http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: RAGHUBIR SINGH

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT28/03/1974

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. KHANNA, HANS RAJ GOSWAMI, P.K.

CITATION:  1974 AIR 1516            1974 SCR  (2) 799  1974 SCC  (4) 560

ACT: Prevention of Corruption Act, (2 of 1947) S. 5A--Sanction to prosecute--Authority of sanctioning authority questioned for the first time in appeal under Art. 136--Contention When may be    allowed--Executive    magistrate    laying     trap--- Propriety--Trap  witnesses, if  accomplices--Non-examination of  a  witness  and allowing a  prosecution  witness  to  be treated as hostile--Effect of.

HEADNOTE: The appellant, an Assistant Station Master, was convicted of the  offence of criminal misconduct in the discharge of  his duties punishable under a. 5(2) of the  Prevention        of Corruption  Act, 1947, and the conviction was  confirmed  by the  High Court.  In appeal to this Court under Art. 136, it was contended that; (1)  the  prosecution  was  invalid  for want  of competent sanction; (2) the investigation  was  not merely illegal but caused serious prejudice to the  accused; (3) the Court should have drawn an adverse inference against the  prosecution from the non-examination of a  key  witness like   the   Deputy  Superintendent  of  Police;   (4)   the uncorroborated testimony of accomplices or quasi-accomplices should not have been made the foundation for the conviction; and (5) the Court should not  have drawn a presumption under s.  4  of the Act as the charge was under s. 5(1)(d  )  read with s. 5 (2). Dismissing the appeal. HELD :-(1) (a) The Divisional Officer (Senior scale) granted the sanction for prosecution in this case, and under r.  134 of  the  Indian  Railway  Establishment  Code,  he  has  the delegated  power  to appoint and dismiss officers  like  the accused, and therefore, was competent to grant the sanction. [802 C-D] (b)  The construction sought to be put on ’the rule  reading it with r. 3(a), that only Divisional Personnel Officers are in  executive charge of the staff of Divisional Offices  and are  entitled to control them and therefore, by  implication other  divisional officers are excluded from the  delegation of powers in regard to appointments has no substance.   Rule 3  (a)  refers to ’Establishment matters’  which  ordinarily cover routine items and not appointments and dismissals [802

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

H-803 A] (c)  Moreover   the  appellant  should  have  produced   his appointment  order  if  his  case was that  it  was  only  a Divisional  Personnel Officer and not a  Divisional  Officer that appointed him. [803 B] (d) This contention was not raised in the lower court nor in the  High Court’ In special circumstances the validity of  a sanction which goes to the root of the case may be permitted to  be raised for the first time in this Court but  this  is not one such. [802 G] Vinayak  V.  Joshib  v.  State, A.I.R.  1968  Pun.  120  and Sudarshanlal Bajaj v.    S.  P. Agarwala, A.I.R.  1966  Raj. 37. referred to. (2)  The mandate of s. 5A regarding investigation is  merely that   no   police  officer  below  the   rank   of   Deputy Superintendent  of  Police  shall  investigate  any  of  the offences  specified therein.  There was no inaction  by  the police  or misuse of the executive magistracy in this  case. In  the  present  case, a trap was  laid  by  the  Executive Magistrate,  because  the D.S.P. had  no  jurisdiction  over railway  premises, and after the trap episode was  completed and  the offence committed information was laid  before  the police  officer  who  started  the  investigation;  and   he certainly was an officer of competent rank.  While, laying a trap by a police officer, may be a step in investigation  if a  case  had already been registered in the  police  station pursuant to which the trap was set, it cannot be said to  be a  part of investigation where a trap is laid only  to  find out  whether an offence is going to be committed.  There  is nothing in s. 5A preventing an Executive Magistrate or other public officer laying a trap to catch the allegedly  corrupt official. [804 A-D] I  State of Bihar’ v. Basawan Singh. [1959] S.C.R.  195  and Rishbud  and Inder Singh v. State of Delhi, [1955] 1  S.C.R. 1150 followed. Hira Lal [1970] 3 S.C.R. 933, referred to. -Lg4SuP.  CT/75 800 (3)  The  non-examination  of the Deputy  Superintendent  of Police is of no consequence at all in the case. [807 B] (4)(a)  The  special  jurisdiction under  Art.  136  of  the Constitution  cannot  be  diluted into a  second  appeal  on facts. [804 E-F] (b)  To condemn roundly every public official or man of  the people   as   an   accomplice   or   quasi-accomplice    for participating in a raid is to harm the public cause.  May be a  judicial  officer,  should hesitate to  get  involved  in police  traps  when  the  police  provide  inducements   and instruments to commit crimes, because, that would sully  the image  of  the  independence of the  judiciary.   But  there cannot  be  a  total  ban on  public  officers  even  though executive  magistrates,  playing a socially useful  role  in checking  public men’s corruption when the  situation  needs it.   A  flexible, realistic approach is the  sound  course. [805 C-E] In  the present case. the magistrate was not a  full-blooded judicial  officer no de novo temptation or bribe  money  was offered  by  the  Police  and no  ground  to  discredit  the veracity of the magistrate had been elicited. [805 E] Rao  Shiv Bahadur Singh v. State of Vindhya Pradesh,  [1954] S.C.R. 1096, referred    to. (c)  The   permission  given  by  the  Court  to   treat   a prosecution witness as hostile     was properly granted.  it is  discretionary  power  of the trial  court  and,  if  the witness  strikes  the court as imbued with  partisan.  zeal,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

