reiterate what we have said in the beginning. We have
expressed our agony and anguish the manner in which
trials in respect of serious offences relating to corruption
are being conducted by the trial courts. Adjournments
are sought on the drop of a hat by the counsel, even
though the witness is present in court, contrary to all
principles of holding a trial. That apart, after the
examination-in-chief of a witness is over, adjournment is
sought for cross-examination and the disquieting feature
is that the trial courts grant time. The law requires
special reasons to be recorded for grant of time but the
same is not taken note of. As has been noticed earlier, in
the instant case the cross-examination has taken place
after a year and 8 months allowing ample time to
pressurize the witness and to gain over him by adopting
all kinds of tactics. There is no cavil over the proposition
that there has to be a fair and proper trial but the duty of
the court while conducting the trial to be guided by the
mandate of the law, the conceptual fairness and above all
bearing in mind its sacrosanct duty to arrive at the truth
on the basis of the material brought on record. If an
accused for his benefit takes the trial on the path of total
mockery, it cannot be countenanced. The Court has a
sacred duty to see that the trial is conducted as per law.
If adjournments are granted in this manner it would
tantamount to violation of rule of law and eventually turn
such trials to a farce. It is legally impermissible and
jurisprudentially abominable. The trial courts are
expected in law to follow the command of the procedure
relating to trial and not yield to the request of the counsel
to grant adjournment for non-acceptable reasons. In fact,
it is not all appreciable to call a witness for crossexamination
after such a long span of time. It is
imperative if the examination-in-chief is over, the crossexamination
should be completed on the same day. If
the examination of a witness continues till late hours the
trial can be adjourned to the next day for crossexamination.
It is inconceivable in law that the crossexamination
should be deferred for such a long time. It
is anathema to the concept of proper and fair trial. The
duty of the court is to see that not only the interest of the
accused as per law is protected but also the societal and
collective interest is safe-guarded. It is distressing to
note that despite series of judgments of this Court, the
habit of granting adjournment, really an ailment,
continues. How long shall we say, “Awake! Arise!”.
There is a constant discomfort. Therefore, we think it
appropriate that the copies of the judgment be sent to
the learned Chief Justices of all the High Courts for
circulating the same among the learned trial Judges with
a command to follow the principles relating to trial in a
requisite manner and not to defer the cross-examination
of a witness at their pleasure or at the leisure of the
defence counsel, for it eventually makes the trial an
apology for trial and compels the whole society to suffer
chicanery. Let it be remembered that law cannot allowed
to be lonely; a destitute.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 554 OF 2012
Vinod Kumar V State of Punjab
Dated;JANUARY 21, 2015.
requisite criminal trial in its conceptual eventuality in this
country the two reasons that may earn the status of
phenomenal signification are, first, procrastination of trial
due to non-availability of witnesses when the trial is in
progress and second, unwarranted adjournments sought
by the counsel conducting the trial and the unfathomable
reasons for acceptation of such prayers for adjournments
Page 2
by the trial courts, despite a statutory command under
Section 309 of the Code of Criminal Procedure, 1973
(CrPC) and series of pronouncements by this Court. What
was a malady at one time, with the efflux of time, has
metamorphosed into malignancy. What was a mere
disturbance once has become a disorder, a diseased one,
at present.
2. The instant case frescoes and depicts a scenario
that exemplifies how due to passivity of the learned trial
Judge, a witness, despite having stood embedded
absolutely firmly in his examination-in-chief, has
audaciously and, in a way, obnoxiously, thrown all the
values to the wind, and paved the path of tergiversation.
It would not be a hyperbole to say that it is a maladroit
and ingeniously designed attempt to strangulate and
crucify the fundamental purpose of trial, that is, to arrive
at the truth on the basis of evidence on record. The
redeeming feature is, despite the malevolent and
injurious assault, the cause of justice has survived, for
there is, in the ultimate eventuate, a conviction which is
under assail in this appeal, by special leave.
2
Page 3
3. The narration of the sad chronology shocks the
judicial conscience and gravitates the mind to pose a
question, is it justified for any conscientious trial Judge to
ignore the statutory command, not recognize “the felt
necessities of time” and remain impervious to the cry of
the collective asking for justice or give an indecent and
uncalled for burial to the conception of trial, totally
ostracizing the concept that a civilized and orderly society
thrives on rule of law which includes “fair trial” for the
accused as well as the prosecution.
4. In the aforesaid context, we may recapitulate a
passage from Gurnaib Singh V. State of Punjab.1
“...... We are compelled to proceed to reiterate
the law and express our anguish pertaining to
the manner in which the trial was conducted as
it depicts a very disturbing scenario. As is
demonstrable from the record, the trial was
conducted in an extremely haphazard and
piecemeal manner. Adjournments were granted
on a mere asking. The cross-examination of the
witnesses was deferred without recording any
special reason and dates were given after a
long gap. The mandate of the law and the views
expressed by this Court from time to time
appears to have been totally kept at bay. The
learned trial Judge, as is perceptible, seems to
have ostracised from his memory that a
criminal trial has its own gravity and sanctity. In
1 (2013) 7 SCC 108
3
Page 4
this regard, we may refer with profit to the
pronouncement in Talab Haji Hussain v.
Madhukar Purshottam Mondkar2 wherein it has
been stated that an accused person by his
conduct cannot put a fair trial into jeopardy, for
it is the primary and paramount duty of the
criminal courts to ensure that the risk to fair
trial is removed and trials are allowed to
proceed smoothly without any interruption or
obstruction.”
5. Be it noted, in the said case, the following passage
from Swaran Singh V. State of Punjab3, was
reproduced.
“It has become more or less a fashion to have a
criminal case adjourned again and again till the
witness tires and gives up. It is the game of
unscrupulous lawyers to get adjournments for
one excuse or the other till a witness is won
over or is tired. Not only is a witness
threatened, he is abducted, he is maimed, he is
done away with, or even bribed. There is no
protection for him. In adjourning the matter
without any valid cause a court unwittingly
becomes party to miscarriage of justice.”
6. In this regard, it is also fruitful to refer to the
authority in State of U.P. V. Shambu Nath Singh4,
wherein this Court deprecating the practice of a Sessions
2 AIR 1958 SC 376
3 (2000) 5 SCC 668
4 (2001) 5 SCC 667
4
Page 5
Court adjourning a case in spite of the presence of the
witnesses willing to be examined fully, opined thus:
“9. We make it abundantly clear that if a
witness is present in court he must be
examined on that day. The court must know
that most of the witnesses could attend the
court only at heavy cost to them, after keeping
aside their own avocation. Certainly they incur
suffering and loss of income. The meagre
amount of bhatta (allowance) which a witness
may be paid by the court is generally a poor
solace for the financial loss incurred by him. It
is a sad plight in the trial courts that witnesses
who are called through summons or other
processes stand at the doorstep from morning
till evening only to be told at the end of the day
that the case is adjourned to another day. This
primitive practice must be reformed by the
presiding officers of the trial courts and it can
be reformed by everyone provided the
presiding officer concerned has a commitment
towards duty.”
