Puran vs State of Haryana

R.L. Anand, J.

Puran and Chartu have filed this criminal appeal and it has been directed against the judgment order dated 21.4.1997, passed by the learned special Judge, Jind, who convicted the appellants under Section 8 of the Prevention of Corruption Act, 1988 (hereinafter referred to as `the Act'') and Section 163, IPC, and sentenced them to undergo R.I. for a period of 4 years under Section 8 of the Act and to pay a fine of Rs. 500/, in default of payment of fine, the appellants were further directed to undergo Simple Imprisonment for three months each. The appellants were further directed to undergo R.I. for a period of three months each under Section 163, IPC. Both the sentences were directed to run concurrently.

Before I proceed further, I may mention at the first instance that with the passing of Prevention of Corruption Act, 1988, and by virtue of Section 31 of the Act, the provisions of Sections 160 to 165A have been omitted and, in those circumstances, there was no Section like Section 163, IPC, as on 9.9.1998, under which the appellants could be convicted, when the Prevention of Corruption Act, 1988, came into force.

The brief facts of the case are that on 20.9.1995, H.C. Dharamvir Singh, PW.2 was posted in Police Station Sadar, Jind. On the said date, he along with Constable Balraj was standing on the Tannery turning in connection with the investigation of F.I.R. No. 301 of 1995 registered under Section 61 of the Punjab Excise Act as applicable to the State of Haryana, against Gautam and Prem. They were waiting for the vehicle when both the appellants Puran and Chatru came there and told the comlainantDharamvir that the latter should accept some illegal gratification to drop the proceedings under the Excise Act against Gautam and Prem. Another person by the name of Dharamvir also reached at the spot. The story of the prosecution further goes that Puran and Chatru took H.C. Dharamvir, Head Constable, towards one side. Appellant Puran took out some currency notes from his pocket and handed over the same to appellant Chatru who put those currency notes in the left pocket of the pant of H.C. Dharamvir Singh, PW.2. He resisted the attempt of the appellants by saying that the proceedings could not be dropped against Gautam and Prem. Then, the complainant sent a wireless message through H.C. Partap Singh who was present on the duty at Naka to the S.H.O. Police Station Sadar, Jind, and he caught hold of the accused Prem and Gautam who had come with appellants Puran and Chatru. HC Dharamvir directed Chatru and Puran not to go from the spot till the arrival of the S.H.O. After some time, Ved Ram, S.I./S.H.O. came to the spot along with other police officials in a police jeep. H.C. Dharamvir Singh handed over to him the money given by appellant Chatru, which was counted by the S.H.O. and found to be Rs. 950/. S.I. Ved Ram recorded the statement of H.C. Dharamvir Singh, Ex. P.C., and put those currency notes in an envelope and took them into possession vide recovery memo, Ex.PB. He arrested the accused Prem and Gautam, who were wanted in connection with the case registered against them under the Excise Act. Puran, appellant is the father of Prem, accused, who was booked under the Excise Act. S.I. Ved Ram, thereafter, sent a wireless message to the D.S.P. Amir Singh, who was busy in flood duty and he also reached at the spot. On the arrival of DSP, SI Ved Ram produced before him the currency notes, the recovery memo and both the appellants. DSP Amir Singh also signed the recovery memo and recorded the numbers of the currency notes. He verified the facts of the aforesaid investigation from SI Ved Ram and, thereafter, recorded the statements of the PWs. On the completion of the formalities of the investigation, both the appellants were challaned under Section 8 of the Act and Section 163, IPC in the court of the Special Judge. The copies of the documents as relied upon by the prosecution were supplied to the appellants. Thereafter, the Special Judge framed charges against the appellants under the above provisions on 27.2.1996. The charges were read over and explained to the appellants to which they pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined PW.1 H.C. Ram Singh, P.W.2 HC Dharamvir Singh, independent witness PW.3 Dharamvir Singh, Constable Balraj Singh, PW.4 SI Ved Ram, PW.5, PW.6. DSP Amir Singh and Kuldeep Gupta, Draftsman, PW.7.

On the closure of the prosecution evidence, the statements of the accused were recorded under Section 313, Cr.P.C., and all the incriminating circumstances were put to them. Appellants denied those circumstances and stated that they have been falsely implicated.

