State of Maharashtra v. Shashikant Dnyanu Jadhav

12. PW 4-PI Mane recorded statement of PW No.1 - Gujar on 18/04/1995 (Exhibit-47). There is complaint against Mr.Sandbhor and reference of Mr.Zanzurne and Mr.Jadhav. However, only Mr.Jadhav was found at the time of trap. However, PI Mane lodged complaint on 20/04/1995 against Mr.Sandbhor and Mr.Jadhav. Interestingly, only Mr.Jadhav is charge-sheeted for committing an offence under Section Seema / Satish 6/26 7, 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act. Evidence of demand earlier to trap

13. It seems that Mr.Gujar is a very clever guy. He has made up his mind prior to giving of evidence. He deposed every fact about challenging his driver, fine imposed by the Court, its payment. However, when it comes to involvement of Police Head Constable Sandbhor, he has disowned his version in his complaint. As per his statement, he has stick up to the following facts from his complaint:- (a) Introductory fact about purchase of tempo, consideration, plying of tempo by his driver. Mr.Shinde on a route Rajwada- Asangaon-Pilani. (b) Detaining of tempo by PSI Sandbhor at Borgaon Police Station and going to Borgaon Police Station.

(c) Filing of a case against driver Shinde for illegally carrying 45 passengers and Court fined him Rs.2,000/-. An amount of Rs. 500/- was deposited and then Rs.1500/-. d) Photocopy of receipt was handed over not to Sandbhor but to Zanzurne.

14. From the statement. He has not deposed following facts: (a) He has not met Mr.Sandbhor in the police station and Mr. Seema / Satish 7/26 Sandbhor has not demanded Rs.1,000/- for illegally carrying passengers. (b) Mr.Gujar never expressed “availability of Rs. 250/- only and assurance to pay balance later on”.

(c) Mr.Sandbhor insisted to pay Rs. 1,000/- then and there only and he “gave instructions to Zanzure to challan him for illegal carrying of passengers”. (d) “He never gave receipt of Rs.500/- to PSI Sandbhor and he was not ready to release the vehicle unless and until Rs. 1,500/- is paid.” (e) “On the say of Mr.Sandbhor, Shri.Shinde driver was handed over RC Book and license to him.” (f) “Mr.Sandbhor demanded Rs. 1,500/- (Rs. 300 per day for 5 days) and then take back RC book and license”. (g) “Mr.Gujar and one Shri.Shaikh visited Borgaon Police Station on 15/04/1995 and sought time of 4 days for payment of Rs. 1,500/- and Mr. Sandbhor directed him to bring that amount on 19/04/1995.” (h) “Mr.Sandbhor instructed Mr.Jadhav present Respondent to accept the amount of Rs. 1,500/- on 19/04/1995, if he will not be present in the Police Station”. (i) “Mr.Sandbhor has not specifically instructed -RC book and license will not be returned unless that amount of Rs. 1,500/- will be paid”. (j) “Mr.Gujar has not given any assurance to present Respondent to come with amount of Rs. 1,500/- on Seema / Satish 8/26 19/04/1995 and then left Police station.” About not sanctioning Mr.Sandbhor

15. So, Mr.Gujar has not deposed those facts which were implicating Mr.Sandbhor. Conveniently, he has omitted them. Prosecution has not charge-sheeted Mr.Sandbhor. However, it does not mean that the witnesses cannot depose against such a person. Witnesses are not aware of the formalities of sanction. If PW No.1 could have deposed against Mr.Sandbhor (on the basis of statement), then trial Court was certainly empowered to issue directions to the investigating agency. But neither the investigating agency nor Mr.Gujar were in frame of mind to charge-sheet him/to depose facts against him. There is much emphasis by Mr.Rananaware on the conduct of the Anti Corruption Bureau in not charge-sheeting Mr.Sandbhor. He invited my attention to a report dated 29/02/1996 sent by PI ACB to the Special Judge, ACB. There is a request to discharge Police Head Constable Sandbhor as no sufficient evidence was found.

16. According to Mr.Rananaware, this is partisan approach of Anti Corruption Bureau when Mr.Gujar has specifically lodged complaint to Anti Corruption Bureau about demand made by Mr.Sandbhor, Anti Seema / Satish 9/26 Corruption Bureau was not justified in discharging him. Because according to him even a person can be charged for demand (without acceptance). Provisions of PC Act

17. It is true, as per the PC Act, Public Servant can be prosecuted for several offences. Two of them are Sections 7 and 13. The ingredients of both the Sections are different. The following are the ingredients for an offence under Section 7:-

(i) Whoever either accepts or obtains or agrees to accept or attempts to obtain

(ii) any gratification.

