JARNAIL SINGH & ANR versus STATE OF PUNJAB

[2022] 13 S.C.R. 196

[2022] 13 S.C.R.

JARNAIL SINGH & ANR.

STATE OF PUNJAB

(Criminal Appeal No. 634 of 2010)

BJULY 12, 2022

[AJAY RASTOGI AND VIKRAM NATH, JJ.]

Penal Code, 1860: ss. 409/109, 420/109, 467/109, 471/109,474/109, 477-A/109 and 120-B – Prevention of Corruption Act,1988 – ss. 13(i)(d) and 7 – Allegations against the General ManagerCof the State Roadways Depot, that in connivance with conductorand others was selling and using tickets got printed on his own andsold through his own persons, who used to collect money for him,causing huge loss to the Depot – Registration of FIR – Convictionand sentence of the three conductors-appellants u/ss. 409/109, 420/D109, 467/109, 471/109, 474/109, 477-A/109 and 120-B IPC andss. 13(i)(d) and 7 of the PC Act, and acquittal of the others by thecourts below – On appeal, held: Failure of the inspecting team, toprove the recovery of the tickets to have been validly made as alsofailure to prove the enquiry report as only photocopy was filed –No efforts by the prosecution to prove the existence of the originalEand loss thereof in order to take an order for leading secondaryevidence – Thus, no reliance could be placed upon the enquiryreport – Once, the recovery of the tickets is found to have not beenmade in accordance with law, nor the seized tickets could beconnected to the three different buses and the conductors manningFthe said buses-appellants, not safe to rely upon the unconfirmedtickets to connect them to the appellants – Enquiry report not proveddespite the State applying for leading secondary evidence and notpursuing it any further – Thus, no evidence to establish the chargeagainst the appellants – Judgment of the High Court and the trialcourt qua the appellants set aside – Evidence.G

Ashok Dhulichand v. Madhavrao Dube (1975) 4 SCC664 : [1976] 1 SCR 246; Jai Dev v. State of PunjabAIR 1973 SC 612; Sharad Birdichand Sarda v. Stateof Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88;Sujit Biswas v. State of Assam (2013) 12 SCC 406;

Samsul Haque v. State of Assam (2019) 18 SCC 161;Sarwan Singh v. State of Punjab AIR 1957 SC 637 :[1957] SCR 953; Shivaji S. Bobade v. State ofMaharashtra (1973) 2 SCC 793 : [1974] 1 SCR 489;Subhash Chand v. State of Rajasthan (2002) 1 SCC702 : [2001] 4 Suppl. SCR 163; Sujit Biswas v. State ofAssam (2013) 12 SCC 406 : [2013] 3 SCR 830; RajivSingh v. State of Bihar (2015) 16 SCC 369; State ofU.P. v. Wasif Haider (2019) 2 SCC 303 : [2018] 14SCR 1161 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.634 of 2010.

From the Judgment and Order dated 14.09.2009 of the High Courtof Punjab & Haryana at Chandigarh in Criminal Appeal No. 205-SB of2002.

With

Criminal Appeal No. 633 of 2010.

Neeraj Kumar Jain, Sr. Adv., D. P. Singh, Ms. Shreya Dutt, ManuMishra, Tavishi Kumar, Sanjay Jain, Sanjay Singh, Aniket Jain, UmangShankar, Advs. for the Appellants.

198SUPREME COURT REPORTS

AR. K. Rathore, Ms. Jaspreet Gogia, Advs. for the Respondent.The Judgment of the Court was delivered by

VIKRAM NATH, J.

1. These two appeals question the correctness of the judgmentBand order dated 14.09.2009 passed by the High Court of Punjab andHaryana at Chandigarh in Criminal Appeal No.205 (SB) of 2002 (SohanLal and others Vs. The State of Punjab) whereby, the High Courtconfirmed the conviction of the appellants namely, Jarnail Singh, SalwantSingh and Balkar Singh under Sections 409/109, 420/109, 467/109, 471/109, 474/109, 477-A/109 and 120-B of the Indian Penal Code, 1860[1] andCSections 13(i)(d) and 7 of the Prevention of Corruption Act, 1988[2] toundergo three years rigorous imprisonment with fine of Rs.1000/- and indefault of fine to undergo additional six months imprisonment, awardedby the Special Judge, Faridkot vide judgment and order dated 28th January,2002.

