Nazar @ A.K. Nazar Mohammed v. Deputy Superintendent of Police, VACB, Palakkad and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** ## **FRIDAY, THE 26TH DAY OF MAY 2017/5TH JYAISHTA, 1939** ## **CRL.A.No. 480 of 2012 ()** ## **-------------------------** ## **AGAINST THE JUDGMENT IN CC 59/2008 of ENQUIRY COMMISSIONER & SPECIAL JUDGE,THRISSUR** ## **APPELLANT/ACCUSED:** **----------------------------------** **NAZAR @ A.K.NAZAR MOHAMMED S/O.MOHAMMED, ANCHAMKALATHIL HOUSE, PERINTHALMANNA, MALAPPURAM.** ## **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENTS/COMPLAINANT&STATE :** **------------------------------------------------------------** ## **1. DEPUTY SUPERINTENDENT OF POLICE** **V.A.C.B., PALAKKAD-678 001.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **R BY PUBLIC PROSECUTOR SRI. C.S HRITHWIK** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2017, THE COURT ON 26.5.2017 DELIVERED THE FOLLOWING:** **sab** ## **P.UBAID, J.** ============================ ## **Crl.Appeal No.480 of 2012** ============================ Dated this the 26[th] day of May, 2017 ## **JUDGMENT** The appellant herein was a stage carriage operator in Palakkad District in 1998. The defacto complainant in this case is the then District Superintendent of Police, Palakkad. The appellant faced prosecution before the learned Enquiry Commissioner and Special Judge(Vigilance), Thrissur in C.C.No.59/2008 on the allegation that at about 8 p.m. on 09.04.1998 at the camp office of the defacto complainant attached to his residence, the appellant visited the District Superintendent of Police, and offered an amount of Rs.1,000/- as illegal gratification as a reward for directing the Subordinate Police officers not to conduct regular checking of his vehicles. Though the District Superintendent of Police made a complaint, a crime was registered even before that complaint, at the Town North Police Station, Palakkad by the Deputy Superintendent of Police, Palakkad. Crl.Appeal No.480 of 2012 2 The crime was initially registered as Crime No.170/1998 of the Palakkad Town North Police Station, and it was later transferred to the Vigilance and Anti Corruption Bureau, Palakkad where it was re-registered as Crime No.17/2000 under Section 12 read with Section 7 of the PC Act, 1988. The Deputy Superintendent of Police, Palakkad registered the crime without waiting for a written complaint, on the basis of what the District Superintendent of Police told him. The accused was arrested by the Deputy Superintendent of Police, Palakkad at the camp office of the complainant and the amount Rs.1,000/- allegedly offered by the accused was seized as per a mahazar. Nothing happened in the crime till it was transferred to the VACB in September, 2000. The crime was in fact registered on 09.04.1998. Anyway, investigation proceeded at the hands of the VACB, and after investigation, the VACB submitted final report in Court under Section 12 read with Section 7 of the Prevention of Corruption Act, 1988. 2. The accused appeared before the trial court, and pleaded not guilty to the charge framed against him Crl.Appeal No.480 of 2012 3 under Section 12 read with 7 of the PC Act. The prosecution examined six witnesses including the defacto complainant, and proved Exts.P1 to P28 documents. The MO1 to MO4 properties were also identified during trial. When examined under Section 313 Cr.P.C. the accused denied the incriminating circumstances, and projected a defence that he had not in fact made payment of any amount to the District Superintendent of Police, and that just because he happened to place a cover containing his own money on the table during conversation, he was misunderstood by the District Superintendent of Police, and immediately he directed the Subordinate officer to arrest him and to register a crime. The accused did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) by judgment dated 29.03.2012. Aggrieved by the judgment of conviction, the accused has come up in appeal. 3. This is not a case where illegal gratification Crl.Appeal No.480 of 2012 4 or bribe was actually paid by the accused to the defacto complainant. A crime happened to be immediately registered against the accused just because the complainant is a District Superintendent of Police. Ofcourse, it stands well proved that the accused had visited the complainant at his camp office on 09.04.1998 with a request for interference in the actions of the local police against his stage carriage operations. As regards this part of the evidence, there is no dispute. The prosecution allegation is that during the said conversation, and while making the request to direct the Subordinate officers not to proceed against him, and his vehicles unnecessarily, the accused offered a cover containing currency notes. Thinking that it was being paid as bribe, the District Superintendent of Police immediately called the local police, and got the accused arrested on the spot. A cover containing an amount Rs.1,000/- was also seized by the Deputy Superintendent of Police (local) at the spot of incident. 