Friday, 16 October 2015

Whether trap under prevention of corruption Act can be organized in court premises without permission of principal Judge?

 In my opinion,  traps in the premises of the Court on
working days, cannot be organized without the permission of the
Judge who is in­charge of the administration of such Court, or the
Principal District Judge, or the High Court. The working of the
courts of law is distinguishable from the offices of the government
departments.  In the court premises, there is presence of advocates
and advocates' clerks, who, quite often – lawfully and for lawful
purposes – receive amounts in cash from the litigants or their
representatives.  No receipts regarding such amounts are passed –
atleast not at that time.  The members of the staff of the court, are
quite often required to assist the litigants or the advocates, and to
provide answers to their queries.   Implicating a member of the
court staff falsely, with respect to the accusation of his having
demanded   and/or   accepted   illegal   gratification   is   easier   than
implicating public servants working in other departments.    If the
police are permitted to lay traps without such permission, it can
indeed pose a serious threat to the administration of justice and
independence of judiciary.  On the contrary, no harm can possibly
be suffered by seeking the permission of the concerned Judge or
his superior, or the High Court.   The impermissibility of laying
such   traps   was   considered   by   the   Allahabad   High   Court   in

Surendra Sahai and Ors. Vs. State of U.P8
    and it was held that
such traps ought not to be  organised.   In my opinion, it was
absolutely improper in this case on the part of the Investigating
Agency to have laid a trap without seeking a previous permission
of the Hon'ble The Chief Justice.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1069 OF 2013
SHRIDHAR CHAVAN .. APPELLANT
Versus
THE STATE OF MAHARASHTRA .. RESPONDENT
­­­

­­­
      CORAM :  ABHAY M. THIPSAY, J.
              
  JUDGMENT PRONOUNCED: 13th OCTOBER 2015
Citation;2015 (4) Crimes 227 Bom
­­­



1 The appellant who was working as a Chobdar on the
establishment   of   this   Court,   has   appealed   to   this   Court,
challenging the judgment and order delivered by the Special Judge
for Greater Mumbai appointed under Section 3 the Prevention of
Corruption Act, 1988 (hereinafter referred to as 'the P.C.Act' for the
sake of convenience).  By the said judgment and order, the learned
Special   Judge   convicted   the   appellant   of   offences   punishable
under Section 7 and section 13(2) read with Section 13(1)(d) of

the P.C. Act, and sentenced him to suffer Rigorous Imprisonment
for 1(one) year, and to pay a fine of Rs.2,000/­ on each of the said
two counts.  
2 The case arose on a complaint lodged by one Shri Anil
Bugde (PW 1), an Advocate.  The appellant, at the material time,
was attached to an Hon'ble Judge presiding over C.R.No.27.  The
case, in brief, may be stated thus : 
Bugde had filed an application in this Court on behalf
of one Smt.Vaishali, his client.  On 8/10/2010, Bugde went to the
Court Room No.27, approached the staff and inquired with them
as to  whether  he  could  get urgent circulation  of  the  Criminal
Application filed by him.  The accused, at that time, informed him
that the Hon'ble Judge usually did not grant urgent circulations,
but if urgent circulation was required, Bugde would have to pay
an   amount   of   Rs.1,000/­.     Bugde   handed   over   an   amount   of
Rs.500/­ to the appellant immediately.  He, however, was actually
not intending to give any bribe to the accused, and therefore,
lodged a complaint with the Anti Corruption Bureau (ACB) on the
same day.   The complaint was recorded by Shahaji Shinde (PW
3),   Assistant   Commissioner   of   Police,   the   Investigating   Officer.

Shinde   thereafter   carried   out   the   verification   of   the   demand
allegedly made by the appellant.  This verification was sought to
be   done   by   sending   an   independent   witness   –   panch   Rahul
Shringare   (PW   2)   with   the   complainant,   and   by   making
arrangement for recording the conversation that would take place
between the complainant and the appellant.   In the presence of
panch Rahul Shringare, the appellant repeated his demand i.e.
demanded remaining amount of Rs.500/­ on the same day i.e.
8/10/2010.   After confirmation of the demand, the verification
panchnama was  prepared,  and  a First  Information   Report  was
registered   on   the   basis   of   the   complaint   lodged   by   Bugde
(hereinafter   referred   to   as   'the     complainant').     A   trap   was
arranged by following usual procedure.  The police party and the
panchas decided to trap the appellant on 11/10/2010 which was
the next working day.   The   complainant along with the panch
Shringare proceeded near Court Room No.27.  There, they met the
appellant   in   the   corridor.     That,   at   that   time,   the   appellant
demanded and accepted bribe of Rs.500/­ from the  complainant.
Immediately, the appellant was apprehended on the  complainant
giving   a   pre­determined   signal.     The   tainted   money   to   which
Anthracin  powder   had   been   applied,  was   recovered   from   the
possession  of the appellant.   Traces of  Anthracin  powder were

noticed on the hands of the appellant and also on the pant pocket
of the uniform which he was wearing.  The post­trap panchnama
was drawn.
3 Further investigation was carried out.  On completion
of the investigation, a charge­sheet came to be filed against the
appellant.
4 The   prosecution   examined   four   witnesses
during the trial.   The first one is the  complainant himself.  The
second  is   the   panch   –   Rahul   Shringare.    The   third   is   Shahaji
Shinde   –   the   Investigating   Officer.     The   fourth   one   is   Vasant
Kondvilkar, a Sheristedar  working on the  establishment of  this
Court, who was, at the material time, attached to the Court Room
No.27.  The appellant  did not examine himself in defence.  He,
however,   filed   a   written   statement.     He   also   examined   one
Smt.Smita Bhatkalkar, the Sheristedar who was attached to the
Court   Room   No.6   at   the   material   time,   as   a   witness   for   the
defence.
5 I have heard Mr.Girish Kulkarni, learned counsel for
the appellant.   I have heard Mr.Deepak Thakre, learned APP for

the State.  With their assistance, I have carefully gone through the
evidence adduced during the trial.  I have carefully examined the
entire record of the trial Court, and have studied the impugned
judgment, carefully.
6 Mr.Girish Kulkarni, learned counsel for the appellant
contended that the conviction of the appellant, as recorded by the
learned   Special   Judge,   is   not   in   accordance   with   law.     He
submitted that there were a number of doubtful aspects as regards
the prosecution case.  He submitted that the  complainant, though
an Advocate, could not be termed as a reliable witness at all, and
that   his   evidence   is   full   of   inconsistencies   and   contradictions.
According to him, the learned Special Judge ought not to have
kept any reliance on the evidence of the  complainant. Mr.Kulkarni
also   contended   that   there   were   some   basic   infirmities   in   the
prosecution case, and that the evidence adduced makes it clear
that the   complainant had no genuine grievance, and actually,
somehow, wanted to trap some member of the staff of this Court.
He,   therefore,   submitted   that   the   appellant   deserves   to   be
acquitted.

7 Mr.Deepak   Thakre,   learned   APP   did   concede   that
there were some basic infirmities in the case of the prosecution.
He,   however,   submitted   that,   that   the   appellant   had   actually
accepted an amount of Rs.500/­ from the   complainant on 11th
October 2010 in the presence of the panch Rahul Shringare (PW
2). was satisfactorily proved.   He submitted that on the basis of
the   proof   of   this   fact,   the   Court   may   decide   the   matter   in
accordance with law. 
8 Before   going   into   the   contentions   raised   by   the
learned counsel for the appellant, it would be proper to consider
the evidence of the  complainant in all the necessary details. 
9 The  complainant, in his evidence, stated that he had
been practising as an Advocate  since the year 1995, mostly on the
Criminal side.  That, he was practising in all Courts, including the
High   Court   at   Bombay.     That,   he   had   a   client   by   name   Smt.
Vaishali, who had lodged a report against her husband and in­laws
with   the   Agripada   Police   Station.     After   completion   of
investigation, charge­sheet in that case was filed in the Court of
Metropolitan Magistrate at Mazgaon.   However, Smt.Vaishali, at
that time, was residing at Pune, was not well, and was therefore,

unable to remain present in the Court at Mazgaon, Mumbai for
giving evidence.  That, on her instructions, the  complainant had
filed in this Court, a Criminal Application bearing No.4301/2010
for   transfer   of   the   case   from   the   Court   of   the   Metropolitan
Magistrate, Mazgaon, Mumbai to the  Court of  a  Magistrate  at
Ghudegaon, Pune District.  That, the said Application was filed in
the month of October 2010.   That, as per the procedure, after
filing of the matter, it was required to be circulated for obtaining
necessary orders from the Court, and that therefore, on 8th October
2010 at about 11.00 a.m, The complainant attended the  High
Court and went to the Court Room No.27.   He made enquiries
with   the   staff   of   Court   Room   No.27   about   obtaining   urgent
circulation.  He enquired as to whether he would have to mention
the  matter  before the  Hon'ble  Judge  for  urgent circulation, or
whether it would be posted in due course as per  rotation.  The
appellant was in Court Room No.27 at that time, being attached to
that Court as a 'Chobdar'.  The  complainant made enquiries with
him also, regarding the circulation, when the appellant informed
him that the Hon'ble Judge would not grant urgent circulation, but
that urgent circulation could be managed.  When the  complainant
asked   him   'how   would   he   be   able   to   do   this',   he   asked   the
complainant to come out of the Court hall.  The  complainant then

