construction, the details of which were that the total land acquired for
Airfield 49 acres, the land on which crops were standing in good condition 23
acres and the land on which crops were standing in damaged condition 7 acres
and uncultivated land 19 acres.
Mani Ram Patwari had stated that by the 20th
March 1963 some ground had been cleared. Sukhchain Lal Jain P.W. 11 who had
also come to obtain possession on behalf of the Military Estate Officer had
said that he had seen some part of the crops had been cut by 13-2-1963, but was
not aware who had cut them. This evidence, however, does not assist the
accused. At the most it shows that a small portion of the crops were cut but it
is apparent that that has not been taken into account by the Collector in assessing
the value of the crop because it is on that day that crops were inspected for
that purpose and subsequently the Agricultural Officer also had in his letter
dated 18-2-63, which has been cited in the award Ex. P. 26 intimated that on
inspection the crops were found to be very good. He had also given the
approximate yield and the rate at which the crop can be valued with which the
Collector agreed and awarded compensation. It is therefore clear that in
estimating the crop, the small portion of the land where crops were stated to
have been cut by the 13-2-63 even if true could not have been taken into
account. It may also be stated that the Contractor had written to the, Garrison
Engineer on 28-2-63 requesting him to hand over immediately the possession of
the remaining portion of the land so that excavation work is not held up. He
also inform in that letter that the excavation in all available portions of the
taxi track and runway has been completed. This again does not specifically
refer to the land which is being acquired. At any rate on the 23rd March, 1963
P.W. 8 has again written to the Garrison Engineer namely the Appellant that the
excavation of the taxi track could not be proceeded with for want of alignment
to be given which was pending for want (because) of standing crops, in the
land, the possession of which has not been given so far. Thereafter the
following pertinent statement appears namely"Now, today I find that the
crops have been completely cut and as such it is requested that further necessary
action in the matter of giving the alignment and possession of land may please
be taken at your end." 861 On the 6th April, 1963 he has again written to
the Garrison Engineer saying as follows:"You have verbally asked me now to
take the site after the crop is cut and the necessary marking of the alignment
has been taken in hand but this handing over has not been shown on the site
order book by the A.G.E. (B/R) despite my request.
He may please be asked to complete this
formality without any loss of time." In reply the Appellant states in his
letter Ex. P. 12 dated the 10th April "The matter has already been
discussed with you and finalised. No further action is required to be
taken".
It can be seen from the above that the
appellant is reluctant to reply in writing as to what he is asking the
contractor to do under verbal orders while the contractor for safeguarding his
position is insisting on having it in writing.
The Trial Court as well as the High Court are
in our view, justified in holding that crops of Sarson, gram and lusan were
standing on the land acquired by the Military for extension of the Aerodrome.
It will also justify the conclusion that they were there at any rate till the
20th March 1963 and according to the letter of the contractor (P.W. 8) on
23-3-63 they were completely cut. In so far as handing over of the possession
of the land to the Contractor (P.W. 8) is concerned, the Trial Court and the
High Court are equally justified in coming to the conclusion that the accused
had not delivered the possession of the land to the contractor till quite late
as would appear from the letter of P.W. 8 dated the 5th April, 1963.
We are aware of the argument addressed before
us that some of the witnesses had said that the water channels had been closed
in February 1963 and therefore no crop could thereafter have been standing on
the land and must have been destroyed. There is also the further argument that
some of the statements recorded by the Military authorities were not taken into
account, as the High Court had thought that since the deponents denied the
contents the officers who recorded the statement might have been called to show
that they were properly recorded. The learned advocate for the respondent also
tried to support the stand taken by the High Court. It 1is true that when a
witness has admitted having signed his previous statements that is enough to
prove that some statement of his was recorded and he had appended his signature
thereto. The only question is, what use can be made of such statements even
where the witness admits having signed the statements made before the Military
Authorities.
They 862 can at best be used to contradict in
the cross-examination of such a witness when he gives evidence at the Trial
Court of the accused in the manner provided under Section 145 of 'the Evidence
Act. If it is intended to 'contradict the' witness by the writing, the
attention of the witness should be called before the writing can be proved to
those parts of it which are to be used for the purpose of contradicting him. If
this is not done, the evidence of the witnesses cannot be assailed in respect
of those statements by merely proving that the witness had signed the document.