7. With the aforesaid concern and agony, we shall
presently proceed to adumbrate the necessitous facts.
We have already stated that despite the impasse, there is
a conviction by the trial Judge and an affirmation thereof
by the High Court. Elucidating the factual score, be it
noted, the instant appeal is directed against the judgment
and order dated 13.10.2011 passed by the High Court of
Punjab and Haryana at Chandigarh in Criminal Appeal No.
5
Page 6
1280-SB of 2001 (O&M) wherein the learned Single Judge
has given the stamp of approval to the judgment and
order dated 24.10.2001 passed by the learned Special
Judge, Patiala whereby he had convicted the appellant
under Section 7 and 13(2) of the Prevention of Corruption
Act, 1988 (for brevity, ‘the Act’) and sentenced him to
undergo rigorous imprisonment for a period of two years
and to pay a fine of Rs.2,000/- with a default clause.
8. The prosecution case, as has been unfurled, is that
Baj Singh, PW-5, used to bring earth in tractor trolley
within the municipal area of Rajpura. The appellant, at
the relevant time, was posted as Octroi Inspector and he
demanded Rs.20/- per trolley for permitting him to enter
into the municipal area. Eventually, a deal was struck
that the accused-appellant would be paid Rs.500/- per
month for the smooth operation. As the prosecution story
further unfolds, on 25.1.1995, Baj Singh met Jagdish
Verma, PW-7, and disclosed before him the fact about the
demand of the accused for permitting the entry of the
tractor trolley inside the municipal area and thereafter, as
he was not desirous of obliging the accused, he narrated
6
Page 7
the entire story to DSP Vigilance, who in his turn, with the
intention to lay the trap, explained it to Baj Singh, PW-5,
and Jagdish Verma, PW-7 about the procedure of the trap.
As alleged, Baj Singh gave five notes of Rs.100/- to the
DSP Vigilance who noted the numbers of the notes and
completed other formalities like applying phenolphthalein
powder on the currency notes. Thereafter, they
proceeded to the place of the accused and a trap was
laid. Eventually, currency notes amounting to Rs.500/-
were recovered from the trouser of the appellant and
were taken into possession. The statements of the
witnesses were recorded and after completing the
investigation chargesheet was placed for the offences
punishable under Sections 7 and 13(2) of the Act.
9. To bring home the charges against the accusedappellant,
the prosecution examined eight witnesses.
PW-1 to PW-4 are formal witnesses. PW-5, the
complainant resiled from his previous statement and was
cross-examined by the prosecution. Sher Singh, PW-6, a
clerk in the office of Tehsildar, Rajpura had joined the
police party as an independent witness. He supported
7
Page 8
the case of the prosecution in detail. Jagdish Verma, PW-
7, in his examination-in-chief, supported the prosecution
case in all aspects, but in cross-examination, resiled from
his examination-in-chief. The witness, PW-7, was
declared hostile on a prayer being made by the Public
Prosecutor and was re-examined. Narinder Pal Kaushal,
PW-8, DSP of Vigilance Bureau who had led the raiding
party on 25.1.1995, in his deposition, deposed in detail
about the conducting of the raid and recovery of the
amount.
10. The accused, in his statement under Section 313
CrPC, denied the allegations and took the plea of false
implication due to party faction and animosity. It was his
further stand that he was brought from his office and was
taken to the office of the Tehsildar and thereafter to the
Vigilance office.
11. The learned trial Judge, on the basis of the evidence
brought on record, came to hold that though the
complainant had not supported the case of the
prosecution yet prosecution had been able to prove the
demand and acceptance of the bribe and the recovery of
8
Page 9
the tainted money from the accused and, therefore, the
presumption as envisaged under Section 20 of the Act
would get attracted and accordingly convicted the
accused and sentenced him, as has been stated
hereinbefore.
12. In appeal, it was contended before the High Court
that when the testimony of Baj Singh, PW-5, and Jagdish
Verma, PW-7, the shadow witness, was absolutely
incredible, the same could not have been pervertedly
filtered by the learned trial Judge to convict the accusedappellant
for the crime in question. It was also urged that
mere recovery of the currency notes would not constitute
the offence under Section 7 of the Act. It was also
propounded that the offence under Section 13(2) of the
Act would not get attracted unless the demand and
acceptance were proven. Non-involvement of any
independent witness in the raid was also seriously
criticised. The High Court posed the question whether
the prosecution had been able to prove the factum of
demand of bribe, its acceptance and the recovery of the
money from the possession of the accused. With regard
9
Page 10
to demand of bribe, the High Court placed reliance on the
testimony of the independent witness Sher Singh, PW-6,
and the examination–in-chief of Jagdish Verma, PW-7, and
came to hold that the demand of bribe had been proven.
It appreciated the deposition of PW-7 and the documents,
especially, the Chemical Examiner’s report of the hand
wash liquid and came to hold there had been acceptance
of bribe. Relating to the recovery of the tainted money,
the High Court took note of the fact that the ocular
testimony had been duly corroborated by the
documentary evidence and hence, the recovery had been
proved.
13. Be it noted, the High Court placed reliance upon
Raghubir Singh V. State of Haryana5 and Madhukar
Bhaskarrao Joshi V. State of Maharashtra6 and
eventually came to hold that the prosecution had proven
its case to the hilt and resultantly affirmed the conviction
and order of sentence passed by the trial Court, but
reduced the sentence of 2 years’ rigorous imprisonment
to one year.
5 (1974) 4 SCC 560
6 (2000) 8 SCC 571
1
Page 11
14. Criticizing the conviction as recorded by the learned
trial Judge and affirmed by the High Court, it is submitted
by Mr. Jain, learned senior counsel for the appellant that
when the informant had not supported the case of the
prosecution, it was not justifiable on the part of the
learned trial Judge to record a conviction against the
accused. It is his submission that on the basis of the
testimony of PW-6 to PW-8, the conviction could not have
been recorded, for Sher Singh, PW-6, is not a witness
either to the demand or acceptance of the bribe by the
appellant and further the version PW-7 requires careful
scrutiny, regard being had to the fact that he is a hostile
witness. It is also urged that the evidence of PW-8
deserves to be discarded as he is an interested witness.
To bolster the aforesaid submissions, learned senior
counsel has drawn inspiration from B. Jayaraj V. State
of Andhra Pradesh7 and M.R. Purushotham Vs.
State of Karnataka8.