4. The very short point for decision in this Crl.Appeal No.480 of 2012 5 appeal is whether a mere offer to pay bribe or illegal gratification is punishable as abetment under Section 12 of the PC Act. What is alleged in this case by the prosecution is that the accused abetted the commission of an offence punishable under Section 7 of the PC Act. The prosecution has no case that illegal gratification was in fact paid by the accused. The Honourable Supreme Court has consistently held in so many decisions that the very important essentials to be proved in a prosecution under Section 7 of the PC Act are demand and acceptance. So when the prosecution alleges abetment of an offence punishable under Section 7 of the PC Act, there must be something definite to constitute abetment of such an offence in terms of the essentials of Section 7 of the PC Act. So, there is no doubt that for a conviction under Section 12 of the PC Act, on the allegation that the accused abetted the commission of an offence under Section 7 of the PC Act, the prosecution must have a definite case that illegal gratification was paid on demand. In **Sekharan v. State of Kerala 2015(3) KLT SN 2 (C.No.3)** , this Court has held that a mere offer to pay Crl.Appeal No.480 of 2012 6 illegal gratification is not punishable as a case of abetment under Section 12 of the PC Act. 5. It appears that there is no definite complaint in this case, forming the basis of the FIR. Ext.P6 is the FIR initially registered at the Palakkad Town North Police Station as Crime No.170/1998, by the Deputy Superintendent of Police, Palakkad, on the basis of what he gathered from the District Superintendent of Police, and Ext.P12 is the FIR reregistered by the VACB as Crime No. 17/2000 on 07.09.2000. A reading of the FIR will show that the Deputy Superintendent of Police had not in fact received any written complaint when he registered the crime. Ext.P1 is said to be the complaint in writing made by the District Superintendent of Police to the Deputy Superintendent of Police, Palakkad. The case of the complainant in the Ext.P1 statement (this can be called only a statement, and not FI Statement) is that during the conversation the accused offered some amount as a reward for directing the Subordinate Police Officers not to proceed against the accused and his vehicles unnecessarily. The complaint does Crl.Appeal No.480 of 2012 7 not show that such a cover was paid to the District Superintendent of Police, and that it was accepted by him. Anyway, a reading of Ext.P1, and a reading of the FIR will show that the Ext.P1 complaint was made by the District Superintendent of Police, and received by the Deputy Superintendent of Police, after the Ext.P6 FIR was registered. If so, the Ext.P1 written statement is hit by Section 161 Cr.P.C. No value can be attached to the Ext.P1 statement as the First Information Statement in this case, because it was given after the crime was registered by the Deputy Superintendent of Police on the basis of what he gathered from the District Superintendent of Police at the spot. I find from the proceedings that a serious legal objection was raised by the defence to the marking of the Ext.P1 statement. The objection was unfortunately overruled by the learned trial Judge, and he allowed the marking of the document. It appears that the legal issue was not properly considered by the learned trial Judge. It is quite definite, on an examination of the FIR and the statement, that the Ext.P1 statement was made or received Crl.Appeal No.480 of 2012 8 after the Ext.P6 FIR was registered. So, the Ext.P1 statement cannot be called the complaint or the First Information Statement in this case. Thus, practically the FIR in this case does not have any solid basis in the form of a complaint made by the defacto complainant. 