Bharat Raj Meena v. Central Bureau of Investigation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 24[TH] DAY OF MAY 2024 / 3RD JYAISHTA, 1946** **CRL.A NO. 587 OF 2016** **AGAINST THE JUDGMENT DATED 31.05.2016 IN CC NO.3 OF 2015 OF SPECIAL JUDGE(SPE/CBI) - III, ERNAKULAM** **APPELLANT/ACCUSED:** **BHARAT RAJ MEENA AGED 43 YEARS S/O SRI RAMDEV MEENA, RESIDING AT WARD NO.12, KHANPOLE GATE,NAINWA,DISTRICT-BUNDI(RAJASTHAN)323801** **BY ADVS. ABRAHAM P.MEACHINKARA P.MURALEEDHARAN(K/209/1984) ALEXANDER K.C.(K/1057/2021) MARGARET MAUREEN DROSE(K/1328/2019) JAYAKRISHNAN P.R.(K/1659/2020) THOMAS GEORGE(K/1723/2021)** ## **RESPONDENT/COMPLAINANT:** **CENTRAL BUREAU OF INVESTIGATION, ACB,KOCHI,ERNAKULAM,BY STANDING COUNSEL, HIGH COURT OF KERALA,PIN-682031** **BY ADVS. SRI.SREELAL WARRIAR, SC, C.B.I.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.05.2024, THE COURT ON 24.05.2024 DELIVERED THE FOLLOWING:** Crl.Appeal No.587/2016 ## -:2:- ## J U D G M E N T This appeal has been preferred by the accused in CC No.3/2015 on the file of Special Judge, (SPE/CBI) III Ernakulam (for short, 'the trial court') challenging the judgment dated 31/5/2016 convicting and sentencing him under Sections 7 and 13(2) r/w 13(1)(a) of the Prevention of Corruption Act, 1988 (for short, 'the PC Act'). 2. The appellant Bharat Raj Meena was working as Divisional Security Commissioner, Railway Protection Force, Palakkad. The case of the prosecution in short is that, while the appellant was working as a public servant in the above capacity, from April 2005 to July 2005, he demanded and accepted an amount of `7,500/- from PW9 T.V.Rajan, an amount of `5,000/from PW10 C.K.Aravindan and `13,000/- from PW11 N.P.Gopi Kumar through PW7 Abdul Gafoor as illegal gratification for effecting their transfers. 3. The genesis of the case is as follows: One Sri.P.P.Nandakumar, Clerk in DSC Office, Palakkad Crl.Appeal No.587/2016 -:3:- preferred a complaint alleging demand of bribe of `10,000/- by the appellant through PW6 Anantha Narayanan, Constable/RPF Coimbatore, for getting complainant's posting in Palakkad area following his medical decategorization from RPF and subsequent absorption in alternative post as clerk in Personnel Branch under DRM Office, Palakkad. Based on the said complaint, the Superintendent of Police, CBI/ACB, Kochi registered FIR vide No.RC19(A)/2005/KER/CBI under Sections 7 and 12 of the PC Act against the appellant and PW6 on 4/8/2005 and entrusted the investigation of the case to PW12. Thereafter, one Dy.S.P.,/ CBI/ACB, Kochi, Sri. Nandakumar Nair and his team laid a trap on the same day itself and at the instance of Dy. S.P./Trap Laying Officer aforesaid, tainted money of bribe was handed over by complainant Sri.P.P.Nandakumar to PW6 which together with some alleged bribe money in an envelope and personal cash and diaries were recovered from PW6 who was then arrested by CBI team. Thereafter, PW12, the investigation officer, after the investigation of CBI case RC19(A)/2005/CBI/KER dated 4/8/2005 registered based on the original complaint dated 4/8/2005 of Sri.P.P.Nandakumar filed three separate final reports on Crl.Appeal No.587/2016 -:4:- 31/7/2006 bearing Nos.04/SK/19/A/05/KER, 05/SK/19/A/05/KER and 06/SK/19/A/05/KER, before the Court of Special Judge-II, CBI, Kochi for prosecution of the accused under Sections 7 and 13(1) (d), Sections 7 and 13(1)(d) and Sections 7 and 13(1)(a) of the PC Act respectively following tender of pardon of the principal accused PW6 and PW7 Abdul Gafoor from the Court of Chief Judicial Magistrate, Ernakulam. The final report Nos.04/SK/19/A/05/KER and 05/SK/19/A/05/KER against the appellant were then taken up as CC No.2/2014 and CC No.3/2014 respectively by the trial court. The third final report No.06/SK/19/A/05/KER was quadrifurcated into four cases by the trial court under Section 219 of Cr.P.C. while framing the charges. The said cases after splitting up were then taken up as CC No.4/2014, CC No.2/2015, CC No.3/2015 and CC No.4/2015 for trial. Thereafter, the trial court framed charges against the appellant in all the above six cases on 26/10/2015. The trial in all cases commenced simultaneously. 