Raghubir Singh Vs. State of Haryana
[1974] INSC 76 (28 March 1974)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
KHANNA, HANS RAJ GOSWAMI, P.K.
CITATION: 1974 AIR 1516 1974 SCR (2) 799 1974
SCC (4) 560
ACT:
Prevention of Corruption Act, (2 of 1947) S.
5A--Sanction to prosecute--Authority of sanctioning authority questioned for
the first time in appeal under Art. 136--Contention When may be
allowed--Executive magistrate laying trap--- Propriety--Trap witnesses, if
accomplices--Non-examination of a witness and allowing a prosecution witness to
be treated as hostile--Effect of.
HEADNOTE:
The appellant, an Assistant Station Master,
was convicted of the offence of criminal misconduct in the discharge of his
duties punishable under a. 5(2) of the Prevention of Corruption Act, 1947, and
the conviction was confirmed by the High Court. In appeal to this Court under
Art. 136, it was contended that; (1) the prosecution was invalid for want of
competent sanction; (2) the investigation was not merely illegal but caused serious
prejudice to the accused;
(3) the Court should have drawn an adverse
inference against the prosecution from the non-examination of a key witness
like the Deputy Superintendent of Police; (4) the uncorroborated testimony of
accomplices or quasi-accomplices should not have been made the foundation for
the conviction;
and (5) the Court should not have drawn a
presumption under s. 4 of the Act as the charge was under s. 5(1)(d ) read with
s. 5 (2).
Dismissing the appeal.
HELD :-(1) (a) The Divisional Officer (Senior
scale) granted the sanction for prosecution in this case, and under r. 134 of
the Indian Railway Establishment Code, he has the delegated power to appoint
and dismiss officers like the accused, and therefore, was competent to grant
the sanction.
[802 C-D] (b) The construction sought to be
put on 'the rule reading it with r. 3(a), that only Divisional Personnel
Officers are in executive charge of the staff of Divisional Offices and are
entitled to control them and therefore, by implication other divisional
officers are excluded from the delegation of powers in regard to appointments
has no substance. Rule 3 (a) refers to 'Establishment matters' which ordinarily
cover routine items and not appointments and dismissals [802 H-803 A] (c)
Moreover the appellant should have produced his appointment order if his case
was that it was only a Divisional Personnel Officer and not a Divisional
Officer that appointed him. [803 B] (d) This contention was not raised in the
lower court nor in the High Court' In special circumstances the validity of a
sanction which goes to the root of the case may be permitted to be raised for
the first time in this Court but this is not one such. [802 G] Vinayak V.
Joshib v. State, A.I.R. 1968 Pun. 120 and Sudarshanlal Bajaj v. S. P. Agarwala,
A.I.R. 1966 Raj.
37. referred to.
(2) The mandate of s. 5A regarding
investigation is merely that no police officer below the rank of Deputy
Superintendent of Police shall investigate any of the offences specified
therein. There was no inaction by the police or misuse of the executive
magistracy in this case.
In the present case, a trap was laid by the
Executive Magistrate, because the D.S.P. had no jurisdiction over railway
premises, and after the trap episode was completed and the offence committed
information was laid before the police officer who started the investigation;
and he certainly was an officer of competent rank. While, laying a trap by a
police officer, may be a step in investigation if a case had already been
registered in the police station pursuant to which the trap was set, it cannot
be said to be a part of investigation where a trap is laid only to find out
whether an offence is going to be committed. There is nothing in s. 5A
preventing an Executive Magistrate or other public officer laying a trap to
catch the allegedly corrupt official. [804 A-D] I State of Bihar' v. Basawan
Singh. [1959] S.C.R. 195 and Rishbud and Inder Singh v. State of Delhi, [1955]
1 S.C.R.
1150 followed.
Hira Lal [1970] 3 S.C.R. 933, referred to.
-Lg4SuP. CT/75 800 (3) The non-examination of
the Deputy Superintendent of Police is of no consequence at all in the case.