15. Apart from above, it is further put forth by him that
as PW-7 has not supported the prosecution story and
7 (2014) 4 SCALE 81
8 (2014) 11 SCALE 467
1
Page 12
stated to have been tutored to give statement, his whole
testimony should have been thrown out of consideration
and no reliance should have been placed on it. It is
contended by him that the High Court has failed to
appreciate the importance of cross-examination of PW-7
and hence, the judgment affirming the conviction is
absolutely flawed. To buttress the said submission,
reliance has been placed on Sat Paul V. Delhi
Administration9. It is the further stand of Mr. Jain,
learned senior counsel that the evidence of the trap
witnesses, PW-6 and PW-8 should have been wholly
ignored as they are partisan witnesses and their
statements could not have been given any credence to
inasmuch as there has been no corroboration. In this
context, he has commended us to the authorities in
State of Bihar V. Basawan Singh (CB)10, Major E.G.
Barsey V. State of Bombay11, Bhanupratap
Hariprasad Dave V. State of Gujarat12 and MO
Shamshuddin V. State of Kerala13.
9 (1976) 1 SCC 727
10 (1959) SCR 195
11 (1962) 2 SCR 195
12 (1969) 1 SCR 22
13 (1995) 3 SCC 351
1
Page 13
16. Learned senior counsel would contend, solely on the
basis of evidence of recovery, a conviction is not
sustainable and in the obtaining factual matrix, the
presumption under Section 20 of the Act would not be
attracted. To substantiate the said proposition, strength
has been drawn from C.M. Girish Babu V. C.B.I.,
Cochin14 and Benarsi Das V. State of Haryana15.
17. The last plank of submission of Mr. Jain, is that in the
instant case, the prosecution was launched by Narinder
Pal Kaushal, PW-8, who has investigated into the case
and, therefore, the concept of fair investigation, has been
totally marred as a consequence of which, the trial is
vitiated. Learned senior counsel would contend that a
person who is a part of the trap party is an interested
witness and he would be enthusiastic to see that the trap
is sustained in every manner and in such a situation, it is
per se an unfair and biased investigation that frustrates
the essential principle inhered under Article 21 of the
Constitution and eventually the trial.
14 (2009) 3 SCC 779
15 (2010) 4 SCC 450
1
Page 14
18. Mr. Madhukar, learned senior counsel appearing for
the State of Punjab, per contra, would contend that the
view expressed by the learned trial Judge and the High
Court cannot be found fault with, for a conviction under
the Act can be based on the evidence of trap witnesses, if
they are trustworthy and the ingredients of the offence
are satisfied and in the case at hand, the High Court on
x-ray of the evidence has so recorded. It is urged by him
that neither the learned trial Judge nor the High Court has
fallen into error by applying the principle of presumption
as engrafted under Section 20 of the Act. It is canvassed
by Mr. Madhukar that the evidence of the hostile witness
can be placed reliance upon by the prosecution and in the
obtaining factual matrix, the testimony of PW-7, one of
the shadow witnesses, renders immense assistance for
establishing the case of the prosecution. He has with
great pains, taken us through the evidence to
substantiate the stand that the conviction recorded
against the appellant is totally defensible.
19. Keeping in abeyance what we intend to say on the
facet of anguish expressed by us in the beginning, we
1
Page 15
shall proceed to deal with the proponement of Mr. Jain
that when the investigation conducted by Mr. Narinder
Pal Kaushal, PW-8, is vitiated on the foundation that he
has lodged the FIR, the trial is also vitiated. Though the
said submission has been raised and taken note of by us
as the last plank, yet we think it seemly to deal with it
first as it goes to the root of the matter. On a perusal of
the material on record, it is manifest that PW-8 is a part
of the raiding party, a shadow witness, and admittedly
had also sent the complaint through a Constable to the
concerned police station for lodging of FIR. This being the
factual score, we are required to take note of certain
authorities in this regard. In Basawan Singh (supra), the
Constitution Bench, after referring to the decision in Shiv
Bahadur Singh V. State of Vindhya Pradesh16,
opined that the said decision does not lay down an
invariable rule that the evidence of the witness of the
raiding party must be discarded in the absence of any
independent corroboration. The larger Bench proceeded
to state thus:
16 AIR 1954 SC 322
1
Page 16
“......The correct rule is this: if any of the
witnesses are accomplices who are particeps
criminis in respect of the actual crime charged,
their evidence must be treated as the evidence
of accomplices is treated; if they are not
accomplices but are partisan or interested
witnesses, who are concerned in the success of
the trap, their evidence must be tested in the
same way as other interested evidence is
tested by the application of diverse
consideration which must vary from case to
case, and in a proper case, the Court may even
look for independent corroboration before
convicting the accused person. If a Magistrate
puts himself in the position of a partisan or
interested witness, he cannot claim any higher
status and must be treated as any other
interested witness.”
20. In Major E.G. Barsey (supra), while dealing with
the evidence of a trap witness, the court opined that
though a trap witness is not an approver, he is certainly
an interested witness in the sense that he is interested to
see that the trap laid by him succeeds. The Court further
laid down that he can at least be equated with a partisan
witness and it would not be admissible to rely upon his
evidence without corroboration, but his evidence is not a
tainted one.
21. In Bhanupratap Hariprasad Dave (supra), the
Court observed that the police witnesses can be said to
1
Page 17
be partisan witnesses as they are interested in the
success of the trap laid by them, but it cannot be said
that they are accomplices. Thereafter, the Court
proceeded to state that their evidence must be tested in
the same way as any other interested witness is tested
and in an appropriate case, the Court may look for
independent corroboration before convicting the accused
person. The three-Judge Bench reiterated the principle
thus:
“....It is now well settled by a series of decisions
of this Court that while in the case of evidence
of an accomplice, no conviction can be based
on his evidence unless it is corroborated in
material particulars but as regards the evidence
of a partisan witness it is open to a court to
convict an accused person solely on the basis of
that evidence, if it is satisfied that that
evidence is reliable. But it may in appropriate
case look for corroboration”.
22. In MO Shamshuddin (supra), the Court, after
referring to the decisions in DPP V. Hester17 and DPP V.
Kilbourne18, made a distinction between accomplice and
an interested witness. The Court, referred to the
authority in Basawan Singh (supra) at length and
17 (1972) 3 All ER 1056
18 (1973) 1 All ER 440
1
Page 18
eventually adverted to the concept of corroborating
evidence. In that context it has been ruled thus:
“.......Now coming to the nature of corroborating
evidence that is required, it is well-settled that
the corroborating evidence can be even by way
of circumstantial evidence. No general rule can
be laid down with respect to quantum of
evidence corroborating the testimony of a trap
witness which again would depend upon its own
facts and circumstances like the nature of the
crime, the character of trap witness etc. and
other general requirements necessary to
sustain the conviction in that case. The court
should weigh the evidence and then see
whether corroboration is necessary. Therefore
as a rule of law it cannot be laid down that the
evidence of every complainant in a bribery case
should be corroborated in all material
particulars and otherwise it cannot be acted
upon. Whether corroboration is necessary and if
so to what extent and what should be its nature
depends upon the facts and circumstances of
each case. In a case of bribe, the person who
pays the bribe and those who act as
intermediaries are the only persons who can
ordinarily be expected to give evidence about
the bribe and it is not possible to get absolutely
independent evidence about the payment of
bribe.”