When the witnesses are contradicted by their previous statements in the manner
aforesaid, then that part of the statements which has been put to the witness
will be considered along with the evidence to assess the worth of the witness
in determining his veracity. The whole of the previous statement however cannot
be treated as substantive evidence.
We do not find that the assessment of the
evidence by the Trial Court and the High Court even in the light of such of
those previous statements that have been put to the witnesses in the manner
stated above is in any way unjustified. It is said that some of the documents
i.e. Ex. 8, 10 and 11 have not been put to the witnesses even though the Court
relied upon them. Ex. P.8 as already noticed is the letter of Telu Ram Jain to
the Assistant Garrison Engineer and P. 10 is the letter of Telu Ram Jain to the
Garrison Engineer. Both these related to possession of the acquired land not
being given to him. In the examination of the accused under Section 342 the
Special Judge in our view did put all the circumstances against the accused which
formed the basis of the conviction. He was asked about the symbolic delivery of
possession, the handing over of the actual possession of the land on 13-2-63
and the existence of crops on the date when possession was delivered on 16-2
63. He was asked about Telu Ram's evidence
and also that he had given possession of the land RD 1200 to RD 00 to the
contractor after the crop had been cut. The letter Ex. P. 13 was also put to
him and he was asked about the existence of the crops. It cannot, therefore be
said that circumstances appearing against the accused which have formed the
basis of the conviction had not been put to him. The appellant has denied that
there was any standing crop on the land acquired on any date after 13-2-63. On
the other hand, he emphatically asserted that at the time when the possession
was delivered to him on 13-2-63 there was also no crops standing on the
acquired land. This statement is clearly false as it is against credible
documentary evidence at a time when there was no possibility of any charge
being levied against the appellant. It is also incorrect because the
,contractor did not work on the acquired land since 1-263 that position is
reflected in the review report initiated by the A.G.E. on 9-2-63 (vide Ex. DQ).
The appellant's statement is therefore 863 belied by the documentary evidence
which shows unmistakably that there was on 13-2-63 bumper crops of different
varieties standing on the land which was valued thereafter and compensation
assessed. We do not therefore think that there is any justification in the
criticism that circumstances appearing in the several documents have not been
put to him.
It is lastly contended that certain witnesses
who would be necessary to unfold the prosecution story have not been called and
in spite of the Court directing the production, of the usufruct register it was
not produced. These omissions it is submitted by the learned advocate has
prejudiced the accused. As the learned advocate for the respondent rightly
pointed out with reference to each one of the persons who, it was claimed,
should have been called that there was already evidence relating to the
particular matter about which the person specified was sought to be called. For
instance, it is said that Gamkhar, Military Estate officer was not produced to
prove the receipt Ex. P.
24. But this was not necessary because
Gamkhar was not present nor did he sign the receipt. The person who had signed
the receipt is Sukhchain Lal Jain and he was examined as P.W. 11. Similarly, it
is said that the Tehsildar N. L. Handa has not been produced. But when the
prosecution relies upon the proof of Ex. P. 24 as also to establish that there
was standing crops on the land when the possession was delivered on 13-2-63 on
certain witnesses who were present on the respective occasions, the nonexamination
of other witnesses without anything more cannot be treated as defect in the
prosecution. Before the High Court also this grievance was aired but that Court
also likewise found no justification in it. We are therefore not impressed with
this argument. On' a careful consideration of the evidence both oral and
documentary it is established that the Appellant who was in charge of the
expansion work on the air-strip was given possession of the land acquired for
that purpose on 13-2-63, that there was standing thereon, a bumper crop of
Sarson, gram and Lusan on that day, that he was therefore entrusted with this
crop, that he postponed giving delivery of the land to the contractor till, at
any rate after the 23rd March, 1963 and before the 6th April, 1963 and that he
allowed the crop to be cut and taken away without in any way accounting for it
which shows that it was done dishonestly and raudulently.
864 The fact that otwithstanding overwhelming
evidence particularly of his own admission at the time he denies that there
were ever any crops when delivery of possession of the land acquired was taken
by him, further reinforces the conclusion that he allowed the crops to be cut
away with dishonest or fraudulent motive. We do not think in these
circumstances there is any justification whatever for interfering with the
concurrent findings of the Trial Court and the High Court that the Appellant is
guilty of an offence under Section 5(1)(c) read with Section 5(2) of the Prevention
of Corruption Act and consequently the appeal is.
dismissed.
V.P.S. Appeal dismissed.
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