[807 B] (4)(a) The special jurisdiction under Art. 136 of the Constitution
cannot be diluted into a second appeal on facts. [804 E-F] (b) To condemn
roundly every public official or man of the people as an accomplice or
quasi-accomplice for participating in a raid is to harm the public cause. May
be a judicial officer, should hesitate to get involved in police traps when the
police provide inducements and instruments to commit crimes, because, that
would sully the image of the independence of the judiciary. But there cannot be
a total ban on public officers even though executive magistrates, playing a
socially useful role in checking public men's corruption when the situation
needs it. A flexible, realistic approach is the sound course.
[805 C-E] In the present case. the magistrate
was not a full-blooded judicial officer no de novo temptation or bribe money
was offered by the Police and no ground to discredit the veracity of the
magistrate had been elicited. [805 E] Rao Shiv Bahadur Singh v. State of
Vindhya Pradesh, [1954] S.C.R. 1096, referred to.
(c) The permission given by the Court to
treat a prosecution witness as hostile was properly granted. it is
discretionary power of the trial court and, if the witness strikes the court as
imbued with partisan. zeal, cross-examination may be allowed by the party who
calls him.
[806 E-F] (5) Even if the statutory
presumption is unavailable courts may presume what may in the ordinary course.
be the most probable inference. That an Assistant Station Master has in his
hand a marked currency note made over to him by a passenger whose bedding had
been detained by him, for which no credible explanation was forthcoming, speaks
for itself.
Assuming that the passenger was using a pass
intended for himself to take with him his wife and child illegally and thus
tried to dupe the railway, it is no alibi for the Assistant Station Master to
help himself to illicit gratification. [806 G-807 B]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 15 of 1971.
Appeal by special leave from the judgment and
order dated the 15th May, 1970 of the Punjab and Haryana High Court in Criminal
Appeal No. 737 of 1968.
Frank Anthony and K. B. Rohatgi, for the
appellant.
H. S. Marwah and R. N. Sachthey, for the
respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-Mr. Frank Anthony arguing the case for the accused, in this
appeal by special leave, has put forward four main contentions against the
appellant's is conviction, namely, (a) that the prosecution is invalid for want
of competent sanction; (b) that the investigation is not merely illegal but has
in consequence inflicted serious prejudice on the accused; (c) that the
non-examination of key witnesses, like the Deputy Superintendent of Police,
should have driven the court to draw an adverse inference fatal to the case,
and the uncorroborated testimony of accomplices or quasi-accomplices should not
have been the foundation for a conviction, and (d) that the Court bad drawn a
presumption under S. 4 of the Prevention of Corruption Act, although there was
no warrant for it in the present case, the charge having been one under s.
5(1)-(d), read with s. 5(2) of the said Act.
A brief statement of the facts will lead to a
better appreciation of the arguments urged. The accused (appellant) was an
Assistant 801 Station Master at Ateli in May 1967. P.W. 3, a member of the
Armed Forces, was going back home by train from Udaipur with his wife and child
on railway concession pass, carrying with him a trunk and bedding. When the,
train reached Ateli Railway station in the afternoon of May 9, 1967, P.W. 3 got
down with his baggage and, when he handed over his ticket to the accused, was
told that he had to pay extra for his wife and child and excess luggage--a sum
around Rs. 45 or more.
P.W. 3 pleaded that he had no money on him
then and was suggested a way out by the payment of Rs. 10 at once a bribe and a
bargain. Promising to bring the money the next day, P.W. 3 left the station
leaving his bedding as something of a non-human 'hostage' which was to be
released on the payment of the illicit sum. On reaching his village late in the
night, P.W. 3, the Jawan, thought of informing the authorities about this
harassment. Accordingly, he contacted the Deputy Commissioner, Narnaul, on May
11 and related to him what had happened. The Deputy Commissioner instructed the
Superintendent of Police to look into the matter who directed the Deputy
Superintendent of Police, Narnaul, to take suitable action. He also sent a
telephonic message to Shri Dharamvir, Sub Divisional Magistrate, Narnaul, and
told him that Sis Ram had been directed to contact the Deputy Superintendent of
Police, Narnaul, in connection with his complaint. thereupon, the Sub
Divisional Magistrate, P.W. 5, together with the Deputy Superintendent of
Police, decided to organise a trap, on being apprised of the story by P.W. 3.
