Sardar vs State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned Counsel for the respondents.

It was the case of the prosecution that the appellant who is no more was the accused and was working as a Jail Warden in the District Central Jail. Gulbarga. According to the complainant, one Parashuram, the deceased appellant is said to have demanded illegal gratification of Rs. 800/- in order to release one Mounesh and Lakshman, who had obtained release orders when they were in custody and when the complainant pleaded his inability to pay Rs. 800/-, the appellant agreed to receive Rs. 400/- to do the official favour. It transpires that on 22.9.2007, at about 12 p.m., the appellant had demanded and accepted illegal gratification of Rs. 400/-.

The complainant, who did not want to pay any such illegal gratification, had made a complaint before the Police Inspector, Lokayukta, Gulbarga, who had registered a case in Crime No.6/2007 and forwarded the First Information Report to the Special Court and commenced investigation.

It is stated that the said Police Inspector had prepared a trap to catch the appellant while demanding and accepting the bribe amount from the complainant and accordingly, took all steps in respect of the proposed trap. It is claimed that on the same day, at about 12 p.m., the trap was successfully laid and he was apprehended after he was found to have been demanded and accepted the illegal gratification of Rs. 400/-. It is in this background that he was taken into custody and after further proceedings having been taken, charges were framed against the accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the ''PC Act'', for brevity). The accused having pleaded not guilty and having claimed to be tried, the prosecution had examined 10 witnesses and marked several exhibits and material objects. After examining the appellant under Section 313 of the Code of Criminal Procedure, 1973, the court below had framed the following points for consideration:

Whether the sanction order issued by ADGP, Karnataka Prison, Gulbarga for prosecution of the accused is valid and proper?

Whether the prosecution proves beyond all reasonable doubt that the accused being public servant working as Jail Warden in Central Jail, Gulbarga, on 22.09.2007 at about 09.00 a.m. at Central Jail, Gulbarga demanded illegal gratification of Rs. 800/- from complaint-Parashuram s/o Hanmanth Kattimani to show official favour in the matter of releasing CW.6-Mounesh and CW.7-Laxman as per the bail order of JMFC Court, Chittapur and when the complainant shown his inability to give Rs. 800/- you accused agreed for Rs. 400/- and on the same day at about 12.10 p.m. at main gate of: Central Jail, Gulbarga demanded and accepted said illegal gratification of Rs. 400/- from complainant-Parashuram as motive or reward for doing above said work and thereby accused committed and offence punishable under section 7 of Prevention of Corruption Act, 1988.''

Whether the prosecution proves beyond all reasonable doubt that the accused by accepting illegal gratification of Rs. 400/- from the complainant-Parashuram by corrupt or illegal means as a motive or reward to show official favour to complainant in the matter of releasing CW.6-Mounesh and CW.7 Laxman from jail and thereby accused committed an offence punishable under section 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988?

The court below has answered the above points in the affirmative and the appellant was convicted and sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000/- for the commission of the offence punishable under Section 7 and to undergo simple imprisonment for 2 years and to pay a fine of Rs. 2,000/- for the offence punishable under Section 13(1)(d) of the PC Act. It is that judgment which is under challenge in the present appeal.

Since the appellant is no more, the endeavour of the legal representatives who have now come on record, is to ensure that he is absolved of the crime and in this regard would seek to question the reasoning of the court below in having convicted and sentenced the appellant.

The learned Counsel for the appellant would point out that the job chart of the appellant did not confer any official power to release the prisoners. He was stationed at the main gate of the prison and was required to provide ingress and egress to people exiting and entering the jail premises after their identification. Beyond this, he had no official power to independently release any prisoner. Therefore. the very allegation that he was in a position to demand and accept bribe to release any of the prisoners is itself without any basis. The allegation of the complainant that Lakshman and Mounesh had already secured bail orders and that they were to be released, would not require the appellant to have provided any official favour and as a matter of right, they would be permitted to leave the jail premises. Hence, the very basic premise of the appellant having demanded and accepted any illegal gratification is without any foundation.

