Judgment:
Surya Prasad, J.
1. This is a criminal appeal against the judgment and order dated 1st June, 1983 passed by the then learned V Additional Sessions Judge (Special Judge), Varanasi, in Criminal Case No. 3 of 1981 convicting the appellant under Section 161, I.P.C. and Section 5(2) of the Prevention of Corruption Act and sentencing him to two years Rigorous Imprisonment on each count.
2. The prosecution case briefly stated is as under:
The complainant Shyam Narain Singh is a resident of village Gaura Uperwar, police station Chaubeypur, district Varanasi. The consolidation proceedings were undertaken in the village of the complainant Shyam Narain Singh and his brother Dashrath Singh. Chaks were allotted to them in place of their old plot No. 302 during consolidation proceedings. The complainant moved an application to the consolidation authorities on 11th August, 1980 for making measurement of his chak. The accused-appellant Gaya Prasad was Lekhpal during that period of that village. He was directed by the Consolidation Officer to carry out measurement as required by the complainant in that regard. Earlier to that a complaint was also made by the complainant. Consequently the accused Gaya Prasad was entrusted the work of measurement. Therefore, the complainant met him and made request personally as well to measure his chak. There upon the accused Gaya Prasad demanded a sum of Rs. 50/- as illegal gratification. The complainant, however, paid Rs. 30/- only and promised to pay Rs. 20/- later on the measurement being made by the accused Gaya Prasad. In spite of the fact that the complainant had paid a sum of Rs. 30/- to the accused, the accused did not go to the village of the complainant for making measurement of his chak. Consequently the complainant after some time again approached the accused, who told him that unless a sum of Rs. 20/- was paid to him, he would not measure his chak. The complainant then promised him to pay the said amount after two days. In the mean time, he went to the office of the Vigilence Department and moved an application on 15th November, 1980 making therein complaint against the accused about his illegal demand. That application was Ext. Ka-6. The Deputy Superintendent of C.I.D. ordered on that application Ext. Ka-6 the two Inspectors to take steps to catch-hold of the accused Gaya Prasad red-handed. Thereupon two notes of Rs. 10/- denomination each were given by the complainant to the Inspectors, who got it mixed with powder and returned it to the complainant with a direction that the same notes be given to the accused on his demand. The Inspectors observed certain other formalities in that connection. Thereafter the complainant along with the two Inspectors and four constables proceeded towards the Consolidation Office situated in Mohalla Orderly Bazar. It was about 3 p.m. when they reached near the office. The Inspectors enquired from the complainant about the accused Gaya Prasad, who was shown to be sitting at a Tea shop, near the office. The Inspectors thereupon instructed the complainant to go first to the accused and give him the amount as promised by him. Consequently the complainant went to the Tea shop where the accused Gaya Prasad was sitting. The Inspectors and the other members of the police parties and the witnesses Shyam Behari and Gauri Shankar were standing on the road side. The complainant gave Rs. 20/- to the accused Gaya Prasad saying that as per his promise he was paying it to the accused for measuring his chak. Both the notes Exts. I and II were taken by the accused Gaya Prasad in his hand and he promised that the chak of the complainant would be measured by him next day. Thereupon the Inspectors, after disclosing their identity, caught hold of the accused, who then threw away the two notes of Rs. 20/-paid to him by the complainant. The Inspector also got his hands washed and kept the mixture in a bottle in a sealed cover. He also took in his possession the two notes thrown by the accused and kept them in a sealed envelope. He prepared a Fard Ext. Ka-2 in connection therewith. The accused after his arrest with the recovered notes Exts. I and II was taken to the police station Cantt. Varanasi, same day at 5.45 p.m. by the Vigilance Inspector Surya Pratap Singh. The case was ultimately registered. The investigation ensued. After the completion of the investigation, the charge-sheet was submitted against the accused.
3. The prosecution examined the then Inspector, Anti-Corruption (C.I.D.) Surya Pratap Singh (P.W. 1), Shyam Narain Singh (P.W. 2), Gauri Shanker (P.W. 3), constable Bachcha Pandey (P.W. 4), Lakshmi Narain Singh (P.W. 5), Lakshman Prasad (P.W. 6), Inspector Anti-Corruption Jagdish Prasad Pandey (P.W. 7), Head Constable Rajaram Singh (P.W. 8), Malkhana Moharrir Haridwar Rai (P.W. 9), constable Bhadohi Ram (P.W. 10) and Sub-Inspector Raj Kumar Ram (P.W. 11) and filed certain documents in support of its case.
4. The accused pleaded not guilty. He has stated that all the allegations levelled against him are wholly wrong and incorrect. He has further stated that he has been falsely implicated on account of enmity and that the eye-witnesses examined by the prosecution are inimical to him.
5. Having heard the learned Counsel for the parties and having considered the evidence on record, the then learned V Additional Sessions Judge (Special Judge) Varanasi convicted and sentenced the accused Gaya Prasad through his impugned judgment and order. Aggrieved, he preferred this appeal against the same.
6. Heard the learned Counsel for the parties and perused the record.
7. It is alleged that the complainant Shyam Narain Singh (P.W. 2) had paid Rs. 30/- as illegal gratification to the accused Gaya Prasad. But there is nothing in the application. Ext. Ka-6, to show on what date he had actually done so and where. He has, however, stated in his cross-examination that he paid Rs. 30/- to the accused one month before he was caught red handed. It is further alleged that Shyam Narain Singh (P.W. 2) had promised to pay the remaining sum of Rs. 20/-as illegal gratification to the accused. But application Ext. Ka-6 is conspicuously silent on the point of time and place where he had made such promise to the accused. It is only in his cross-examination, that he has stated that he had at the time of making payment of Rs. 30/-, promised to pay Rs. 20/- to the accused. It is further alleged that Shyam Narain Singh (P.W. 2) again went to the accused and requested him to carry out survey of his chak. But no date and time has been mentioned in the said application about his second visit to. the accused. He has, however, stated in his cross-examination that he went to the accused three months after he had paid Rs. 20/- to him and that the accused demanded Rs. 20/- same day and that he promised to pay it two days after. But there is nothing as such in the application Ext. Ka-6.