From the aforesaid authorities it is clear that a trap
witness is an interested witness and his testimony, to be
accepted and relied upon requires corroboration and the
corroboration would depend upon the facts and
1
Page 19
circumstances, nature of the crime and the character of
the trap witness.
23. There is no doubt that the status of PW8 is that of an
interested witness. There is no cavil over the fact that he
had sent the FIR and conducted the investigation, but the
question posed is whether the investigation by him is
vitiated. In this context we may, with profit, refer to the
decision in Bhagwan Singh V. State of Rajasthan19,
where one Ram Singh, who was a Head Constable, was
the person to whom the offer of bribe was alleged to have
been made by the appellant therein and he was the
informant who had lodged the First Information Report for
taking action against the appellant. He himself had
undertaken the investigation. In that factual backdrop
the Court ruled thus:
“Now, ordinarily this Court does not interfere
with concurrent findings of fact reached by the
trial court and the High Court on an
appreciation of the evidence. But this is one of
those rare and exceptional cases where we find
that several important circumstances have not
been taken into account by the trial court and
the High Court and that has resulted in serious
miscarriage of justice calling for interference
from this Court. We may first refer to a rather
19 (1976) 1 SCC 15
1
Page 20
disturbing feature of this case. It is indeed such
an unusual feature that it is quite surprising
that it should have escaped the notice of the
trial court and the High Court. Head Constable
Ram Singh was the person to whom the offer of
bribe was alleged to have been made by the
appellant and he was the informant or
complainant who lodged the first information
report for taking action against the appellant. It
is difficult to understand how in these
circumstances Head Constable Ram Singh could
undertake investigation of the case. How could
the complainant himself be the investigator? In
fact, Head Constable Ram Singh, being an
officer below the rank of Deputy Superintendent
of Police, was not authorised to investigate the
case but we do not attach any importance to
that fact, as that may not affect the validity of
the conviction. The infirmity which we are
pointing out is not an infirmity arising from
investigation by an officer not authorised to do
so, but an infirmity arising from investigation by
a Head Constable who was himself the person
to whom the bribe was alleged to have been
offered and who lodged the first information
report as informant or complainant. This is an
infirmity which is bound to reflect on the
credibility of the prosecution case”.
24. In Megha Singh V. State of Haryana20, the Court
noticed the discrepancy in the depositions of PW-2 and
PW-3 and absence of independent corroboration. Be it
noted, the Court was dealing with an offence under
Section 6(1) of the Terrorist and Disruptive Activities
(Prevention) Act, 1985. In that context the Court
20 (1996) 11 SCC 709
2
Page 21
observed that the testimony of the said witnesses did not
inspire confidence about the reliability of the
prosecution’s case. Proceeding further, the Court held:
“.... We have also noted another disturbing
feature in this case. PW 3, Siri Chand, Head
Constable arrested the accused and on search
being conducted by him a pistol and the
cartridges were recovered from the accused. It
was on his complaint a formal first information
report was lodged and the case was initiated.
He being complainant should not have
proceeded with the investigation of the case.
But it appears to us that he was not only the
complainant in the case but he carried on with
the investigation and examined witnesses
under Section 161 CrPC. Such practice, to say
the least, should not be resorted to so that
there may not be any occasion to suspect fair
and impartial investigation”.
25. In this regard, it is useful to refer to the
pronouncement in State vs. V. Jayapaul21 wherein the
Court posed the question whether the High Court was
justified in quashing the criminal proceedings on the
ground that the police officer, who had lodged/recorded
the FIR regarding the suspected commission of certain
cognizable offence by the respondent should not have
investigated the case. The case against the accused was
that he was indulging in corrupt practices by extracting
21 (2004) 5 SCC 223
2
Page 22
money from the drivers and owners of the motor-vehicles
while conducting check of the vehicles and making use of
certain bogus notice forms in the process. The chargesheet
was filed under Sections 420 and 201 I.P.C. and
Section 13(2) read with Section 13(1)(d) of the Act. The
Court referred to the decision in the State of U.P. V.
Bhagwant Kishore Joshi22, wherein it has been ruled
thus:
“Section 154 of the Code prescribes the mode
of recording the information received orally or
in writing by an officer in charge of a police
station in respect of the commission of a
cognisable offence. Section 156 thereof
authorises such an officer to investigate any
cognisable offence prescribed therein. Though
ordinarily investigation is undertaken on
information received by a police officer, the
receipt of information is not a condition
precedent for investigation. Section 157
prescribes the procedure in the matter of such
an investigation which can be initiated either on
information or otherwise. It is clear from the
said provisions that an officer in charge of a
police station can start investigation either on
information or otherwise.”
26. After reproducing the said paragraph, the Court
proceeded to state thus:
“Though there is no such statutory bar, the
premise on which the High Court quashed the
22 AIR 1964 SC 221
2
Page 23
proceedings was that the investigation by the
same officer who “lodged” the FIR would
prejudice the accused inasmuch as the
investigating officer cannot be expected to act
fairly and objectively. We find no principle or
binding authority to hold that the moment the
competent police officer, on the basis of
information received, makes out an FIR
incorporating his name as the informant, he
forfeits his right to investigate. If at all, such
investigation could only be assailed on the
ground of bias or real likelihood of bias on the
part of the investigating officer. The question of
bias would depend on the facts and
circumstances of each case and it is not proper
to lay down a broad and unqualified
proposition, in the manner in which it has been
done by the High Court, that whenever a police
officer proceeds to investigate after registering
the FIR on his own, the investigation would
necessarily be unfair or biased. In the present
case, the police officer received certain discreet
information, which, according to his
assessment, warranted a probe and therefore
made up his mind to investigate. The formality
of preparing the FIR in which he records the
factum of having received the information
about the suspected commission of the offence
and then taking up the investigation after
registering the crime, does not, by any
semblance of reasoning, vitiate the
investigation on the ground of bias or the like
factor. If the reason which weighed with the
High Court could be a ground to quash the
prosecution, the powers of investigation
conferred on the police officers would be unduly
hampered for no good reason. What is expected
to be done by the police officers in the normal
course of discharge of their official duties will
then be vulnerable to attack.”