The team consisted of the Deputy Superintendent, the Sub Divisional Magistrate,
a head constable of the railway police, and P.W. 3 himself. The party moved to
the railway station and P.W. 4, Lakshmi Narain, also joined them on the way. A
ten-rupee note (Ex. PI) was handed over by P.W.3 to the Sub Divisional
Magistrate, who signed on it,.in token whereof a memo was prepared, Ex. PF.
P.W. 3 took back the note, his body was searched as part of the usual
precaution and he was directed to go to the accused and give signal after the
money was paid. As arranged, P.W. 3 met the accused, made over the money, gave
a signal whereupon the party of the Sub Divisional Magistrate closed in on the
accused. The marked note was recovered from his right hand (vide memo. Ex. PG).
Thereafter, the Sub Divisional Magistrate lodged a First Information Report
with the police, a case was registered and on completion of investigation by
the Deputy Superintendent of Police having jurisdiction over the Railways, P.W.
7, and after obtaining the statutory sanction, Ex. PD/1, the accused was
charged with an offence of having accepted illegal gratification of Rs. 10 on
May 11, 1967 from P.W. 3 thereby committing criminal misconduct in the
discharge of his duties, punishable under s. 5(2) of the Prevention of
Corruption Act, 1947. The Special Judge convicted the accused, overruling the
defence version set up under s. 342, Cr. P.C., and disbelieving the defence
witnesses. The High Court confirmed the conviction. The sentence of one year
rigorous imprisonment and a fine of Rs. 200 was also confirmed.
Shri Frank Anthony sought to make good his
contention regarding the invalidity of the sanction, Ex. PD/1, by urging that
P.W. 2, a Divisional Officer (Senior Scale), who granted the sanction did not
802 and, under the rules, could not appoint or dismiss the accused. It has; to
be mentioned right at the beginning that P.W. 2, who was working as Divisional
Operating Superintendent, Western Railway, Udaipur, has sworn that by virtue of
delegated powers he was competent to remove an Assistant Station Master like
the accused. Although his evidence was a little ambiguous in that he first
swore that he was competent to remove but not to dismiss the accused, on a
later date he was recalled, and gave evidence bringing with him the relevant
rules and regulations. He.testified that under the rules he was competent to
dismiss a Class III servant drawing a pay rising up to Rs. 250. The accused
came within this category. The High Court, not content with mere oral evidence
on this issue, went elaborately into the legality of the sanction and found
that the Indian Railway Establishment Code (rule 134) authorised delegation of
powers, and in the schedule there is a clear delegation of the powers in favour
of Divisional Officers (Senior Scale) to make initial appointments to posts in
scales of pay rising up to Rs. 380 per month. P.W. 2 is a Divisional Officer,
Senior Scale, and the accused holds a post in a scale of pay not exceeding Rs.
380/- per month. The Court, therefore, concluded that the power to appoint,
which also carried with it the power to dismiss, vested in P.W. 2.
Counsel for the appellant contended that even
though r. 134 of the Indian Railway Establishment Code appeared to vest powers
in Divisional Officers, Senior Scale, if read in the light of the Schedule of
Powers delegated by the General Manager, control in regard to appointments was
vested only in the Divisional Personnel Officer as such. To substantiate this
argument counsel invited our attention to certain, earlier portions of the
Code. He placed reliance on r. 3(a)-, which reads "As the DPOs are in
executive charge of the staff of the Divisional Offices, exclusive of those
working under the Divisional Accounts Officers, the powers delegated to
Divisional Officers (Sr. Scale) in Establishment matters will, in respect of
staff of the Divisional Offices, be exercised by the DPOS." ' There are
two difficulties in the way of our accepting this contention. For one thing,
this point admittedly has not been taken before the High Court or the special
judge. It is not, therefore, permissible for us to allow it to be argued for
the first time in the Supreme Court since the State has no opportunity to
explain whether there are other orders and what the expression 'Establishment
matters' I means. In special circumstances, the validity of a sanction which
goes to the root of the cage may be permitted to be raised for the first time
in this Court. This case is not one such. For another, the rule is clear that
persons like P.W. 2, namely, Divisional Officers, Senior Scale, have the power
to appoint class III officers like the accused. The construction sought to be
put on it by counsel that only DPOs are in executive charge of the staff of
Divisional Offices and are entitled to control them, and by implication,
therefore, other Divisional Officers are excluded from the delegation of powers
in regard to appointments 803 has no substance. 'Establishment matters,
ordinarily cover routine items, not appointments and dismissals. May be, for
better co-ordination and avoidance of conflict among divisional officers
directions may have been issued regarding exercise (if powers by one which do
not contradict existence of powers in others. Moreover, it was easy for the
appellant to produce his appointment order if his additional case that only a
Divisional Personnel Officer and not a Divisional Officer appointed him. Again,
all that Ex. P.E. and like documents prove is that allotments of selected
persons are made by the higher officer (the R.T.S.) but the actual appointment
is made by the D.T.S. There is thus no force in the 'last straw' plea that the
R.T.S. alone could or did appoint him.
