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PETITIONER: RAJENDRA KUMAR CHATURVEDI

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT04/04/1974

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH SARKARIA, RANJIT SINGH

CITATION:  1974 AIR  852            1974 SCR  (3) 847  1974 SCC  (4) 586

ACT: Practice--Criminal  Procedure--Dismissal of appeal  by  High Court summarily--Duty to give a reasoned order.

HEADNOTE: The  Special  Judge,  after  a  very  thorough  and  careful assessment  of the whole evidence in the case, had  come  to the  conclusion  that  the  prosecution  case  against   the appellant  was  established  beyond  reasonable  doubt   and convicted  him under sections 120B as well as 161 read  with s. 34 I.P.C. and also under sections 5(1)(d) and 5(2) of the Prevention   of  Corruption  Act,  1947.   The  High   Court dismissed  the appellant’s appeal summarily  without  giving any reasons. Dismissing the appeal to this’ Court, HELD  : (1) It is necessary for the High Courts,  even  when they  dismiss criminal appeals summarily on facts found,  to record  the  reasons briefly.  It is often  difficult  in  a criminal  case  to  say  whether  any  material  error   was committed by the trial court in arriving at its findings  of fact  without atleast some examination and consideration  of the  main  features of the evidence which  only  a  reasoned order would disclose. [851 E-G] (2)An  examination of the evidence by this Court,  because of such summary dismissal, however, shows that the  findings of  the trial court must be up-held. it must be deemed  that the High Court had affirmed the findings of the trial  Court when it dismissed the appeal summarily, and therefore, there is no reason to depart from the general rule that this Court will  not interfere with concurrent findings of fact  except under  very  exceptional  circumstances.  [851  D-E]  B.  C. Goswami v. Delhi Administration, followed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 200 of 1970. Appeal  by special leave from the judgment and  order  dated the 13th October, 1970 of the Bombay High Court at Bombay in Criminal Appeal No. 1112 of 1970,. S. N. Misra and M. V. Goswami, for the appellant.

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M.  C. Bhatidare and S. P. Nayer, for the respondent. The Judgment of the Court was delivered by BEG,  J.-The  Special  Judge of  Greater  Bombay  tried  the appealjaint a Sub Inspector in the Railway Production Force, together  with  three other members of  the  Force,  serving under him, on charges for offences punishable under  Section 120B and 161 Indian Penal Code and Sections 5(1)(d) and 5(2) of  the Prevention of Corruption Act.  It was  alleged  that the appellant and the Rakshaks serving under him at Bhusaval Central Railway Station had conspired to, extort money  from Shivaji  Ogale, P.W.2, a merchant owning property and  goods estimated  by him at Rs. 1,50,000/-, and  paying  Income-tax and  Salestax.   The appellant is alleged  to  have  stopped Shivaji  from removing his goods from the goods yard on  the ground that the truck brought L84Sup.Cf/74 848 by  him was parked at the wrong place.  The appellant,  with the  help  of  his Rakshaks, was  said  to  have  threatened Kalandar Khan, P.W. 3, the driver of the truck, and to  have actually  handcuffed him and tied him with a rope and  taken him  to  the appellant’s office at some  distance  from  the goods  yard.  Shivaji was himself said to be present at  the scene at that time which was about 4 p.m. on 17-1-1968.  The appellant  and his co-accused, Hari Rachu, were  alleged  to have  demanded  Rs. 200/- as bribe for releasing  the  truck driver without whom the truck could not be driven away.  The vexed  Shivaji  is said to have fallen at the  feet  of  the appellant and to have begged him to release his driver.  The appellant then reduced his demand to Rs. 100/-.  Shivaji  is said to have sent his son Sarjearao, P.W. 4, to his shop  to get  Rs. 100/- which were brought in Rs. 10/-  notes  within half  an  hour and handed over to  the  extortionists.   The appellant  is said to have released the driver  and  allowed the  truck to go away after this payment had  been  actually made. The  Special Judge had examined the whole evidence in  great detail.  He observed about Shivaji, P.W. 2:               "It  saw  his  demeanour when he  was  in  the               witness  box and it never appeared to me  that               he was gifted with fertile imagination or that               the  present prosecution was the product of  a               deliberate conspiracy between him,  Vishwanath               Vasant  and  Rambabu Kate as  alleged  by  the               Learned  Advocates for the accused.  Had  they               really  intended  to  do  so,  their   natural               conduct  would have been to  approach  railway               police  themselves  or local  police  or  ACB.               Police Bhusaval but neither Shivaji nor Vasant               did  so  and  they preferred to  write  out  a               complaint  in  the complaint Book  at  Ex.  10               regarding the incident which took place on the               17th as it really occurred".               The  complaint mentioned above was  lodged  at               about 8 a.m. on 18-1-1968 after an  imposition               of  Rs.  7.10 as wharfage charges as  all  the               goods  could  not  be  removed  on   17-1-1968               presumably because of the interruption  caused               by  the action of the appellant and his  asso-               ciates.   Shivaji had also stated that he  had               related "everything" to the Chief Goods’ Clerk               of  Bhusaval,  P.W. 8, about 6 p.m.  on  17-1-               1968.  The Goods’ Clerk deposed  that  Shivaji               came to his office at that time and old him :               "xxx  there  was all darkness  in  the  State,

