Ramesh Ratanrao Thakur Vs. the State of Maharashtra - Court Judgment

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criminal - corruption - sections 5 (1) and 5 (2) of prevention of corruption act, 1947, sections 3 and 59 of evidence act, 1872 and section 161 of indian penal code, 1860 - appellant accused of corruption - special judge (sj) convicted and sentenced appellant on basis of complainant's statement - decision of sj challenged - in matter of corruption truthfulness and veracity in explanation of accused should be considered - appellant proved his innocence beyond reasonable doubt - conviction and sentence passed by sj set aside. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 5. it has been submitted by the learned counsel for the appellant-accused that the learned trial judge has failed to consider the explanation in the form of statement under section 168 of the criminal procedure code before the police and the learned judge has blindly relied on the prosecution evidence. in such a case, what the learned judge is required to do is to examine the prosecution version as well as the defence version. in the instant case, going through the written explanation of the appellant-accused, i am satisfied that the explanation of the appellant-accused that the amount of rs. the learned judge ought to have accepted the explanation of the appellant-accused as a bona fide and genuine explanation corroborated by the documentary evidence as well as oral evidence particularly of the panch witness (p. 3). in the facts and circumstances of the present case, the order of conviction and sentence passed against the appellant-accused deserves to be struck down and the appellant-accused is entitled for an acquittal, as the prosecution has miserably failed to prove the charges against the appellant-accused.v.h. bhairavia, j.1. this appeal is preferred by the appellant-accused against the order of his conviction and sentence dated 8th march, 1989 passed by the learned special judge, dhule, in special case no. 2 of 1984.2. the prosecution case, in brief, is that the appellant-accused was working as assistant project officer for industries at dhule. the central government had introduced a scheme known as 'training of rural youths for self-employment' under which the idea was to give some training to the male and female members especially from villages to enable them to have their own means of livelihood. the said scheme was introduced in dhule district and was being implemented through the district rural development agency. one kalawati, wife of harishchandra wankhede, was conducting tailoring classes at different training centres. for this job she was getting some amount per student as grant. it is the prosecution case that some outstanding dues were to be recovered from the district rural development agency, dhule, wherein the appellant-accused was working as assistant project officer, the authority for conducting and running the centres smoothly. it is the prosecution case that as the wife of the complainant was demanding the amount from the office of the appellant-accused and as she wanted to open one more centre, it is alleged that the appellant-accused demanded rs. 1600/- from the husband of kalawati. it is alleged that on 20-3-1983 the appellant-accused called the complainant at his house and demanded rs. 1600 for getting permission to kalawati for opening a new centre and also for issuing cheques towards the outstanding dues. it reveals from the record that the complainant had no money to pay. he, therefore, approached the office of the anti-corruption bureau and lodged a complaint on 21st march 1983. a trap was arranged accordingly. the complainant was given marked currency notes in all rs. 1600/- and the raiding party alongwith the complainant and a panch went to the office of the appellant-accused and from there, it is alleged, they went to a hotel for taking tea. after finishing tea, on the way to the office of the appellant-accused, it is alleged, the complainant offered the currency notes of rs. 1600/- which were accepted by the appellant-accused. immediately thereafter the raiding party came and caught the appellant-accused red-handed. investigation commenced. statements of the witnesses were recorded. after obtaining the necessary sanction, charge-sheet was filed against the appellant-accused before the special court, dhule, for offences punishable under section 161 i.p.c. and under sections 5(1)(d) and (2) of the prevention of corruption act.3. after framing the necessary charges and recording the evidence of the prosecution witnesses, the learned special judge held the appellant-accused for offences punishable under section 161 i.p.c. and under section 5(2) of the prevention of corruption act and accordingly convicted him and sentenced to undergo r.i. for 1 year and to pay a fine of rs. 500/-, in default to undergo further r.i. for 3 months for offence punishable under section 161 i.p.c. and to undergo r.i. for 1 year and to pay a fine of rs. 500/-, in default to undergo further r.i. for 3 months. both the substantive sentences were ordered to run concurrently. hence this appeal by the appellant-accused.4. heard mr. p.p. hudlikar, learned counsel for the appellant-accused, and mr. k.h. chopda, learned a.p.p., for the respondent-state.5. it has been submitted by the learned counsel for the appellant-accused that the learned trial judge has failed to consider the explanation in the form of statement under section 168 of the criminal procedure code before the police and the learned judge has blindly relied on the prosecution evidence. the learned counsel has submitted that it is the specific defence of the appellant-accused that he has not demanded rs. 1600/- as alleged by the complainant (p.w. 1). it is also admitted by the appellant-accused that he had accepted rs. 1600/- on 21-3-1983 but this amount has been accepted as against recoveries of some sale proceeds towards stitched clothes from kalawati (p.w. 5). it has been submitted by the learned counsel that the prosecution story regarding demand and acceptance is