TaxTMI 
TaxTMI 
2002 (3) TMI 917
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....ively challenging the findings of the Special Judge holding them guilty of the charges framed against them while the Rastriya Mukti Morcha has filed Criminal Revision No. 33 of 2001 challenging the acquittal of Capt. Satish Sharma, Shri V. Rajeshwar Rao, Shri H.M. Revanna, Shri Ramalinga Reddy, Shri M. Veerappa Moilu, Shri D.K. Audikesavulu, Shri M. Thimme Gowda, Shri Bhajan Lal and Shri Ajit Singh, charged and tried along with the appellants. 2. The relevant facts of the case, as noted by the trial court are: "1. That in the general election of 10th Lok Sabha in 1991, Congress (I) emerged as single largest party. It formed the government at the centre under the leadership of accused, P.V. Narasimha Rao (A-1). Monsoon Session of 10th Lok Sabha was to commence on 26.7.93. A "No Confidence Motion" was moved against the Govt. by Shri Ajay Mukhopadhya, a C.P.I. (M) M.P. The effective strength of Lok Sabha at that moment was 528 and Congress (I) had 251 members. Thus, the government headed by accused P.V. Narasimha Rao (A-1) was short of 14 M.Ps. for proving its majority on the floor of house. It is alleged that the opposition parties had made their intention clear to....
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.... M. Veerappa Moily (hereinafter referred to as A.11), Shri D.K. Audikeshvulu (hereinafter referred to as A.12), Shri M. Thimme Gowda (hereinafter referred to as A.13), Shri Bhajan Lal (hereinafter referred to as A.14), Shri Ajit Singh (hereinafter referred to as A.15), Shri Ram Lakhan Singh Yadav (hereinafter referred to as A.16), Shri Ram Sharan Yadav (hereinafter referred to as A.17), Shri Roshan Lal (hereinafter referred to as A.18), Shri Anandi Charan Dass (hereinafter referred to as A.19), Shri Abhay Partap Singh (hereinafter referred to as A.20) and Shri Haji Gulam Mohd. Khan (hereinafter referred to as A.21), vide three different charge sheets filed in the court under Section 173 Cr.C.P. First charge sheet was filed on 30.10.1996. In furtherance of that charge sheet second and third charge-sheets were filed under Section 173(8) Cr.P.C. on 9.12.1996 and 22.1.1997 respectively. 4. The case of the prosecution as revealed from the respective charge sheets and the statement of the approver Shailender Mahto recorded under Section 164 Cr.P.C. is that monsoon session of 10th Lok Sabha was scheduled to commence on 26.7.1993. Much prior to the commencement of monsoon session it was ....
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....on behalf of Capt. Satish Sharma from M/s Jindal Saw Pipes, M/s Videocon International Limited, M/s Essar Group of Companies, M/s Reliance Industries Limited and M/s Bindal Agro Industries. After receiving the money from those business houses, Shri B.N. Safaya used to inform Capt. Satish Sharma on telephone and then carry the suitcases containing money to Capt. Satish Sharma (A-2). It is alleged that on 24.7.93 one party was hosted by Capt. Satish Sharma at his residence. During said party, same suitcases supposedly containing money were brought from the farm house of Capt. Satish Sharma. On 25.7.93 in the morning, Capt. Satish Sharma visited the residence of Shri P.V. Narasimha Rao. Even accused Buta Singh (A-7) also visited the residence of Shri P.V. Narasimha Rao (A-1) in the morning of 25.7.93. It is also alleged that around 30th or 31st of July, 1993 Simon Marandi (A-5) visited Shri B.N. Safaya, Additional Private Secretary of Capt. Satish Sharma and told that he had come to collect the money which Capt. Satish Sharma had promised and after confirming from Capt. Satish Sharma, Shri B.N. Safaya brought a sum of ₹ 10 lakhs from the residence of Capt. Satish Sharma and deli....
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....of Shibu Soren (A-4). From there, they went to the residence of Shri Buta Sing hand he took those J.M.M. M.Ps. to the residence of Shri P.V. Narasimha Rao (A-1). It is further alleged that initially at the residence of Shri P.V. Narasimha Rao, talks regarding creation of Jharkhand Council took place and Shri P.V. Narasimha Rao (A-1) assured that he would call for the file relating to creation of Jharkhand Council from the Ministry and do the needful. Thereafter, Suraj Mandal (A-3), P.V. Narasimha Rao (A-1) and Buta Singh (A-7) went to a separate room for sometime. After the discussion, they come out from the said room and accused P.V. Narasimha Rao (A-1) told the other J.M.M., M.Ps. (A-4 to A-6) that he wanted their help for the moment and in return he would also help them and fulfilll the promises made to Suraj Mandal (A-3) in the closed door discussion. While coming back from the residence of Shri P.V. Narasimha Rao (A-1) on the insistence of Shailender Mahto (approver) and Shibu Soren (A-4), Suraj Mandal (A-3) informed that the closed door discussion was to their advantage. He further informed that talks regarding payment of money to them had taken place, but the amount to be pa....
