Entire Proceedings Can’t Be Quashed In Corruption Case Just Because Informant Turned Hostile At Investigation Stage: Orissa High Court

While rejecting a petition filed for quashing such a case, Single Judge Bench of Justice Radha Krishna Pattanaik said:

“No doubt the essential ingredients of demand and acceptance shall have to be established to bring home the charge but even when a material witness does not support the prosecution after being a part of the alleged trap at whose instance it was laid, the Court is of the considered view that notwithstanding his hostile testimony during investigation, the whole of the evidence cannot be discarded.”

Factual Background

A case was instituted on the basis of a written report lodged before the DSP (Vigilance), Phulbani Unit on June 23, 2011 with an allegation regarding the illegal demand of Rs.23,000/- as bribe by the petitioner from the informant towards new electricity connection for a welding shop.

A trap was laid by the Vigilance team and allegedly the said amount was recovered from the petitioner and the same was seized. After completion of investigation, the petitioner was charge-sheeted under Sections 13(2) read with 13(1)(d) besides Section 7 of the Prevention of Corruption Act.

However, informant did not corroborate the alleged trap and recovery of the bribe amount from the petitioner while being examined during investigation. The petitioner claimed that the entire prosecution case would now have to depend on the evidence of the over-hearing witness which is not sufficient to prove and establish the fact of illegal demand of bribe and its acceptance. Therefore, he filed the petition for quashing the pending proceedings against him.

Contentions

H.K. Mund, counsel for the petitioner contended that when the informant has not extended his support for the alleged trap and since the testimony of the over-hearing witness is of no value to prove the demand and acceptance, the continuation of the vigilance proceeding would become an abuse of process of law. Therefore, he prayed the Court to exercise its inherent jurisdiction to quash the proceedings.

P.K. Pani, Standing Counsel for the Vigilance Department submitted that prosecution against the petitioner cannot be quashed merely because the informant did not support the trap, as there is other evidence on record to prove the demand and acceptance of bribe by the petitioner. While contending so, he placed reliance on the decision of the Apex Court in Vinod Kumar v. State of Punjab.

Court’s Observations

The Court referred to P. Satyanarayan Murthy v. District Inspector of Police, State of Andhra Pradesh, wherein it was held that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof de hors the proof of demand, ipso facto, would not be sufficient to bring home the charges under Sections 7 and 13 of the Act. Therein, it was also made clear that in absence of proof of demand, legal presumption under Section 20 of the Act would also not arise.

However, the court said notwithstanding the material witness' hostile testimony during investigation, the whole of the evidence cannot be discarded. 

“The demand and acceptance may be proved from other materials during the trial connected to the alleged trap and also by subjecting the informant to examination in terms of Section 154 of Indian Evidence Act. Whether there was a demand and acceptance of illegal gratification by an accused can still be proved by incriminating evidence even when the prosecution case does not receive any support from a witness like the informant," the Court further noted.

The court said the decision in Vinod Kumar strongly favours the contention of prosecution, wherein it has been held and observed that the earlier decisions in B. Jayaraj Vrs. State of AP (2014) 4 SCALE 81 and M.R. Purushotham Vrs. State of Karnataka (2014) 11 SCALE 467 do not lay down a proposition that when the complainant turned hostile and does not support the case, the prosecution cannot prove its case otherwise and the Court cannot legitimately draw the presumption under Section 20 PC Act.

"In view of the settled position of law, the conclusion is inevitable that the vigilance proceeding before the learned court below cannot be quashed even after the informant’s hostile testimony during investigation as the demand and acceptance of illegal gratification by the petitioner would still depend on the probative value of other evidence including that of the over-hearing witness," said the court, while dismissing the petition.

Case Title: Brahmananda Sahu v. State of Orissa (Vigilance)

Case No.: CRLMC No. 5247 of 2015

Judgment Dated: 16^th December 2022

Coram: R.K. Pattanaik, J.

Counsel for the Petitioner: Mr. Hemanta Kumar Mund & Ms. A.K.Dei, Advocates

Counsel for the Respondent: Mr. P.K. Pani, Standing Counsel & Mr. Niranjan Moharana, Additional Standing Counsel for the Vigilance Department

Citation: 2022 LiveLaw (Ori) 167