6. A first information report under Section 154 Cr.P.C. can be registered either on the basis of a written complaint or other information, even oral, containing some definite allegations constituting a cognizable offence, or even on the basis of the direct knowledge of the police officer, or on the basis of the materials directly collected by the police officer, revealing the commission of a cognizable offence. The FIR in this case will not show that the Deputy Superintendent of Police registered the crime on the basis of the clear and definite statements given by the District Superintendent of Police. There is no explanation why the statement of the District Superintendent of Police was not recorded and got signed by the Deputy Superintendent of Police as the First Information Statement, for registering the crime. Crl.Appeal No.480 of 2012 9 7. On an examination of the evidence given by PW1, and the contents of the FIR in this case, I find that the District Superintendent of Police called the Deputy Superintendent of Police, and directed him to arrest the accused, and register a crime against him, without and before opening the cover to know what it actually contained. Only when the Deputy Superintendent of Police seized it and opened it everybody could know that it contained some currency notes. PW1, the complainant has no case that the said cover containing currency notes was paid or handed over to him by the accused. His own statement is that the said cover was just placed by the accused on the table. 8. To prosecute a person under Section 12 read with Section 7 of the PC Act, the person must have paid the amount to the public servant. A mere offer to pay illegal gratification will not cause a prosecution under Section 12 of the PC Act, as a case of abetment of an offence punishable under Section 7 of the PC Act. As already observed, for a prosecution under Section 12 of the PC Act, Crl.Appeal No.480 of 2012 10 there must be a situation of payment of gratification, or the accused must have done something towards making payment of bribe, and such payment must be assessed and judged in terms of the essentials of Section 7 of the PC Act. Practically, what emerges is that a mere offer to pay illegal gratification is not sufficient for such a prosecution. Here, if at all the prosecution case is believable to any extent, the only thing proved is that a cover containing an amount of Rs.1,000/- was just placed on the table by the accused during his conversation with the District Superintendent of Police. The District Superintendent of Police probably misunderstood the accused, and immediately called the subordinate officers. It is pertinent to note that the District Superintendent of Police called the Deputy Superintendent of Police, and directed him to arrest the accused without and before opening the cover to know what it is contained. 9. The FIR was registered by PW2 on the basis of the arrest of the accused at the camp office, and the seizure of a cover containing an amount of Rs.1,000/-. Whatever be the factual aspects proved in this case, I find 11 Crl.Appeal No.480 of 2012 that a conviction is not possible for two reasons. One is that the FIR in this case does not have any solid and definite basis in the form a complaint, and the Ext.P1 statement which is said to be a complaint made by the District Superintendent of Police cannot at all be called a First Information Statement or a complaint because it was made after the registration of the crime. The second reason is that this is only a mere case of offer to pay gratification if at all the facts are believable. What is alleged in this case is abetment of the offence punishable under Section 7 of the PC Act. So, the essentials of the alleged abetment also must be judged and assessed in terms of the essentials of Section 7 of the PC Act, as settled by the Honourable Supreme Court consistently in so many decisions. This is not a case where illegal gratification was paid by the accused, and rejected by the complainant. This is either a case where it was just offered, or where the District Superintendent of Police probably misunderstood things on seeing the accused putting a cover on the table during the conversation. I find that the conviction against the appellant 12 Crl.Appeal No.480 of 2012 is liable to be set aside in appeal. In the result, this Appeal is allowed. The appellant herein is not found guilty of the offence under Section 12 read with Section 7 of the PC Act, 1988 and accordingly, he is acquittal of the said offence in appeal under Section 386 (b)(i) Cr.P.C. The conviction and the sentence against the appellant in C.C.No.59/2008 of the court below will stand set aside. The appellant will stand released from prosecution, and the bail bond, if any, executed by him will stand discharged. Sd/- **P.UBAID, JUDGE** rkj //TRUE COPY// P.A. TO JUDGE