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....the basis of final counting a sum of ₹ 30 lakhs was deposited in the S.F. Account No. 17108 of Suraj was opened in the joint names of all the 4 JMM MPs (A-3 to A-6) with ₹ 30 lakhs. One joint S.F. Account in the name of four JMM MPs. (A-3 to A-6) was also opened with the deposit of ₹ 10,000/- in order to facilitate the transfer of interest etc. from the F.D. Account. Similarly, in accordance with the earlier instructions of Shailender Mahto (A-6) one Sugam F.D. Account No. 196 was opened with ₹ 39.80 lakhs in the joint names of Shailender Mahto and his wife Abha Mahto, although his wife did not sign the account opening from. Another F.D. Account No. 194 was opened in the joint names of Shibu Soren (A-4), his wife Smt. Rupi and their two sons, Basant and Hemant with ₹ 30 lakhs. The account opening form was signed by all except Hemant Kumar. One Sugam F.D. Account No. 197 was also opened in the joint names of Simon Marandi (A-5) and his wife Smt. Sushila Hansda with ₹ 12 lakhs although account opening form was not signed by Smt. Sushila Hansda. 12. On 2.8.93 Simon Marandi visited Punjab National Bank, Naroji Nagar and deposited another sum of &....
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.... of manufacture and bottling of liquor. M/s KBDL is maintaining Current Account No. 448 with Canara Bank, R.M.V. Extension, Bangalore. M/s Sapthagiri Enterprises is also maintaining Current Account No. 446 with the same bank. The aforesaid two concerns are also maintaining accounts with Lakshmi Vilas Bank, main branch, Bangalore. 17. It is alleged that Shri D.K. Audikeshvulu issued Cheque Number 348507 dated 29.7.93 for ₹ 30 lakhs on the account of M/s. Sapthagiri Enterprises drawn on Canara Bank R.M.V. Extension, Bangalore in favor of M/s Padmavati Enterprises. He also issued Cheque No. 372415 and 372414 both dated 30.7.1993 for ₹ 6,17,349/- and ₹ 14,78,125/- respectively favoring Shri V.P. Ramakrishna, an employee of M/s. K.B.D.L. 18. The cheque No. 348507 for ₹ 30 lakhs issued in favor of M/s Padmavati Enterprises was credited to its Current Account No. 754 held with the aforesaid bank on 30-7-1993. On the same day, the said amount was withdrawn from the current account of M/s. Padmavati Enterprises through cheque dated 30.7.93 purported to have been signed by Sh. K. Muniraja, proprietor of the said firm. However, the cash payments against the said ch....
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....P) Limited. The funds against the cheques issued in favor of M/s. Ranganatha Group and M/s Yellamma Enterprises were credited to the respective accounts by way of transfer. As soon as the said funds were credited to those accounts, Shri M.S. Chelvaraju, partner of M/s. Ranganatha Groups and Shri T. Sivarama, proprietor of M/s. Yellama Enterprises issued self cheque dated 30-7-93 for ₹ 60 lakhs and ₹ 25 lakhs respectively and withdrew the cash. Similarly, Shri M. Themmegowda also withdrew a sum of ₹ 15 lakhs against above referred self cheques drawn on the account of M/s. S.P.R. Groups Holding (P) Limited. After collecting aforesaid funds, Shri T. Sivarama was asked to leave the bank, whereas Shri M.S. Chelavuraju, accompanied Shri M. Themmegowda to his residence Along with said ₹ 1 Crore withdrawn from the bank. After sometime, Shri M. Thimmegowda left his residence with 2 big VIP suitcases supposedly containing said ₹ 1 Crore. It is further alleged that Shri M. Thimmegowda delivered those two suitcases at the residence of Shri M.V. Moily (A.11) at Bangalore in the evening hours of 30-7-93. Accused H.M. Revenna (A.9) and accused Ramalinga Reddy (A.10) ....
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....A-9), Shri Ramalinga Reddy (A-10) and Shri D.K. Audikeshvulu (A-12) travelled. 24. It is further alleged that in the morning of 31-7-93 Roop Ram taxi driver reached Hotel Claridges. Shri Vijay Handa and Shri Harsharan Lal, PWs also reached three in the case of Shri Vijay Handa. Accused D.K. Audikeshvulu (A-12) reached Hotel Claridges on 31-7-1993 at about 7.00 A.M. in the Maruti Car of M/s. M.B.D.L. Shri H.M. Revenna (A-9) and Shri Ramalinga Reddy (A-10) came out of the hotel Along with three V.I.P. Suitcases and the hand bag, which they had carried from Bangalore. Those were loaded in the taxi of Roop Ram and thereafter, they all left for Andhra Bhawan. On arriving at Andhra Bhawan, accused D.K. Audikeshvulu (A-12), H.M. Revenna (A-9), Ramalinga Reddy (A-10), Vijay Handa and Harsharan Lal went up-stairs leaving behind the V.I.P. Suitcases and hand bags in respective cars. They came down after about one hour Along with V. Rajeshwar Rao (A-8). Thereafter, at the instance of accused D.K. Audikeshvuly (A-12) the hand bag and one V.I.P. suit case which were kept in the back-seat of taxi and the VIP suitcase brought by him was shifted to the white Maruti Car of Vijay Kumar Handa, who ....