went to the corridor in front of the Court room along with the
appellant.   That, at that time, the appellant told him that if the
complainant   needed   urgent   circulation,   he   would   have   to   pay
Rs.1,000/­ to the appellant.  The  complainant was shocked and
confused   because   of   the   demand   made   by   the   appellant   and
enquired with him whether that was the regular procedure for
obtaining circulation, whereupon the appellant told him that those
who   required   urgent   circulation   were   paying   Rs.1,000/­,
otherwise, the matter would be posted in the routine course.  The
complainant   decided   to   initiate   action   against   'such   illegal
practice', and to lodge a report against the appellant.  He was not
aware of the name of the appellant at that time.   He, however,
negotiated the matter with the appellant when the appellant told
him to hand over Rs.500/­ to him immediately, and to pay the
remaining amount of Rs.500/­ afterwards.  The  complainant then
immediately gave one currency note of Rs.500/­ denomination to
the appellant in the corridor in front of Court Room No.27, itself.
He also handed over a praecipe (circulation slip) (Exhibit­10) to
the appellant, along with the said currency note.
10 The  complainant then went to the office of the Anti
Corruption   Bureau   (ACB)   at   Worli,   and   met   Mr.Kaushik,

Additional   Commissioner   of   Police.     Kaushik   directed   the
complainant to the Director General of the ACB.  The matter was
discussed with him.   Shahaji Shinde,   Assistant Commissioner of
Police   (PW   3)   was   deputed   for   handling   the   complaint.     The
complainant   gave   his   complaint   in   writing   (Exhibit­11).     ACP
Shinde   then   explained   the   procedure   to   the     complainant   by
saying that the cognizance of the complaint  could not be taken
without verifying its correctness.  Two panchas – Rahul Shringare
(PW   2)   and   Jambhulkar   were   called.     The   contents   of   the
complaint   were   explained   to   them.     Shinde   explained   to   the
complainant that to verify the correctness of his complaint, Shinde
himself and both the panchas would go to the High Court building
along with the  complainant.  Shinde also planned to record the
conversation that would take place between the  complainant and
the   appellant;   and,   for   that   purpose,   produced   a   blank   CD,
recorded the introductory voice of the   complainant and of both
the panchas by using a Digital Recorder.  Rahul Shringare was to
accompany the  complainant, and it was decided to introduce him
as the brother of the applicant Smt.Vaishali.  The  complainant, the
panchas and ACP Shahaji Shinde (PW 3) went to the High Court
building at about 5.05 p.m.   The complainant had attached the
digital recorder provided to him, inside his shirt.  The complainant

and the panch Shringare went to Court Room No.27.  They were
standing   in   the   corridor   in   front   of   Court   Room   No.27.     The
appellant   arrived   there   from   a   wooden   staircase.     The
complainant met him, introduced  Shringare to him as the brother
of   applicant   Smt.Vaishali.     The   complainant   reminded   the
appellant of his having been paid Rs.500/­ in the morning and
sought advice from him about the further course of action.   The
appellant told the complainant that it was necessary to verify from
the   Board   Department,   whereafter   the     complainant   Rahul
Shringare and the appellant, all went to the Board Department.
The   appellant   enquired   with   the   staff   about   the   Criminal
Application No.4301/10 when the staff informed that the matter
had   been   fixed   and   placed   before   Court   Room   No.6   on
11/10/2010.   
11  The  complainant, the appellant and the panch then
came back in the corridor in front of Court Room No.27.   The
appellant   asked   whether   the     complainant   had   brought   the
remaining amount of Rs.500/­.  The  complainant, after making a
show of enquiry with panch Rahul Shringare, said 'No', and the
panch Rahul Shringare, as decided, said that Rs.500/­ would be
given on Monday i.e. 11/10/2010.  

12 The  complainant and Rahul Shringare then went to
the ACB office at Worli.  The conversation recorded in the Digital
Recorder which was provided to the  complainant was heard, and
a transcript and a CD thereof was prepared in the office of the
ACB.  The statement of the  complainant was recorded, and a First
Information   Report   was   registered   (Exhibit­12).       It   was   then
decided to lay a trap.   The   complainant and the panchas were
called on 11/10/2010.  
13 On 11/10/2010, when the  complainant went to the
office of the ACB at about 10.00 a.m, apart from ACP Shinde and
some other Officers, both the panchas were also already present
there.   The   complainant was explained the procedure of laying
trap.  The conversation that would take place during the trap was
to be recorded by using digital voice recorder.   5(five) currency
notes   of   Rs.100/­   denomination   were   handed   over   by   the
complainant to ACP Shinde as the trap amount.  By adopting usual
procedure, the details of which are given by the complainant in his
evidence, a trap was laid.   Anthracin  powder was applied to the
said currency notes.  The properties of the Anthracin powder were
explained to the  complainant and the panchas.  The  complainant
was   instructed   not   to   touch   the   said   currency   notes,   till   the

appellant would make a demand for the amount.  After handing
over the amount to the appellants, the  complainant was to give a
signal by rolling his left hand over his head.  
14 The   police   party   and   the   panchas   then   proceeded
towards the High Court building.   The   complainant and panch
Shringare were walking together and the other members of the
raiding party were following them from some distance.  When the
complainant and the panch reached in front of the Court Room
No.27,   they   met   the   appellant   who   was   present   there.     The
appellant informed the   complainant that the matter had been
placed before the Hon'ble Judge.  The appellant then said that the
complainant's work had been done and demanded the remaining
amount of Rs.500/­.   The   complainant handed over the tainted
amount which the appellant accepted by his right hand and kept
in his left side pant pocket.  After the amount was accepted, the
complainant gave pre­determined signal to the raiding party after
which the appellant was apprehended.  He was taken to a room
situate in the High Court building used as a security office.  After
some   inquiries   were   made   with   the     complainant   and   panch
Shringare by ACP Shinde, all proceeded towards Azad Maidan
Police Station, and then to the office of the ACB.

15 The evidence of panch Rahul Shringare does show
that he had accompanied the   complainant on 8/10/2010, and
that the appellant had informed the  complainant that the work of
circulation had been done, and the matter was listed on Monday
(11/10/2010).  According to Shringare, the appellant also showed
the (cause) list to the  complainant, and showed that his matter
was there.   That, some discussions then took place between the
complainant and the appellant, and that these discussions were
about listing the matter of the complainant before some other
Judge, and not before the Hon'ble Judge presiding over C.R.No.6,
before whom it was listed.  The appellant informed that the matter
had been listed through the process of computer and not manually.
The appellant then demanded an amount of Rs.500/­ from the
complainant, on which the  complainant replied that the amount
would be given on Monday.  
16 About the incident on 11/10/2010, Shringare does
speak about going near Court Room No.27.  According to him, the
complainant was not present in the Court Room, but when the
complainant and Shringare were waiting, he arrived there from
the staircase.   Shringare states about discussions about the change

of the Court again taking place between the  complainant and the
appellant.     According   to   Shringare,   thereafter,   the   appellant
demanded   the   money   paid  by   a   gesture.     That,   when   the
complainant   paid   the   money   to   the   appellant,   and   when   the
appellant accepted it, the appellant was trapped.
17 The   evidence   of   Shahaji   Shinde   (PW   3)   is   in
accordance with the case of the prosecution.  He does speak about
the  complainant reporting the matter to him, that the complaint
being verified, a trap being laid and the appellant being trapped.
In the cross­examination, certain admissions were got elicited from
him, the effect of which shall be discussed at an appropriate place.
18 The   fourth   witness   Vasant   Kondvilkar,   Sheristedar,
who was attached to Court Room No.27, at the material time, was
examined by re­opening the case that was closed for judgment.
When   the   case   had   been   kept   for   judgment,   the   prosecution
moved an application for his examination which was permitted by
the learned Special Judge.     Through Kondvilkar, the Circulation
Register maintained in Court Room No.27 was produced, and a
page in that register, containing a particular entry – supposedly
made by the appellant – was tendered in evidence and exhibited.

Incidentally,   Kondvilkar   was   on   leave   on   7/10/2010   and
8/10/2010.  
19 The evidence of Smt.Bhatkalkar, (DW 1) Sheristedar
shows that on 7/10/2010, she was attached to the Hon'ble Judge
presiding over Court Room No.6.   According to her, the Hon'ble
Judge   had   authorized   her   to   grant   circulations.     When   the
praecipe (Exhibit­10) was shown to the witness, she said that it
was forwarded to her in the Court Room No.6 on 7/10/2010, and
on the same day, it was granted.  The praecipe shows that she had
put her signature thereon, and had also put the date below it as
'7/10/2010'.   Through her, the daily board was also produced.
According to her, the Criminal Application No.4301/10 regarding
which the praecipe was forwarded, had nothing to do with Court
Room No.27, and that as per the roster, the Criminal Application
was required to be dealt with by the Hon'ble Judge presiding over
the Court Room No.6.
20 It can at once be noticed that there are a number of
curious aspects of the matter regarding which no answers can be
found from the evidence that was adduced before the learned
Special Judge.