unnatural. it has been further submitted that if the appellant-accused wanted to call the complainant at his residence and make demand for bribe, he would not have called the complainant with the bribe money in his office and accepted the bribe money in the presence of unknown person. the learned counsel has further submitted that on the contrary, the defence version is more probable and acceptable supported by the evidence of the panch witness shriram mali (p.w. 3), who had admitted in paragraph 9 of his cross-examination thus:'it is true that when accused asked harishchandra as to what was the amount he was going to credit and harishchandra then said that he would credit rs. 1600/-.'this is the statement of the panch witness who was in the company of the complainant and who heard the talk. further, the learned counsel has submitted that the story regarding permission for opening a new tailoring class at pimpalner is untenable in view of the evidence of hemnath rathod (p.w. 2) who was the project officer in the district rural development agency at dhule. he has categorically stated that permission for opening a new tailoring class at pimpalner was refused to smt. kalawati long back in the year 1982 and there was no further proposal on behalf of smt. kalawati for opening a tailoring centre at pimpalner and, therefore, there was no question of doing any favour for getting permission for opening the centre. further it has been submitted that the appellant-accused was not the competent authority for granting permission for opening tailoring centres. the learned counsel has further submitted that because of the demand made by the appellant-accused of recoveries of dues from smt. kalawati, a false case has been made out against the appellant-accused. the learned counsel has relied on a letter (exhibit 46) and submitted that by this letter kalawati has been given eight days time for depositing the amount of sale proceeds and unused clothes in the office, failing which action was to be taken against her. the learned counsel has submitted that the story regarding calling the complainant (p.w.1) on 20th march, 1983 at the residence of the appellant-accused is also not believable, and the explanation of the appellant-accused is more probable and believable that on receiving the letter (exhibit 46), the complainant (p.w.1) had gone to his house and shown this letter to him, the appellant-accused, and requested for some time for depositing the amount and the unused clothes. this explanation seems to be more probable and believable as the appellant-accused had called the complainant at his office with the amount which could be credited. it is alleged that the complainant had no money in his hand to pay and, therefore, he borrowed money from his friend mali (who has not been examined) and went to the office of the anti-corruption bureau and lodged his complaint and arranged a trap.6. having gone through the record and proceedings of the case and the evidence of the prosecution witnesses, i do find much substance in the arguments of the learned counsel for the appellant-accused. it is an admitted fact that the appellant-accused has accepted rs. 1,600/- from the complainant on the day of the incident but the amount has been accepted on account of the dues recoverable from smt. kalawati and was to be credited against her outstanding dues. that explanation has not been accepted by the learned judge. the view taken by the learned judge is erroneous and unsustainable. in such a case, what the learned judge is required to do is to examine the prosecution version as well as the defence version. in a matter of corruption, the explanation of the accused should not be thrown out without giving any consideration to its truthfulness and veracity. in the instant case, going through the written explanation of the appellant-accused, i am satisfied that the explanation of the appellant-accused that the amount of rs. 1,600/- has been accepted by the appellant-accused in the presence of the panch witness (p.w. 3) who was unknown to the appellant-accused. it is admitted by p.w. 3, the panch witness, that in his presence the appellant-accused has asked the complainant as to what was the amount he was going to credit. the learned a.p.p. has vehemently submitted that this admission should be read in the spirit of a demand of bribe by the appellant-accused. the word 'credit' used by the appellant-accused, according to the learned a.p.p., is a demand of bribe. in my opinion, this is a very absurd argument and submission of the learned addl. public prosecutor. it is pertinent to note that the letter (exhibit 46) was produced by the prosecution witness hemnath rathod (p.w. 2) who is a responsible senior officer of the department, and it was exhibited before the court and at that time it was not objected by the prosecution. this letter also corroborates the version of the defence. as against this, the prosecution story regarding the demand of illegal gratification under the pretext of doing favour for issuing cheque and for giving permission for opening a new tailoring centre at pimpalner is not true. the learned judge ought to have accepted the explanation of the appellant-accused as a bona fide and genuine explanation corroborated by the documentary evidence as well as oral evidence particularly of the panch witness (p.w. 3). in the facts and circumstances of the present case, the order of conviction and sentence passed against the appellant-accused deserves to be struck down and the appellant-accused is entitled for an acquittal, as the prosecution has miserably failed to prove the charges against the appellant-accused. 7. in the result, the appeal is allowed. the order of conviction and sentence dated 8th march, 1989 passed against the appellant-accused by the learned special judge, dhule, in special case no. 2 of 1984 is quashed and set side and the appellant-accused is acquitted of the offences with which he has been charged. his bail bond shall stand cancelled. fine if paid shall be refunded to the appellant-accused.8. certified copy is expedited.appeal allowed.