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....late Shri G.C. Munda also followed him. 27. It is further alleged that 7 M.Ps namely Ram Lakhan Singh Yadav, Ram Sharan yadav, Roshan Lal, Abhay Pratap Singh, Anadi Charan Dass, Hazi Gulam Mohd. Khan and G.C. Munda again assembled at the residence of Ram Lakhan Singh Yadav at 4.00 PM. During meeting, they decided to from a separate entity under the leadership of Ram Lakhan Singh Yadav and vote against no confidence motion. Shri Bhajan Lal visited Ram Lakhan Singh Yadav during said meeting and he also had some secret discussion. Shri Ram Lakhan Singh Yadav spoke telephonically to Shri P.V. Narasimha Rao and assured him that his group would split by evening and Government would survive. He also pleaded that Prime Minister should take care of the rest of the things. Said meeting was also attended by Captain Satish Sharma and during those discussion, accused Bhajan Lal assured those M.Ps substantial sum in cash. Captain Satish Sharma also assured allotment of petrol pumps either to them or their family members. 28. It is further alleged that on 28-7-93 6 M.Ps. of Janta Dal (A) break away group namely Ram Lakhan Singh Yadav, Ram Sharan Yadav, Roshan Lal, Anadi Charan Dass, Abhay Par....
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....Saraswati Kunj House Building society for granting license to the society for colonization. It is also alleged that Bhajan Lal extended hospitality to Hazi Gulam Mohd. Khan and G.C. Munda at Hotel Rajanhs from 1-8-93 to 3-8-93 and paid the bill for ₹ 40,000/-. He also provided a taxi to Hazi Gulam Mohd. Khan for a period of one month and paid the bill of ₹ 17,000/-. It is further alleged that accused Bhajan lal in a public meeting at Hissar on 11-8-93 admitted to have engineered the defection of 7 M.Ps of Janta Dal (A) Within 48 hours which led to survival of Congress (I) Government. 32. it is further alleged that as reward, accused Ram Lakhan Singh yadav was inducted as a union minister in the cabinet of Shri P.V. Narasimha Rao (A-1) in February, 1994. He was also allotted a plot of land in HUDA from the discretionary quota of Chief Minister i.e. Bhajan Lal. Besides that Ram Sharan Yadav acquired a plot of land in Mohan Garden, Uttam Nagar, New Delhi for ₹ 2.75 lakhs during October, 1993 and constructed a palatial house costing more than ₹ 20 lakhs on the said plot. It is further alleged that son of Ram Sharan Yadav namely Ajay Akela has also been allotte....
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...., prosecution has filed three charges-sheets seeking to try above referred accused persons for having committed offences punishable under Sections 120-B IPC read with 193 IPC and Sections 7, 12, 13(2) read with 13(1)(d) of P.C. Act, 1988 and the substantive offences therein. 37. On appearance, accused persons were supplied with the requisite copies of the charge sheets. During the course of arguments on charge accused persons contended that no case for framing of charge against them was made out. Besides that, they claimed immunity from trial in view of Article 105 of Constitution of India on the ground that trial of the case would amount to an enquiry into the motives of the members of Parliament for voting on no confidence motion. They also took a plea that a member of Parliament for voting on no confidence motion. They also took a plea that a member of parliament is not a public servant within the ambit of the P.C. Act, 1988 and as such no case under P.C. Act, 1988 is made out. All the pleas of accused persons were rejected and they were directed to be charged for having committed the offence of conspiracy punishable under Sections 120-B IPC read with Sections 7, 12 and 13(2) ....
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.... (A-8), Shri H.M. Revenna (A-9), Shri Ramalinga Reddy (A-10), Shri M. Veerappa Moily (A-11), Shri D.K. Audikesavulu (A-12), Shir M. Themmegowda (A-13) and Shri Bhajan Lal (A-14) were am,ended suitably and they all were charged for offence punishable under Section 120-B IPC read with Sections 7, 12 and 13(1)(d) of P.C. Act, 1988 as well as substantive offence punishable under Section 12 of the P.C. Act, 1988. They all pleaded not guilty to the charge and claimed trial. 42. Accused Ajit Singh (A-15) was charged for having committed offences punishable under Sections 120-B read with Sections 7, 12, 13(2) read with Sections 13(1)(d) of P.C. Act, 1988. He also pleaded not guilty to the charge and claimed trial." 3. The learned Judge, on appreciation of evidence placed before hi, found that charges against Shri Buta Singh and Shir P.V. Narasimha Rao had been substantiated by the Prosecution while against the other accused they stood not proved, consequently, went on to hold the appellants guilty and further by his order dated 12.10.2000 imposed the following sentence: "Keeping in view the facts and circumstances of the case and gravity of offence and the mitigating circum....