4. In CC No.3/2015 which is the subject matter of this appeal, PWs 1 to 12 were examined and Exts.P1 to P39 series were marked on the side of the prosecution. DWs1 to 4 were Crl.Appeal No.587/2016 -:5:- examined and Exts.D1 to D25 were examined on the side of the defence. After trial, the appellant was found guilty, and he was convicted for the offence under Sections 7 and 13(2) r/w 13(1)(a) of the PC Act. He was sentenced to undergo rigorous imprisonment for one year each and to pay a fine of `25,000/each, in default to suffer simple imprisonment for three months each for the offence under Section 7 of PC Act, 1988 committed against each of PW10 and PW11 and further sentenced him to undergo rigorous imprisonment for two years and to pay a fine of `1 lakh in default to suffer simple imprisonment for six months each for the offence under Section 13(2) r/w 13(1)(a) of the PC Act. The substantive sentence was ordered to be run concurrently. Challenging the said conviction and sentence, the appellant preferred this appeal. 5. I have heard Dr.Abraham P.Meachinkara, the learned counsel for the appellant and Sri.Sreelal N.Warrier, the learned standing counsel for the CBI. 6. The learned counsel for the appellant impeached the finding of the trial court on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that there Crl.Appeal No.587/2016 ## -:6:- is absolutely no legal evidence to prove the demand and acceptance of bribe by the appellant from PWs10 and 11 to constitute the offence under Sections 7 and 13(1)(a) of the PC Act. The learned counsel further submitted that the evidence of PWs7, 10 and 11 is not at all reliable and insufficient to connect the appellant with the crime. The counsel also submitted that without any proof of receipt of bribe by the appellant, the trial court wrongly drew presumption under Section 20 against the appellant. There is no valid sanction to prosecute the appellant, added the counsel. On the other hand, the learned Standing Counsel for CBI supported the findings and verdict handed down by the trial court and submitted that the prosecution has succeeded in proving the case beyond reasonable doubt. 7. First, I shall deal with the contention regarding lack of sanction. The learned counsel for the appellant submitted that Ext.P7 sanction to prosecute the appellant was not proved in accordance with law. According to the learned counsel, the sanction for prosecution was accorded by the sanctioning authority without considering the relevant documents and applying its mind. The counsel further submitted that the Crl.Appeal No.587/2016 -:7:- sanctioning authority was not examined to prove Ext.P7 sanction order. 8. Section 19(1) of the PC Act says that no court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority referred to in sub-sections (a), (b) and (c). The question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duties. The purpose of obtaining sanction is to see that the public servant is not entangled in false and frivolous cases. The grant of sanction is not a mere formality but a solemn act which affords protection to the government servant against frivolous prosecution. All the relevant records and materials for the grant of sanction must be made available to the sanctioning authority, which must undertake complete and conscious scrutiny of those records and materials independently applying its mind before deciding whether to grant sanction or not. The order of granting or declining sanction should reflect that the sanctioning authority was furnished with all relevant facts and materials and applied its Crl.Appeal No.587/2016 -:8:- mind to all those materials. The validity of the sanction would therefore depend upon the materials placed before the sanctioning authority and on the application of mind by the sanctioning authority to those materials and facts of the case. On going through the materials and facts, the sanctioning authority has to apply its own independent mind to generate genuine satisfaction whether the prosecution has to be sanctioned or not When the order granting or declining sanction is challenged before a court, the court must determine whether there has been an application of mind on the part of the sanctioning authority concerned with the materials placed before it. The order of sanction must ex facie disclose that the sanctioning authority had considered the facts and all relevant materials placed before it (See Central Bureau of Investigation v. Ashok Kumar Aggarwal (2014) 14 SCC 295 and Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997 KHC 1065). 