cross-examination may be allowed by the party who calls him. [806 E-F] (5)  Even if the statutory presumption is unavailable courts may  presume  what may in the ordinary course. be  the  most probable inference.  That an Assistant Station Master has in his  hand  a  marked currency note made over  to  him  by  a passenger whose bedding had been detained by him, for  which no credible explanation was forthcoming, speaks for  itself. Assuming  that the passenger was using a pass  intended  for himself  to take with him his wife and child  illegally  and thus  tried  to  dupe the railway, it is no  alibi  for  the Assistant   Station  Master  to  help  himself  to   illicit gratification. [806 G-807 B]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 15  of 1971. Appeal  by special leave from the judgment and  order  dated the  15th May, 1970 of the Punjab and Haryana High Court  in Criminal Appeal No. 737 of 1968. Frank Anthony and K. B. Rohatgi, for the appellant. H. S. Marwah and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by KRISHNA IYER, J.-Mr. Frank Anthony arguing the case for  the accused,  in this appeal by special leave, has  put  forward four main contentions against the appellant’s is conviction, namely,  (a)  that the prosecution is invalid  for  want  of competent sanction; (b) that the investigation is not merely illegal  but has in consequence inflicted serious  prejudice on  the  accused;  (c)  that  the  non-examination  of   key witnesses, like the Deputy Superintendent of Police,  should have driven the court to draw an adverse inference fatal  to the case, and the uncorroborated testimony of accomplices or quasi-accomplices should not have been the foundation for  a conviction,  and (d) that the Court bad drawn a  presumption under  S.  4 of the Prevention of Corruption  Act,  although there was no warrant for it in the present case, the  charge having been one under s. 5(1)-(d), read with s. 5(2) of  the said Act. A  brief  statement  of  the facts will  lead  to  a  better appreciation   of   the  arguments   urged.    The   accused (appellant) was an Assistant 801 Station  Master at Ateli in May 1967.  P.W. 3, a  member  of the Armed Forces, was going back home by train from  Udaipur with his wife and child on railway concession pass, carrying with him a trunk and bedding.  When the, train reached Ateli Railway station in the afternoon of May 9, 1967, P.W. 3  got down with his baggage and, when he handed over his ticket to the accused, was told that he had to pay extra for his  wife and  child and excess luggage--a sum around Rs. 45 or  more. P.W.  3  pleaded that he had no money on him  then  and  was suggested a way out by the payment of Rs. 10 at once a bribe and  a bargain.  Promising to bring the money the next  day, P.W. 3 left the station leaving his bedding as something  of a  non-human  ’hostage’  which was to  be  released  on  the payment of the illicit sum.  On reaching his village late in the  night,  P.W.  3, the Jawan, thought  of  informing  the authorities   about   this  harassment.    Accordingly,   he contacted  the Deputy Commissioner, Narnaul, on May  11  and related  to him what had happened.  The Deputy  Commissioner instructed  the  Superintendent of Police to look  into  the matter  who  directed the Deputy Superintendent  of  Police,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

