PRADEEPTA KUMAR PRAHARAJ V. STATE OF ODISHA (VIG.)

Mere recovery of the bribe amount from the accused in the absence of any evidence with regard to demand and acceptance of the bribe cannot be the basis of conviction: Orissa High Court

The appeal was filed against the judgement and order dated 22.03.2007 passed by the Special Judge (Vigilance), Berhampur, Ganjam in G.R. Case No. 38 of 1998 (V)/T.R. No. 73 of 2000 wherein the appellant was convicted under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced to undergo R.I for six months and to pay fine of Rs. 1000/- and in default R.I for more three months under Section 7; further to undergo R.I for one year and fine of Rs. 2000/- and in default R.I for six months more under Section 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

Key facts of the case include;

• The Appellant, Dr. Pradeepta Kumar Praharaj, a medical officer at Project Hospital, Khatiguda, was accused of demanding a bribe of Rs 500/- from Gajendra Nayak, informant, who was sent to the hospital for a check-up by the police after suffering a bleeding injury from an assault.

• The informant alleged that the bribe was demanded for issuing a favourable medical certificate. To this, the informant expressed his inability to such a huge amount and paid only Rs.100/- and he was asked by the appellant to pay the remaining Rs 400/- within 4 – 5 days. The informant alleged that when he was discharged on 04.09.1998, the appellant demanded him the amount.

• Therefore, the informant lodged a written report with the vigilance. After which a trap was laid to catch hold of the appellant. During the trap, the appellant was caught red-handed accepting the remaining amount. Once the investigation was completed, a charge sheet was filed against him in accordance with Section 7 and Section 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The trial court convicted him on the aforementioned counts pursuant to which the appellant filed an appeal with the High Court challenging the impugned order.

OBSERVATION BY THE COURT:

• The Court took notice of the informant's assertion during his examination-in-chief that he kept the money on his table as per the appellant's instructions. While in the cross-examination, he refuted any demand of money made by the appellant for his treatment and stated that the appellant discharged him from the hospital after his treatment was over without him paying anything for his treatment.

• The Court further held that though the informant has alleged that he was discharged from the hospital on 04.09.1998 and on the said date, the appellant reiterated his demand for bribe, but as per the bed-head ticket, the informant was discharged on 28.08.1998. The Court upon considering such facts held that in absence of any clinching evidence it is highly improbable that the appellant-doctor would demand the bribe amount almost seven days after the discharge.

• The Court also took note of the fact that the over-hearing witness only saw the informant keeping the notes on the appellant’s table but was completely silent about the appellant demanding or receiving any money from the informant. Further, the court went on to state that “Law is well settled that mere recovery of the bribe amount from the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. In order to constitute an offence under section 7 of the 1988 Act, proof of demand is a sine qua non”.

• It was further brought to the notice of the Court that the hand-wash sample carried the seal of an Administrative Officer who was not a part of the trap party. It was stated that even though the hand-washes of the appellant were taken in the hospital, but the was sealed sealed only after they were brought to the Vigilance Office, and under such circumstances, tampering with the hand-washes cannot be completely ruled out.

• Citing this, the Court stated that “It is a settled principle of law that apart from the factum of hand wash of the accused being taken properly following due procedure of law in presence of witnesses, it is also the duty of the prosecution to establish and cover the entire path right from the beginning by adducing cogent, reliable and unimpeachable evidence that the hand wash solution of the accused was properly sealed, preserved and there was no chance of tampering with the same during its retention by the investigating agency before being produced in Court for sending it to the chemical examiner.”

• Lastly, the Court also took note of the conduct of the appellant following his capture. When the trap party members confronted him and inquired as to whether he had accepted the informant's bribe money, he boldly responded in the negative. The Court determined that the appellant's actions qualify as res gestae under section 6 of the Evidence Act.

JUDGEMENT

• The Court while concluding relied upon the Apex Court’s view in Neeraj Dutta v. State (Govt. of N.C.T Delhi) reported in (2013) 4 SCC 731 wherein it was held that the offer by the bribe giver and demand by the public servant have to be proved by the prosecution as a fact in issue. Mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under section 7 or section 13(1)(d),(i) and (ii) respectively of the Act. The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a Court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof.

• As a consequence, the Court was pleased to hold that there was no sufficient, cogent and reliable evidence on record to establish the guilt of the appellant and therefore, acquitted him of all the charges. The Court in its concluding remarks stated that “In the absence of any clinching evidence relating to the demand and acceptance of the bribe money by the appellant, no guilt can be fastened upon him in a callous manner. In the circumstances, since the guilt of the appellant has not been established beyond all reasonable doubt, I am constrained to give benefit of doubt to the appellant. Accordingly, the Criminal Appeal was allowed.”

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