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             bribe  was demanded from him, hand-cuffs  were               being put on, we and our labourers were  being               harassed.   After having told me this he  went               away.   As my duty hours were over I  made  no               further enquiry and Shivaji went away". The  Goods’  Clerk had taken down the complaint  of  Shivaji next morning after fixing the wharfage charges.  Apparently, Shivaji, P.W. 2, an old man of seventy, was very agitated by what had taken place.  The Goods’ Clerk stated that  Shivaji was  in an exasperated state of mind when he came to him  on the  evening  of 17-1-1968.   Under  cross-examination,  the witness stated that he must have told the police during  the investigation  that Shivaji had said that bribes were  being taken. 849 This statement in Court was made on 14-8-1970-, more than 2- 1/2  years after the occurrence.  Therefore, the  mere  fact that,  in  his examination in chief, he did not  state  that Shivaji  had actually mentioned the passing of money on  the evening   of  16-1-1968  does  not  seem  to  be   material. Shivaji’s complaint next morning contained all the  detailed allegations.  The accused could not give any reason why this witness  should  depose  at all falsely  against  him.   His testimony corroborates Shivaji’s version. Furthermore,  there  is corroboration of  the  statement  of Shivaji  from the statements of not only his  son  Sarjerao, P.W.  4,  who  brought  money from  the  shop,  his  nephew, Vishwanath, P.W. 5, who had gone to the scene of  occurrence as  there  was delay in the arrival of goods,  and,  Vasant, P.W. 6, who had given out Rs. 100/- to his brother Sarjerao, P.W.  4, at Shivaji’s shop, but also from the  statement  of Abdul Jabar, P.W. 10, who was an Assistant Sub Inspector  of the  Railway  Protection  Force  and  a  colleague  of   the appellant.   Abdul  Jabar’s evidence, characterised  by  the Trial  Court as "independent", disclosed that Kalandar  Khan was  actually  arrested by the appellant a fact  denied  and left unexplained by the appellant. Another  piece  of  corroborative evidence  offered  by  the prosecution  was the "Pucca" entry of a disbursement of  Rs. 100/-  as bribe and Rs. 7.10 as wharfage shown on  17-1-1968 in the cash book of Shivaji.  But, as this account book  was not  produced  at  the  time of  the  enquiry  held  by  the Inspector  Hanotia of the Railway Protection Force into  the allegations and, the entry was admitted to have been made on 19-1-1968 although the disbursement is shown on 17-1-1968 it cannot  be  relied upon.  There is force in  the  contention that it appears to have been made to support the prosecution case.  The wharfage charge of Rs. 7.10 was not even fixed on 17-1-1968.   However,  as  the entry  was  admitted  by  the prosecution to have been actually made on 18-1-1968, it  can be  ignored as a piece of corroborative evidence.  The  mere fact that it must have been made on 18-1-1968 to support the version of Shivaji and is admitted to have been so made does not  take  away the valu,of the evidence  of  Shivaji  which impressed  the  Trial Court and which  was  corroborated  by other pieces of unimpeachable evidence. Considerable  stress  is laid on the fact that  Shivaji  had pointed  out, it a test identification parade,  the  accused No. 2, Hari Rachu, as the person to whom the money was paid, but,  at  the  trial,  he stated that it  was  paid  to  the appellant  accused No. 1 who handed it over to  accused  No. 2.A  long period of time had elapsed between the  occurrence and  depositions  at the trial by witnesses.   Their  memory could  very well have become bluffed as to who actually  got the,  money  first of the money was passed  by  one  accused