Narnaul, to take suitable action.  He also sent a telephonic message  to  Shri  Dharamvir,  Sub  Divisional   Magistrate, Narnaul,  and  told him that Sis Ram had  been  directed  to contact  the  Deputy Superintendent of Police,  Narnaul,  in connection with his complaint. thereupon, the Sub Divisional Magistrate, P.W. 5, together with the Deputy  Superintendent of Police, decided to organise a trap, on being apprised  of the  story  by  P.W. 3. The team  consisted  of  the  Deputy Superintendent,  the  Sub  Divisional  Magistrate,  a   head constable  of the railway police, and P.W. 3  himself.   The party  moved  to  the railway station and  P.W.  4,  Lakshmi Narain, also joined them on the way.  A ten-rupee note  (Ex. PI)  was  handed  over  by  P.W.3  to  the  Sub   Divisional Magistrate,  who signed on it,.in token whereof a  memo  was prepared, Ex.  PF.  P.W. 3 took back the note, his body  was searched as part of the usual precaution and he was directed to  go  to the accused and give signal after the  money  was paid.   As arranged, P.W. 3 met the accused, made  over  the money,  gave  a  signal  whereupon  the  party  of  the  Sub Divisional Magistrate closed in on the accused.  The  marked note  was  recovered from his right hand  (vide  memo.   Ex. PG).   Thereafter,  the Sub Divisional Magistrate  lodged  a First  Information  Report  with  the  police,  a  case  was registered and on completion of investigation by the  Deputy Superintendent  of  Police  having  jurisdiction  over   the Railways,   P.W.  7,  and  after  obtaining  the   statutory sanction, Ex.  PD/1, the accused was charged with an offence of  having accepted illegal gratification of Rs. 10  on  May 11, 1967 from P.W. 3 thereby committing criminal  misconduct in the discharge of his duties, punishable under s. 5(2)  of the  Prevention of Corruption Act, 1947.  The Special  Judge convicted the accused, overruling the defence version set up under  s.  342,  Cr.  P.C.,  and  disbelieving  the  defence witnesses.   The High Court confirmed the  conviction.   The sentence of one year rigorous imprisonment and a fine of Rs. 200 was also confirmed. Shri  Frank  Anthony  sought to  make  good  his  contention regarding  the  invalidity of the sanction,  Ex.   PD/1,  by urging that P.W. 2, a Divisional Officer (Senior Scale), who granted the sanction did not 802 and,  under  the  rules, could not appoint  or  dismiss  the accused.   It  has; to be mentioned right at  the  beginning that  P.W.  2,  who  was  working  as  Divisional  Operating Superintendent, Western Railway, Udaipur, has sworn that  by virtue  of  delegated powers he was competent to  remove  an Assistant  Station  Master like the accused.   Although  his evidence was a little ambiguous in that he first swore  that he  was competent to remove but not to dismiss the  accused, on a later date he was recalled, and gave evidence  bringing with  him the relevant rules and regulations.   He.testified that under the rules he was competent to dismiss a Class III servant  drawing  a pay rising up to Rs. 250.   The  accused came within this category.  The High Court, not content with mere oral evidence on this issue, went elaborately into  the legality  of the sanction and found that the Indian  Railway Establishment  Code  (rule  134)  authorised  delegation  of powers,  and in the schedule there is a clear delegation  of the  powers in favour of Divisional Officers (Senior  Scale) to  make  initial  appointments to posts in  scales  of  pay rising  up  to Rs. 380 per month.  P.W. 2  is  a  Divisional Officer,  Senior  Scale, and the accused holds a post  in  a scale of pay not exceeding Rs. 380/- per month.  The  Court, therefore,  concluded that the power to appoint, which  also carried with it the power to dismiss, vested in P.W. 2.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