DFACTS:

2. Briefly stated the relevant facts could be summarised as under:

(i) One Malkiat Singh, driver of the Punjab Roadways Depot,Muktsar made complaint dated 04.05.1996 to the higher officers ofthe Department alleging that General Manager of the Punjab RoadwaysEDepot, Muktsar in connivance with conductor and others has been sellingand using tickets got printed on his own and sold through his own persons,who used to collect money for him and, as such, has caused loss to thetune of crores of rupees to the Depot.

(ii) On the basis of the said complaint, the Deputy CommissionerFaddressed letter to the Senior Superintendent of Police, Muktsar andon its basis, an FIR was registered by Inspector, Dilbag Singh.

(iii) The Deputy Commissioner, Muktsar also forwarded thecomplaint to the Secretary, Transport Department, Chandigarh regardingthe alleged scandal. The Secretary in turn required three Officers namely,G

(a) Mr. Darshan Singh Sandhu, Deputy Secretary, Forest andWildlife, Chandigarh, Muktsar (PW-20),

(b) Mr. M.S. Sandhu, S.D.M., Zira (PW-21) and,

1 In short “IPC”H2 In short “PC Act”

(c) Mr. Amarjit Singh Shahi, S.D.M., Bassi Pathana (PW-22);to make surprise checking and submit their report.

(iv) These three officers made checking of the conductors of thebuses on the routes of Delhi-Muktsar and Sirsa-Muktsar on 11.05.1996.They took into possession old tickets and tickets value of which wasincreased by affixing stamps on the same, the diaries and way-bills ofdrivers, and the cash in their possession in the ticket bag.

(v) The Enquiry Committee also recorded statements. Thestatements of conductors of some of the buses, which were given oncontract basis by the General Manager were also recorded.

(vi) The Enquiry Committee also recorded the statements ofGeneral Manager, Traffic Manager and the Assistant MechanicalEngineer.

(vii) The Committee was of the view that with the connivance ofthe General Manager, big scandal was committed and the Governmentwas put to loss of lakhs of rupees by the Inspectors of Muktsar Depotand also Inspectors of other Depots and even the Inspectors of theflying squad and the In-charge of the flying squad were also conniving inthe same.

(viii) On the basis of the detailed enquiry report, recommendationwas made for suspending the General Manager, Traffic Manager,Assistant Mechanical Engineer, concerned Inspectors and Conductors.

(ix) On the basis of legal opinion given that prima facie casewas made out for registering case under Sections 409, 419, 420, 465,468, 467, 471, 474, 477-A and 120-B of IPC, an FIR was registered.

(x) Accordingly, after due investigation, police report underSection 173(2) the Code of Criminal Procedure, 1973[3] was submitted onthe basis of which, cognizance was taken and charges were framedagainst fifteen (15) persons, viz. seven (7) Conductors, four (4) Inspectorsand four (4) Managers/Senior officials. The prosecution examined asmany as twenty-three (23) witnesses and also filed documentaryevidence.

3. All the incriminating circumstances and the evidence led by theprosecution were put to the accused at the stage of section 313 CrPC.The accused denied all the allegations and pleaded innocence.3 In short “CrPC”

A4. The Trial Court vide judgment dated 28.01.2002 acquitted twoManagers/Senior officials namely, Iqbal Singh and Amrik Singh and twoInspectors namely, Gurucharan Singh and Kharaiti Lal. Rest of theeleven(11) accused were convicted by the Trial Court. Against thejudgment of the Trial Court four (4) appeals were filed bearing Nos.179(SB) of 2002, 205 (SB) of 2002, 228 (SB) of 2002 and 245 (SB) of 2002.BThe High Court vide judgment and order dated 14.09.2009 acquitted theremaining Managers/Senior Officials namely, Jagdip Singh Galwatti andAmarjeet Singh Sandhu. It also acquitted remaining two Inspectorsnamely, Sohan Lal and Teja Singh. It further acquitted three Conductorsnamely, Charanjeet Singh, Iqbal Singh and Sham Lal. One of theCconductors namely, Jugraj Singh had died during the trial and against himproceedings were abated. The High Court thus confirmed the convictionof three conductors namely, Jarnail Singh, Salwant Singh and BalkarSingh, who are before this Court.