21 The first and foremost is that the transfer applications
were not being dealt with by the Hon'ble Judge presiding over
Court Room No.27, at all.  The notification showing the roster was
produced before the trial Court and was by consent, marked as
'Exhibit­32'.  The roster shows that the transfer applications were
to be dealt with by the Hon'ble Judge presiding over C.R.No.6.
The transfer applications would not be listed before the Hon'ble
Judge presiding over C.R.No.27.  This is not in dispute at all.  Any
evidence in that regard is still felt required,  the same is available
in the testimony of Smt.Smita Bhatkalkar, who as aforesaid, has
categorically stated that the matter mentioned for circulation, had
nothing to do with the C.R.No.27, and that, the assignment of
Criminal  Applications for  transfer, was with the  Hon'ble Judge
presiding over  C.R.No.6.
22 The question  that, therefore,  arises is why did the
complainant go to the C.R.No.27 at all for seeking circulation.
This conduct of the   complainant is mysterious, and no direct
answer to this is found from the evidence.  The  complainant is an
Advocate practicing since quite some time, and according to him,
he had been practicing in the High Court also.  He was, therefore,

certainly   expected   to   be   aware   of   the   fact   that   the   Transfer
Application which had been preferred by him on behalf of his
client, would be dealt with by the Hon'ble Judge presiding over
C.R.No.6,  and could not  have  been  dealt  with by  the   Hon'ble
Judge presiding over C.R.No.27.
23 I   have   carefully   examined   the   evidence   of   the
complainant to see whether there exists any explanation of his
conduct  of   approaching  the   staff   of   the  C.R.No.27  for   seeking
circulation of a matter which pertained to the C.R.No.6.   I am
unable to find any.  The  complainant simply, and as a matter of
fact, says that  on 8/10/2010 at about 11.00 am he attended the
High Court and was present in C.R.No.27.     He even does not say
that   he,   by   mistake   believed   the   matter   to   be   pertaining   to
C.R.No.27, and that, in that belief, he had gone to C.R.No.27.  
24 The second curious aspect of the matter is that the
circulation had already been granted on 7/10/2010 itself under
the signature of the Sheristedar Smt.Smita Bhatkalkar (DW 1).
There is absolutely no challenge to the evidence of this witness.
Moreover, the praecipe (Exhibit­10) itself shows an endorsement
as follows :­

“Coram : V.M.Kanade,J
 Circulation for 11/10/10.
 Signed
(Smt.Smita Bhatkalkar)
_________________
7/10/2010”
The     complainant   has   made   an   attempt   to   dispute   that   the
praecipe was given by him on 7/10/2010, but in the light of the
evidence of Smita Bhatkalkar and the endorsement made by her in
the   normal   course   of   her   duties   on   7/10/2010,   it   has   to   be
accepted that circulation of the matter was already ordered on
7/10/2010  for  11/10/2010.    What,  then, was  the  occasion  to
approach the appellant on 8/10/2010 ?
25 Another interesting aspect of the matter is that the
Criminal   Application   No.4301/10   for   obtaining     the   urgent
circulation   of   which   the   whole   matter   arose,   was   actually
dismissed   for   non­appearance.     The   circulation   of   the   said
application, as aforesaid, was granted and it was listed on board
on  11/10/2015.  The  complainant did not attend the Court on
that date, and even subsequently.  As admitted by the complainant
in   his   cross­examination,   the   said   Criminal   Application   was
dismissed for want of prosecution in the month of March 2011.

26 Thus, the following factors :­
(a) The     complainant   approached   the
staff   of   the   C.R.No.27   for
obtaining   circulation   of   a   matter
which pertained to the C.R.No.6.
(b) The   praecipe   seeking   circulation
of   the   matter   shows   that
circulation   had   been   granted   on
7/10/2010   itself,   listing   the
matter   on   11/10/2010   before   the
Hon'ble   Judge   presiding   over
C.R.No.6.
(c) Instead   of   remaining   present
before   the   Court   on   11/10/2010,
and attending the matter which was
got   circulated,   the     complainant
at   that   time,   remained   busy   in
trapping the appellant; and he did
not   even   thereafter,   pursue   the
application,   which   ultimately   got
dismissed for non­prosecution;
make   it   absolutely   necessary   to   subject   the   evidence   of   the
complainant to a meticulous scrutiny not only with respect to the
factual details, but with respect to his motive behind making of the
complaint.  

27 The  complainant being an Advocate was aware of the
fact that the circulation of a matter can be granted only by a
Judge, and that too, with respect to the matters that pertain to
him as per the roster.  This circulation could also be granted by the
Sheristedar attached to the concerned Court on being expressly
authorized to do by the concerned Hon'ble Judge.  Inspite of this,
the   complainant attempted to get the circulation of the matter
from a Chobdar.  Obviously, his intention was not to secure urgent
circulation of the matter in the interest of his client, which is also
clear from the fact that the said application was not at all pursued,
and was very much permitted to be dismissed for non­prosecution.
    His intention was clearly to '    expose corruption that is going on in
the High Court'.  In fact, the  complainant has made no secret of
what he actually intended to do.   In his complaint (Exhibit­11),
the  complainant has mentioned the subject as 'complaint against
public   servants'.     The   opening   paragraph   of   his   complaint
addressed   to   the   Addl.   Commissioner   of   Police,   ACB   reads   as
under :­
“Sir,
Since 1999 I am residing at the above mentioned
place and carrying on my professional work from

the said place.  I am a lawyer by profession and
also provide legal services to other government
agencies such as office of Commissioner of Police,
Mumbai.” (Emphasis supplied)
The   complaint then gives the details of the application filed by
him on behalf of his client Smt.Vaishali, and then states as under :­
“On 8/10/2010 at about 11.15 p.m (it should be
“a.m”) when I visited the Court of  xxxxx (name
of   Judge  omitted)     presiding   in   Court   Room
No.27 for the purpose of circulating the above
matter for urgent orders on 15/10/2010, I was
told   by   the   Peon   of   the   Court   along   with
Sheristedar   that   xxxxxxx   (Judge)   does   not
allow   short   period   circulation,   therefore,   I
asked   the   remedies   for   the   same.     During
discussion with peon, he told me that he can
place   my   matter   on   15/10/2010   with
consultation with his superior and thereafter
asked and demanded Rs.1,000/­ as a bribe for
placing my case on 15/10/2010”.
28 It is clear that the  complainant did know that actually
the  orders regarding urgent placing of  matters on  board were
required to be obtained from the Hon'ble Judge.  He was, however,
not ready to mention the matter before the Hon'ble Judge, and see

whether circulation would be granted or not, obviously because as
discussed earlier, he was not, in reality, interested in obtaining any
circulation.   Even assuming that the complainant indeed wanted
urgent circulation of the matter,  he ought to have mentioned the
matter before the Hon'ble Judge and accepted the decision of the
Hon'ble   Judge,   rather   than   making   an   attempt   to   improperly
obtain circulation.
29 It   is   evident   that   basically   what   the     complainant
wanted to do is to point out/prove that such wrong things take
place in the High Court.   That circulation was urgently required
was only an excuse put forth by him to get the things going.  It is
significant in this context that his complaint does not mention as
being   against   any   particular   individual   or   individuals,   but
generally against public servants.   The  complainant has admitted
in the cross­examination, that the complaint lodged by him was
not only against the accused, but was also against the other staff,
though he later claimed that his complaint was only against the
accused.   During the cross­examination, he volunteered to state
that “in order to curb the illegal activities, he handed over an
amount of Rs.500/­ to the accused”.  In the examination­in­chief
itself, he has stated that he decided to initiate action against such

illegal   practice,   and   evidently,   his   main   issue   was   'fighting   the
corruption and exposing the corrupt public servants' rather than
the grievance in any particular work or matter.
30 The object of the  complainant to expose corruption,
is indeed laudable.  However, when a person is possessed by such
a desire, and when  he, though has a general  grievance about
corrupt   practices   which   are   being   adopted   in   any   particular
institution, selects targets a particular public servant to prove him
to   be   guilty   of   demanding   and/or   accepting   bribe/illegal
gratification to make his point, then the evidence of such person
needs to be scrutinized with more than ordinary care.
31 It will not be out of place at this stage to refer to the
philosophy   behind   the   Prevention   of   Corruption   Act,   and   the
appreciation of evidence relating to trap cases, as can be gathered
from the authoritative pronouncements of the High Courts, and of
the Supreme Court of India. 
32 The cases arising under the Prevention of Corruption
Act, can be broadly divided into two categories. (i)  trap cases and
(ii)   Non­trap   cases.     Non­trap   cases   include   cases   of   Criminal

misappropriation, obtaining of pecuniary advantages by the public
servants for himself or for others, and cases involving possession of
disproportionate assets.  A majority of the cases coming up before
the Courts are, however, trap cases.  Laying of traps is a step in
investigation.  The  propriety of laying of traps in detecting a crime
has always been a matter of controversy and discussion by the
Superior Courts and the Apex Court.  A study of the case­law upon
the   subject   reveals   that   these   methods   have   been   repeatedly
deplored   by   the   Courts,   though   the   Courts   have   regretfully
acknowledged the necessity of such methods, on the ground that
otherwise it would be impossible, or atleast difficult, to bring to
book corrupt public servants (see Shiv Bahadur Singh Vs. State
of   Vidhya   Pradesh  1
,   State   of   Bihar   Vs.   Basawan   Singh  2
,
Ramanlal Mohanlal Vs. State of Bombay3
, Ramkrishna v. Delhi
State,4
 and Ramjanam Singh v. Bihar State5
.
33 In Som Prakash  Vs. State of Delhi 6
, Their Lordships
referred to laying of traps as a 'morally murky mechanism', and
observed :
1 AIR 1954 SC 322
2 AIR 1958 SC 500
3 AIR 1960 SC 961
4 AIR 1956 SC 476
5 AIR 1956 SC 643
6 AIR 1974 S.C 989