(iii) for official act.

Then it is punishable under Section 7 of the Prevention of Corruption Act. Whereas as per Section 13 of the Prevention of Corruption Act, there are five acts which are punishable. In clause (a) and (b) of Sub-Section (1) of Section 13, both the words “accept or obtain” are used. But those clauses are applicable only when Seema / Satish 10/26 there is habitual act. Whereas the word ‘habitual’ is not used in clauses (c), (d) and (e) of sub-Section 1 of Section 13 of PC Act. Clause (d) is relevant. In that clause, there are three sub-clauses. In all of them, only the word ‘obtain’ is used. Meaning of the word ‘accept’ and ‘obtain’

18. Is there any difference in between the word “accept” and word “obtain”. Dictionary meaning of the word “accept” is:-- “to receive something offered willingly”. Whereas meaning of the word “obtain” is:-- “to gain or attain usually by planned action or effort”.

19. There was an occasion for the Hon’ble Supreme Court to consider the difference in the meaning of these two words in case of C.K. Damodaran Vs. Government of India[4]. In case of obtainment, the initiative vests in the person who receives and in that context a demand/request from him will be a primary requisite for an offence under Section 5 (1)(d) of the Act (old)/new section 13(1)(d)(i) and (ii).

20. On the other hand, for offence under Section 7, both acceptance and obtainment are covered. The scope is wide. Even “agreeing to accept or attempting to obtain” is punishable under Section 7 of PC Act. So if any Public Servant attempt to obtain means only

Seema / Satish 11/26 ‘makes a demand of illegal gratification’ (without being delivered), it will fall under Section 7 of PC Act. So, under Section 7, demand for money is covered. So also, money accepted with demand (obtainment) or without demand (acceptance) is covered. Whereas, under Section 13(1)(d), only money accepted in pursuance to demand is covered. Facts

21. So if it is the law, when the de-facto Complainant complains that Shri.Sandbhor insisted payment of money (agrees to obtain), the Anti Corruption Bureau ought to have charge sheeted him. But their action is totally unjustified. They have abdicated role of a Court on themselves and exonerated Shri.Sandbhor. During trial, Mr.Gujar has not deposed about the involvement of Mr.Sandbhor. The issue is, whether the present Respondent can be benefited. This is breach of equality enshrined under Article 14 of the Constitution. If two persons have breached the provisions of the Prevention of Corruption Act, both are to be dealt with equally. But the prime witness Mr.Gujar has not deposed about the involvement of Mr.Sandbhor.

22. The Respondent will not get any benefit. His case has to be dealt with on the basis of evidence against him. Evidence of demand at the time of trap Seema / Satish 12/26

23. PW No.1 - Gujar has admitted about lodging of complaint with the Office of Anti Corruption Bureau on 18th April 1995. Even he admits of visiting Anti Corruption Bureau Office on next date along with currency notes to the tune of Rs.1500/-. He admits everything about happening of events in the Office. The facts deposed by him after they left Anti Corruption Bureau Office are as follows:- (a) First they (PW No. 1 and PW No. 2) went to Borgaonn Police Station and called Mr.Zanzure. Mr.Zanzurne told them Mr.Jadhav-Respondent had gone to Satara for election duty. (b) Then all went to Satara and met Mr.Jadhav in his house. PW No. 1-Gujar told to return documents Mr.Jadhav told them to come to Borgaon.

(c) All again met at Borgaon and Mr.Jadhav enquired about the amount. Mr.Gujar requested him to return the papers and accept amount.

(d) Mr.Gujar gave the money and gave the signal PW No. 2 was present. Mr.Jadhav was caught by PI Shri Mane. (e) He was cautious enough not to take the name of Sandbhor. (f) Even he has not supported the prosecution case. Mr.Gujar was cross-examined. He gave answers favourable to the prosecution case. He admitted following facts:-

(i) Mr.Jadhav told him to give the amount if brought by him and Mr.Gujar gave the amount of Rs.1,500/-. Seema / Satish 13/26

(ii) Mr.Jadhav counted the amount and kept it in his shirt pocket.

(iii) Mr.Jadhav assured to give RC book and license afterwards.

