Court No. - 75
Case :- GOVERNMENT APPEAL No. - 2910 of 2003
Appellant :- State Of U.P. Respondent :- Krishna Kumar Counsel for Appellant :- A.G.A.
Counsel for Respondent :- Dr. Arun Srivastava
Hon'ble Om Prakash-VII,J.
Vakalatnama filed today by Shri Surya Bhan Singh, Advocate on behalf of respondent is taken on record.
Heard Shri R.K. Srivastava, learned AGA as well as Shri Surya Bhan Singh, learned counsel appearing for the respondent and perused the entire record.
The present appeal has been filed along with leave to appeal application against the impugned judgement and order dated 16.05.2002 passed by Special Judge (Prevention of Corruption), Bareilly in Special Case No. 15 of 1996, under Section 7/13(2) read with Section 13(1) of Prevention of Corruption Act, whereby accused-respondent was acquitted.
Submission of learned AGA is that prosecution was able to prove its case beyond reasonable doubt. Witnesses examined in the matter on behalf of prosecution have supported the prosecution case. Respondent was arrested on the spot alongwith bribe amount. Liquid used in trap proceeding as well as other material were kept safely and also sent for examination to the Forensic Science Laboratory. Findings recorded by the trial court are perverse and illegal. Thus, prayer is made to grant leave to appeal.
On the other hand, learned counsel appearing for the respondent argued that trap proceeding was not supported by the independent witness. Mere admission of police papers under Section 294 Cr.P.C. will not be sufficient to presume that respondent has committed present offence. Findings recorded by the trial court in the impugned judgement and order are based correct appreciation of facts and evidence. Legal formalities required under law to start prosecution have not been followed.
I have considered the rival submissions and have gone through the entire record carefully.
In this matter, as is evident from the record, respondent was facing trial for the offence under Section 7/13(2) read with Section 13(1)(D) of Prevention of Corruption Act. Allegation against the accused-respondent was that respondent demanded Rs. 500/- as bribe to clear the license and on the basis of complaint made by the complainant, a trap teem was constituted and respondent was arrested alongwith bribe amount. Prosecution examined PW-1 Dalveer Singh, the then Circle Officer, Vigilance Department, PW-2 Anupam Saxena, the complainant, PW-3 Radhey Shyam Sharma, the independent witness and PW-4 Suresh Chandra Tyagi, the Investigating Officer. Trial court while passing the impugned judgement and order was of the view that prosecution failed to establish the trap proceeding beyond reasonable doubt. Independent witness PW-3 Radhey Shyam Sharma has not supported the prosecution case. Although he is shown as eye account witness of the incident. There is major contradiction in the statement of PW-2. He has also suppressed the material fact. Trial court was also of the view that PW-2, the complainant is not reliable witness. Investigating Officer has made investigation in his office itself. He has not interrogated the witnesses. Date, time and place of trap proceeding was not established by the prosecution beyond reasonable doubt. Thus, trial court mentioning the aforesaid reason in the impugned judgement and order acquitted the respondent from all charges levelled against him. If the finding of the trial court recorded in the impugned judgement and order are taken into consideration in light of submission raised by parties and also compared with the evidence discussed in the impugned judgement and order, no illegality, infirmity or perversity is found. PW-3 Radhey Shyam Sharma, who is the independent witness of the said incident has not supported the prosecution case. PW-2, the complainant is also not a reliable witness as there is material contradiction in his statement on material point. If such is the position, in my considered view, trial court while acquitting the respondent has not committed any illegality, infirmity or perversity. View taken by the trial court in the impugned judgement and order is a possible view. Hence, leave to appeal is not liable to be allowed.
Hon'ble Supreme Court in the case of S. Govindaraju Versus State of Karnataka, (2013) 15 SCC 315 has held as under :
"It is a settled legal proposition that in exceptional circumstances, the appellate court, for compelling reasons, should not hesitate to reverse a judgment of acquittal passed by the court below, if the findings so recorded by the court below are found to be perverse i.e if the conclusions arrived at by the court below are contrary to the evidence on record, or if the court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence."
In the case of Gangabhavani Versus Rayapati Venkat Reddy and Others, (2013) 15 SCC 298, Hon'ble Supreme Court has held as under:
"This Court has persistently emphasised that there are limitations while interfering with an order against acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the acquittal by the lower Court bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
Thus, the application moved by the appellant State of U.P. to grant leave to appeal for the reasons discussed here-in-above is not liable to be allowed and same is refused.
Since the application for grant of leave to appeal has been refused, the appeal is also not liable to be admitted and same is dismissed at this stage.
Order Date :- 29.5.2019//Sanjeet