Judgment:
H.N. Nagamohan Das, J.
1. This appeal is directed against the judgment of conviction and sentence dated 13.06.2003 in Special case No. 7/1998 passed by the Principal Sessions Judge at Chitradurga.
2. The appellant is the accused and the respondent is the complainant before the Sessions Court. In this judgment, for convenience, the parties are referred to their status before the Sessions Court.
3. The accused was working as First Grade Revenue Inspector in the Town Municipal Council, Chitradurga, in the month of February, 1998. The complainant - C.W.1 submitted an application to the Town Municipal Council for change of khata of property bearing No. 1060 situated at II Block of Chickpet, Chitradurga town in his name from the name of one Narasinga Rao as per Ex.P.7. The concerned Revenue Officer - P. W. 5 passed an order on 12.02.1998 directing the accused to inspect the spot, draw a mahazar, sketch and to submit a report. Thereafter C.W.1 approached the accused on 13.02.1998 requesting him to expedite the matter and at that time the accused demanded illegal gratification of Rs. 10,000/-. After negotiations, the bribe amount was settled at Rs. 5,000/-. Since C.W.1 was not inclined to pay the bribe amount to the accused, he lodged a complaint with the Lokayuktha police on 17.02.1998 as per Ex.P.1. The Lokayuktha police organised a trap. C.W.1 and the shadow witness P.W. 5 went to the office of the accused with tainted currency notes of Rs. 5,000/- and on enquiry about the progress relating to the drawing up of mahazar and submitting a report, the accused asked C.W.1 whether he has brought the amount of Rs. 5,000/-. When C.W.1 answered positively, the accused took C.W.1 to room No. 14 of Majestic Lodge situate adjacent to his office. Accordingly on the demand made by the accused, C.W.1 paid tainted currency notes of Rs. 5,000/- to him. Immediately thereafter, on the signal given by C.W.1, the Lokayuktha police entered room 14 of Majestic lodge and found tainted currency notes of Rs. 300/- in the right pant pocket of the accused and the remaining amount of Rs. 4,700/- in a suitcase belonging to the accused. After investigation the Lokayuktha police filed chargesheet against the accused in special case No. 7/1998 for the offences punishable under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act (for short ' PC Act'). Before the Sessions Court the prosecution examined 14 witnesses as P.W.1 and P.W.14 and got marked Ex.P.1 to Ex.P.23 and M.O.1 to M.O.15. The Special Court framed the following three points for its consideration.
I. Whether the prosecution proves beyond all the reasonable doubt that the accused, as a public servant, had accepted or obtained illegal gratification from CW1, Sri. Annojirao, to show official favour in the matter of change of khata of house property and thereby is guilty of offence punishable under Section 7 of the Prevention of Corruption Act, 1988?
II Whether the prosecution proves beyond all the reasonable doubt that the accused, being a public servant, is guilty of the offence of criminal misconduct within the meaning of Section 13(1)(d) of the Prevention of Corruption Act, 1988?
III. Whether the accused is liable to be convicted in respect of both or either of the charges levelled against him or for any other offence?
4. After hearing both the parties and on appreciation of the entire evidence on record the Sessions Court passed the impugned judgment convicting the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act and sentenced to undergo rigorous imprisonment for a term of 2 years and to pay fine of Rs. 10,000/-for the offences punishable under Section 7 of the Act and to undergo rigorous imprisonment for 4 years and to pay a fine of Rs. l5,000/- for the offences punishable under Section 13(1)(d) read with Section 13(2) of the Act. It is further stated that both the sentences shall run concurrently and set off was also given for the period of detention, if any, undergone by the accused. Hence, this appeal by the accused.
5. Sri. Kashinathrao Patil, learned Counsel for the accused filed a memo on 08.12.2008 stating that the provisions of Prevention of Corruption Act, 1988 as unconstitutional and violative of Article 14 of the Constitution of India. The main argument of the learned Counsel for the accused and the decisions relied on by him are in relation to the constitutional validity of the provisions of the PC Act. It is also contended that the Sessions Judge at Chitradurga had no jurisdiction to pass the impugned judgment. Provisions of Prevention of Offenders Act was not applied. The Lokayuktha police have no jurisdiction to investigate the matter. The police officer who investigated the matter has not followed the procedure. On these grounds learned Counsel for the accused prayed for setting aside the judgment of conviction and sentence.