Two decisions were pressed before us by Shri
Frank Anthony.
The first, Vinayak V. Joshi v. State(1), is
easily distinguishable. There, a Divisional Medical Officer who was of equal
status with a Divisional Personnel Officer granted sanction but he had no
delegation of powers of appointment which only the latter enjoyed. Mere
equality of official status with a delegate cannot clothe the other officer
with delegated powers and so in that decision it was held that the Medical
Officer's sanction was incompetent, there being no delegation in his favour.
The other ruling of the Rajasthan High Court, Sudarshanlal Bajaj V. S. P.
Agarwala(2), has no application whatsoever.
In these circumstances, we have no hesitation in rejecting the plea of the
illegality of the sanction. Counsel is certainly right that if there is
infirmity in the sanction the prosecution must fail. While it is true that provision
for sanction before prosecution of a public servant should not be an umbrella
for protection of corrupt officers but a shield against reckless or malevolent
harassment of officials whose upright discharge of duties may provoke
unpleasantness and hostility, that is an area of law reform covered, we find,
by the 47th Report of the Law Commission of India.
Now we proceed to consider a kinded
contention that the investigation is grossly illegal and, without more, spells
an acquittal. Shri Anthony asked why the Deputy Commissioner did not record the
statement of P.W. 3, the aggrieved Jawan. Why did the Superintendent of Police
or even the Deputy Superintendent of Police desert his duty to register a case
on being apprised of the offence ? Was it not a subversion of the provision of
s. 5A of the Prevention of Corruption Act, 1947, to bypass the police
establishment by employing a magistrate to lay a trap ? These interrogations do
not legally wreck the conviction because they do not brand the investigation as
invalid. As ex- plained by counsel for the State, P.W. 3 may well have
complained of harassment by the accused detaining his bedding and the Deputy
Commissioner would have in the usual course directed him to the District head
of the police. The latter, not improperly, may well have asked his subordinate
to take action. Since this D.S.P. had no jurisdiction over the railway
premises, he did not act directly but requested the executive magistrate of the
place, P.W. 5, who bad already been informed by the Deputy Commissioner to
initiate steps for catching (1) A.I.R. 1968 Pun. 120.
(2) A.I.R. 1966 Raj. 37.
804 the alleged bribe taker. We do not share.
Shri Anthony's grave suspicion about the alleged inaction of the police and the
misuse of the executive magistracy. The simple legal issue is whether s. 5A has
been violated or fraudulently frustrated and consequent failure of justice
inflicted? The mandate of s. 5A is merely that no police officer below the rank
of a Deputy Superintendent of Police shall investigate any of the offences
specified there. Here, no investigation was done by a lesser police officer,
for P.W. 7, who did the investigation, was of competent rank and what the
Magistrate, P.W. 5, did was not investigation and was de hors S. 5A. By
definition, only a police officer can investigate (sec. 4(1) Cr. P.C.) A
magistrate cannot. In the present case, after the trap episode was completed
and the offence committed, P.W. 5 laid information before the police whereupon
P.W. 7 started investigation. Until then, no investigation in law did or could
commence. Moreover, while laying a trap by a police officer may be a step in
investigation if a case has already been registered in a police station
pursuant to which the trap is set, it cannot be part of investigation where the
exercise is only to find out whether an offence is going to be committed. Hira
Lal(1) hardly rescues the accused. There is nothing in S.