9. The appellant is a Class I officer under the Central Government. So, the sanction order has to be issued under Article 77(2) of the Constitution of India. The Minister of Railways is the competent authority for granting sanction for prosecution Crl.Appeal No.587/2016 -:9:- of the accused on behalf of the President of India. The formal order of the prosecution has to be signed and issued by the designated authority of the concerned Ministry. Here, PW5, the Director of the Ministry of Railway, New Delhi has signed the sanction order, Ext.P7. Ext.P7 would show that the sanction was accorded by the Minister of Railways. Ext.D16 series is the copy of the file maintained at the Railway Board relating to the sanction granted to prosecute the appellant. DW4 was the Joint Director of Vigilance, Recruitment and Security (R&SC). He was examined to prove Ext.D16 series. Relying on the evidence of DW4 and the recital in paragraph 8 of page 9 of Ext.D16 series, the learned counsel for the appellant argued that important documents including the FIR were not forwarded to the Ministry of Railways at the time when the sanction for prosecution was sought. Since the material documents pertaining to the case were not forwarded to the sanctioning authority, Ext.P7 sanction order is vitiated, submitted the counsel. DW4 indeed deposed that 52 documents including FIR were not there when the file was transmitted to the Chief Vigilance Commissioner (CVC) for sanction. However, the recital in page 8 of Ext.D16 series would Crl.Appeal No.587/2016 -:10:- show that the Minister of Railways has made an endorsement that he has accorded sanction after going through the investigation report of case No.RC19(A)2005/CBI/KER as well as all other relevant records. At any rate, the original case file contains copies of all the relevant records in respect of the case. On going through the entire evidence of DW4 and perusing Ext.D16 series, the trial court found that there is every reason to believe that even if the documents were not there at the time when DW4 forwarded the file to the CVC, the documents were there at the time when the Ministry of Railways perused the same. On analysis of the evidence, the trial court found that the Minister of Railways has accorded sanction after considering the facts of the case and perusing the entire documents. I see no reason to take a different view. 10. So far as the contention raised by the appellant regarding the non-examination of the Minister of Railways who granted the prosecution sanction is concerned, PW5 who was examined to prove the sanction was the Director of the Ministry of Railway and he signed the sanction as per the Rules of Business. The Supreme Court of India in State of Madhya Pradesh Crl.Appeal No.587/2016 -:11:- v. Jiyalal (AIR 2010 SC 1451) has held that there is no requirement to examine the authority who gave the sanction to prove the sanction order. In State through Inspector of Police A.P. v. K.Narasimhachary (AIR 2006 SC 628), it was held that an order of valid sanction can be proved either by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction or by adducing evidence aliunde to show that the facts were placed before the sanctioning authority and the satisfaction arrived at by it. It is evident from Ext.P7, Ext.D16 series and also the evidence of PW5 and DW4 that the sanctioning authority has applied its mind to the facts of the case and the materials placed before it. That apart, Section 19(3) of the PC Act says that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1) unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. There is no proof, much less a case for the appellant, that a failure of justice has been caused to him. Hence, the submission of the learned Crl.Appeal No.587/2016 -:12:- counsel for the appellant that there is no valid sanction for prosecution must fail. 11. The prosecution mainly relied on, and the trial court accepted the oral testimony of PWs7, 10 and 11 to prove its case and to fix the culpability on the appellant. As stated already, the prosecution allegation against the appellant, in this case, is that the appellant demanded and accepted a bribe of `7,500/- from PW9, `5,000/- from PW10 and `13,000/- from PW11 through PW7 for making the transfer of their choice and for issuing the transfer order. However, the trial court found that the prosecution failed to prove the demand and acceptance of `7,500/- from PW9 though it succeeded in proving the demand and acceptance of `5,000 and `13,000/- respectively from PWs10 and 11. 