2
Page 24
Be it noted, the Court distinguished the decisions in
Bhagwant Kishore Joshi (supra) and Megha Singh
(supra).
27. At this juncture, it would be fruitful to refer to
S.Jeevanatham V. State (through Inspector of
Police, T.N.)23. In the said case, the appellant was found
guilty under Section 8(c) read with Section 20(b)(ii) of the
Narcotic Drugs and Psychotropic Substances Act, 1985.
One of the contentions that was canvassed was that PW-
8, who lodged the FIR had himself conducted the
investigation and hence, the entire investigation was
vitiated. The Court referred to the decision in Jayapaul
(supra) and opined thus:
“In the instant case, PW 8 conducted the search
and recovered the contraband article and
registered the case and the article seized from
the appellants was narcotic drug and the
counsel for the appellants could not point out
any circumstances by which the investigation
caused prejudice or was biased against the
appellants. PW 8 in his official capacity gave the
information, registered the case and as part of
his official duty later investigated the case and
filed a charge-sheet. He was not in any way
personally interested in the case. We are unable
to find any sort of bias in the process of
investigation.”
23 (2004) 5 SCC 230
2
Page 25
28. In the instant case, PW-8, who was a member of the
raiding party had sent the report to the police station and
thereafter carried the formal investigation. In fact,
nothing has been put to him to elicit that he was anyway
personally interested to get the appellant convicted. In
our considered view, the decision in S. Jeevanatham
(supra) would be squarely applicable to the present case
and, accordingly, without any reservation we repel the
submission so assiduously urged by Mr. Jain, learned
senior counsel for the appellant.
29. The next aspect which requires to be adverted to is
whether testimony of a hostile evidence that has come on
record should be relied upon or not. Mr. Jain, learned
senior counsel for the appellant would contend that as
PW-7 has totally resiled in his cross-examination, his
evidence is to be discarded in toto. On a perusal of the
testimony of the said witness, it is evincible that in
examination-in-chief, he has supported the prosecution
story in entirety and in the cross-examination he has
taken the path of prevarication. In Bhagwan Singh V.
2
Page 26
State of Haryana24, it has been laid down that even if a
witness is characterised has a hostile witness, his
evidence is not completely effaced. The said evidence
remains admissible in the trial and there is no legal bar to
base a conviction upon his testimony, if corroborated by
other reliable evidence. In Khuji @ Surendra Tiwari V.
State of Madhya Pradesh25, the Court after referring to
the authorities in Bhagwan Singh (supra), Rabindra
Kumar Dey V. State of Orissa26 and Syad Akbar V.
State of Karnataka27, opined that the evidence of such
a witness cannot be effaced or washed off the record
altogether, but the same can be accepted to the extent it
is found to be dependable on a careful scrutiny thereof.
30. In this context, we think it apt to reproduce some
passages from Rammi @ Rameshwar V. State of
Madhya Pradesh28, where the Court was dealing with
the purpose of re-examination. After referring to Section
138 of the Evidence Act, the Court held thus:
24 (1976) 1 SCC 389
25 (1991) 3 SCC 627
26 (1976) 4 SCC 233
27 (1980) 1 SCC 30
28 (1999) 8 SCC 649
2
Page 27
“There is an erroneous impression that reexamination
should be confined to clarification
of ambiguities which have been brought down
in cross-examination. No doubt, ambiguities can
be resolved through re-examination. But that is
not the only function of the re-examiner. If the
party who called the witness feels that
explanation is required for any matter referred
to in cross-examination he has the liberty to put
any question in re-examination to get the
explanation. The Public Prosecutor should
formulate his questions for that purpose.
Explanation may be required either when the
ambiguity remains regarding any answer
elicited during cross-examination or even
otherwise. If the Public Prosecutor feels that
certain answers require more elucidation from
the witness he has the freedom and the right to
put such questions as he deems necessary for
that purpose, subject of course to the control of
the court in accordance with the other
provisions. But the court cannot direct him to
confine his questions to ambiguities alone which
arose in cross-examination.
Even if the Public Prosecutor feels that new
matters should be elicited from the witness he
can do so, in which case the only requirement is
that he must secure permission of the court. If
the court thinks that such new matters are
necessary for proving any material fact, courts
must be liberal in granting permission to put
necessary questions”.
31. We have reproduced the aforesaid paragraphs to
highlight that when the prosecution has such a right in
the process of re-examination, as a natural corollary, the
2
Page 28
testimony of a hostile witness cannot be brushed aside.
On the contrary, both the prosecution and the defence
can rely for their stand and stance. Emphasis on reexamination
by the prosecution is not limited to any
answer given in the cross-examination, but the Public
Prosecutor has the freedom and right to put such
questions as it deems necessary to elucidate certain
answers from the witness. It is not confined to
clarification of ambiguities, which have been brought
down in the cross-examination.
32. Mr. Jain, learned senior counsel has propounded that
testimony of PW7 deserves to be discredited, and the
learned trial Judge as well as the High Court having not
ignored have committed a grave error. We will be dealing
with the aspect whether the evidence of PW-7 should be
totally ignored or not while we will be dwelling upon the
credibility and acceptability of his testimony.
33. As a contention has been raised that once the
informant has resiled totally from his earlier statement no
conviction can be recorded on the basis of evidence of
the trap witnesses, it required to be carefully dwelled
2
Page 29
upon. In this regard, reference to the authority in Hazari
Lal v. State (Delhi Administration)29 would be apt. In
the said case a police Constable was convicted under
Section 5(2) of the Prevention of Corruption Act, 1947 on
the allegation that he had demanded and received
Rs.60/- from the informant who was examined as PW-3
and had resiled from his previous statement and was
declared hostile by the prosecution. Official witnesses had
supported the prosecution version. Keeping in mind the
evidence of the official witnesses the trial Court had
convicted the appellant therein which was affirmed by the
High Court. A contention was raised that in the absence
of any direct evidence to show that the police constable
demanded or accepted bribery no presumption under
Section 4 of the Act, 1947 could be drawn merely on the
strength of recovery of the marked currency notes from
the said police constable. Chinnappa Reddy, J. speaking
for the two-Judge Bench observed as follows:-
“...It is not necessary that the passing of
money should be proved by direct evidence.
It may also be proved by circumstantial
evidence. The events which followed in
29 (1980) 2 SCC 390
2
Page 30
quick succession in the present case lead to
the only inference that the money was
obtained by the accused from PW 3. Under
Section 114 of the Evidence Act the court
may presume the existence of any fact
which it thinks likely to have happened,
regard being had to the common course of
natural events, human conduct and public
and private business, in their relation to
facts of the particular case. One of the
illustrations to Section 114 of the Evidence
Act is that the court may presume that a
person who is in possession of the stolen
goods soon after the theft, is either the thief
or has received the goods knowing them to
be stolen, unless he can account for his
possession. So too, in the facts and
circumstances of the present case the court
may presume that the accused who took
out the currency notes from his pocket and
flung them across the wall had obtained
them from PW 3, who a few minutes earlier
was shown to have been in possession of
the notes. Once we arrive at the finding that
the accused had obtained the money from
PW 3, the presumption under Section 4(1)
of the Prevention of Corruption Act is
immediately attracted.”