“.......... Courts have frowned upon
evidence procured by such experiments
since   the   participants   are   prone   to
be over­anxious and under­accrupulous
and   the   victims   are   caught   morally
unawares”.
Yet, laying of traps has been held to be justified as inevitable for
detecting  a  crime,  and   to   collect   evidence   against   a   dishonest
public servant.   However, the Courts have also recognized that
traps could be laid in different circumstances, and by different
types of  complainants.  In the same case, it was observed :
“Where you intercept the natural course
of   the   corrupt   stream   by   setting   an
invisible contraption its ethics above
board.   On   the   contrary,   to   test   the
moral   fire   of   an   officer   whose
reputation   is   suspect,   if   you   .lay   a
crime mine which explodes when he, in
a weak  moment, walks on it  the whole
scheme is tainted”. 
34 The pronouncements of the High Courts and Supreme
Court have classified the traps into 'legitimate' and 'illegitimate'.
Illegitimate   traps   are   viewed   with   disapproval   by   the   Courts.

Illegitimate traps are those which arise when a public servant is
deliberately   tempted   to   accept   a   bribe/illegal   gratification   by
offering to him such bribe or  gratification though he never went
out of his way to make any such demand.  It must be understood
clearly that the provisions of the P.C. Act are not designed for
ascertaining whether a public servant is honest or not.   Traps
cannot be laid for deciding the general honesty and integrity of a
public servant.  Traps cannot be organized for observing whether a
public servant, if offered money can be lured into doing something
which he otherwise, would not have done.  In Ramjanam Singh
Vs. The State of Bihar 7
, it was observed as follows:­
“Whatever the criminal tendencies of a
man may be, he has a right to expect
that   he   will   not   be   deliberately
tempted beyond the powers of his frail
endurance   and provoked into breaking
the   Law;   and   more   particularly   by
those who are guardians and keepers of
the law”. 
In the said case, the reference as 'guardians and keepers of the law'
was to the police, but the said observations are extremely relevant
in the present case also where the complainant is an Advocate –
7 AIR 1956 SC 643 
:
treated   as   an   Officer   of   the   Court   –   and   the   appellant   is   an
employee – a public servant working on the establishment of the
High Court; and the  question  is whether the  complainant had
tempted   and   provoked   the   appellant   –   a   Chobdar   –   to   do
something wrong for a monetary gain.
35 Judicial   Pronouncements   have   also   recognized   that
there   are   various   types   of   complainants.       The   one   whose
complaint is not valid or justifiable, and is not in compliance with
the established or accepted rules and standards, is believed to be,
often   having   ulterior   intentions   in   levelling   corruption   charges
against   a   public   servant.     Courts   have   taken   great   caution   in
ascertaining the nature and type of the complainant, in deciding
whether an accused is guilty in a given case.   The   one who
mischievously sets bait to one or more public servants and then,
traps   them   after   they   have   acted   on   the   luring   of   such
complainant, is recognized as a 'fishing complainant'.   Such traps
are deprecated as practically amounting to the abetment of an
offence, and artificially creating a crime.  In such cases, it would
be the duty of the Court to properly scrutinize the evidence of the
complainant to ascertain the validity/reliability of his claims and
to   unmask   his   ulterior   intentions.       The   appreciation   of   the

evidence of the complainant in a trap case, is required to be done
be keeping in mind the type of the complainant.
36 In the instant case, when the   complainant certainly
knew that the mater did not pertain to the assignment of the
Hon'ble   Judge   presiding   over   Court   Room   No.27,   his   act   of
attempting to take a circulation of the matter before that Hon'ble
Judge, is itself suspicious.   At the cost of repetition, it may be
observed that it is  not  the case of the   complainant that he, by
mistake believed the matter to be pertaining to the assignment of
the Hon'ble Judge presiding over that Court.  He simply, and as a
matter   of   fact,   speaks   of   going   to   the   Court   Room   No.27   for
obtaining circulation of the matter.  A look at the complaint made
by the   complainant with the ACB (Exhibit­11) shows that even
that does not – like his evidence – disclose as to what prompted
him to abruptly go to the Court Room No.27, and seek circulation
of the matter.  He did not even try to ascertain the name of the
person who had demanded an amount of Rs.1000/­ for securing
urgent circulation.  He described the appellant as a 'peon', and not
as a 'Chobdar' which means that he did not even try to ascertain
the designation, did not bother about any particular public servant
and was more concerned with the fact that 'somebody from the

employees of the High Court had made a demand'.  His complaint
shows that it was generally lodged against the High Court staff as
evident from the expression “them” used by him in the concluding
part of the complaint.  
37 That the complainant wanted to establish that bad
practices are prevailing in the High Court, and that High Court
staff obtains money and/or that circulations of matters are granted
irregularly, illegally and after accepting bribe, is further confirmed
from the statements made by the  complainant in his evidence.  In
the cross­examination, this is what he has said: 
“After talking with the accused as I
realised that illegal procedure for
granting   circulation   was   being
adopted.     I,   therefore,   decided   to
take up that issue and therefore, I
had not mentioned the matter before
the Court”.
    (Emphasis supplied)
During   the   course   of   the   cross­examination,   he
volunteered to state that the amount of Rs.500/­ was given to the
appellant by him before lodging of the complaint  “in order to curb
the illegal activities”.  

38 There is another mysterious aspect of the matter.  The
evidence indicates that the  complainant wanted the matter to be
listed  before   the  Court  Room   No.27  itself.    The  insistence  for
getting the matter placed before that Court when  as per the roster,
the matter was required to be placed before Court Room No.6, is
also curious.  The evidence of the  complainant and also that of
Shringare, shows that the  complainant entered into a discussion
with the appellant about listing of the matter before Court Room
No.27 and expressed, after learning that it had been listed before
Court Room No.6, that he did not want it to be listed there.  As
observed earlier,  the conduct of the  complainant does not show
that there was any genuine desire to obtain the urgent circulation
of the matter, and therefore, this insistence of the   complainant
was,   obviously,   only   for   further   checking   'whether   the   illegal
practices can go to the extent of placing the matter before wrong
bench'.  Thus, the  complainant, undoubtedly, was making a survey
of the working of this Court, and wanted to know to what extent
illegalities can take place by paying bribe to the High Court staff.
39 When the  complainant had taken upon himself such a
task, and wanted to test the moral fiber of the persons working on
:
the establishment of the High Court, it is only natural that the
complainant would be over anxious and try to ensure that his
effort   to   expose   the   corruption,   is   successful.     It   is   in   this
background that the evidence of the complainant, and that of the
other prosecution witnesses, is required to be examined. 
40  It is well known that in trap cases, there should be
satisfactory evidence of the initial  demand of illegal gratification
by the public servant concerned.  The demand has been held to be
the very foundation of trap cases.   It is well settled that even with
respect to the offence punishable under section 13(2) of the P.C.
Act read with section 13(1)(d) thereof, the necessity of there being
evidence of a previous demand, cannot be done away with.  It is
well   settled   that   unless   the   evidence   of   the   initial   demand   is
satisfactory,   the   whole   evidence   obtained   by   laying   a   trap   is
required to be viewed cautiously.   Since the legal position is well
settled, it is not necessary to elaborate this aspect of the matter
any further. 
41 In this case, according to the  complainant, he paid an
amount of Rs.500/­ to the appellant on 8/10/2010 in the morning
itself.     At   that   stage,   of   course,   the     complainant   cannot   be

expected   to   have   any   corroborative   evidence,   and   one   has   to
decide the matter on the basis of the appreciation of the evidence
of the  complainant himself.  Considering the peculiar aspects of
the matter, as discussed earlier, it would be unsafe to rely solely on
the word of the  complainant in that regard.  Therefore, this aspect
is to be judged in the light of the other evidence i.e.   of the
complainant regarding the further happenings, of the panch and of
the Investigating Officer. 
42 After   reporting   the   matter   to   the   ACB,   the
complainant came back to the High Court premises at about 5.05
p.m along with panch Shringare. The fact of the   complainant
already having paid an amount of Rs.500/­ to the appellant, was
repeated   in   the   presence   of   Shringare.     In   the   presence   of
Shringare, the appellant is supposed to have made a demand for
the remaining amount of Rs.500/­.  The evidence in that regard,
needs to be carefully examined.  
43 According   to   the     complainant,   when   he   and
Shringare   reached   the   High   Court,   and   were   standing   in   the
corridor,   appellant   arrived   there   from   the   wooden   staircase.
According  to  Shringare,  however,  the   appellant  was  inside   the