12. PW7 who allegedly accepted bribe from PW9, 10 and 11 was granted pardon by the Chief Judicial Magistrate Court, under Section 306 of Cr.P.C. PW7 deposed that the appellant directed him to meet PWs10, 11 and one Kathiresh Babu, Stanly, Abdul Majeed and Gangadharan and inform them that they should pay money to get transfer. According to him, PW10 Crl.Appeal No.587/2016 -:13:- gave him `5,000/- for giving the appellant in connection with his transfer. He also deposed that PW11 handed over `3,000/to him in the presence of the appellant at his quarters and he handed over the same to the appellant. 13. PW10 deposed that while he was working as Head Constable, RPF, Palakkad in the year 2005, he applied for premature transfer to Calicut and he got the transfer. Before he joined at Calicut, PW7 approached him and told that the appellant demanded `10,000/- for transfer and that he will be relieved from Palakkad only if the amount was paid. He further deposed that he gave `5,000/- to PW7 for giving to the appellant and thereafter he was relieved from Palakkad and joined at Calicut. PW11 deposed that while he was working as Assistant Sub Inspector, RPF, Shornur, in the year 2005, he applied for transfer to Shornur in general transfer. PW7 told him that the appellant was demanding `15,000/- for making the transfer of his choice. According to him, he gave `10,000/to PW7 to give to the appellant, thereafter he obtained transfer to Shornur and joined at Shornur. PW7 again demanded the Crl.Appeal No.587/2016 -:14:- balance amount. He further deposed that while he was on crime duty in Nilambur, his Inspector called him over phone and directed him to meet the appellant as he wanted to meet him. When he met the appellant at his quarters, PW7 was present there. He told PW7 to inform the appellant that he came to visit the appellant. PW7 informed the appellant and accordingly, he was called in. When he met the appellant, he asked him in Hindi "क�म ह� गय� त� भ�ल गय�". According to PW11, what he asked was whether he gave up him after getting the transfer. PW7 who was present there told him that the appellant was asking for the balance amount of `5,000/-. After explaining his difficulties, he gave `3,000/- out of the amount of `4,000/- which he kept with him for his household expenditure to PW7 for giving to the appellant. PW7 received the amount from him and entrusted the same to the appellant in his presence. 14. Though PWs7, 10 and 11 were cross-examined in length, nothing tangible could be extracted from their evidence to discredit their testimony. The learned counsel for the Crl.Appeal No.587/2016 -:15:- appellant vehemently argued that there was no concrete evidence to prove the demand and acceptance by the appellant from PWs10 and 11. It is not necessary that there should be evidence in all cases to prove the demand and acceptance. It can be proved by acceptable circumstantial evidence as well. [ See Neeraj Dutta v. State (Govt. of NCT of Delhi) (2023) 4 SCC 731]. Moreover, there is direct evidence in this case to prove the demand and acceptance. PW11 gave evidence that even after the initial payment of `10,000/-, PW7 again demanded money from him stating that the appellant demanded the balance. He further stated that while he was on crime duty in Nilambur, his Inspector called him over phone and directed him to meet the appellant and accordingly he met the appellant at his quarters in the presence of PW7. When he met the appellant, he asked him in Hindi whether he gave up him after getting the transfer. Then PW7 who was present there told him that the appellant was asking for the balance amount of `5,000/- and accordingly, he paid `3,000/- to the appellant through PW7. PW7's evidence corroborates this piece Crl.Appeal No.587/2016 -:16:- of evidence given by PW11. True, PW7 did not depose about the initial payment of `10,000/- to him by PW11 as spoken to by PW11. However, there is clear-cut evidence to prove the demand and acceptance of `3,000/- by the appellant from PW11 at his quarters. 15. PW10 indeed deposed that PW7 demanded, and he paid an amount of `5,000/- to give it to the appellant. But, there is no independent evidence to prove that PW7 demanded and accepted `5,000/- from PW10 as instructed by the appellant. However, the evidence of PWs7 and 11 is sufficient to prove the demand and acceptance of bribe by the appellant from PW11. 