- (1.) M. C. Agarwal, J. This appeal under Section 374 (2) of the Code of Criminal procedure is directed against the judgment and order dated 4th of January, 1990 Passed by the Vth Addl. Sessions Judge, Varanasi in Special Case No. 4 of 1984 whereby the appellant has been found guilty of the offences under Section 161, I. P. C. and Section 5 (2) of the Prevention of Corruption Act and has been sentenced to undergo Rigorous Imprisonment for a geriod of two years for each of the offences. Both the sentences have been ordered to run concurrently.
(2.) I have heard Sri Rajesh Ji Verma and Sri R. C. Yadav, Advocates, Counsel for the appellant and the learned Addl. Government Advocate. The appellant was employed as a Lekhpal under the Tahsildar Chakia. The complainant Narbadeshwer Pandey had applied foraloan to purchasea tractorand in that connection he needed a certificate in Form 61 Kha containing the details of his agricultural holding. He made an ap plication in that regard to the Tahsildar who marked the application to the con cerned Kanungo and the Kanungo in his turn asked the Lekhpal, that is the appel lant to make a report. The application was moved on 15-3-1983. The complainant Narbadeshwar Pandey contacted the ap pellant and told him that the needful would be done only if he paid Rs. 50 as illegal gratification. Thereupon, Nar badeshwar Pandey made an application on 21-3-1983 to the District Magistrate com plaining of the demand of illegal gratifica tion. The said application is Ext. Ka-2 on record. The Collector marked it to the Vigilance Inspector. The Vigilance In spector talked to the complainant and on being satisfied that there was a demand for illegal gratification, he instructed the com plainant to meet him in the Town of Chakia at 10 a. m. on 23-3-1983. Accord ingly, the complainant Narbadeshwar Pandey alongwiih the witness Janardan Singh and Ramanand Upadhya met the Vigilance Inspector Sarvajcet Misra at about 10 a. m. on 23-3-1983 near Tahsil Chakia. The Vigilance Inspector alongwith his colleagues Taj Pratap Singh. Prayag Dutt Tripathi and Ranjeet Singh, the complainant and two witnesses aforesaid arrived near the spot where the accused Amir Prasad was to be contacted. They took cover of a temple and the bank of a pond where Narbadeshwar Pandey, the complainant delivered five ten rupees notes to the said Inspector. The Inspector treated those currency notes with phenotphthalein powder. After wrapping those notes in a piece of paper, he in structed the complainant to give those cur rency notes to the accused. Then the complainant's hands were got washed in a solution of sodium carbonate. The solu tion turned pink. It was kept in abottleand sealed. All this was done in the presence of the aforesaid witnesses and a memo was prepared which is Ext. Ka-3 on record. Thereafter the complainant aeeompanied by the witnesses was asked to eontact the accused Amir Prasad who had arrived and was present in the office of the Lekhpal Sangh. The Vigilance Inspector and his colleagues look position outside the room, so that he could hear and sec what was happening inside. The complainant Narbadeshwar Pandey asked the accused Amir Prasad to make a report on his ap plication for the issue of a certificate in Form 61-kha, whereupon Amir Prasad again repeated the demand of Rs. 50 for making a report Narbadeshwar Pandey, the complainant assured him that he has got the money and requested Amir Prasad to make the report and that he is giving the money. Amir Prasad then took out the complainant's application and scribed a report thereon and the complainant took out the money from his pocket and delivered the said currency notes to Amir Prasad who started counting the same. Im mediately the Inspector introduced him self to Amir Prasad and arrested him while Amir Prasad was having money in his right hand. This activity was seen by the aforesaid witnesses also. The currency notes were recovered from the right hand of Amir Prasad and their numbers tallied with the numbers of currency notes which the complainant had given to the Inspec tor and the Inspector had returned to the complainant after applying phenot-ph thalein powder. The said currency notes were kept in an envelope and were sealed. Then the hands of accused Amir Prasad were got washed in a solution of sodium carbonate and the solution turned pink. This solution was kept in a bottle and sealed. The hands of the complainant Nar badeshwar Pandey were also got washed in the solution of sodium carbonate. This solution also turned pink and was kept and sealed in another bottle. The application that was moved by the complainant to the Tahsildar and on which Amir Prasad had scribed his report was also taken into possession. A memo was prepared in which this entire proceeding was noted. A report of the incident was lodged at Police Station Chakia at 2. 