Counsel for the appellant contended that even though r.  134 of  the Indian Railway Establishment Code appeared  to  vest powers in Divisional Officers, Senior Scale, if read in  the light  of  the Schedule of Powers delegated by  the  General Manager,  control in regard to appointments was vested  only in   the   Divisional  Personnel  Officer   as   such.    To substantiate this argument counsel invited our attention  to certain,  earlier portions of the Code.  He placed  reliance on r. 3(a)-, which reads               "As  the DPOs are in executive charge  of  the               staff of the Divisional Offices, exclusive  of               those  working under the  Divisional  Accounts               Officers,  the powers delegated to  Divisional               Officers (Sr.  Scale) in Establishment matters               will,  in respect of staff of  the  Divisional               Offices, be exercised by the DPOS." ’ There are two difficulties in the way of our accepting  this contention.   For one thing, this point admittedly  has  not been  taken before the High Court or the special judge.   It is  not,  therefore, permissible for us to allow  it  to  be argued  for  the first time in the Supreme Court  since  the State has no opportunity to explain whether there are  other orders  and  what the expression ’Establishment  matters’  I means.  In special circumstances, the validity of a sanction which  goes to the root of the cage may be permitted  to  be raised  for the first time in this Court.  This case is  not one such.  For another, the rule is clear that persons  like P.W. 2, namely, Divisional Officers, Senior Scale, have  the power  to appoint class III officers like the accused.   The construction  sought  to be put on it by counsel  that  only DPOs  are  in executive charge of the  staff  of  Divisional Offices   and   are  entitled  to  control  them,   and   by implication,   therefore,  other  Divisional  Officers   are excluded  from  the  delegation  of  powers  in  regard   to appointments 803 has no substance.  ’Establishment matters, ordinarily  cover routine items, not appointments and dismissals.  May be, for better   co-ordination  and  avoidance  of  conflict   among divisional   officers  directions  may  have   been   issued regarding exercise (if powers by one which do not contradict existence  of powers in others.  Moreover, it was  easy  for the  appellant  to  produce his  appointment  order  if  his additional case that only a Divisional Personnel Officer and not a Divisional Officer appointed him.  Again, all that Ex. P.E. and like documents prove is that allotments of selected persons are made by the higher officer (the R.T.S.) but  the actual  appointment is made by the D.T.S. There is  thus  no force  in the ’last straw’ plea that the R.T.S. alone  could or did appoint him. Two decisions were pressed before us by Shri Frank  Anthony. The   first,  Vinayak  V.  Joshi  v.  State(1),  is   easily distinguishable.   There, a Divisional Medical  Officer  who was  of  equal status with a  Divisional  Personnel  Officer granted  sanction  but  he had no delegation  of  powers  of appointment which only the latter enjoyed.  Mere equality of official  status  with a delegate cannot  clothe  the  other officer with delegated powers and so in that decision it was held  that the Medical Officer’s sanction  was  incompetent, there  being no delegation in his favour.  The other  ruling of  the  Rajasthan High Court, Sudarshanlal Bajaj V.  S.  P. Agarwala(2),  has  no  application  whatsoever.   In   these circumstances,  we have no hesitation in rejecting the  plea of  the  illegality of the sanction.  Counsel  is  certainly right  that  if  there  is infirmity  in  the  sanction  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