8. Shyam Narain Singh (P. W. 2) has stated that it is true that the survey work is done by the Kanungo, but that the Consolidation Officer had directed the Lekhpal Gaya Prasad accused to carry out survey. This was, according to him, told to him by the village Pradhan. The Consolidation Officer (P.W. 6) was posted as Kanungo in the Consolidation Department, Varanasi, in the year 1983. He was working as such on 11th August, 1980. He has categorically stated that the survey work was done by him and not by the Lekhpal. He was consequently declared hostile. There is, however, nothing in his cross-examination or any other evidence on record to show that the accused was authorised to do survey work under any authority, power, rule or regulation. He had, therefore, no concern or connection with the survey work. Therefore, the prosecution case to the effect that the accused had demanded a sum of Rs. 50/- from the complainant Shyam Narain Singh (P.W. 2) for the purpose of carrying out survey of his chak and that he paid Rs. 30/- to the accused and also that he promised to pay the remaining sum of Rs. 20/- to him, appears to be wholly false and baseless.
9. Surya Pratap Singh (P.W. 1) has admitted that both the public witnesses had come along with the complainant Shyam Narain Singh. Therefore, Gauri Shanker (P.W. 3), who is one of them, cannot be treated as an impartial and independent witness. This being so, his testimony cannot be implicitly relied upon.
10. The giving and taking of the bribe is alleged to have taken place at the Tea-shop of one Ashok Kumar. There is nothing on record to show that it was agreed between the complainant Shyam Narain Singh (P.W. 2) and the accused that the accused would be available at the said Tea shop on 15th November, 1980 in between 3 p.m. and 4 p.m. The Vigilance Inspector, Surya Pratap Singh (P.W. 1) does not also appear to have ascertained from Shyam Narain Singh (P.W. 2) any thing about the availability or otherwise of the accused in his office. And yet, he laid the trap in the state of un-certainity in that regard. This is very strange and casts doubt about his act and conduct.
11. There were number of people present in the said Tea-shop. Therefore, it does not appear probable for the accused to have demanded and accepted the currency notes in question in the full view of people. Reliance is placed upon G. V. Nanjundiah v. State (Delhi Administration) AIR 1987 SC 2402 : (1988 Cri LJ 152) : 1987 ACR 294 (SC).
11A. The hands of the complainant Shyam Narain Singh were not got washed with the solution of sodium corbonate in the said shop where the giving and taking of the notes in question are alleged to have taken place. This is not understood why the Vigilance Inspector did not do so especially when he had got the hands of the accused allegedly washed there. Had he got the hands of the complainant also washed in the solution of sodium corbonate and had he sent the contents of the hand wash to the chemical examiner for scientific test, it would have then been conclusively established that the complainant Shyam Narain Singh (P.W. 2) had actually given the said notes to the accused in the said shop in particular immediately before the alleged recovery of the same from him. But nothing as such has been done. Therefore, it has not been conclusively proved that the alleged currency notes were actually given by the complainant to the accused in the aforesaid shop in particular. For this, reliance is placed upon Panch Lal v. State, 1989 A Cr R 126.
12. The first charge framed against the accused is as under: --
That you being a Lekhpal, a public servant in the Consolidation Department, on 15-10-1980 at about 4 p.m. in the Tea shop of Ashok Kumar in Mohalla Orderly Bazar, near the office of the Regional Transport Officer, Varanasi, P. S. Cantt., Distt. Varanasi directly accepted a sum of Rs. 20/- as gratification, other than illegal remuneration from Shyam Narain Singh, as a motive for doing an official act viz. for surveying the chak of said Shyam Narain Singh and his brother Dashrath Singh and thereby comitted an offence punishable under Section 161, I.P.C.
13. The accused has been charged under Section 161, I.P.C. because he is alleged to have accepted a sum of Rs. 20/- as gratification other than illegal remuneration. Section 161 of the Indian Penal Code reads as under :
161. Public servant taking gratification other than legal remuneration in respect of an official act-- whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State, or with any local authority, corporation or Government company referred to in Section 21, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
14. The section contains the word gratification other than legal remuneration. But the charge framed against the accused is that he received Rs. 20/- as gratification other than illegal remuneration. The charge is a precise formulation of the specific accusation made against an accused person, who is entitled to know its nature at the earliest stage. The whole object of framing a charge is to enable the accused to concentrate his attention to the accusations made against him and, therefore, framing of a proper charge is vital to a criminal trial. If the charge is framed in such a manner, necessary ingredients are not clearly brought out in the charge, it becomes vague and defective. A perusal of charge No. 1 particularly in view of the words 'illegal' occurring therein before the word 'remuneration' would show that the accused has not committed any offence under Section 161, I.P.C. The contention of the learned Counsel for the accused-appellant to this effect appears to be correct.
15. The learned Counsel for the accused appellant has further argued that the offence is alleged to have been committed by the accused on 15th November, 1980 and that Clause (d) of Sub-section (1) of Section 5 of the Prevention of Corruption Act, 1947 was inserted long after by way of amendment and, therefore, the accused cannot be convicted for an act, which was not an offence under the law in force when the act was committed.
16. In the result, the appeal is allowed. The impugned judgment and order are set aside. The accused Gaya Prasad is acquitted of the offences with which he has been charged. He is on bail. His bail bonds are cancelled and sureties stand discharged. He need not surrender.