Court hall and the  complainant called him outside the Court hall.
Panch   Shringare   has   categorically   stated   that   it   is   on   the
complainant's calling him outside the Court hall that the appellant
came out.   Thus, the version of the  complainant and that of the
panch   Shringare   about  where  did   they   meet   the     complainant
when they had gone to the  High Court for verification of the
demand of illegal gratification, is not uniform.
44 What happened thereafter, is also stated differently by
the     complainant   and   by   Shringare.     According   to   the
complainant,   he   introduced   Shringare   to   the   appellant   as   the
brother of the applicant Vaishali, then said about the appellant
having been handed over Rs.500/­ in the morning, and asked the
appellant   about   what   should   be   done   thereafter.     That,   the
appellant then said that they would have to verify from the Board
Department.  That, the  complainant Shringare and the appellant
thereafter   went   to   the   Board   Department   and   made   enquiries
regarding the said Criminal Application.   That, at that time, the
staff in the Board Department informed them that the matter had
been placed before C.R.No.6 on 11/10/2010.  Shringare, however,
narrates the events differently.  It, may be recalled, that according
to Shringare, the appellant was inside the Court hall, and came

out, when the complainant called him outside.  Shringare's version
is   that   as   soon   as   the   appellant   came   out,   he   informed   the
complainant that his work of circulation had been done, and the
matter   was   listed   on   Monday.     Shringare   speaks   about   the
appellant taking them to a room (perhaps Board Department) only
thereafter, and also speaks about one list (probably cause list)
being shown to the  complainant in which the said application was
shown.   This variation in the version is not inconsequential or
immaterial, inasmuch according to the    complainant, even the
appellant did not know as to whether the matter had been listed
on board till they all went to the Board Department and verified
the same, while according to Shringare, the appellant was already
aware of circulation having been granted.
45 There is no uniform version even with respect to the
circumstances and the manner in which the alleged demand of the
remaining   amount   of   Rs.500/­   was   made   by   the   appellant.
According to the  complainant, after coming back from the Board
Department, and while they all were standing in the corridor in
front   of   C.R.No.27,   the   appellant   asked   him   whether   he   had
brought the  remaining amount of Rs.500/­ and demanded the
same.  The  complainant, thereupon enquired with Shringare who

had been introduced as the brother of the applicant Smt.Vaishali
as to whether he was having Rs.500/­.  That, Shringare said that
he was not  having the same, and asked the  complainant whether
the   complainant   was   having   that   much   amount.     That   the
complainant also said 'no', and thereafter, Shringare said that it
would be given on Monday.  That, the complainant then told the
appellant that the amount would be given on Monday.   Shringare,
however, does not speak of any commitment made by him to give
the amount on Monday.  Shringare simply says that the appellant
demanded the remaining amount from the  complainant to which
the  complainant said that it would be given on Monday.
46 These variations by themselves might not have been
very significant.    However, there   are  two  reasons  which  make
these   variations   a   factor   throwing   doubt   on   the   prosecution
version.  The first is, as aforesaid, that he  complainant was bent
upon exposing the illegal practices going on in the High Court and
was, therefore, likely to be over­anxious and fill in the details of
the happenings as would support the theory propounded by him.
Secondly, appreciation of evidence in trap cases has to be done
somewhat   differently   from   other   cases   where   'that   the
offence   is   likely   to   take   place',   is   not   previously

known to the witnesses or the victim.  In trap cases, everything is
previously   planned.     Guidance   is   taken   from   the   Investigating
Agency   who   are   well   experienced   in   such   matters.     The
complainant has already decided to expose the culprit and he does
know what is required to be established.   A panch who is told
about what is expected to happen, is sent with the complainant
specifically   to   observe   the   happenings,   and   note   them   carefully.
Thus, the witnesses in trap cases are specifically expected to, and
are   told   to   watch   the   happening   of   the   events   including   the
sequence thereof carefully.  When the witnesses are observing the
happenings carefully, so as to be able to give evidence of what was
happening, the variations in their testimony would be much more
significant than in other cases where the witnesses are not acting
according to a pre­plan.  The variations which might be justifiably
ignored as not very material or significant in other cases, may not
so easily be ignored in trap cases.   
47 However, even these discrepancies and variations is
not the  crucial  aspect  of  the   matter.   It may be   recalled  that
arrangements had been made for recording the conversation that
would take place between the  complainant and the appellant on
8/10/2010 as also on 11/10/2010.    The prosecution case is that

the conversation that took place on 8/10/2010 had been recorded,
and the alleged demand made by the appellant was verified on the
basis of such recording.  According to the prosecution, the Digital
Voice Recorder was played, a transcript of the conversation that
had taken place was made, and a record thereof was also got
made in a C.D.  The transcripts of the conversation find place in
the   record   of   the   verification   panchnama   dated   8/10/2010
(Exhibit­14)   and   the   pre­trap   panchnama   dated   11/10/2010
(Exhibit­16).   The   complainant as well as the panch Shringare
have   given   their   versions   of   the   conversations  that   took   place
between   them   and   the   appellant   on   both   these   occasions.
Surprisingly, the record of either of these conversations was not
tendered in evidence at all.   Inspite of there being a record of the
conversation   which   would   corroborate   the   version   of   the
complainant and of the panch regarding the alleged demand of
bribe made by the appellant, the conversation was not played over
during   the   trial.     No   transcript   of   the   conversation   was   got
prepared, and no attempt to tender the same before the Court was
made.  This is more surprising because the conversation had been
recorded, obviously, as and by way of evidence to support the
claim that was being made by the  complainant and the panch.  It
was put to the complainant, panch, and also the Investigating

Officer in their respective cross­examinations that there existed no
such record.   That, inspite of such direct challenge given by the
defence to the very existence of such recorded conversations, the
relevant   record   was   not   produced,   makes   it   all   the   more
surprising.   When the record of the conversation was available,
that it should not be produced before the Court during evidence,
leads to an inference that the said record, if produced, would not
have been favourable to the prosecution. 
48 In the light of the fact that the  complainant had laid a
fishing trap which has been frowned upon, time and again, by the
Superior Courts; that the testimony of the  complainant and that
of the panch about the happenings in the evening of 8/10/2010;
do not match regarding some particulars; and that the record of
the conversation that took place between the   complainant, the
appellant and the panch –  though said to be supporting the case
of the prosecution, and though said to be available – was not
produced before the trial Court, make it hazardous to accept the
story of the appellant having accepted an illegal gratification of
Rs.500/­   in   the   morning   of   8/10/2010,   and   of   his   having
demanded an illegal gratification of Rs.500/­ in the evening on the
same day.   

49 Since the demand of illegal gratification has not been
satisfactorily  proved,  the  whole  prosecution   case  gets  seriously
affected.   However,   I   have   still   examined   the   evidence   of   the
acceptance of the bribe by the appellant, and I find the same also
unsatisfactory.
50 The  complainant has stated about the happenings on
11/10/20100   since   the   time   he   reached   the   Anti   Corruption
Bureau at about 10.00 a.m.  According to him, the panchas were
already present there.  After speaking about the happenings that
took place there, the instructions given to him and the panchas
etc, he narrates what took place after he and Shringare came to
the   High   Court.     The     complainant   and   Shringare   proceeded
towards the first floor near C.R.No.27 who were being followed by
the team of the ACB Officers from some distance.  According to the
complainant, when he and Shringare reached in front of C.R.No.27,
the appellant was present, and discussions took place between him
and the appellant.  Surprisingly, according to the  complainant, the
appellant informed him that his matter had been placed before the
Hon'ble Judge –  a fact which had already been informed by the
appellant to the  complainant on 8/10/2010 itself, and which had

even   been   verified   by   the   complainant.   According   to   the
complainant, Shringare was again introduced as the brother of the
applicant Vaishali which is also rather unusual.  It is, at that time,
the   appellant   made   a   demand   of   the   remaining   amount   of
Rs.500/­.
51 What Shringare says is however, different.  Shringare
does not categorically state whether when he went to the ACB
office, the  complainant was already present or not, but a reading
of his evidence gives an impression that the   complainant was
already present.  Shringare says that he and Jambhulkar arrived in
the ACB office prior to 10.00 a.m, and that they met ACP Shinde
(PW 3)  when the complainant was also present.   Regarding the
happenings after reaching the High Court building, Shringare says
that on going to C.R.No.27, the complainant peeped inside the
Court   room,  but   the   appellant   was   not   there.     According   to
Shringare,  the   appellant  then   arrived  there   from  the   staircase.
That the appellant was carrying one register in his hand at that
time, and that while standing in the corridor in front of C.R.No.27,
the    complainant, the  appellant and the  panch had discussion
about the circulation of the matter.  Shringare says that there were
also discussions about  the change of the Court.   Shringare then