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....gainst them must proceed. When cognizance of the charges against them was taken, Buta Singh and H.M. Revanna (Accused 7 and 9) were not public servants. The question of sanction for their prosecution does not, therefore, arise and the trial on all charges against them must proceed. P.V. Narasimha Rao, Satish Sharma, V. Rajeshwara Rao, Ramalinga Reddy, M. Veerappa Moily and Bhajan lal (Accused 1, 2, 8, 10, 11 and 14) were public servants, being either Members of Parliament or a State Legislature, when cognizance of the charges against them was taken. They are charged with substantive offences under Section 120-B of the Indian Penal Code and Section 12 of the said Act. Since no prior sanction is required in respect of the charge under Section 12 of the said Act, the trial on all charges against them must proceed. Ajit Singh (Accused 15) was a public servant, being a Member of Parliament, when cognizance of the charges against him was taken. He is charged with substantive offences under Section 120-B of the Indian Penal Code and Sections 7 and 13(2) of the said Act. The trial of the charge against him under Section 120-B of the Indian Penal Code must proceed. The appeals shall....
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....tion 13(1)(d) of the Prevention of Corruption Act. 9. Learned counsel submitted that, inter alia, the question that needs to be adjudicated in this appeal is whether Shri Shailender Mahto could have been made an Approver, granted pardon and his testimony used as that of an accomplish protected by the pardon. 10. Shri Rajinder Singh, learned senior Counsel for Shri Buta Singh, contended that he entire case of the conspiracy theory is based on the solitary testimony of PW-1, Shri Shailender Mahto. He submitted, while adopting the argument of Shri R.K. Anand that Shri Shailender Mahto cannot be made an Approver for reasons that even before Shri Shailender Mahto's testimony can be considered, the Approver must first satisfy the test of reliability. He submitted that from the contradictions and improvements made during deposition in Court by Shri Shailender Mahto there can only be one conclusion, namely, that PW-1 is a dishonest witness. Therefore, his testimony cannot be relied upon and ought to be thrown out lock, stock and barrel in which case the prosecution has miserably failed to establish the charge framed against his client. 11. Shri Rajinder Singh, inter alia, submitt....
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....nto three compartments. The first limb relates to he role played by Shri Bhajan Lal in offering and giving bribe to accused, Ajit Singh and the role played by him. The second limb of the conspiracy relates to the offering and giving of bribe by Shri Bhajan lal, Capt. Satish Sharma as also Shri P.V. Narasimha Rao to the MPs of Janata Dal (Ajit) bread-away group, Shri Ram Lakhan Singh Yadav, Shri Ram Saran Yadav, Shri Roshan Lal, Shri Anadi Charan Dass, Shri Abhay Pratap Singh, Shri Haji Gulam Mohd. Khan and Shri G.C. Munda. The third limb of the conspiracy relates to offering and giving of bribe by Shri V. Rajeshwara Rao, Shri P.V. Narasimha Rao and Shri Buta Singh with the help of accused Shri M. Veerappa Moily, Shri D.K. Audi Kesavalu, Shri M. Thimmegowda, Shri H.M. Ravenna and Shri Ramalinga Reddy to the JMM MPs, Shri Suraj Mandal, Shri Shibu Soren, Shri Simon Marandi and the Approver, Shri Shailender Mahto, and accepting of bribe by them. 14. The trial court did not accept the statement of PW-1, Shri Shailender Mahto, in reference to all the other accused except in the case of Shri P.V. Narasimha Rao and Shri Buta Singh which findings have not been challenged by the Prosecutio....
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....C. which was recorded by the learned Metropolitan Magistrate, Shri Harish Dudani, on 22.3.1997 after due compliance with provisions of law. On 8.4.1997, the learned Special Judge granted conditional pardon and accused, Shri Shailender Mahto, became the prosecution witness as Approver. 18. It was contended by learned Additional Solicitor General that even if Shri Shailender Mahto was not an accused, yet pardon could have been tendered to him in view of Section 5(2) of the Prevention of Corruption Act under which section it is not necessary for a person to be an accused so long as the Court is satisfied that the person to whom pardon is to be granted, directly or indirectly be involved in the offence and that on condition of his making full and true disclosure of circumstances within his knowledge, the Court can grant the pardon. The grant of pardon is a pact between the person and the State to the effect that if a full and true disclosure is made, prosecution against him in respect of the offence qua which the persons has deposed will not be launched against him. Therefore, according to the learned Additional Solicitor General, the evidence obtained by the State after grant of par....
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.... more than the power to withdraw from prosecution. That can be exercised at any time in the course of trial but before judgment is delivered." (para 28) 20. The learned Additional Solicitor General submitted that grant of immunity means that they were not liable for either being punished or prosecuted but by no stretch of imagination it can mean that they are not the accused who allegedly committed the offence for which they were charged. the judgment nowhere says that after the grant of immunity they cease to be an accused of the offence charged nor does immunity mean this. On the other hand, the very basis of granting immunity to the person is that the person has done something which is an offence, hence an accused in the eyes of law, but for that act/offence he will not be prosecuted in the court of law, meaning thereby that the grant of immunity only bars the prosecution of the person but it does not wash away the character of the person as an accused nor his complicity/knowledge of the offence committed. He submitted that it is not at all necessary that the person to whom pardon is tendered should be an accused in the common sense as used or understood strictly. A perso....