5A preventing an executive magistrate or
other public officer laying a trap to catch an allegedly corrupt official. The
ruling in State of Bihar v. Basawan Singh (2 ) by implication upholds this
position. In fact, in the current crisis of rampant corruption polluting the
public services-so the public mind demoralisingly believes-the need for
superior officers vigilantly organising Operation Anti- Corruption cannot be
discouraged by legalisms. For the present case it is enough to say that no
violation of law nor serious prejudice has been made out (vide Rishbud and
Inder Singh v. State of Delhi) (3).
The meat of the matter, if one may say so, is
whether the accused has been proved to have helped himself to an illegal
gratification of Rs. 10/-, as alleged. At the threshold we must remind
ourselves that the special jurisdiction under art. 136 of the Constitution
cannot be diluted into a second appeal on facts. The end of the appellate
journey is normally the High Court and exceptional circumstances alone can
justify the exercise of the extraordinary power of the Supreme Court to review
the evidence. The strange and expensive spectacle of multitiered appeals built
into the system does more injury than justice and strictness in this regard
brings finality to litigation early instead of holding out illusory hopes to
one who would not have ventured on this costly project had he known the
limitations on the jurisdiction under art. 136, more so when the findings are
concurrent.
We shall briefly examine the strong attack
made by Shri Frank Anthony on the evidence adduced and the credence given to it
by the courts below. The sharp castigation of traps as immoral, of trap
witnesses as accomplices, of involving magistrates in such dubious exercises as
reprehensible, may have had some precedential support but (1) [1970]
3S.C.C.933.
(2) [1959] S.C.R.195.
(3) [1955] 1 S.C.R. 1150.
805 time and circumstance, the compulsions of
public demand for arresting an insidious but expanding evil and a sense of
judicial realism and appreciation of the specific facts of each case guide the
pragmatic yet principled approach the court has to make. It is not necessary
that executive magistrates should always keep away from operations intended to
catch the criminal red-handed. He is not so strongly 'motivated to get a
suspect somehow or other punished. He is professionally detached and has a public
responsibility to help detect a bribe-taker if credible requests are made.
Such a magistrate is not a cloistered ,virtue
unconcerned with social claims on his services. It is apathy of good citizens
that induces police officers to go after the lesser breed of search witnesses
in the enforcement of social welfare statutes. To condemn roundly every public
official or man of the people as a quasi-accomplice for participating in a raid
is to harm the public cause. May be, a judicial officer, unlike an executive
magistrate, should hesitate to get involved in police trap experiments and
expose himself to charges of unveracity. However, there is force in the censure
made in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh(1) when the police
provide inducements.and instruments to commit crimes .and judicial personages
willingly lend themselves to be enmeshed in such shady attempts, sullying the
image. of independence of the judi- ciary. But we cannot exaggerate these
dicta, into a total ban on public officers, even though executive magistrates,
'playing a socially useful role in checking public men's corruption when the
situation needs it. This is best illustrated by the observations of Das, J., in
State of Bihar v. Basawan Singh(2) where the learned Judge emphasized that a
flexible, realistic approach is the sound course. In the present case, the
magistrate was not a full-blooded judicial officer but only exercised limited
preventive powers after separation of the judiciary from the executive.
No de nove temptation nor bribe money was
offered by the police in the present case. The magistrate merely sought to do
his public duty of intercepting a crime which was otherwise in the process of
fulfilment. It was service, not sin, to have done it. No ground to discredit
the veracity or taint the 'testimony of P.W. 5 has been elicited. And, what
dissolves scepticism and builds up credence is the seizure of the marked
currency note from the accused's right hand and the presence of the bedding of
the jawan on the railway station. The original story of P.W. 3 fits in with the
facts while the accused's strained version stands unproven. The murky evidence
of the military man, P.W. 3, who perhaps stood to gain by paying Rs. 10 and
avoiding excess, baggage and extra passenger charges may be insufficient to
prove guilt if uncorroborated by better testimony. A bribe deal is usually a
benefit-both syndrome and the payer's lips carry little conviction in the
absence of reassuring support. Before us, the executive magistrate, PW. 5, and
the casual member of the trap team, P.W. 4, have given testimonial boost. But
real-reinforcement comes from the right hand of the accused which held
the.guilty note and gave it over to P.W. 5 on being challenged. The counter-
story of the Assistant Station Master (accused) was that the Jawan was stopped
by the attender (or water carrier) of the station at the gate for insufficient
(1) [1954] S.C.R. 1096.