    states that the appellant     by gesture   (that is by rubbing  his thumb
over his index finger) demanded the bribe amount.   Thus, apart
from the minor variations, there is a major variation as to the
manner   in   which   the   demand   was   made.     According   to   the
complainant, it was a plain and categorical demand.
This is what the  complainant said.
“At that time, accused told me that my
work   has   been   done   by   him   and   he
demanded   remaining   amount   of
Rs.500/­”.  
This cannot be construed as a demand by gesture as spoken about
by Shringare. 
52 Apart   from   this,   the   conflict   in   the   version   as   to
whether   the   appellant   was   present   when     complainant   and
Shringare arrived at C.R.No.27, is also quite significant, because
the evidence does not show that any place or time was fixed for
paying  the   remaining  amount   of   the  illegal   gratification.     The
evidence only shows that the matter had already been listed on
board on 11/10/2010, and that the complainant who was made
aware of it on 8/10/2010 itself, had promised to pay the balance
on Monday i.e.  on 11/10/2010.  When and where he was to meet
the appellant, is not clear, and there is no evidence that it was at

all,   decided.     There   is   no   reason   to   disbelieve   the   version   of
Shringare to the effect that the appellant was not present when
they reached near C.R.No.27 particularly because admittedly, the
appellant was also carrying a register with him when he came in
contact with the  complainant and Shringare.  It therefore, appears
that the  complainant has tried to suppress the fact that actually it
was he who was looking for the appellant.   The complainant could
have attended the matter in C.R.No.6 and could have left without
coming across the appellant. 
53 Apart from these variations, which themselves might
not   have   been   significant,   there   is   a   serious   infirmity   in   the
evidence of the   complainant as regards the acceptance of the
tainted amount by the appellant.  The case of the prosecution, as
can be gathered from the record of the panchnama (Exhibit­18) is
that the appellant accepted the tainted amount by his right hand,
and kept it in his right side pant pocket.   The   complainant's
version,   in   that   regard   is   varying.   Initially,   he   said   that   the
appellant accepted the amount by his right hand, and placed it in
his  left side  pant pocket.   Shringare said that the appellant who
was holding a register in right hand, shifted it in his  left armpit,
and accepted the amount by his left hand.  According to Shringare,
:
the appellant then shifted the said amount to his right hand, and
kept   the   same   in   his  right   side  pant   pocket.   When   he   was
confronted with the relevant portion in the panchnama, he said
that it was 'partly correct, and partly incorrect'.   According to
Shinde also, the appellant accepted the bribe amount by his left
hand, then transferred the same in his right hand and then kept it
in the right side pant pocket.  When however, it was pointed out to
him   that   the   panchnama   did   not   speak   so,   and   spoke   of   the
acceptance of the amount by right hand, and keeping the same in
the right side pant pocket, he claimed that it was 'an inadvertent
mistake'.     He   had   to   admit   in   the   cross­examination   that   an
identical 'inadvertent mistake' had taken place also in the
supplementary statement of the  complainant that was recorded in
the course of investigation.
54 The evidence shows that traces of  Anthracin  powder
were noticed on both the hands of the appellant, the register, his
mobile   telephone   and   the   right   side   pocket   of   his   pant   when
checked  under ultra­violet rays.   The possibility of the witnesses
having changed their version to explain the traces of  Anthracin
powder on both the hands of the appellant, cannot be ruled out,
particularly because it has been the defence of the appellant that

the    complainant forcibly tried to thrust money in  his pocket,
which he resisted by both his hands.
55 The doubt in that regard is magnified because of the
serious infirmities in the evidence of the   complainant regarding
the actual acceptance of bribe by the appellant.   As aforesaid, the
complainant initially said that the appellant accepted the tainted
amount by his right hand, and then kept it in his left side pant
pocket.    The     complainant   then  voluntarily stated before  the
Court, as is reflected in the note made by the Court which is worth
reproducing here :
“witness   narrated   that   he   is   lefty
therefore   he   slight   confused   about
the   hand   by   which   accused   accepted
the amount and about the pant pocket
whether it was left or right”
That a lefty person will not be able to understand the difference
between   right   and   left,   and   that   he   would   not   be   able   to
distinguish between right hand and left hand, is difficult to digest.
The same is not supported by any scientific data or   research.
Anyway, the   complainant then said that he did not remember

precisely whether the amount was accepted by the appellant by his
left hand or right hand, and whether it had been kept by him in
the right pocket or left pocket.  In his further examination­in­chief,
when   he   was asked  about   the   recording  of   his  supplementary
statement on 14/10/2010, he abruptly stated before the Court
about his 'confused state of the mind', about  by which hand  the
tainted amount had been accepted by the appellant.    The learned
Special Judge has made a note in that regard which is worth
reproducing here :
“At this stage witness narrated that as
he is performing his all acts by left
hand   which   are   normally   performed   by
right   hand,he   is   still   in   confused
stated   of   mind   about   the   pant   pocket
where the amount  was kept by accused.
He further  submitted  that in  order  to
refresh his memory he be  permitted  to
read   his   previous   writing.     Ld.   Adv.
Juvekar,   holding   for   Adv.Kulkarni,
strongly   objected   for   permitting   the
witness to refresh his memory.
Considering that as it is explained by
the   witness   he   is   lefty   such   sort   of
confusion can be there, therefore there
is no harm in permitting the witness to

go   through   his   previous   writing   to
refresh   his   memory.   The   defence   has
right to cross examined the witness on
this point. The supplementary statement
of     complainant   is   provided   to   the
complainant for reading”.
This is indeed shocking.  In the first place, the view of the learned
Special Judge that since the witness is lefty, that sort of confusion
could be there, is baseless without any scientific data or research.
Further, allowing a witness to read his supplementary statement
recorded by the police in the course of investigation, for refreshing
his memory, is in express violation of the provisions of section 162
of the Code.  Apart from this, there was no question of 'refreshing
memory', as memory can be refreshed only in the circumstances
mentioned in section 159 of the Evidence Act, and there was no
evidence   that   the   conditions   requisite   for   permitting   the
complainant to refer to his supplementary statement recorded by
the police had been fulfilled.  This is apart from the express bar
created by section 162 of the Code, which would over­ride the
provisions of section 159 of the Evidence Act.  The learned Special
Judge, thereafter, recorded the evidence of the  complainant as to
the   happenings,   whereupon   the     complainant   stated   that   the
appellant was holding one register in his left hand, he kept the

said register in his right arm­pit, then accepted the said amount by
his left hand, and transferred the same in his right hand, and then
by his right hand, kept the said amount in his right pant pocket.
However, surprisingly, this version, which he advanced supposedly
after   refreshing   his   memory   on   reading   his   supplementary
statement, is not in consonance with his supplementary statement.
56 According to the  complainant, as soon as the tainted
amount   was   delivered   to   the   appellant,   he   gave   the   predetermined
signal to the raiding party.   He has specifically used
the word 'immediately' in describing the happening.   However,
Shringare   states   that   after   the   amount   was   handed   over,
conversation   took   place   between   the     complainant   and   the
appellant.  Shringare has even stated as to what the conversation
was viz.  that the  complainant enquired with the appellant as to
whether the appellant would keep the amount of Rs.1,000/­ for
himself, or whether he would be giving it to some other persons;
and that the appellant then gave the names of 2 – 3 persons,
including the name of the Sheristedar, and other staff members.
57 The evidence shows that after the tainted amount was
handed over to the appellant, appellant received a telephone call,

and was talking on his mobile telephone.  However, whether this
was before or after giving a pre­determined signal, is not very
clear.   The   complainant does not refer to any such telephone
conversation, at all.  According to him, as soon as the amount was
paid, the signal was given, and immediately, the appellant was
apprehended.  Shringare says that after the signal was given, the
telephone call was received by the appellant, and that, he was
talking on the mobile.   Shinde says that after the amount was
given   to  the  appellant,   the   appellant  had  been   talking  on  the
mobile telephone and also with the   complainant, and that, the
pre­determined signal was given by the   complainant after this
conversation was over.  
58 There is also one more aspect of the matter.   The
evidence   clearly   shows   that   Shinde   and   the   members   of   the
raiding party were at a short distance from the complainant and
Shringare.  The happenings were clearly being seen by them.  In
fact,   the   suggestion   specifically   given   in   the   cross­examination
'that due to the 'L' shape of the corridor, the complainant and
Shringare were not visible to the raiding party', was denied by
Shinde.  His evidence even otherwise makes it clear that he had
been observing the happenings.   Thus, when he could see that the

amount   had   been   actually   paid   by   the   appellant   to   the
complainant,   where   was   the   question   of   waiting   for   the   predetermined
signal to be given by the complainant ?  All this shows
that the evidence has been given in a mechanical manner, and as
per   the   happenings   that   take   place   usually   in   trap   cases,   and
therefore, may not be reflecting the actual happenings.   At any
rate, it is too artificial.
59 The defence of the appellant, as is categorically taken
by   him   by   filing   a   written   statement,   is   that   he   had   neither
demanded nor accepted any amount from the  complainant.  That,
he had not met the appellant on 8/10/2010 at all.  According to
him, that the complainant had come to C.R.No.27 on 7/10/2010,
but the Hon'ble Judge presiding over that Court, was not available
on that date.  That, the complainant then asked the appellant to
take   the   circulation   praecipe,   and   give   circulation   when   the
appellant   told   him   that   the   Hon'ble   Court   did   not   give   any
circulation, except in urgent matters, and that the matter would
have to be mentioned to the Court, and then, depending on the
urgency, the Court may grant or refuse circulation.  According to
the   appellant,     complainant   was   still   repeatedly   insisting   that
circulation   should   be   given,   and   therefore,   he   told   the