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.... words "concerned to the offence" does not mean that he must be a party to the offence. It shows the contours of Approver's being concerned and yet being a competent witness. The learned Special Judge has all the powers to tender the pardon and no committal proceedings are required because the Special Judge himself has powers of Magistrate as well as of the Sessions Judge for the purpose of Sections 337 and 338 Cr. P.C. (old code). The legal position under the new code is also unaltered. 23. Learned Additional Solicitor General submitted that in this case the approver Shri Shailendra Mahto was amongst the accused persons who were charged-sheeted for the offences, hence he was a person falling within the scope of Section 5(2) of the Prevention of Corruption Act. There can be no dispute whatsoever about the powers and jurisdiction of the court to tender conditional pardon. The law is settled that the pardon may be tendered at any stage of the proceedings before pronouncement of the judgment. 24. Moreover, the appellants and others in their criminal revision petitions before this Hon'ble Court for quashing of the order dated 6.5.1997 of the trial court directing ....
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....ther was any objection raised nor any clarification sought on the status of Approver by the appellants. The evidence already adduced by him during trial is hence admissible. The appellants cannot be allowed to question the legality or propriety of the order tendering pardon to PW-1 on this ground also. 28. Even if the statement recorded before the trial court is by a person who could not have been made an Approver, his evidence will still be admissible and cannot be discarded as such once having been adduced. If the evidence is relevant, the court is not concerned with the method by which it was obtained, as has been held in Pushpadevi M. Jatia v. M.L. Wadhwan, Additional Secretary Govt. of India and Ors. . 29. According to the learned Additional Solicitor General, the logic behind the scheme of grant of pardon as provided under Section 5(2) of the Prevention of Corruption Act, in return for a full and true account of the offence, is to allay the fear of being prosecuted from the mind of the person making such disclosure. When PW-1 made the application for grant of pardon before the trial court, he was an accused. Even if we take the contention of the appellants to be correct, ....
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....immediately after opening fresh accounts. Efforts to fabricate the evidence regarding the receipt of money of coupons at a subsequent stage showing back dated receipt of money by JMM leaders by way of donation. Another chart submitted by the learned Additional Solicitor General in his written submissions shows a comparison between the statement under Section 161 Cr.P.C., statement under Section 164 Cr.P.C. and the deposition in court as PW-1. 32. It was submitted that while appreciating the evidence of an approver the Hon'ble Supreme Court in Lachhi Ram v. State of Punjab, 1967 Cr.L.J. 671 held in para 9 that first test to be applied is that the court should find that there is nothing inherent or improbable in the evidence given by the approver, and that there is no finding that the approver has given false evidence, the second test which thereafter still remains to be applied in the case of an approver, and which is not always necessary when judging the evidence of other witness, is that his evidence must receive sufficient corroboration. 33. Discrepancies and contradictions in the evidence of some witness, does not mean that the entire evidence of the prosecution is to be....
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.... of Kerala, . 38. He submitted that once PW-1, Shri Shailender Mahto, the Approver, is a reliable witness, consequently both the appellants, namely, Shri P.V. Narasimha Rao and Shri Buta Singh would be guilty of charge under Section 120-B IPC read with Sections 12, 5(2) read with Section 15(1)(d) of the Prevention of Corruption Act, 1988 as well as Section 12 of the Act. In support of this contention learned Additional Solicitor General relied upon the following decisions of the Supreme Court in: Girja Shanker and Ors. v. State of M.P., 1989 Cr.L.J. 242, Jamuna Singh v. State of Bihar, , Faguna Kanta Nath v. State of Assam, , Gallu Shah v. State of Bihar. 39. Further he submitted that with the aid of Section 10 of the Evidence Act, the Prosecution has been able to bring home the guilt of the accused beyond reasonable doubt. The accused persons were, well-informed, powerful and influential persons and the Prosecution painstakingly, with great professionalism, investigated and collected all possible material available which squarely points at the guilt of the appellants. 40. The question that has arisen for my attention is whether PW-1, Shri Shailender Mahto, is a reliable witn....
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....as also identify other persons concerned with the commission of the crime be they principal or abettors. The person, if does not make a complete and full disclosure of circumstances within his knowledge, the pardon granted can be withdrawn. The pardon under Section 5(2) of the Prevention of Corruption Act is deemed to be one under Section 307 of the Code of Criminal Procedure. 43. The argument of learned counsel for the appellant that Shri Shailender Mahto, who enjoyed the immunity under Article 105(2) of the Constitution being a Member of Parliament alleged to have accepted bribe in connection with the voting in Parliament cannot be a person envisaged under Section 5(2) of the Prevention of Corruption Act, would mean that the grant of pardon under Section 5(2) of the Prevention of Corruption Act is bad in law. In other words, the Court granting pardon had no jurisdiction to do so. Undoubtedly, if the grant of pardon is without jurisdiction, the testimony of PW-1 cannot be used as an Approver nor can it be used as if he were an ordinary witness. 44. Having heard learned counsel for the parties and having bestowed my careful attention to the arguments addressed before me, I deem....