The further allegation that the appellant had demanded money from the complainant at 9 a.m. is also not readily acceptable since he was not on duty at that point of time. This is evidenced by the Attendance Register, which were produced by the prosecution at Exhibit P. 11 and that he had taken charge only on 11.05 a.m. as per the Attendance Register. Therefore, the very allegation that he was present at the gate and was on duty and he had demanded illegal gratification to extend an official favour is, on the face of it, a false allegation. This is not consistent with the fact situation that he was never present at the gate at 9 a.m.

It is also pointed out that there is a contrary version again by the complainant. In the complaint, it is stated that the appellant demanded Rs. 400/- each in respect of each of the prisoners, who was to be released. But, Exhibit P.1 a type-recorded version reveals that the appellant demanded Rs. 200/- each. It is this significant circumstance that has been completely overlooked. Therefore, it is evident that the complaint is contrived and concocted only to frame the accused and even that has not been consistently brought home and therefore, there is no case made out against the appellant in this regard.

The complainant had also admitted that on the say of PW.6 Shivalingappa that the amount had been given to the appellant and that it was at the instance of PW.6 he had received money. He had obtained the order of immediate superior. The appellant had no knowledge of the bribe amount given to him. This would be consistent with the duties that which were cast upon him would only to stand as guard at the gate and allow people who are authorised to leave the premises. It was not even his power to order relase of Mounesh and Lakshman. Therefore, this is also consistent with the fact that when he was told that at the instance of the PW.6 money as being handed over he has taken the money without demur but it was not on a demand for illegal gratification.

It is also not pointed out that it is the matter of record that PW.6, the Head Warden Shivalingappa had received the release order from the court on 22.9.2007 at about 12.21 p.m. but he had stated before the court that he had not at all received the court order and an extract of registration of release order book was marked by the defendant as Exhibit D.1. It reveals that PW.6 himself had received the said release order at 12.12 p.m on 22.9.2007 which is not disputed by the prosecution. The trial court has ignored this significant circumstance as well. The complainant has clearly admitted that it was not the appellant who had demanded illegal gratification and mere recovery of money from the appellant did not establish that he had demanded and accepted the bribe in order to show official favour. The prosecution has miserably failed to prove that the appellant had demanded money from the complainant and that the court below was in grave error in holding that the prosecution had proved the case beyond all reasonable doubt.

While on the other hand, the learned counsel for the respondent would seek to justify the judgment of the court below.

Though it would appear from the evidence on record that the appellant had received illegal gratification by way of tainted currency notes which were, as a part of the trap, handed over by PW. 1, to the appellant at the gate of the jail on his demand and that this was corroborated by the evidence of PW.2, who was a shadow witness. The fact remains that the ingredients of the PC Act would require that such demand of illegal gratification was in order to extend official favour. It is not also in dispute that apart from his duties to operate the gate, at the jail, it was PW. 16, who had the authority to direct the release of the prisoners. Mere circumstance that PW.6 had instructed the appellant to receive the money on his behalf or that at his instance, the complainant had handed over cash to the appellant, having been disbelieved, would not explain as to how the appellant was in a position to extend any official favour, except performing the act of physical opening and closing the gate. It is PW.6, who could order the release of the prisoner. This was not in dispute. Therefore, it cannot be said that the prosecution had established its case beyond all reasonable doubt and established that the ingredients of the provisions were present namely, that the appellant had made a demand for illegal gratification and had accepted the same in order to extend official favour.

Later part of the provision which requires proof of the appellant extending an official favour is totally absent in the present case on hand, as it is not in dispute that he had no authority to direct the release of the prisoners when release orders were granted by the court. Therefore, it cannot be said that the case against the deceased appellant was established at all of having committed offences punishable under the provisions of the PC Act and on that ground alone, the proceedings are vitiated and would have to be set at naught.

Consequently, the appeal is allowed. The judgment of the^court below is set aside.