prosecution must fail.  While it is true that provision  for sanction  before prosecution of a public servant should  not be  an  umbrella for protection of corrupt  officers  but  a shield   against  reckless  or  malevolent   harassment   of officials  whose  upright discharge of  duties  may  provoke unpleasantness and hostility, that is an area of law  reform covered,  we find, by the 47th Report of the Law  Commission of India. Now  we  proceed to consider a kinded  contention  that  the investigation  is grossly illegal and, without more,  spells an   acquittal.    Shri  Anthony  asked   why   the   Deputy Commissioner  did  not record the statement of P.W.  3,  the aggrieved  Jawan.  Why did the Superintendent of  Police  or even the Deputy Superintendent of Police desert his duty  to register  a case on being apprised of the offence ?  Was  it not a subversion of the provision of s. 5A of the Prevention of Corruption Act, 1947, to bypass the police  establishment by   employing   a  magistrate  to  lay  a  trap   ?   These interrogations  do not legally wreck the conviction  because they  do  not brand the investigation as  invalid.   As  ex- plained  by  counsel  for the State, P.W. 3  may  well  have complained  of  harassment  by  the  accused  detaining  his bedding and the Deputy Commissioner would have in the  usual course directed him to the District head of the police.  The latter, not improperly, may well have asked his  subordinate to take action.  Since this D.S.P. had no jurisdiction  over the railway premises, he did not act directly but  requested the  executive  magistrate  of the place, P.W.  5,  who  bad already been informed by the Deputy Commissioner to initiate steps for catching (1) A.I.R. 1968 Pun. 120. (2) A.I.R. 1966 Raj. 37. 804 the  alleged bribe taker.  We do not share.  Shri  Anthony’s grave suspicion about the alleged inaction of the police and the  misuse of the executive magistracy.  The  simple  legal issue  is  whether s. 5A has been violated  or  fraudulently frustrated and consequent failure of justice inflicted?  The mandate of s. 5A is merely that no police officer below  the rank of a Deputy Superintendent of Police shall  investigate any of the offences specified there.  Here, no investigation was done by a lesser police officer, for P.W. 7, who did the investigation,   was   of  competent  rank  and   what   the Magistrate,  P.W.  5, did was not investigation and  was  de hors  S.  5A.   By definition, only  a  police  officer  can investigate  (sec. 4(1) Cr.  P.C.) A magistrate cannot.   In the  present case, after the trap episode was completed  and the  offence committed, P.W. 5 laid information  before  the police whereupon P.W. 7 started investigation.  Until  then, no  investigation in law did or could  commence.   Moreover, while  laying  a trap by a police officer may be a  step  in investigation  if  a case has already been registered  in  a police station pursuant to which the trap is set, it  cannot be part of investigation where the exercise is only to  find out  whether  an  offence is going to  be  committed.   Hira Lal(1)  hardly rescues the accused.  There is nothing in  S. 5A  preventing  an  executive  magistrate  or  other  public officer  laying  a  trap  to  catch  an  allegedly   corrupt official.  The ruling in State of Bihar v. Basawan Singh  (2 )  by  implication upholds this position.  In fact,  in  the current  crisis of rampant corruption polluting  the  public services-so the public mind demoralisingly believes-the need for superior officers vigilantly organising Operation  Anti- Corruption  cannot  be discouraged by  legalisms.   For  the present  case it is enough to say that no violation  of  law