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person to another as it seems to have been.  There could  be an  honest  lapse of memory about the exact  sequence.   The infirmity  is not so serious as to be attributed to  nothing except mendaciousness.  The  Special  Judge,  after  a  very  through  and  careful assessment of he whole evidence in the case, had come to the conclusion that the 850 prosecution  case  against  the  appellant  was  established beyond  reasonable  doubt.  He had convicted  the  appellant under Section 120B as well as Section 161 read with  Section 34  I.P.C. and also under Section 5(1)(d) and Sec.  5(2)  of Prevention of Corruption Act and sentenced him to two  years rigorous  imprisonment and to pay a fine of Rs. 300/-,  and, in  default of payment of fine, to undergo further  rigorous imprisonment  for  two  months, on each  one  of  the  three counts, but the substantive sentences were made  concurrent. The appellant as well as the other convicts had appealed  to the  High Court-of Bombay, The appellant’s appeal  had  been dismissed  summarily. The appeal of the three convicted  co- accused  was admitted, but it was finally dismissed,  except as  regards  one of the accused who was held  to  be  merely present and to have carried out the’ orders of the appellant before us in writing up a document and then destroying  it.’ The reasons given in the judgment of the Bombay High  Court, on that, appeal, reported as Hari Rachu Kanadi v. The  State of  Maharashtra(1), are relied upon as arguments  before  us for accepting the prosecution case. We may here mention a fact which the Bombay High Court  took into account in confirming the convictions of two of the co- accused  in  this  case.  It has been  relied  upon  by  the learned Counsel for the State before us.  It is that,  under the provisions of the Railway Protection Force, the  members of that Force are not Police Officers at all in the ordinary sense,  and that the appellant had apparently  exceeded  his powers  of arrest.  The powers of arrest without  a  warrant under Section 12, vested in Superior Officers of the  Force, are laid down in the following terms :               "Power to arrest without warrant.               (12).  Any superior officer or member  of  the               Force may, without an order from a  Magistrate               and without a warrant, arrest-               (a)any person who has been concerned in  an               offence    relating   to   railway    property               punishable  with  imprisonment  for  a   term,               exceeding  six  months,  or  against  whom   a               reasonable suspicion exists of his having been               so concerned, or               (b)any person found taking, precautions  to               conceal  his  presence within  railway  limits               under  circumstances  which afford  reason  to               believe, that he is taking such precautions is               with a view to committing theft of, or  damage               to, railway property". It  has  not been shown to us what  justifiable  ground  the appellant  had  to arrest or cause the  arrest  of  Kalandar Khan.   This indicates that the reason for the arrest  could be  an  attempt  to  extort  a  bribe  as  alleged’  by  the prosecution.   The  appellant   had, no  doubt,  denied  the arrest.  This  denial  was  clearly false  in  view  of  the statements of witnesses (1) 1973 Bombay Law Reporter (vol. 71) p. 891. 851 who  included  Abdul Jabar, P.W.10, a fellow member  of  the protection  Force  to  which the  appellant  belonged.   The

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established  fact of this arrest of Kalandar  together  with the  false  denial  of  it by  the  appellant  indicate  the dishonesty  of the appellant’s stand.  It also  corroborates the prosecution version. It is true that the, statement of Kalandar Khan, P.W.3,  the driver  of the truck. contradicts the prosecution  case,  as given  out  by  Shivaji and his son, so far  as  the  actual arrest  of Kalandar Khan is concerned.  But,  even  Kalandar Khan had deposed that the appellant had threatened him.   He then  went  on  to  state that there was  a  quarrel  as   a consequence of it and nothing more.  He was declared hostile by  the  prosecution.   He  was  cross-examined  about   the statements made by him during investigation showing that  he was  arrested and that he actually saw the handing  over  of money  as  a bribe for his release.  He denied  making  such statements to the police.  As there is no reason  whatsoever shown  why  the Investigating Officer should  be  prejudiced against  the  appellant and falsely record  statements,  the Trial  Court was right in holding that Kalandar Khan  was  a thoroughly unreliable witness. The  result is that we see no reason to depart in this  case from  the general rule laid down by this Court  in  numerous cases,  such as B. C. Goswami v. Delhi Administration,  that this  Court will not interfere with concurrent  findings  of fact except under very exceptional circumstances.  The  High Court  must be deemed to have affirmed the findings of  fact of  the  Special  Judge when it  dismissed  the  appellant’s appeal summarily even if it did not give its reasons.  It is because of such a dismissal by it that we have examined  the evidence  in the case ourselves.  We may here observe  that, although  we  uphold the findings of the Trial  Court  which would  be  deemed  to  be affirmed by  the  High  Court,  we consider  it  very  necessary for High Courts  to  at  least record their reasons briefly even when they dismiss criminal appeal  summarily on facts found.  It is often difficult  in criminal  cases  to  say  whether  any  material  error  was committed by the Trial Court in arriving at its findings  of fact without at least some examination and consideration  of the  main  features of the evidence which  only  a  reasoned order  could  disclose.  It was mainly because  reasons  for summary  dismissal of the appellant’s appeal were not  given by the High Court that the appellant seems to have  obtained Special Leave to appeal to this Court. We  hereby dismiss this appeal and confirm  the  convictions and  sentences passed against the appellant who.is on  bail. Ile  shall surrender forthwith and serve out  the  remaining period of his concurrent sentences. V.P.S. Appeal dismissed. 852