34. It is pertinent to note here that in the aforesaid case
the decision rendered in Sita Ram v. State of
Rajasthan30 was pressed into service. In the case of
Sita Ram (supra) the complainant had turned hostile in
the court of Special Judge. However, the trial Judge
30 (1975) 2 SCC 227
3
Page 31
convicted the accused who was tried along with another
accused, namely, Vikram Singh. The High court on
appreciation of the evidence acquitted Vikram Singh but
maintained the conviction against Sita Ram. This Court
opined that the presumption under Section 4(1) of the
1947 Act could not be drawn in the facts of the case.
The question, whether the rest of the evidence was
sufficient to establish that the accused had obtained the
money from the complaint was not considered. The Court
in Hazari Lal (supra) distinguished the pronouncement
in Sita Ram (supra) by stating thus:-
“...The question whether the rest of the
evidence was sufficient to establish that the
accused had obtained the money from the
complainant was not considered. All that
was taken as established was the recovery
of certain money from the person of the
accused and it was held that mere recovery
of money was not enough to entitle the
drawing of the presumption under Section
4(1) of the Prevention of Corruption Act. The
Court did not consider the further question
whether recovery of the money along with
other circumstances could establish that the
accused had obtained gratification from any
person. In the present case we have found
that the circumstances established by the
prosecution entitled the court to hold that
3
Page 32
the accused received the gratification from
PW 3. In Suraj Mal v. State (Delhi Admn.)31,
also it was said mere recovery of money
divorced from the circumstances under
which it was paid was not sufficient when
the substantive evidence in the case was not
reliable to prove payment of bribe or to show
that the accused voluntarily accepted the
money. There can be no quarrel with that
proposition but where the recovery of the
money coupled with other circumstances
leads to the conclusion that the accused
received gratification from some person the
court would certainly be entitled to draw the
presumption under Section 4(1) of the
Prevention of Corruption Act. In our view
both the decisions are of no avail to the
appellant and as already observed by us
conclusions of fact must be drawn on the
facts of each case and not on the facts of
other cases.”
35. In this context it would be germane to understand
what has been stated in M. Narsinga Rao v. State of
A.P32. In the said case, allegations against the accusedappellant
were that one Satya Prasad, PW1 therein was to
get some amount from Andhra Pradesh Dairy
Development Cooperative Federation for transporting
milk to or from the milk chilling centre at Luxettipet
(Adilabad District). He had approached the appellant for
taking steps to enable him to get money disbursed. The
31 (1979) 4 SCC 725
32 (2001) 1 SCC 691
3
Page 33
appellant demanded Rs.5000/- for sending the
recommendation in favour of payment of the amount due
to PW1. As the appellant persisted with his demand PW1
yielded to the same. But before handing over the money
to him he lodged a complaint with DSP of Anti-Corruption
Bureau. On the basis of the said complaint all
arrangements were made for a trap to catch the corrupt
public servant red-handed. Thereafter the Court adverted
how the trap had taken place. The court took note of the
fact that PW1 and PW2 made a volteface in the trial court
and denied having paid any bribery to the appellant and
also denied that the appellant demanded the bribe
amount. The stand of the accused before the trial court
under Section 313 of CrPC was that one Dr. Krishna Rao
bore grudge and had orchestrated a false trap against
him by employing PW1 and PW2. Be it stated, in his
deposition PW1 had stated that he had acted on the
behest of one Dr. Krishna Rao. It was further the stand
of the accused-appellant that the tainted currency notes
were forcibly stuffed into his pocket. The trial court and
the High Court had disbelieved the defence evidence and
3
Page 34
found that PW1 and PW2 were won over by the appellant
and that is why they turned hostile against their own
version recorded by the investigating officer and
subsequently by a Magistrate under Section 164 of CrPC.
The Special Judge ordered the witnesses to be prosecuted
for perjury and the said course suggested by the trial
Judge found approval of the High Court also. While
dealing with the controversy this court took note of the
fact that the High Court had observed that though there
was no direct evidence to show that the accused had
demanded and accepted the money, yet the rest of the
evidence and the circumstances were sufficient to
establish that the accused had accepted the amount and
that gave rise to a presumption under Section 20 of the
Prevention of Corruption Act that he accepted the same
as illegal gratification, particularly so, when the defence
theory put forth was not accepted. It was contended
before this court that presumption under Section 20 of
the Act can be drawn only when the prosecution
succeeded in establishing with direct evidence that the
delinquent public servant had accepted or obtained
3
Page 35
gratification. It was further urged that it was not enough
that some currency notes were handed over to the pubic
servant to make it acceptance of gratification and it was
incumbent on the part of the prosecution to further prove
that what was paid amounted to gratification. In support
of the said contention reliance was placed on Sita Ram
(supra) and Suraj Mal v. State (Delhi Admn.)33. The
three-Judge Bench referred to Section 20(1) of the Act,
the pronouncements in Hawkins v. Powells Tillery
Steam Coal Co. Ltd34 and Suresh Budharmal Kalani
v. State of Maharashtra35 and adverted to the facts
and came to hold as follows:-
“From those proved facts the court can
legitimately draw a presumption that the
appellant received or accepted the said
currency notes on his own volition. Of course,
the said presumption is not an inviolable one,
as the appellant could rebut it either through
cross-examination of the witnesses cited
against him or by adducing reliable evidence.
But if the appellant fails to disprove the
presumption the same would stick and then it
can be held by the court that the prosecution
has proved that the appellant received the said
amount.”
33 (1979) 4 SCC 725
34 (1911) 1 KB 988 : 1911 WN 53
35 (1998) 7 SCC 337
3
Page 36
36. It is apt to note here the three-Judge Bench referred
to the observations in Hazari Lal (supra) and opined
thus:-
“The aforesaid observation is in consonance
with the line of approach which we have
adopted now. We may say with great
respect to the learned Judges of the two-
Judge Bench that the legal principle on this
aspect has been correctly propounded
therein.”