The trial Court came to the conclusion, for the reasons given in paras 9 onwards in the impugned judgment, that the appellants were guilty for the commission of the offence under Section 163, IPC read with Section 8 of the Act. Resultantly, they were convicted and sentenced in the manner stated above and aggrieved by their conviction and sentence in the manner as stated above, the present appeal by Puran and Chatru, who are not public servants but are private individuals.

I am disposing of the present appeal with the assistance rendered by Shri K.S. Dhaliwal, appearing on behalf of the appellants and Shri Shailender Singh, D.A.G., Haryana, on behalf of the State, and with their assistance I have also gone through the record of this case.

The argument which was raised by the counsel for the appellants in order to secure acquittal for his clients is that no offence at all has been made out under Section 163, IPC or under Section 8 of the Act. The reasons advanced by Shri Dhaliwal in support of his contention are that Section 8 of the Act applies to those offences which are committed by the public servants. Before the passing of the Prevention of Corruption Act, 1988, a private individual was made liable for the alleged act under Action 163, IPC, but these provisions have been repealed/omitted by virtue of Section 31 of the Act.

There is force in the contention raised by the counsel for the appellant. Section 31 of the Act lays down that Sections 161 to 165A, IPC, shall stand omitted and Section 6 of the General Clauses Act shall apply to such omissions as if the said Section had been repealed by the Central Act. When Section 163, I.P.C. was no longer in existence as on 9.9.1998, I fail to appreciate how the learned Special Judge framed charge under Section 163, I.P.C. It appears that the learned Public Prosecutor or the learned defence lawyer who appeared before the learned Special Judge did not bring to his notice about the repealing of the provisions of Section 163, IPC.

Now, it is to be seen whether the appellants are guilty of the offence under Section 8 of the Act or not. The story of the prosecution is that the appellants wanted to bribe Head Constable Dharamvir Singh in order to seek his favour so that the said H.C. may do something for the appellants as Prem son of Puran, appellant, was earlier involved in a case under the Punjab Excise Act, as applicable to the State of Haryana. In the said case the second accused was Gautam son of Dahiya. The point which survives for determination is when a private individual who is not a public servant offers bribe to a public servant and the latter refused to accept the same, whether any offence qua the former is made out within the purview of the Prevention of Corruption Act or not. The reliance has been placed by the prosecution on Section 8 of the Act but this section deals with a different situation altogether. According to this section, whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour of disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

Thus, a reading of the above provision would show that this section deals with an offence which might be committed by a public servant when he receives, attempts to receive, whether for himself or for any other public servant, or any person, any illegal justification as a motive or reward for doing some official act. Here is a case where the appellants were not public servants. They have not received any money from a third person and, in these circumstances, they cannot be held liable under Section 8 of the Act. This court, with the assistance rendered by Shri R.S. Dhaliwal and Shri Shailender Singh, made an endeavour to find out whether the appellants can be and should be convicted under any other law for the time being in force, after the deletion of Sections 161 to 165 of the Indian Penal Code. Section 12 of the Act lays down that whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine. The appellants wanted to corrupt the mind of a public servant by offering money and so much so, they even put the money in the pocket of the Head Constable, who was the Incharge of the Excise case. Thus, the act on the part of the appellant certainly amounted to abetment for the purposes of Section 12 of the Act. However, there is a difficulty for the prosecution in this case because there is no charge of abetment under Section 12 of the Act. The appellants were chargesheeted only for the offence under Section 163, IPC, read with Section 8 of the Act. Both these charges are not made out. In these circumstances, at this fag end, it will be highly prejudicial to the interests of the appellants to convict them under Section 12 of the Act. The trial Court ought to have framed the charge under Section 12 of the Act against the appellants. Rather, it opted to frame the charge under Section 163, IPC and Section 8 of the Act, which prima facie are not made out. In view of the peculiar facts of this case, I am of the opinion that the benefit should go to the appellants for the wrong framing of the charges as it has led to serious prejudice to the appellants as they were not in a position to defend those allegations at the trial.

Resultantly, I allow this appeal, set aside the judgment and order of the trial Court and acquit the appellants of the charges framed against them. The appellants stand discharged from their bail bonds. Fine, if realised, shall be remitted to the appellants.