6. Per contra Sri. S.G. Rajendra Reddy, learned Counsel for the complainant contends that in criminal appeal the constitutional validity of the provisions of the PC Act cannot be gone into. In accordance with law and by following the procedure, the Lokayuktha police investigated the matter and filed chargesheet. By leading oral and documentary evidence the Lokayuktha police established the charge levelled against the accused. He further contends, mat the provisions of Prevention of Offenders Act are not applicable. He supports the impugned judgment and sentence.
7. Heard arguments on both the side and perused the entire records. Though number of decisions are relied on, on both the side, the relevant decisions are taken into consideration.
8. The contention of learned Counsel for the accused that the provisions of P.C. Act are unconstitutional and violative of Article 14 of Constitution of India is unacceptable to me. In the memorandum of appeal there is no prayer calling in question the constitutional validity of the provisions of P.C. Act Further there is no ground urged in the memorandum of this criminal appeal on the question relating to the validity of P.C. Act During the course of arguments learned Counsel for the accused filed a memo to decide the question of law relating to the validity of provisions of P.C. Act. This P.C. Act is a central legislation and the appropriate Government is not made as a party to this proceeding. It is settled position of law that in a criminal appeal the constitutional validity of provisions of special statute cannot be gone into. Therefore, I decline to accept the contention of learned Counsel for the accused and I refuse to go into the question of constitutional validity of provisions of P.C. Act.
9. Secondly, it is contended that Lokayukta police have no jurisdiction to investigate the matter against the accused and therefore the impugned judgment is liable to be set-aside. I refuse to accept this contention of learned Counsel for the accused. The first proviso to Section 17 of the P.C. Act specifies that the State government by general or special order, authorise an Inspector of Police to investigate the offence under the PC Act. The Government of Karnataka vide notification dated 6.2.1991 bearing HD 286 PEG 90 generally authorised the Inspector of Police of Lokayukta to investigate the matters. It is not in dispute that in the instant case, PW.14, the Inspector of Police investigated the case against the accused. Therefore, on the face of it, the Inspector of Police who investigated the matter against the accused is authorised by the Government and as such the same is in accordance with Section 17 of P.C. Act.
10. Learned Counsel for the accused thirdly contended that Prl. Sessions Judge at Chitradurga has no jurisdiction to try the cases arising under the P.C. Act 1988 as he has not been duly appointed as Special Judge under Section 3 of P.C. Act. Identical question came up for consideration before this court in Vasant Arjunrao Bhandak v. State of Karnataka : ILR 2001 Kar 5651 and it is held as under:
The provision in Section 26 clearly postulates that any notification issued by the State Government under Section 26 are the Criminal Law (Amendment) Act, appointing the Special Judge for any specified area, to try the offences under the Prevention of Corruption Act, 1947, would hold good for the purpose of Section 3 of the Act of 1988 as well. The ambit of Section 26 does not admit narrow interpretation so as to restrict its area of operation of only to those cases under the Old Act 1987 which were actually pending before the Special Judge as on the date of commencement of the New Act of 1988. Therefore, the State Government notification dated 19.11.88 is has to held as a valid notification for the purpose of Section 3 of the Act of 1988, and that the Prl Dist. And Sessions Judge, Belgaum, who is appointed thereunder as the Special Judge has jurisdiction and is competent to try the offences under the Act. The conclusion so arrived at by the learned Trial Judge by his impugned order, is therefore, entitled to be upheld.
Therefore, there is no substance and merit in the contention of the learned Counsel for the accused that the Sessions Judge has no jurisdiction to try the offences under P.C. Act.