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

nor  serious prejudice has been made out (vide  Rishbud  and Inder Singh v. State of Delhi) (3). The  meat of the matter, if one may say so, is  whether  the accused has been proved to have helped himself to an illegal gratification of Rs. 10/-, as alleged.  At the threshold  we must  remind ourselves that the special  jurisdiction  under art. 136 of the Constitution cannot be diluted into a second appeal  on  facts.   The end of  the  appellate  journey  is normally the High Court and exceptional circumstances  alone can  justify the exercise of the extraordinary power of  the Supreme  Court  to  review the evidence.   The  strange  and expensive  spectacle of multitiered appeals built  into  the system does more injury than justice and strictness in  this regard  brings  finality  to  litigation  early  instead  of holding  out  illusory  hopes  to one  who  would  not  have ventured on this costly project had he known the limitations on  the  jurisdiction  under  art. 136,  more  so  when  the findings are concurrent. We  shall  briefly examine the strong attack  made  by  Shri Frank Anthony on the evidence adduced and the credence given to  it by the courts below.  The sharp castigation of  traps as  immoral, of trap witnesses as accomplices, of  involving magistrates in such dubious exercises as reprehensible,  may have had some precedential support but (1)  [1970] 3S.C.C.933. (2)  [1959] S.C.R.195. (3)  [1955] 1 S.C.R. 1150. 805 time and circumstance, the compulsions of public demand  for arresting  an  insidious but expanding evil and a  sense  of judicial  realism and appreciation of the specific facts  of each  case guide the pragmatic yet principled  approach  the court  has  to  make.  It is not  necessary  that  executive magistrates should always keep away from operations intended to  catch  the criminal red-handed.  He is not  so  strongly ’motivated  to get a suspect somehow or other punished.   He is  professionally detached and has a public  responsibility to help detect a bribe-taker if credible requests are  made. Such  a magistrate is not a cloistered  ,virtue  unconcerned with  social claims on his services.  It is apathy  of  good citizens that induces police officers to go after the lesser breed  of  search  witnesses in the  enforcement  of  social welfare statutes.  To condemn roundly every public  official or man of the people as a quasi-accomplice for participating in  a raid is to harm the public cause.  May be, a  judicial officer, unlike an executive magistrate, should hesitate  to get  involved in police trap experiments and expose  himself to  charges of unveracity.  However, there is force  in  the censure  made in Rao Shiv Bahadur Singh v. State of  Vindhya Pradesh(1)   when   the   police   provide   inducements.and instruments  to  commit  crimes  .and  judicial   personages willingly  lend  themselves  to be enmeshed  in  such  shady attempts,  sullying the image. of independence of the  judi- ciary.   But we cannot exaggerate these dicta, into a  total ban  on public officers, even though executive  magistrates, ’playing  a  socially useful role in checking  public  men’s corruption  when  the  situation needs  it.   This  is  best illustrated  by  the observations of Das, J.,  in  State  of Bihar v. Basawan Singh(2) where the learned Judge emphasized that a flexible, realistic approach is the sound course.  In the  present  case, the magistrate was  not  a  full-blooded judicial  officer  but  only  exercised  limited  preventive powers after separation of the judiciary from the executive. No  de  nove temptation nor bribe money was offered  by  the police in the present case.  The magistrate merely sought to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