10 p. m. the same day. The investigation was taken up by Dharampal Singh, Inspector, who inter alia got the various phials of solution and the currency notes examined by the Police Analyst. He also procured' the sanction of the appropriate authority for the prosecution oi theappcllant and submitted charge-sheet. At the trial, the prosecution ex amined P. W. 1 Narbadeshwar Pandey, P. W 2 Sarvajeet Misra, the Inspector, who con ducted the case, P. W. 3 Ramanand Upad-hya. These are the eye-witnesses of the incident of demand and acceptance of il legal gratification. P. W. 4 Uma Shanker is the Supervisor Kanungo concerned who sent the application made by Narbadesh war Pandey for issue of a certificate in Form 61 Kha and his order thereon. P. W 5 is Sri Kailash Bchari Srivastava, S. D. M. Chakia who had granted sanction for the prosecution of the accused Amir Prasad. P. W. 6 is one Lal Saheb, the Manager of the Land Development Bank Limited, Chakia, who state that Narbadeshwar Pan dey had moved an application for a loan. According to him, the application was received in the Bank on 18-3-1983 and the loan was sanctioned on 26-3-1983 and no additional document was demanded from the applicant because the khasra was al ready there. P. W 7 is Radhey Shyam Misra, the Public Analyst of Forensic Science Laboratory, Lucknow who proved the reports. P. W. 9 is Bade Lal Pal. Manager, Zila Udyog Kendra, who stated that under the various Government orders, subsidy could be granted to the small and marginal farmers. He also stated that Narbadeshwar Pandey, the complainant was a marginal farmer as the land to the extend of 1 bigha 1 biswa and 17 dhoors only was recorded in his name. P. W 10 is Dharma Narain Misra, the Investigating Officer. The accused had led no evidence in defence. In his state ment under Section 313, Cr. P. C. he did not mention any facts that may be helpful to him and stated that whatever he has to say, would be given in writing. No statement in writing was, however, made.
(3.) THE documentary evidence con sisted of the Chick F. I. R. Ext. Ka-10, the application dated 23-3-83 moved by Nar badeshwar Pandey before the Collector Ka-2, the memo dated 23-3-83 prepared before laying of the trap Ext. K. a-3, the memo dated 23-3-83 prepared after the trap Ext. Ka-4, the sanction for prosecu tion dated 19-5-1984 Ext. Ka-5, the report of the Public Analyst dated 27-8-1983 Ext. Ka-9. the copy of the entry in the general diary being Report No. 26 at 2. 10 p. m. on 23-3-1983 Ext. Ka-11, the application moved by the complainant Narbadeshwar Pandey to the Tahsildar for the issue of requisite particulars in Form 61 kha Ext. Ka-1, the report recorded thereon by the accused Ext. Ka-1-C and the order of the Supervisor Kanungo Ext. Ka-1-b and that of the Tahsildar Ext. Ka-1 (a), the copy of the application for loan Ext. Ka-6, the abstract prepared by the officials of the Bank dated 18-3-1983 Ext. Ka- 7, the bill dated 18-4-1983 of Mahendra Agricul tural Stores in rcspeet of purchase of Ihracer Ext. Ka-8, the copy of a Govern ment order dated 14-5-1980 regarding the grant of subsidy in respect of Bank loan Ext. Ka-12, the copy of another G. O. dated 28-7-1975 on the subject Ext. Ka-13, a copy of a letter from the Joint Secretary to the Government authorising the Investigating officer to seek sanction for prosecution Ext. Ka-21, a letter from the Superinten dent of Police to the Collector, Varanasi seeking confirmation of the proceedings of trap Exi. Ka-16 and the Collector's note there on Kxt. Ka-17. The first point raised by the learned Counsel for the appellant was that by vir tue of Section 7 of the Criminal Law Amendment Act, 1952 the triai for the offences under Section 161, I. P. C and Sec tion 5 of the Prevention of Corruption Act could be held only before a Special Judge appointed under Section 6 of the said Act. He pointed out that the judgment under appeal has been passed by the Vth Addl. Sessions Judge, Varanasi and has not been passed by a Special Judge and is, therefore, without jurisdiction. Section 7 aforesaid makes the offences triable by the Special Judges only. The power to appoint the Special Judges has been conferred on the Government by Section 6 of the Act. The appointment has to be made by notifica tion in the official Gazette. The Govern ment may appoint as many as Special Judges, as may be necessary for such area or areas as may be specified in the notifica tion. In exercise of this power, the Gover nor of Uttar Pradesh issued notification No. 4342/viii, 9-739-72 dated llth March, 1977 appointing with effect from the date of publication of the said notification in the official Gazette all Sessions Judges and Additional Sessions Judges to be ex-officio Special Judges for the purposes of the Criminal Law Amendment Act, 1952 in the district or districts over which they exercise jurisdiction as Sessions Judges, The notification was published in the U. P. Gazette dated 2nd of April, 1977. There fore, the Addl. Sessions Judge who tried the case and passed the impugned judg ment was an ex-officio Special Judge and. therefore, had jurisdiction to try the ac cused and pronounce the judgment. The mere fact that in the judgment it has not been stated that he was acting as a Special Judge does not vitiate the proceedings. This contention, therefore, has no force.;