5. We have heard learned counsel for the parties and perused theDmaterial on record.

6. The submissions advanced on behalf of the appellants may besummarized as follows:

(i) The enquiry report jointly submitted by the three officers whowere examined as PW-20, PW-21 and PW-22 were not placed on recordEin original, an objection was taken regarding its admissibility as only axerox copy was filed. The Trial Court had taken it on record subject tothe objection by the defence that the same would be admitted subject toproof and further evidence. This order was passed by the Trial Court on15th February, 2001 on an application, filed by the Public ProsecutorFunder Section 65(c) and the Indian Evidence Act, 1872[4], seekingpermission to give secondary evidence of the original document, namely,the affidavit of Malkiat Singh and the enquiry report given by the threeofficers. The Trial Court by the above order allowed the application forpermission to lead secondary evidence of the above-mentioned documentssubject to proof of its existence and subsequent loss of the said documents.GThereafter, no further evidence was led by the State to prove the loss ofthe existence of the original documents thereby enabling the Trial Courtto accept the said explanation and permit them to lead secondary evidence.No further evidence was led by the State.

(ii) The enquiry report at best could be said to be fact-findingreport and was not piece of evidence. It could have been the basis forregistering the FIR and nothing more than that. Even the Trial Court,when the true copy of the report was being exhibited, had recorded theobjections of the defence in the following terms in the statement of ArjanSingh, PW-18, who had come to prove the said report in the followingterms: “Objected to as these documents will be exhibited subject toproof of the existence of documents in original and loss thereof.”

(iii) The Investigating Officer, Baljeet Singh Buttar, PW-23 statedthat he had received photocopy of the affidavit of Malkiat Singh markedwith letter of Deputy Commissioner and enquiry report from the StationHouse Officer, Dilbag Singh and that he conducted the investigation. Hefurther goes on to say that he does not know whether the original of theenquiry report, affidavit and other documents were lost.

(iv) In support of the above submissions, the appellants have reliedupon the judgment in the case of Ashok Dhulichand Vs. MadhavraoDube[5].

(v) The alleged used tickets/fake tickets/tickets bearing thenomination of higher value were taken into custody by the InspectionCommittee while inspecting the three buses from the conductors presenton the vehicle. These seized tickets are said to have been subsequentlyhanded over to the Investigating Officer or at the Police Station-Dilbagh.These seized tickets were never seen either by the Inspecting Team orby the police at any stage. There was no segregation of the ticketsseized by the Inspection Team from the conductors of the three differentbuses. Even before the Court, these tickets were produced in an unsealedform and are said to have been proved by PW-8 and PW-15. Both thesewitnesses were neither the witnesses of recovery nor they had personalknowledge of said recovery of tickets. They only said that these are thesame tickets which they had seen at the police station.

(vi) There is no evidence of sale of such tickets of higherdenomination to any passenger as no passenger was examined duringthe trial. The case of the prosecution at best is that of possession of suchfake tickets and nothing beyond that.

(vii) Lastly, it was submitted that the excess cash alleged to havebeen found at the time of inspection also has neither been proved, nor

5 (1975) 4 SCC 664 (Para 7 thereof)

Aany evidence was led with respect to the same, nor were any suchquestions put to the accused at the stage of Section 313 CrPC. Suchevidence as such could not be read against the accused. For the aboveproposition, reliance has been placed upon the following judgments: -

(1) Jai Dev Vs. State of Punjab[6],B(2) Sharad Birdichand Sarda Vs. State of Maharashtra[7],

(3) Sujit Biswas Vs. State of Assam[8],

(4) Samsul Haque Vs. State of Assam[9]

(viii) Lastly, the counsel for the appellants submitted that theCprosecution failed to prove his case not only beyond reasonable doubtbut, in fact, it completely failed to prove its case in the absence of anylegally, reliable, admissible and unimpeachable evidence. In support ofthe above submissions, he placed reliance upon the following judgments:

(1) Sarwan Singh Vs. State of Punjab[10],D(2) Shivaji S. Bobade Vs. State of Maharashtra[11],

(3) Subhash Chand Vs. State of Rajasthan[12],

(4) Sujit Biswas Vs. State of Assam[13],

(5) Rajiv Singh Vs. State of Bihar[14],E

(6) State of U.P. Vs. Wasif Haider[15].