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.... arguments on charge, PW-1, Shri Shailender Mahto, turned Approver. The standard of investigation and the material placed before the Court can be gaged from the fact, that both parties have argued before me, that but for the statement of the Approver, PW-1, Shri Shailender Mahto, no case is made out against the accused persons. After the deposition of PW-1 was recorded, the legal mind went into top gear. Challenge was made to the framing of charge on the ground, inter alia, that accused being Members of Parliament were protected from prosecution under Article 105(2) of the Constitution. This controversy was finally put to rest by the Supreme Court which, by a majority judgment, , held that some of the alleged bribe-takers were protected under Article 105(2) of the Constitution. Charge was amended against those accused who fell in the judicial drag-net. At the end of the trial only the appellants herein, Namely, Shri P.V. Narasimha Rao and Shri Buta Singh were convicted while the others were acquitted. 46. Coming to the question whether PW-1 could have been made an Approver, it would be proper to note that at the time of grant of pardon, there was no procedural or jurisdictional e....
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....e as a witness on account of contradictions, improvements, omissions and confessed lies. To appreciate the challenge of learned counsel for the appellants, it is necessary to examine at length the material on record qua the various statements made by PW-1 at various times/occasions. The material which could legitimately be referred to, is the press statement dated 26.2.1996, confession application dated 16.3.1997, confession statement dated 22.3.1997 and deposition in court dated 14.11.1997 to 28.11.1997. 50. There is no doubt that this witness has changed his stand from time to time. The trial court, while appreciating his evidence, has chosen to disregard his statement qua the co-accused by taking recourse to the non-availability of material to corroborate the statement. However, while dealing with the case of Shri Buta Singh and Shri Narasimha Rao, the trial court has found corroboration which corroboration was common to all the accused. 51. Coming to the relevant portion of the deposition of this witness regarding meeting of Shri Buta Singh, Shri Narasimha Rao and the JMM MPs on 26.7.1993, which is the cornerstone of the Prosecution's case, it would be relevant to extra....
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.... Same evening, on the invitation of Shri Buta Singh, we all the 4 MPs namely Shibu Soren, Suraj Mandal, Simon Marandi and myself reached at his Government accommodation. While taking tea, Shri Buta Singh asked for our support in favor of the Congress Party and told us that the Prime Minister is remembering us. Thereafter, all 4 of us accompanied Shri Buta Singh to the residence of the Prime Minister at 7, Race Course Road, where we met the Prime Minister". 54. In this statement dated 22.3.1997, he has stated as under: "At about 7 PM on 26.7.1993, Suraj Mandal telephoned me and informed that I should reach the house of Guruji (Shibu Soren) from where we have to proceed to the house of Shri Buta Singh. I reached at the house of Shibu Soren at 17, Gurdwara Rakab Ganj Road. From there, all of us went to the house of Buta Singh in a car. Buta Singh was waiting for us. There, we sat in his drawing room and were offered tea. During the tea, he told us that the Prime Minister is remembering us. On this, Suraj Mandal replied that what is the use of the Prime Minister remembering us now as our matter of Jharkhand Council is still handing fire and he has not found any soluti....
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....Mandal and Simon Marandi went to the residence of Shri Buta Singh in Ambassador Car. Shri Buta Singh was waiting for us. He made us sit in drawing room and served us with the tea. While we were having tea, accused Buta Singh present in the court told us that Prime Minister had remembered us. Suraj Mandal replied "what would be there by Prime Minister remembering us as the matter of Jharkhand Council will still unresolved". On this accused Buta Singh suggested us to have direct conversation with the Prime Minister. Thereafter, we all went to the residence of Prime Minister, 7, Race Course Road. Buta Singh travelled in his own car with his security guards and we four went in our Ambassador Car. We left the cars at the entrance gate and went inside the residence on foot. We sat in the waiting room for some time. After some time one security official came and accused Buta Singh went inside with him. After some time accused Buta Singh returned back and took us to meet the Prime Minister. Accused Shri P.V. Narasimha Rao was sitting in the room and we also sat there. Shri Buta Singh initiated the conversation by saying that the matter of Jharkhand Council was still unresolved. H....
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.....93 at 7.00 P.M. in an auto rickshaw. At that time, I did not have a car. From the residence of Shibu Soren on the same day we went to the house of Shri Buta Singh, in the car of Shibu Soren. I do not remember the make of said car. It is correct that in my examination dt. 4.11.1997 I stated that we went to the house of shri Buta Singh in Ambassador car. I do not remember, if I had previously stated somewhere that we went to the house of Shri Buta Singh in a Maruti Gypsy. I must have stated this to CBI on 20.6.1996. We met Shri Buta Singh at his residence on 26.7.93. On the same day from the residence of Shri Buta Singh we went to the residence of Shri P.V. Narasimha Rao. At the house of Shri P.V. Narasimha Rao I did not have any direct conversation regarding money with him." 56. Analysing the three statements, it is evident that there are material contradictions/improvements made by this witness from stage to stage. In the Press release there is no invitation by Shri Buta Singh to the JMM MPs. While in the confession application, the Approver has invited the element of invitation by Shri Buta Singh but there is no mention of going to the house of the Prime Minister. In the c....