They were kept in dicky of motorcycle. Mr.Gujar deposed above facts, after Learned APP put suggestive questions. He was declared hostile at subsequent stage (Para No.9). Evidence Act prohibits putting questions in which answers are suggested. It is permissible only when the witness is not supporting and that too after obtaining permission under the provisions of Section 154 of the Evidence Act. This procedure is not followed.

24. According to learned APP, Mr.Gujar has candidly deposed about “demand made by Respondent and handing over the money”. Whereas according to learned Advocate Mr.Rananaware, even this theory is not reliable and there are different answers given during cross-examination.

25. The trial Court disbelieved the evidence of Mr.Gujar. During cross-examination on behalf of the accused, PW No. 1 gave following answers:- (a) Mr.Jadhav was not present when an amount of Rs.1500/was demanded. (b) Witness was not having any connection with Mr.Jadhav till the date of trap. Seema / Satish 14/26

(c) when witness went to the house of Mr.Jadhav at Satara, he was sleeping.

(d) At Satara, initially witness tried to search Mr.Zanzure. He was not found.

(e) That is how witness paid the amount to Mr.Jadhav. But Mr. Jadhav inquired as to how he is concerned with the amount. (f) witness told “he had already talked to Mr.Zanzurne and instructed Mr.Jadhav to pay the amount to Mr.Zanzurne and is concerned with private transaction of payment of money”.

26. If we read the evidence of PW No. 1 Mr.Gujar in its entirety, we may find:- (a) he has not deposed anything about interaction with Mr. Sandbhor. (b) Even he has not deposed about instructions given by Mr.Sandbhor to witness to pay the amount to Mr.Jadhav.

(c) About demand at the time of trap and acceptance, there are two versions:- One when learned APP cross-examined Mr.Gujar and second when accused cross-examined him.

(d) We have to read them together. We can infer that money is paid and accepted. But when the answers given by Mr.Gujar when accused cross-examined him are considered, the Seema / Satish 15/26 evidentiary value of the answers given by him when he was cross examined by learned APP got diminished.

27. So we cannot trust such witness. His conduct is not reprehensible. First he exonerated Sandbhor and tried to give some favourable answers to the prosecution and then again took u turn. So witness cannot be trusted. The law on the point of “hostile witness is well settled”. On the point of hostile witnesses

28. The law is settled. Even if the witness called by the prosecution does not support their case, his evidence cannot be discarded in its entirety. The Court has to bifurcate the evidence into two parts. The part which supports the prosecution case and the part which does not support. After doing that exercise, the Court has to balance those two parts and then, come to a conclusion, which part can be used and its evidentiary value. The law on the point of reliability of witness is also well settled. The Hon’ble Supreme Court has categorised the witnesses into three categories. They are:- (a) A witness who is only unreliable, his evidence is of no value. (b) The witness who is partly reliable and partly unreliable, his Seema / Satish 16/26 evidence can be considered to certain extent and

(c) A witness who is only reliable, conviction can be based on evidence of said witness. If these principles are applied in this case, we can only say that Mr.Gujar is totally unreliable witness. He cannot be believed at all. On this background, the facts deposited by panch witness PW No.2 – Ashok Bavane needs to be considered. Evidence of panch witness

29. Said evidence consists of parts. First, the evidence about apprising two panchas about the facts stated by de-facto Complainant in his statement. Second part consists of completing the pre-trap formalities including giving instructions, what is to be done at the time of actual trap, production of tainted currency notes by the de-facto Complainant and demonstration about the anthracene powder and recording pre-trap panchnama. So, his evidence is material on the point of compliance of the procedure in the Police Station and third part is, about happening of events at the time of trap. Third part is more important.

30. This witness was working as a Junior Clerk in Treasury Office – Satara. Police Inspector – Mane secured his presence. He visited the Seema / Satish 17/26 Office of Anti Corruption Bureau on 19th April 1995. They have left for Borgaon in a Government vehicle. The facts deposed by him are as follows:- (a) They stopped the vehicle near pan stall and he along with Mr.Gujar went to Borgaon Police Station. They met Mr.Zanzurne. Mr.Jadhav had gone to Tahsildar Office – Satara for work of election as told to them by Mr.Zanzurne. (b) Then, all went to Tahsildar Office – Satara and stopped near gate of that Office. (This is a deviation from what Mr.Gujar has deposed “all went to the house of Mr.Jadhav” is the fact stated by Mr.Gujar).