37. In this regard Mr. Jain has placed reliance on the
authority B. Jayaraj (supra). In the said case the
complainant did not support the prosecution version and
had stated in his deposition that the amount that was
paid by him to the accused was with a request that it may
be deposited in the bank as fee for renewal of his licence
for the fair price shop. The court referred to Section 7 of
the Act and observed as follows:-
“Insofar as the offence under Section 7 is
concerned, it is a settled position in law
that demand of illegal gratification is
sine qua non to constitute the said
offence and mere recovery of currency
notes cannot constitute the offence
under Section 7 unless it is proved
beyond all reasonable doubt that the
accused voluntarily accepted the money
3
Page 37
knowing it to be a bribe. The above
position has been succinctly laid down in
several judgment of this Court. By way
of illustration reference may be made to
the decision in C.M. Sharma v. State of
A.P.36 and C.M. Girish Babu v. C.B.I.37”
After so observing, the court proceeded to state thus:-
“In the present case, the complainant
did not support the prosecution case
insofar as demand by the accused is
concerned. The prosecution has not
examined any other witness, present at
the time when the money was allegedly
handed over to the accused by the
complainant, to prove that the same was
pursuant to any demand made by the
accused. When the complainant himself
has disowned what he had stated in the
initial complaint (exbt. P-11) before LW-
9, and there is no other evidence to
prove that the accused had made any
demand, the evidence of PW-1 and
contents of Exbt. P-11 cannot be relied
upon to come to the conclusion that the
above material furnishes proof of the
demand allegedly made by the accused.
We are, therefore, inclined to hold that
the Ld. Trial court as well as the High
Court was not correct in holding the
demand alleged to be made by the
accused as proved. The only other
material available is the recovery of the
tainted currency notes from the
possession of the accused. In fact, such
possession is admitted by the accused
himself. Mere possession and recovery
of the currency notes from the accused
36 (2010) 15 SCC 1
37 (2009) 3 SCC 779
3
Page 38
without proof of demand will not bring
home the offence under Section 7. The
above also will be conclusive insofar as
the offence under Section 13(1)(d)(i)(ii)
is concerned as in the absence of any
proof of demand for illegal gratification,
the use of corrupt or illegal means or
abuse of position as a public servant to
obtain any valuable thing of pecuniary
advantage cannot be held to be
established.”
38. The said principle has been followed in M.R.
Purushotham v. State of Karnataka38. On an
attentive and cautious reading of the aforesaid decisions
it is noticeable that the court disbelieved the story of the
prosecution as no other evidence was brought on record.
In N. Narsinga Rao case the accused was charged for
the offences punishable under Sections 7 read with
Section 13(1)(d) & (2) of the Act. The court, as we have
stated earlier, had referred to section 20(1) of the Act and
opined that from the proven facts the court can
legitimately draw a presumption that the delinquent
officer had received and accepted money. As we notice,
the authorities in B. Jayaraj (supra) and M.R.
Purushotam (supra) do not lay down as a proposition of
38 2014 (11) SCALE 467
3
Page 39
law that when the complainant turns hostile and does not
support the case of the prosecution, the prosecution
cannot prove its case otherwise and the court cannot
legitimately draw the presumption under Section 20 of
the Act. Therefore the proposition, though industriously,
presented by Mr. Jain that when Baj Singh, PW5, the
complainant, had turned hostile the whole case of the
prosecution would collapse is not acceptable and
accordingly hereby rejected.
39. Presently, we shall refer to the evidence of PW6, a
clerk in the office of Tehsildar, Rajpura. He has deposed
that on 25.1.1995, on the day of the raid, he joined the
police party headed by Narinder Pal Kaushal, DSP, on the
instruction of Tehsildar. He was introduced to Baj Singh,
the complainant and Jagdish Verma, a shadow witness.
Thereafter, the complainant and the shadow witness,
Jagdish Verma, were sent to the octroi post and he
stopped at some distance along with Narinder Pal Kaushal
who was waiting for signal and on receiving signal they
went inside the octroi post. As per his testimony Narinder
Pal Kaushal introduced himself as DSP and thereafter a
3
Page 40
glass of water was procured and sodium was added to it.
Both the hands of the accused were dipped in the glass of
water and the water turned pink. On search of the
accused Rs.500/- in the denomination of Rs.100/- were
recovered. The numbers tallied with the numbers
mentioned in the memo, Ex. PE. The notes were taken
into possession vide Ex. PH. As is manifest that the said
witness has supported the story of the prosecution in
toto. The submission of Mr. Jain is that he is merely a
witness to recovery and solely on the basis of recovery no
conviction can be recorded. There can be no quarrel
over the proposition that on the basis of mere recovery
an accused cannot be found guilty. It is the settled
principle of law that mere recovery of the tainted money
is not sufficient to record a conviction unless there is
evidence that bribe had been demanded or money was
paid voluntarily as bribe. In the absence of any evidence
of demand and acceptance of the amount as illegal
gratification, recovery would not alone be a ground to
convict the accused. This has been so held in T.
4
Page 41
Subramanian v. The State of Tamil Nadu39,
Madhukar Bhaskarrao Joshi v. State of
Maharashtra40, Raj Rajendra Singh Seth v. State of
Jharkhand and Anr.41, State of Maharashtra v.
Dnyaneshwar Laxman Rao Wankhede42, C.M. Girish
Babu v. C.B.I., Cochin43, K. S. Panduranga v. State
of Karnataka44 and Satvir Singh v. State of Delhi45.
The fact remains that PW6 has supported the recovery in
entirety. He has stood firm and remained unshaken in
the cross-examination and nothing has been elicited to
dislodge his testimony. His evidence has to be
appreciated regard being had to what has been deposed
by Jagdish Verma, PW7. In examination-in-chief he has
deposed that he had met the DSP, Narinder Pal Kaushal
who had introduced him to Sher Singh, PW6. He has
further stated that he and PW5, Baj Singh, went inside the
octroi post where Vinod Kumar demanded bribe from Baj
Singh whereupon Baj Singh gave Rs.500/- to him, and at
39 AIR 2006 SC 836
40 (2000) 8 SCC 571
41 AIR 2008 SC 3217
42 (2009) 15 SCC 200
43 AIR 2009 SC 2011
44 (2012) 3 SCC 721
45 (2014) 13 SCC 143
4
Page 42
that juncture, he gave the signal to the vigilance party to
come inside where after and they came and apprehended
the accused. Apart from stating about the demand and
acceptance he had also stated that the hands of the
accused were dipped in that water and the colour of the
water had turned light pink. It was transferred into a
quarter bottle and was sealed and was taken into
possession vide recovery memo Ex.PG which was
attested by him and Baj Singh. The amount of Rs.500/-
was recovered from right side pant pocket of the
accused. After making the arrangement for the pant of
the accused, the right side pocket of the pant of the
accused was dipped in the mixture of water and sodium
and its colour turned light pink. It was also transferred
into a quarter bottle which was duly sealed and was taken
into possession vide recovery memo Ex.PJ. The pant was
also taken into possession vide recovery memo Ex.PJ.