do  his  public  duty  of intercepting  a  crime  which  was otherwise in the process of fulfilment.  It was service, not sin,  to have done it.  No ground to discredit the  veracity or  taint the ’testimony of P.W. 5 has been elicited.   And, what  dissolves  scepticism and builds up  credence  is  the seizure of the marked currency note from the accused’s right hand  and  the presence of the bedding of the jawan  on  the railway station.  The original story of P.W. 3 fits in  with the  facts  while  the  accused’s  strained  version  stands unproven.   The murky evidence of the military man, P.W.  3, who  perhaps  stood to gain by paying Rs.  10  and  avoiding excess,   baggage  and  extra  passenger  charges   may   be insufficient  to  prove guilt if  uncorroborated  by  better testimony.  A bribe deal is usually a benefit-both  syndrome and the payer’s lips carry little conviction in the  absence of reassuring support.  Before us, the executive magistrate, PW. 5, and the casual member of the trap team, P.W. 4,  have given testimonial boost.  But real-reinforcement comes  from the right hand of the accused which held the.guilty note and gave  it over to P.W. 5 on being challenged.   The  counter- story of the Assistant Station Master (accused) was that the Jawan was stopped by the attender (or water carrier) of  the station at the gate for insufficient (1)  [1954] S.C.R. 1096. (2)  [1959] S.C.R. 195. 806 tickets  and excess baggage but, after some sound  and  fury over  an interpolation in the military pass, was allowed  to go  by  the  accused who promptly  reported  to  the  Jaipur Station  Master to know how many passengers were covered  by the  pass.   The  inconvenient ’bedding’ of  the  Jawan  was explained by the accused as having been left behind by  P.W. 3  in the heat of the moment and had been kept in  the  lost property  room  and entered in the relevant  register.   The courts  below  have rejected this exculpatory  case  of  the appellant and we see nothing too odd in the appreciation  or too unnatural in the inference to warrant our  interference. True, P.W. 1, the fellow station master, has endeavoured  to substantiate the appellant’s plea but has been  disbelieved. After  all,  the  successful  and  sustained  prevalence  of rackets  .Eke corruption is built on the artful  network  of sharing agencies and the rescue operations of P.W. 1  cannot be  regarded  as  independent  evidence  of  an  unconnected officer.   We  hope  that  the  authorities  in  charge   of cleansing  our  public sector of corruption Will  view  each detected  act as symbolic of a chain scheme and  symptomatic of  a  deeper  systemsic  malady  and  not  as  an  isolated aberration  of a delinquent official.  A massive purge,  not stray  traps,  can  alone  be the  strategy.   That  P.W.  1 supports  the  accused  is no surprise  if  we  realise  how dubious ’distributive justice’ works in some of these public offices  where  money is illicitly  collected.   An  honest. Assistant  Station Master in the place of the accused  could not  have allowed P.W. 3 to  leave without reporting to  the railway  police.  Nor is the frivolous explanation that  the ten-rupee note was brought by P.W. 3 when the accused wanted only one rupee as official charge for keeping the bedding in the lost property room worth a serious look.  We regret  our inability  to  accede to the forceful  submissions  of  Shri Frank Anthony on this aspect of the case. in passing we may mention that the criticism made by learned counsel  that  P.W. 1 has been illegally  permitted.  to  be treated  as ’hostile’ is pointless.  It is  a  discretionary power  of the trial judge and when a witness strikes him  as imbued  with partisan zeal cross-examination may be  allowed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

by the party who calls him.  After all, these rules are only to further the end of truth, not clogs in the quest for  it. We  see  no  merit in the argument.  To  sum  up,  the  case against  the  accused has been made  out  beyond  reasonable doubt.  Infallibility is the attribute of the omniscient and judges  can  only  act on  pragmatic  sense  and  reasonable doubts. The last submission turns on the presumption under.  Section 4  of the Act.  The contention of counsel for the  appellant that the presumption available under S. 4 of the Act  cannot be raised in the present case since the charge is under s. 5 (1 ) (d), read with s. 5 (2), is apparently attractive.  But we  may  notice that even if the  statutory  presumption  is unavailable,  courts  may presume what may in  the  ordinary course  be the most probable inference.  That  an  Assistant Station  Master  like,  the  ,accused  has  in  his  hand  a marked,,’  currency  note made over to him  by  a  passenger whose bedding has been detained by him for which no credible explanation is forthcoming, and he is caught red-handed with the  note, is a case of res ipsa loquitur.  The  very  thing speaks  for  itself  in the  circumstances.   We  need  not, therefore, scrutinise the                             807 substance of the argument based on the inapplicability of S. 4. We also feel that there may be some force in the argument of  counsel  that the jawan, P.W. 3, might  have  duped  the railway  by  using a pass for one passenger and  carrying  a family  of wife and, child together.  of course,  we  cannot finally  pronounce  on this matter for  want  of  sufficient documents.  All that we need say is that even assuming  that the passenger so tried to dupe the railway, that is no alibi for the Assistant Station Master to help himself to  illicit gratification.   Nor  is the non-examination of  the  Deputy Superintendent of Police of any consequence in the case. In  these  circumstances we find no reason  for  interfering with the concurrent conviction and sentence.  The appeal  is dismissed. V.P.S.                    Appeal dismissed. 808