(c) Mr.Jadhav came there on motorcycle and inquired about the amount as demanded by PSI – Sandbhor. Mr.Jadhav asked them to follow him to Borgaon. Mr.Gujar told him that the amount has been brought. All went to Borgaon.

(d) Vehicle was stopped near Borgaon Police Station and

Mr.Gujar and panch went near telephone booth. After seeing Mr.Gujar, Jadhav came out of booth. Again Mr.Jadhav inquired about the amount as instructed by PSI – Sandbhor, Mr.Gujar replied in the positive. Then, the Seema / Satish 18/26 amount of Rs.1,500/- was given by Mr.Gujar and accepted by Mr.Jadhav and then a signal was given. (e) The dicky of motorcycle of the Accused was checked and his uniform and R.C., book of four wheeler No.M22552 was found.

31. During the course of cross-examination, Mr.Jadhav was put only with the denial suggestions. He is not aware about the owner of the motorcycle from whose dickey, R.C.,book was taken out. Vehicle was stopped one kilometer ahead of Borgaon village. All these answers need to be scrutinised in order to ascertain whether this evidence is sufficient to convict the Respondent on the basis of observations in case of Neeraj Dutta (cited supra).

32. The evidence of PI – Mane depicts the facts relating to recording the statement of Mr.Gujar earlier to trap, completion of pre-trap formalities and the events that occurred after they left the Office to Borgaon Police Station and then to Tahsildar Office – Satara and then, returning back to Borgaon. It further depicts about catching hold Mr.Gujar, finding the tainted currency notes and completion of trap formalities and lodging of FIR. During the course of crossexamination, he admits enquiry was not made about the ownership of Seema / Satish 19/26 two-wheeler bullet wherein R.C., book was found. The evidence on the point of sanction

33. The sanction was given by the Superintendent of Police – Satara as the Respondent was working as Police Constable. This was granted only against Mr.Jadhav. There was no challenge to the Authority of the Superintendent of Police to grant sanction. Though certain questions are put about the procedure followed by him while processing the proposal for sanction, there is no dent to the prosecution case. Findings by the trial Court

34. The sanction was granted for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the PC Act. (Page No.154). The charge was also framed for those sections. (Page No.40). The trial Court discussed about the burden on the Accused to explain how the tainted currency notes were found with him. Certain judgments were also discussed in Para Nos.48 and 49. The trial Court has laid emphasis on not giving sanction to prosecute PSI–Sandbhor. (Para No.51). It reflects, the trial Court has kept the case for framing of charge against Mr.Sandbhor. (Para No.52). Even, a submission was made by learned APP to obtain a sanction against PSI – Sandbhor. However, it reveals that it was not obtained inspite of giving ample opportunity. Seema / Satish 20/26

35. It was submitted to the trial Court that the Sanctioning Authority has not granted sanction against PSI – Sandbhor. That is why, a charge is not framed against him. (Para No.53). In Para No.56, the trial Court has given importance to the answers given by Mr.Gujar about interaction with Mr.Jadhav. When amount is offered, Mr.Jadhav asked how he is concerned with the amount. The trial Court expressed inability to proceed against Mr.Jadhav for the reason “Mr.Jadhav accepted the amount of bribe for and on behalf of Mr.Sandbhor”. The trial Court also given due weightage to “withholding of papers by PSI – Sandbhor”. In other words, the trial Court want to suggest Mr.Jadhav is not having any official work with him belonging to Mr.Gujar. (Para No.57). Finally, the trial Court accepted the version given by Mr.Gujar when he was cross-examined on behalf of the Accused. Mr.Jadhav shown his ignorance about the amount offered by Mr.Gujar. The trial Court considered the explanation as probable. (Para Nos.59 and 60). The Investigating Agency fails to investigate the owner of the motorcycle in which, R.C., book was found. Conclusion

36. It is not the case of prosecution that Mr.Jadhav was involved in demanding the bribe at the beginning. The amount was demanded by Seema / Satish 21/26 Mr.Sandbhor. Mr.Jadhav came on the scene later on. His involvement is at two stages. They are:- (a) When Mr.Sandbhor instructed Mr.Gujar to pay the amount to Mr.Jadhav on 19th April 1995 if he will not be available. Admittedly, it is not the case of prosecution that at that time, even though Mr.Jadhav was present, he made a demand and which will fall within a purview of Section 7 of the PC Act. (b) When Mr.Gurav and PW No.2 went to Satara (at his house / in the Tahsildar Office – Satara), then to Borgaon and Mr.Jadhav accepted the amount of Rs.1500/- outside the STD booth.