The notes recovered from the accused were compared
with the numbers mentioned in the memo and those
tallied. The notes were taken into possession vide
recovery memo Ex.PF. A sum of Rs.310/- was recovered
4
Page 43
from the further search of the accused which was taken
into possession vide recovery memo Ex.PK. Thus, from
the aforesaid testimony it is absolutely clear that he has
supported in entirety about the demand, acceptance and
recovery of money. It is necessary, though painful, to
note that PW7 was examined-in-chief on 30.9.1999 and
was cross-examined on 25.5.2001, almost after 1 year
and 8 months. The delay in said cross-examination, as
we have stated earlier had given enough time for
prevarication due to many a reason. A fair trial is to be
fair both to the defence and the prosecution as well as to
the victim. An offence registered under the Prevention of
Corruption Act is to be tried with all seriousness. We fail
to appreciate how the learned trial Judge could exhibit
such laxity in granting so much time for crossexamination
in a case of this nature. It would have been
absolutely appropriate on the part of the learned trial
Judge to finish the cross-examination on the day the said
witness was examined. As is evident, for no reason
whatsoever it was deferred and the cross-examination
took place after 20 months. The witness had all the time
4
Page 44
in the world to be gained over. We have already opined
that he was declared hostile and re-examined. It is
settled in law that the testimony of a hostile witness can
be relied upon by the prosecution as well as the defence.
In re-examination by the public prosecutor this witness
has accepted about the correctness of his statement in
the court on 13.9.1999. He has also accepted that he
had not made any complaint to the Presiding Officer of
the Court in writing or verbally that the Inspector was
threatening him to make a false statement in the Court.
It has also been accepted by him that he had given the
statement in the Court on account of fear of false
implication by the Inspector. He has agreed to have
signed his statement dated 13.9.99 after going through
and admitting it to be correct. It has come in the reexamination
that he had not stated in his statement
dated 13.9.99 in the Court that recovery of tainted money
was not effected in his presence from the accused or that
he had been told by the Inspector that amount has been
recovered from the accused. He had also not stated in
his said statement that the accused and witnesses were
4
Page 45
taken to the Tehsil and it was there that he had signed all
the memos.
40. Reading the evidence in entirety, his evidence
cannot be brushed aside. The delay in cross-examination
has resulted in his pre-varication from the examination-inchief.
But, a significant one, his examination-in-chief and
the re-examination impels us to accept the testimony
that he had gone into the octroi post and had witnessed
about the demand and acceptance of money by the
accused. In his cross-examination he has stated that he
had not gone with Baj Singh to the vigilance department
at any time and no recovery was made in his presence.
The said part of the testimony, in our considered view,
does not commend acceptance in the backdrop of entire
evidence in examination-in-chief and the re-examination.
The evidence of PW6 and PW7 have got corroboration
from PW8. He in all material particulars has stated about
the recovery and proven the necessary documents
pertaining to the test carried with phenolphthalein
powder. The fact remains that the appellant’s pocket
contained phenolphthalein smeared currency notes when
4
Page 46
he was searched. It is apt to take note of the fact that
the currency notes that have been recovered from the
right side of the pant pocket were actually prepared by
PW8 by smearing them with phenolphthalein powder.
The appellant was caught red-handed with those currency
notes. In is statement recorded under Section 313 of
CrPC he has taken the plea that he is innocent and has
been falsely implicated due to animosity. No explanation
has been given as regards the recovery. Therefore, from
the above facts, legitimately a presumption can be drawn
that the accused-appellant had received or accepted the
said currency notes on his own volition. The factum of
presumption and the testimony of PW6 and 7 go a long
way to show that the prosecution has been able to prove
demand, acceptance and recovery of the amount. Hence,
we are inclined to hold that the learned trial Judge and
the High Court have appositely concluded that the
charges leveled against the accused have duly been
proven by the prosecution. It is not a case that there is
no other evidence barring the evidence of the
complainant. On the contrary there are adequate
circumstances which establish the ingredients of the
offences in respect of which he was charged.
41. Before parting with the case we are constrained to
reiterate what we have said in the beginning. We have
expressed our agony and anguish the manner in which
trials in respect of serious offences relating to corruption
are being conducted by the trial courts. Adjournments
are sought on the drop of a hat by the counsel, even
though the witness is present in court, contrary to all
principles of holding a trial. That apart, after the
examination-in-chief of a witness is over, adjournment is
sought for cross-examination and the disquieting feature
is that the trial courts grant time. The law requires
special reasons to be recorded for grant of time but the
same is not taken note of. As has been noticed earlier, in
the instant case the cross-examination has taken place
after a year and 8 months allowing ample time to
pressurize the witness and to gain over him by adopting
all kinds of tactics. There is no cavil over the proposition
that there has to be a fair and proper trial but the duty of
the court while conducting the trial to be guided by the
mandate of the law, the conceptual fairness and above all
bearing in mind its sacrosanct duty to arrive at the truth
on the basis of the material brought on record. If an
accused for his benefit takes the trial on the path of total
mockery, it cannot be countenanced. The Court has a
sacred duty to see that the trial is conducted as per law.
If adjournments are granted in this manner it would
tantamount to violation of rule of law and eventually turn
such trials to a farce. It is legally impermissible and
jurisprudentially abominable. The trial courts are
expected in law to follow the command of the procedure
relating to trial and not yield to the request of the counsel
to grant adjournment for non-acceptable reasons. In fact,
it is not all appreciable to call a witness for crossexamination
after such a long span of time. It is
imperative if the examination-in-chief is over, the crossexamination
should be completed on the same day. If
the examination of a witness continues till late hours the
trial can be adjourned to the next day for crossexamination.
It is inconceivable in law that the crossexamination
should be deferred for such a long time. It
is anathema to the concept of proper and fair trial. The
duty of the court is to see that not only the interest of the
accused as per law is protected but also the societal and
collective interest is safe-guarded. It is distressing to
note that despite series of judgments of this Court, the
habit of granting adjournment, really an ailment,
continues. How long shall we say, “Awake! Arise!”.
There is a constant discomfort. Therefore, we think it
appropriate that the copies of the judgment be sent to
the learned Chief Justices of all the High Courts for
circulating the same among the learned trial Judges with
a command to follow the principles relating to trial in a
requisite manner and not to defer the cross-examination
of a witness at their pleasure or at the leisure of the
defence counsel, for it eventually makes the trial an
apology for trial and compels the whole society to suffer
chicanery. Let it be remembered that law cannot allowed
to be lonely; a destitute.
42. In the ultimate analysis, we perceive no merit in the
appeal and consequently the same stands dismissed. As
the appellant is on bail, his bail bonds are cancelled. He
be taken into custody forthwith to suffer the sentence.
........................................J.
[DIPAK MISRA]
........................................J.
[ROHINTON FALI NARIMAN]
NEW DELHI
JANUARY 21, 2015.
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