11. Fourthly, the learned Counsel for the accused contends that provisions Probation of Offenders Act (for short the 'Act') are not applied by the Sessions Judge and therefore the impugned judgment of sentence is liable to be setaside. I decline to accept this contention of learned Counsel for the accused. Section 18 of the Act specifies that it is unapplicable to offences punishable under Section 5(2) of the P.C. Act. Section 5(2) of the old P.C. Act, 1947 corresponds to Section 13 of the new P.C. Act 1988. The Supreme Court in State v. Parthiban 2007(1) 520 held that the principles of underlying Section 8 of the General Clauses Act, 1897 specifies that when as Act is repealed and re-enacted unless a different intention is expressed by the legislature, the reference to the repealed Act would be considered as reference to the provisions so re-enacted. Therefore, the reference to Section 5(2) of the old P.C. Act in Section 18 of the Probation Act, have to be inevitably read as references to their corresponding provisions to Section 13 of the new P.C. Act,. 1988. Consequently, for the conviction under Section 13(2) of the P.C. Act, the principles enunciated under the Probation Act cannot be extended at all in view of the mandate contained in Section 18 of the Probation Act.' In view of the dictum of Supreme Court, there is no substance and merit in this contention of learned Counsel for the accused.
12. It is not in dispute that the accused was working as First Grade . Revenue Inspector in Town Municipal Council at Chitradurga during the year 1998. The accused in his statement under Section 313 Cr.P.C admitted that on 12.2.1998 die file relating to the complainant was entrusted to him for preparation of sketch, rahazar and report. It is not in dispute that during the pendency of the proceedings before the Sessions Judge, complainant - CW.1 died and in such his evidence was not available. The Sessions Judge by following the law laid down by At Supreme Court in Krishana Mochi v. State of Bihar : 2002 Crl. L.J. 2645 rightly held that non-examination of complainant as not fatal to the case. The Sessions Judge on appreciation of the evidence of shadow witness PW.3 and I.O.-PW.14 rightly concluded that the accused demanded illegal gratification and accepted the same from the complainant-CW.1 to do an official favour. Further it is seen that the tainted currency notes of Rs. 300/- are recovered from the body of the accused and the balance amount of Rs. 4700/- was recovered from the briefcase belonging to the accused. The Sessions Judge on appreciation of this evidence on record rightly held that the prosecution has proved the charge levelled against the accused. Learned Counsel for the accused has not addressed any arguments on merits of the case and has not shown to me as to what is the error or illegality committed by the Sessions Judge.
13. The Sessions Judge sentenced the accused to undergo rigorous imprisonment for a term of two years and to pay fine of Rs. 10,000/-for the offences punishable under Sections 7 of P.C. Act and to undergo rigorous imprisonment for four years and to pay a fine of Rs. 15,000/- for the offences punishable under Section 13(1)(d) read with Section 13(2) of P.C. Act. In the facts and circumstances, of the case, the sentence imposed by the Sessions Judge appears to be on higher side. The accused has attained the age of superannuation. The accused is not a habitual offender. In identical circumstances, the Supreme Court in State of A.P. v. R. Jeevaratnam 2004 SCC (Crime) 1797 imposed the minimum sentence. Under the impugned judgment the accused is convicted for the offences punishable under Section 7, 13(1)(d) read with Section 13(2) of P.C. Act Under Section 7 of the P.C. Act, the minimum sentence is six months and under Section 13(1)(d) the minimum sentence is one year. Ends of justice will be met by imposing the minimum sentence on the accused.
For the reasons stated above, the following;
ORDER
i. The appeal is partly allowed.
ii. The impugned judgment of conviction of accused for the offences punishable under Section 7 and 13(1)(d) read with Section 13(2) of P.C. Act is hereby confirmed.
iii. The impugned order of sentence is modified sentencing the accused to undergo simple imprisonment for a term of one year for both the offences punishable under Section 7 and 13(1)(d) read with Section 13(2) of P.C. Act and to pay a fine of Rs. 5,000/-, in default to pay the fine amount to undergo simple imprisonment for another term of three months.
iv. Remaining all other aspects the impugned judgment of the sessions court remain in fact. Ordered accordingly.