(2) [1959] S.C.R. 195.
806 tickets and excess baggage but, after
some sound and fury over an interpolation in the military pass, was allowed to
go by the accused who promptly reported to the Jaipur Station Master to know
how many passengers were covered by the pass. The inconvenient 'bedding' of the
Jawan was explained by the accused as having been left behind by P.W.
3 in the heat of the moment and had been kept
in the lost property room and entered in the relevant register. The courts
below have rejected this exculpatory case of the appellant and we see nothing
too odd in the appreciation or too unnatural in the inference to warrant our
interference.
True, P.W. 1, the fellow station master, has
endeavoured to substantiate the appellant's plea but has been disbelieved.
After all, the successful and sustained
prevalence of rackets .Eke corruption is built on the artful network of sharing
agencies and the rescue operations of P.W. 1 cannot be regarded as independent
evidence of an unconnected officer. We hope that the authorities in charge of
cleansing our public sector of corruption Will view each detected act as
symbolic of a chain scheme and symptomatic of a deeper systemic malady and not
as an isolated aberration of a delinquent official. A massive purge, not stray
traps, can alone be the strategy. That P.W. 1 supports the accused is no
surprise if we realise how dubious 'distributive justice' works in some of
these public offices where money is illicitly collected. An honest.
Assistant Station Master in the place of the
accused could not have allowed P.W. 3 to leave without reporting to the railway
police. Nor is the frivolous explanation that the ten-rupee note was brought by
P.W. 3 when the accused wanted only one rupee as official charge for keeping
the bedding in the lost property room worth a serious look. We regret our
inability to accede to the forceful submissions of Shri Frank Anthony on this
aspect of the case.
in passing we may mention that the criticism
made by learned counsel that P.W. 1 has been illegally permitted. to be treated
as 'hostile' is pointless. It is a discretionary power of the trial judge and
when a witness strikes him as imbued with partisan zeal cross-examination may
be allowed by the party who calls him. After all, these rules are only to
further the end of truth, not clogs in the quest for it.
We see no merit in the argument. To sum up,
the case against the accused has been made out beyond reasonable doubt.
Infallibility is the attribute of the omniscient and judges can only act on
pragmatic sense and reasonable doubts.
The last submission turns on the presumption under.
Section 4 of the Act. The contention of counsel for the appellant that the
presumption available under S. 4 of the Act cannot be raised in the present
case since the charge is under s. 5 (1 ) (d), read with s. 5 (2), is apparently
attractive. But we may notice that even if the statutory presumption is
unavailable, courts may presume what may in the ordinary course be the most
probable inference. That an Assistant Station Master like, the ,accused has in
his hand a marked,,' currency note made over to him by a passenger whose
bedding has been detained by him for which no credible explanation is
forthcoming, and he is caught red-handed with the note, is a case of res ipsa
loquitur. The very thing speaks for itself in the circumstances. We need not,
therefore, scrutinise the 807 substance of the argument based on the
inapplicability of S. 4. We also feel that there may be some force in the
argument of counsel that the jawan, P.W. 3, might have duped the railway by
using a pass for one passenger and carrying a family of wife and, child
together. of course, we cannot finally pronounce on this matter for want of
sufficient documents. All that we need say is that even assuming that the
passenger so tried to dupe the railway, that is no alibi for the Assistant
Station Master to help himself to illicit gratification. Nor is the
non-examination of the Deputy Superintendent of Police of any consequence in
the case.
In these circumstances we find no reason for
interfering with the concurrent conviction and sentence. The appeal is
dismissed.
V.P.S. Appeal dismissed.
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