complainant  that   he   was  an   Advocate,  and   should  understand
these   things,   whereupon   the     complainant   got   angry,   and
threatened that 'he would show him'.  That, on 11/10/2010, the
complainant met him outside C.R.No.27 when the appellant was
busy in his work.   That, the   complainant stopped him and told
him that he had got the circulation.  That, he received a telephone
call in the mean time, and while he was speaking on the phone,
suddenly the  complainant was noticed being putting something in
the appellant's pocket.  The appellant resisted the same by his both
hands, and at that moment, two persons apprehended him.  The
appellant categorically stated that he never demanded any money,
and   he   never   accepted   money,   and   that   he   had   been   falsely
implicated.  
60 Considering the nature of the evidence on record, the
prosecution case cannot be held to have been satisfactorily proved.
The question is not whether the defence of the appellant is true,
but whether upon considering the matters before it, the Court,
entertains a rational and reasonable doubt about the truth of the
prosecution case.  Such a doubt can arise even when the defence
theory cannot be fully accepted.  In the background of the fact that
the  complainant was on the lookout for trapping  corrupt public

servants, (although with all good intentions) the possibility of his
having targeted the appellant to see whether he could be lured into
acceptance of illegal gratification, can certainly not be ruled out.
61 The evidence of Vasant Kondvilkar (PW 4), who as
aforesaid, was examined after the case was fixed for judgment,
shows that it was the appellant who had carried the praecipe given
by the  complainant to the Board department.  This is based not on
the personal knowledge of Kondvilkar, but on the basis of the fact
that the number of the said application i.e. '4301/10', as written in
the  circulation register, is in the  handwriting of  the appellant.
Kondvilkar has said that the figure '4301' has been written by the
appellant, and this he said from his acquaintance with the writing
of the appellant.  Kondvilkar, however, also admitted that he was
not   certain   about   it.     However,   assuming   that   the   praecipe   –
which had already been placed before C.R.No.6, and on the basis
of which order granting circulation had already been passed on
7/10/2010 –  was actually transmitted to the Board Department
from the circulation register maintained in C.R.No.27, it does not
indicate that the appellant had demanded and/or accepted a bribe
in respect of an official act.  In any case, it does not establish that
the prosecution version is true and correct.  The investigation in

the matter has been far from satisfactory.  The Investigating Officer
even did not ascertain whether the matter, the circulation of which
was sought, indeed pertained to the assignment of the Hon'ble Judge
presiding over C.R.No.27.    Shinde did not bother to question the
complainant as to  how  his praecipe had an endorsement dated
7/10/2010, and that, in that case, what was the reason for him to
have approached the staff of C.R.No.27 on 8/10/2010.   Shinde
also did not verify as to who had taken the praecipe to the Board
Department.  Shinde also did not ascertain whether there was any
other praceipe that had been given by the   complainant to the
appellant, inasmuch as the  complainant did speak of a praecipe
given to the appellant on 8/10/2010.   That the circulation was
granted, is evident from the fact that the matter was actually listed
on  board  on   11/10/2010,   and  this  was  known   on   8/10/2010
itself.  
62 When   the   investigation   was   carried   out   in   such   a
perfunctory   manner,   and   when   the   evidence   adduced   by   the
prosecution is not satisfactory, either with respect to the demand
of bribe, or the acceptance thereof – it was not possible to hold the
appellant guilty of the alleged offences.  The prosecution evidence
had inherent weaknesses in it, and the very foundation of the

prosecution case was based on facts which could be termed as
mysterious.  The appreciation of evidence, as done by the learned
Special   Judge,   was   not   in   accordance   with   the   well   accepted
parameters, experience and logic.
63 There   is   one   aspect   of   the   matter   which   needs   a
mention.  It is that no permission for laying a trap in the premises
of this Court was obtained from the Hon'ble The Chief Justice.
This is indeed shocking.   According to the Investigating Officer
Shinde (PW 3), he gave a letter in a sealed envelope to Police
Constable Shri Chandanshive with a direction to hand over the
same to the P.A. of the Hon'ble The Chief Justice, and further
instructed him to inform Shinde immediately on Shinde's mobile
telephone about the handing over of the said letter.  It is nobody's
case that any permission of the Hon'ble The Chief Justice was
obtained by the Investigating Agency before laying the trap, but
whether even the intimation had actually been to the Hon'ble the
Chief Justice before laying the trap, is also not clear.   The only
evidence in that regard is that a letter giving intimation addressed
to the Hon'ble  The Chief Justice was handed over by a police
constable   to   the   Personal   Assistant   of   the   Hon'ble   The   Chief
Justice.  The Investigating Officer did not contact the Registrar of

this Court – or even the Principal Secretary or the Secretary to the
Hon'ble The Chief Justice  for that matter – and such contact was
done by a Police Constable by simply delivering the letter.   This is
highly objectionable.  
64 The propriety of arranging and laying traps in the
Court premises, without the permission of the Judge in­charge
Judge   of   the   administration   of   the   Court   concerned,   or   the
Principal District Judge, or the High Court, needs to be seriously
considered.  To my knowledge, 'whether a trap can be laid in the
court premises without the permission of the Judge in­charge of the
administration of that court, or the District court, or the High Court,'
has not been dealt with directly in any decisions of the Supreme
court   of   India.     The   Manual   of   Instructions   issued   by   the
'Maharashtra   State   Anti   Corruption   and   Prohibition   Intelligence
Bureau', Government of Maharashtra, deals with this and prohibits
only the laying of a trap in a court room, while the court is in
session.     The   instructions   in   the   Manual   do   not   contemplate
raiding or laying a trap in the premises of the High Court which is
the   highest   court   in   the   State   and   has   been   conferred   with
constitutional jurisdiction.  The instructions deal with the laying of
traps in subordinate courts and lay down that such traps should be

laid after giving information to the District Judge or to the senior
most Judicial Officer in the station about the proposed trap, before
it   is   actually   laid.     Whether   giving   of   information   would   be
sufficient, or whether a previous permission would be necessary
needs consideration and a second look at the instructions in the
Manual by the concerned authorities, appears to be essential.  In
this case, the appellant who was to be trapped was attached to an
Hon'ble Judge of this Court.   The Hon'ble Judge was very much
present in the Court premises discharging judicial functions.  The
staff attached to a Judge discharges duties under the instructions
of the Judge.  If Police Officers whose subordination to the Judicial
Officers – even of the lowest rung – is evident from the provisions
of the Code of Criminal Procedure, and who frequently visit the
Courts as representing a party i.e. the State, or as witnesses, are
allowed   to   raid   the   Court   premises   without   permission   of   the
Presiding Officer of the Court, or the Principal District Judge or the
High Court, there is every possibility of a serious threat to the
administration   of   justice   and   independence   of   judiciary   being
posed.   This would apply even to the subordinate  Courts, but
laying a trap in the High Court premises without the permission of
the Hon'ble the Chief Justice, is all the more serious.  

65 Norms of propriety were not followed in this case by
the Investigating Agency, as is evident from a number of factors.
The appellant was apprehended and taken away after the trap was
said to have been successful without bothering about the effect
thereof on the working of the Court.   As a matter of curiosity, I
have examined the letter written to the Hon'ble the Chief Justice,
which,   as   aforesaid,   was   transmitted   by   a   Constable   to   the
Secretary to the Chief Justice.  This letter has been signed by the
Investigating Officer himself.  The Investigating Officer who was of
a rank of Assistant Commissioner of Police, ought not to have
addressed a letter to the Hon'ble the Chief Justice, who is a high
constitutional   functionary.     Writing   of   such   letter   under   the
signature   of   the   Assistant   Commissioner   of   Police,   is   not   in
accordance   with   the   norms   observed   in   government
correspondence.  The letter is impolite.  It curtly mentions that 'in
respect  of  C.R.No.53/10  regarding   the  offences  punishable  under
section 7, 13(1)(d) read with section 13(2) of the Prevention of
Corruption Act, a trap is being arranged in the High Court campus
on 11/10/2010'.  It doesn't even mention that 'a note of the same
may   kindly   be   taken'   –   leave   apart   seeking   even   a   formal
permission.  