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....n for this witness being treated as an Approver. 58. Coming to the statement of PW-1 as Prosecution witness, there are material contradictions with his earlier statements. In his confession statement dated 26.7.1993, the Approver states that the Prime Minister, Shri Buta Singh and Shri Suraj Mandal went to a separate room while in the statement in Court he says that initially Shri Narasimha Rao and Shri Buta Singh went to the other room and later on they called Shri Suraj Mandal. He further states that after the Prime Minister, Shri Buta Singh and Shri Suraj Mandal came out of the meeting, the Prime Minister told the Approver and other MPs that they should help; him and he would help them while in his statement in court he says that the Prime Minister, while discussing the matter with the other Mps, said that they should help him and he would help them. In his press Conference he states that the Prime Minster said that whatever was talked between him, Shri Buta Singh and Shri Suraj Mandal, shall be fulfillled while in the confession statement he states that the Prime Minister told that whatever has been talked between Shri Suraj Mandal, shall be fulfillled. Again he omits to ment....
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....ovements regarding the talks between Captain Satish Sharma and Shri Simon Marandi, also regarding meeting between the JMM MPs and Shri Ashok Rao Deshmukh on 25.7.1993 as well as regarding meting with Shri Rajeshwar Rao on 26.7.1993. There are contradictions, improvements and omissions regarding meeting of the JMM MPs with Shri Sita Ram Kesari on 26.7.1993 in Parliament House; regarding event leading to payment of money on 29.7.1993; regarding payment to Shri Ram Lakhan Singh Yadav Group; regarding events of payment of money on 30.7.1993, 31.7.1993 and 1.8.1993; regarding press Conference dated 26.2.1996; regarding his statement made in Parliament on 29.2.1996; regarding the details of meeting with Shri ram Jethmalani and Shri Atal Bihari Vajpayee; regarding signing of Resolution dated 11.7.1993; regarding the bail application before the trial court,; regarding threats extended to the Approver and his family and also regarding contradictions and improvements with respect to statement under Section 161 Code of Criminal Procedure which was put to the witness. He is blatent enough to state that his statement in parliament on the subject of his taking money pursuant to the Press Confere....
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....remember if on 20.6.1996, I did not tell the Investigating Officer about separate meeting between PM, Buta Singh and Suraj Mandal in a separate room. Further, he admits that "I do not remember if during my interrogation dated 12.9.1996 I was asked about the details of meeting which took place at the residence of Shri P.V. Narasimha Rao. I do not remember if in the said statement, I did not mention about meeting between PM, Suraj Mandal and Buta Singh in a separate room". It is admitted by the witness that "it is correct that Shri Buta Singh did not talk about money with me. It is also correct that in my presence the talks which took place with Shri Buta Singh were only in relation to creation of Jharkhand Council. It is correct that it was the agenda of JMM to ensure creation of separate Jharkhand State since 1971-72. It is correct that during his tenure as Home Minister Shri Buta Singh had taken interest in the issue of creation of Jharkhand and his Ministry recommended creation of separate Jharkhand Council. It is correct that when the issue of No Confidence Motion came up, we four JMM MPs discussed and decided to exploit the situation for obtaining creation of Jha....
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....viction." 64. The statement of PW-1 is being sought to be corroborated by his statement under Section 164 Code of Criminal procedure. Such corroboration is impermissible. The statement under Section 164 Code of Criminal Procedure cannot be used to corroborate the testimony of a witness who needs to be corroborated by material particulars by dependent evidence. The corroboration must necessarily come form source de hors, the Approver or an accomplish. There is no such material in the entire case and the only corroboration is the statement under Section 164 Code of Criminal procedure of the Approver. It is well settled that a witness how needs corroboration cannot corroborate himself by any statement made earlier or later. His evidence needs to be corroborated by independent evidence and his own previous statement cannot be said to be independent evidence. , Rameshwar s/o Kalyan Singh v. The State of Rajasthan, deals with evidence of an accomplish. It lays down that there must be an additional evidence rendering it probable that the story of the accomplish is true and it is reasonably safe to act upon it. The independent evidence must not only make it safe to believe that crim....
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....ure plainly does not amount to corroboration in material particulars which the courts require in relation to evidence of an accomplice. An accomplice cannot corroborate himself. Tainted evidence does not lose its taint by repetition." Criminal Revision Petition No.33 of 2001 65. Coming to the revision petition this revision petition seeks to challenge the acquittal of Capt. Satish Sharma, Shri V.Rajeshwar Rao, Shri H.M. Revanna, Shri Ramalinga Reddy, Shri M.Veerappa Moily, Shri D.K. Audikesavulu, Shri M.Thimma Gowda, Shri Bhajan Lal and Shri Ajit Singh. It was argued by learned Senior Counsel, Shri P.N. Lekhi, that while deciding the revision petition the courts need to have a creative legal approach and that such an approach was necessitated for reasons that the law makers themselves have chosen to trample the Rule of Law. Creative criminology is the need of the 21st Century because of mounting political and other corruptions. He relied upon the judgments of the Supreme Court to advance his arguments on this score. The following judgments were referred to : 66. Sunil Batra v. Delhi Administration and Ors., , The State of Karnataka and Anr. v. Ranganatha Reddy and Anr., ....