16. PW7 deposed that four persons viz., Stanly, Abdul Majeed, Gangadharan and Aravindan (PW10) entrusted him `27,000/- in total for giving to the appellant in connection with their transfer and the appellant directed him to pay a sum of `20,000/- out of the aforesaid amount to PW3 K.Shareef to make a cot for him. The learned counsel for the appellant submitted that going by the evidence on record, the said claim Crl.Appeal No.587/2016 -:17:- appears to be false. It is not necessary to consider the said argument for the reason that when there is ample evidence to prove the demand and acceptance of illegal gratification by the accused, the purpose for which the bribe amount was utilized need not be gone into. The learned counsel further submitted that the appellant has nothing to do with the transfer and posting of PWs9 to 11 and it was the CSC who was the competent authority to approve the transfer and as such, there was no reason for PWs9 to 11 to give bribe to the appellant. But the evidence of PW8, Office Superintendent, DSC Office, Palakkad and Ext.P19 series - copy of the file containing premature transfer of 49 constables would reveal that the appellant had recommended for transfer of only 19 constables out of 49 constables who applied for premature transfer. Out of the said 19 persons whose transfer was approved by the CSC, the appellant passed transfer orders only in respect of 13 persons. PW8 deposed that the appellant in his own handwriting wrote the words “recommended” or “not recommended”, as the case may be, in transfer applications. Crl.Appeal No.587/2016 -:18:- Ext.P20 is the file relating to the premature transfer of 22 Head Constables. Out of 20, the appellant recommended for transfer of only 7 Head Constables as per Ext.P20(a) letter. Here also, CSC has approved only the transfer of those 7 Head Constables who were recommended by the appellant. These materials negative the contention of the appellant that he has nothing to do with the transfer and posting. 17. Admittedly, the appellant was a “public servant” as defined under Section 2(c) of the PC Act working as the Divisional Security Officer, Railway Protection Force, Palakkad at the time of the alleged incident. As stated already, the evidence of PWs7 and 11 prove the demand and acceptance of the bribe by the appellant from PW11. Once the prosecution has established that the gratification in any form has been paid or accepted by a public servant, it can be presumed invoking presumption under Section 20 of the PC Act, unless the contrary is proved that the gratification was paid or accepted as a motive or reward to do or forbear from doing an official act in a charge under Section 7 of the PC Act. The appellant has Crl.Appeal No.587/2016 -:19:- failed to offer any satisfactory explanation for the receipt of money from PW11. Thus, the presumption under Section 20 of the PC Act becomes applicable to the offence committed by the appellant under Section 7 of the PC Act. Therefore, the trial court was justified in convicting and sentencing the appellant for the offence punishable under Section 7 of the PC Act. The quantum of sentence imposed by the trial court for the offence under Section 7 of the PC Act appears to be very reasonable. To attract Section 13(1)(a) of the PC Act, the prosecution is obliged to prove that the accused habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than illegal remuneration as a motive or reward as contemplated in Section 7 of the PC Act. As stated already, what is proved in this case is the demand and acceptance of `3,000/- as bribe by the appellant from PW11. So, it cannot be said that the prosecution has succeeded in proving that the appellant habitually accepted or obtained illegal gratification from any person to attract Section 13(1)(a) of the PC Act. Thus, the Crl.Appeal No.587/2016 -:20:- conviction and sentence passed under Section 13(1)(a) cannot be sustained. 18. In the light of the above findings, the conviction and sentence of the appellant under Section 7 of the PC Act vide the impugned judgment are confirmed. The conviction and sentence of the appellant under Section 13(2) r/w 13(1)(a) of the PC Act are hereby set aside. The appellant is acquitted of the charge under Section 13(2) r/w 13(1)(a) of the PC Act. The appeal is disposed of as above. **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** **Rp**