66 In my opinion,  traps in the premises of the Court on
working days, cannot be organized without the permission of the
Judge who is in­charge of the administration of such Court, or the
Principal District Judge, or the High Court. The working of the
courts of law is distinguishable from the offices of the government
departments.  In the court premises, there is presence of advocates
and advocates' clerks, who, quite often – lawfully and for lawful
purposes – receive amounts in cash from the litigants or their
representatives.  No receipts regarding such amounts are passed –
atleast not at that time.  The members of the staff of the court, are
quite often required to assist the litigants or the advocates, and to
provide answers to their queries.   Implicating a member of the
court staff falsely, with respect to the accusation of his having
demanded   and/or   accepted   illegal   gratification   is   easier   than
implicating public servants working in other departments.    If the
police are permitted to lay traps without such permission, it can
indeed pose a serious threat to the administration of justice and
independence of judiciary.  On the contrary, no harm can possibly
be suffered by seeking the permission of the concerned Judge or
his superior, or the High Court.   The impermissibility of laying
such   traps   was   considered   by   the   Allahabad   High   Court   in

Surendra Sahai and Ors. Vs. State of U.P8
    and it was held that
such traps ought not to be  organised.   In my opinion, it was
absolutely improper in this case on the part of the Investigating
Agency to have laid a trap without seeking a previous permission
of the Hon'ble The Chief Justice.
67 The learned Special Judge appears to have departed
from the normal and usual approach towards the matter, as is
evident from the impugned judgment; and this could be due to a
number   of   reasons,   including  the   pressure   put  on  the   learned
Judge by the attitude and conduct of the complainant.  Since the
matter is of considerable general importance, apart from being
relevant   for   appreciating   the   evidence   of   the   complainant   and
understanding the approach of the trial Court towards the matter,
the same needs to be mentioned here in necessary details.   It
appears that on one date, – i.e. 24/6/2013, – when the case was
fixed  for  recording  of   the  evidence  before  the  trial  Court,  the
complainant was absent.   The learned Special Judge, therefore,
issued a bailable warrant in the sum of Rs.2,000/­ against him so
as to procure his presence.   The roznama of 24/6/2013 reflects
that the Court felt the necessity of issuing a bailable warrant, as
8  1997 Cr.L.J 1670,

the programme of the case had already been fixed, and on the
next date, the panch witness had been called.  It appears that the
complainant   flared up because of the issuance of a bailable warrant
against him.   He   made an application to the trial Court on the
next date casting aspersions on the trial Court for an action which
was     perfectly   in   accordance   with   law.     In   this   application
(Exhibit­8), he proclaimed himself to be an 'activist lawyer' and
'making   himself   responsible   for   eradicating   the   corrupt   practices
committed   by   the   public   servants   in   the   institutionalized   public
sector areas'.  It would be appropriate to reproduce certain parts of
the said application. 
“I say that I am an Activist Lawyer
and   making   myself   responsible   for
eradicating   the   corrupt   practices
committed   by   the   public   servants   in
the   institutionalized   public   sector
areas   and   towards   the   said   goal  I
made   an   effort   to   clean   up   the
judicial system as some of the court
staffs   are   deeply   involved   into   the
corrupt   practices  and   thereby   the
above   accused   who   was   working   as
Chopdar in the Hon'ble High Court in
the   Court   of   Justice   xxxxx   (name

omitted),   above   accused   was   caught
red handed by accepting illegal bribe
amount   from   me   and   therefore   the
above   case   was   registered   against
him”. (Emphasis supplied)
In the later paragraphs, the complainant expressed his anguish
over the issuance of bailable warrant against him, and a bare
reading   of   the   application   gives   an   impression   that   the
complainant expected to be treated not as an ordinary witness, but
as a highly privileged person by the trial Court.   It would be
appropriate   to   reproduce   paragraph   nos.8   and   9   of   the   said
application here :
“I say that now in view of the approach
adopted by this Hon'ble Court as above
to cause me mental stress while deposing
before   this   Hon'ble   Court   which   I   am
deposing  for   the   interest   of   general
public and due to such serious order of
issuance   of   warrant   against   the
complainant  the   interest   of   public   to
expose   corruption   in   public   sector  is
got seriously jeopardized and hence I am
not in a position to depose my statement
before this Hon'ble Court in the above
matter.

I,   therefore,   request   to   this
Hon'ble   Court   the   above   matter   may   be
redirected   for   assignment   before   the
office of Principal Judge.
For the interest of natural justice
the complainant as above prays that :
a) The Bailable Warrant issued by this
Hon'ble Court on 24/06/2013 against the
complainant   may   be   stayed   or   in
alternatively may be  cancelled  if this
Hon'ble Court may deem fit proper.
b) That for the interest of justice the
above   case   may   be   redirect   for
assignment for hearing in the office of
Ld.   Principal   Judge,   City   Civil   and
Sessions Court, Gr. Bombay. 
(Emphasis supplied)
68 It   is   worth   making   a   reference   to   the   roznama   of
25/6/2013.     The   learned   Judge   observed   that   the   application
(referred   to   earlier)   had   not   been   signed   by   the   complainant
though it had been filed.  This is what the Court has observed in
the roznama about the conduct of the complainant :
“He argue much and informed this
court   that,   he   has   fixed   appointment
with   Hon'ble   Chief   Justice,   he   also

submitted   that   this   court   has
prosecuted   prosecution   witnesses   and
the rate of conviction  is only  7%  he
being vigilant citizen, does not want
to   proceed   with   this   matter   before
this Court.
The   complainant   try   to
pressurized   this   court   by   threating
and not talking in proper manner.
Considering   his   submission   this
matter   is   adjd   to   7.8.2013,   for
further   instruction   and   steps.”
(Emphasis supplied)
Later, on the same day, the complainant submitted that he did not
intend 'to raise the issues', and that he wanted to proceed with the
matter.   He, however, did not give evidence on that day though
was   present   in   the   Court,   and   got   the   matter   adjourned   to
27/6/2013.   The conduct of the complainant was undoubtedly
such as to have a tendency to affect the normal, fair and objective
assessment   of   the   matter   by   the   learned   Special   Judge.    The
mention   of   the   'low   conviction   rate'   and   referring   to   his
appointment with the Hon'ble the Chief Justice was absolutely
uncalled for, unjust and improper.  

69 A perusal of the impugned judgment shows that the
learned Special Judge, in her judgment referred to a number of
decisions which were not cited by either of the parties. Though,
principally, there cannot be any objection to refer to the judgments
not cited by, or relied upon by parties – provided opportunity is
given to the party affected by the ratio of the judgment to reply
thereto – in the present case, the judgments relied upon by the
learned Special Judge are totally irrelevant.  The learned Special
Judge   cited   the   case   of  R.S.   Nayak   Vs.   A.R.   Antulay9
    and
reproduced a passage from the judgment in the said case which
emphasizes the necessity of adopting a construction that would
advance   the     object   underlying   the   act   i.e.   to   make   effective
provision for prevention of bribery, and corruption, and at any
rate, not defeat it'.  The impugned judgment does not show that
any   dispute   or   necessity   regarding   the   construction   of   any
particular   provision   in   the   Act,   had   arisen   before   the   learned
Special Judge.   The observations made by their Lordships of the
Supreme   Court,   which   the   learned   Special   Judge   went   on   to
reproduce in the impugned judgment, were in the context of the
following question which had fallen for the consideration of their
Lordships i.e. What is the relevant date with reference to which
9 1984(2) SCC 183,

a valid sanction is a pre­requisite   for the prosecution of a
public servant for offences enumerated in Section 6 of the 1947
Act (now section 19 of the present P.C. Act) ?  There was simply no
occasion to reproduce the said observations.  The learned Special
Judge also referred to the decision of this Court in  Dattatraya
Krishnaji   Joshi   Vs.   State   of   Maharashtra10  and   quoted   the
following from the judgment.
“There appears to be no such precedent
and   what   has   to   be   appreciated   is
that the making of the demand has to
be   a   matter   of   understanding   not
between   the   accused   and   any   third
person but the person who demands and
the person who proceeds to pay or who
is pay.”
In that case, the question that had arisen was whether the words
'as to what had happened to his work'  as uttered by the accused,
could be treated as evidence of demand of illegal gratification.
This Court held that the demand need not be so crude and express
such as “have you brought the amount, give it to me”, and the
observation reproduced above, were made in that context.   In this
10 1991 (2) BomCR 49,

case, there was absolutely no occasion to consider whether any
particular words used by the accused amounted to demand of
illegal gratification or not.
70 The learned Special Judge also referred to four more
judgments,   reproducing   passages   therefrom   which   deal   with
certain general legal principles/propositions.   The learned Special
Judge felt the necessity of reproducing the observations made by
the   Superior  Courts  and the  Apex  Court,  as a justification  for
ignoring the discrepancies and infirmities in the evidence, and still
convicting   an   accused   'as a means to eradicate corruption'.
None of those observations can be understood to mean   that 'even
where there would be no  satisfactory  evidence,  it  is desirable  to
convict   a   person,   as   corruption   is   admittedly   on   increase;   and
convicting   a   person   accused   of   an   offence   punishable   under   the
P.C.Act, would help eradicating the corruption, whether or not, he
was actually guilty of the alleged offences'.  Such an approach was
entirely unjustified and contrary to law.  
71 The appreciation of evidence as done by the learned
Special Judge, and the  conclusion  arrived  at  by  her, is not in
accordance with law.  This was a case where the prosecution case

had not been satisfactorily proved.  The appellant was therefore,
entitled to be acquitted.
72 The Appeal is allowed.
73 The impugned judgment and order is set aside.
74 The appellant is acquitted.
75 His bail bonds are discharged.
76 Fine, if paid, be refunded to him.
(ABHAY M. THIPSAY, J)

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