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....er took place in Delhi. 68. Learned counsel further submitted that PW-4, Capt. Dilawar Singh, who was cross-examined by the Public Prosecutor, has referred, amongst others, to Capt. Satish Sharma, Shri Ajit Singh, Shri Bhajan Lal, Shri Shibu Soren, Shri Suraj Mandal, Shri Ram Lakhan Singh Yadav, Shri Anadi Charan Das, Shri Abhay pratap Singh and Shri Ram Sharan yadav and has given a graphic description of the activities in the residence of Shri Ajit Singh, Shri Ram Lakhan Singh Yadav etc. and also overheard the telephonic conversation. He has admitted sending of Ex.PW-4/A which, in fact, is his written admission of all the facts that were recorded in his statement under Section 161 of the code of Criminal Procedure. Learned counsel submitted that a hostile witness could very well be relied upon and in this case, PW-4, Capt. Dilawar Singh has corroborated the testimony of PW-1. Devender Mukhia, PW-2 filed an affidavit before the High Court regarding his meeting with Shri Bhajan Lal, Capt. Satish Sharma, Shri Simon Marandi, Shri Shailender Mahto, Shri Ram Lakhan Singh Yadav, Shri Vidya Charan Shukla and Shri B.N. Safaya and has admitted doing so in his cross-examination. the facts ....
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....is amount was paid in cash against three cheques. Shri Thimme Gowda did not lead evidence to show how the cash withdrawal was utilized by him or his firm. Learned counsel, therefore, submitted that benefit of doubt given in the case of acquitted accused is fanciful. He submitted that exaggerated devotion to the Rule of benefit of doubt must not nurture fanciful doubts. Letting guilty escape is not doing justice according to law, as held in, Gurcharan Singh v. Satpal Singh, . Learned counsel further submitted that it is the duty of the court to make genuine effort to unearth the realities, as held in Mohan Singh and Anr. v. State of M.P., . He further submitted that giving of benefit of doubt was an act of vacillating mind, the court should have looked into the matter from the balance of probabilities. 71. Learned counsel appearing on behalf of the respondents in the revision petition have primarily confined their arguments to the parameters set down by the Supreme Court while dealing with the cases of acquittal and revisions at the instance of the complainant, 72. In D.Stephens v. Nosibolla, , the Supreme Court held that in cases of revision against acquittal, the Court ought n....
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....nce which the prosecution wished to produce or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Section 439(4). We have therefore to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles." 74. In Mahendra Pratap Singh v. Sarju Singh and Anr., , the Supreme Court held that : "8. The practice on the subject has been stated by this Court on more than one occasion. In D.Stephens v. Nosibolla, , only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They a....
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...., which have been laid down by the Supreme Court, arise. The Supreme Court has further held in Khetra Basi Samal and Anr. etc. v. State of Orissa etc., , that : "10. This Court has had to examine the jurisdiction of the High Court under this Section on several occasions. In D.stephens v. Nosibolla, , it was pointed out (see at p.291 of SCR) : (at p.199 of AIR) that : "The revisional jurisdiction conferred on the High Court under Section 439 of Code of Criminal Procedure is not to be lightly exercised, when it is invoked by a private complaint against an order of acquittal, against which the Government has a right of appeal under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record." Again in Logendranath Jha. v. Polilal Biswas, where the High Court had set aside an order of acquittal of the appellants by the Sessions Judge and directed their re....
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....eal court (the High Court in this case) has set aside the order of acquittal almost entirely on the ground that the Magistrate should not have disbelieved the three eyewitnesses, viz. P.Ws. 1, 2 and 5, the case clearly falls within the contingencies mentioned in the above decision of this Court. The High Court judgment does not show that the trial court shut out any evidence which the prosecution wanted to produce or admitted any inadmissible evidence or overlooked any material evidence. The Magistrate examined the evidence produced by the prosecution......The High Court proceeded to re-appraise the evidence of the witnesses and upset the finding of the Magistrate thereon on the ground that he "had not taken the trouble of sifting the grain from the chaff." Clearly such a course is not permissible under Section 439 of the Criminal Procedure Code." 76. Further, the Supreme Court has in, Chaganti Kotaiah and Ors. v. Gogneni Vankateshwara Rao and Ors., , held that : "19. We are of the opinion that the entire approach made by the High Court in dealing with the Criminal Revision filed against acquittal by the private party is contrary to the principles laid down ....
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....y the High Court that though substantive charges had been framed against the accused read with Section 34 or alternatively with Section 149 IPC, the Trial Court has not recorded nay finding in this regard. Here again, the High Court's view is erroneous. We have already referred to the finding recorded by the Trial Court that in view of the definite case of the prosecution and the nature of the evidence, none of the accused can be held constructively liable. It is on that ground that the Trial Court has not found the accused constructively guilty. 21. We have indicated the reasons, which promoted the High Court to order a retrial. The consequence of this will be to put considerable strain on the acused who have already gone through a trial at considerable strees and expepense. After going through the judgment of the learned Sessions Judge, we cannot certainly say, particularly in view of the evidence on record that either the acquittal of the twenty- two accused or the acquittal of the eight convicted accused of the rest of the charges was not justified. At any rate, it may be safely stated that the learned Sessions Judge has taken into account all the relevant circumstances. ....