37. About these events, Mr.Jadhav inquired with Mr.Gujar whether the amount is brought as instructed by PSI – Sandbhor and finally, he accepted it outside the STD booth. In respect of both these events, we have got evidence of Mr.Bavane and the evidence of PI – Mane by way of corroboration. Here, the principles laid down in Neeraj Datta case (cited supra) comes into picture.

38. At this stage, it can very well be said that the Officials of ACB have favoured PSI – Sandbhor by not granting sanction. It is also true Seema / Satish 22/26 that when the question of giving evidence had arisen, Mr.Gujar has taken U-turn and totally exonerated Mr.Sandbhor. Against Jadhav, he did not depose the facts. When APP cross-examined him, he gave answers favourable to the prosecution and again when Accused crossexamined him, he had deposed the theory of expressing ignorance while accepting the amount by Mr.Jadhav. As said above, he is totally unreliable witness. The issue is, whether the evidence of panch witness and PI – Mane can be discarded. There is no single observation by the trial Court on this aspect.

39. The observations in the judgments relied upon by the Respondent need to be considered. In case of P. Satyanarayana Murthy v/s. District Inspector of Police, State of Andhra Pradesh and Another[5], the Complainant – S. Jagan Mohan Reddy has expired prior to giving evidence (Para 4). PW No.1 – S. Udaya Bhaskar was the trap witness (Para 15). The Supreme Court set aside the conviction and found the evidence of PW No.1 falls short to prove the demand. (Para 24).

40. In case of B. Jayaraj v/s. State of Andhra Pradesh[6], PW No.2 – Complainant K. Venkataiah has not supported the prosecution case. The evidence of panch witness, PW No.1 was accepted. (Para 6). The 5 (2015) 10 Supreme Court Cases 152 6 (2014) 13 Supreme Court Cases 55 Seema / Satish 23/26 Supreme Court has not believed the evidence of trap panch and set aside the conviction. (Para 8).

41. In case of State of Kerala and Another v/s. C.P. Rao[7], the Complainant was not examined. (Para 7). The conviction was set aside by the Hon’ble Supreme Court. It is very well true. The Hon’ble Supreme Court decided the matter Neeraj Dutta v/s. State (Govt. of N.C.T. of Delhi)8 after the observations by the Constitutional Bench. The Complainant Ravijit Singh died before the commencement of the trial. (Para 2). There was conviction under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act. The Supreme Court found the evidence of panch witness unsatisfactory. Because, mere demand of money is not sufficient. But, it must be by way of an illegal gratification. If it is not there, the provisions of Section 7 are not satisfied. The conviction was set aside. (Paras 17, 18 and 20). Facts of this case

42. PW No.2 – panch witness has referred about demand by Mr.Jadhav. What he said “Mr.Jadhav asked about the amount demanded by PSI – Jadhav”. Now, can it be an illegal gratification. It cannot be for two reasons:- 7 (2011) 6 Supreme Court Cases 450

Seema / Satish 24/26 (a) First, PW No.2 never deposes “Mr.Jadhav inquired with Mr.Gujar whether amount demanded by him is brought”. (b) PW No.2 never says why for the amount is demanded that is purpose. If it is absent, demand cannot be called as illegal gratification. (Mr.Gujar has described the payment of money was towards some private transactions between Mr.Zanzurne and him. This is already disbelieved).

43. If considered from the above perspective, even if evidence of PW No.2 is appreciated, it falls short to prove an offence under Section 7 of the PC Act. Consequently, offence under Section 13(1)(d) of PC Act is also not proved. The prosecution case can only be considered for the purpose of acceptance. But, it is meaningless without proof of demand. The observations of the Constitutional Bench is not useful to the prosecution. Learned APP Shri.Dedhia with all his experience and forcefulness tried to convince me so as to interfere in the judgment of acquittal. I have also perused the evidence very minutely. That is why, I have reproduced the evidence of PW No.1 and PW No.2 in detail. But, on dissection, I could not find favour with the prosecution. The presumption under Section 20 of the PC Act comes into play only Seema / Satish 25/26 when foundational facts are proved and not otherwise. There is no merit in the Appeal. Consequently, it is dismissed. [S. M. MODAK, J.] Seema / Satish 26/26