7. On the other hand, learned counsel for the State of Punjab hassupported the judgment of the High Court. It was submitted that convictionof the appellants is based upon reliable, cogent and convincing evidenceFled by the prosecution. It is also submitted that PW-8 and PW-15 provedthe recovery of the tickets and further that PW-20, PW-21 and PW-22proved the inspection and the enquiry report and, as such, nothing further

6 AIR 1973 SC 612 (Para 21)7 (1984) 4 SCC 116 (Para 143-145)8 (2013) 12 SCC 406 (Para 20)G9 (2019) 18 SCC 161 (Paras 13, 22, 23)10 AIR 1957 SC 637 (Para 12)11 (1973) 2 SCC 793 (Para 19)12 (2002) 1 SCC 702 (Para 24)13 (2013) 12 SCC 406 (Para 13)14 (2015) 16 SCC 369 (Page 69)H15 (2019) 2 SCC 303 (Para 22).

remains to be established for conviction of the appellants. It is alsosubmitted that appellants are assailing the judgment of the High Courton purely technical grounds; the Court should examine the substantivematerial on record, which has been relied upon by the High Court touphold the conviction.

8. Having considered the submissions advanced and the materialon record, we now proceed to analyse the evidence relevant for theconviction of the appellants as also the submissions made.

9. PW-8 is Charanjeet Singh, who at the relevant time was postedas Station Supervisor, Muktsar Depot. In his examination-in-chief, hehas stated that he, along with Tarlochan Singh, Chief Inspector, PunjabRoadways, Muktsar had compared the tickets with the way-bills anddockets. He has sought to distinguish the tickets of Jarnail Singh andSalwant Singh as also Balkar Singh. He has also sought to identify thosetickets vis-a-vis, the respective buses being conducted by the aforesaidthree conductors. On his statement, exhibits were marked of the ticketsshown to him. However, in the cross-examination, PW-8 clearly statesthat all the tickets and the way-bills shown to him in Court were actuallyshown to them in the Police Station by the police. None of these documentswere sealed at that time. We did not know at that time that which ticketsare relating to which bus or conductor. He was not present, when thealleged tickets and way-bills were taken into possession by the police oranyone else from the bus conductors. He cannot say whether theseway-bills and these tickets were connected or relevant with any busmentioned in his report. Lastly, in the cross-examination, he states thatnumbers of the tickets issued to the conductors by the Head Officewere note supplied to them for comparison and checking.

10. PW-15 is Tarlochan Singh, Inspector Punjab Roadways,Muktsar. He states in his examination-in-chief that on 04.08.1986, healong with Charanjeet Singh, Station Supervisor (PW-8) were deputedto check the vouchers, way-bills and tickets pertaining to the three buses.After checking the records, they have submitted their report Ext. PW-8/A, which bears his signatures. He further repeats the same statementas given by Charanjeet Singh (PW-8) regarding the tickets of the threebuses, where Jarnail Singh, Salwant Singh and Balkar Singh were deputedas conductors. However, in the cross-examination, he admits that all theway-bills and tickets referred to above, were shown to them in the PoliceStation. None of these were sealed at that time. He did not know which

Atickets or way-bills were relating to which bus as they were not recoveredin his presence. No numbers of the tickets issued by the Office or Depotwere supplied to them for checking purposes.

11. PW-8 and PW-15 are the two witnesses relied upon by theHigh Court to uphold the conviction of the appellants. From the perusalBof their statement as noted above, we are afraid that the High Courtcould have recorded conviction on its basis for the following reasons:

•Firstly, there is no evidence of the seized tickets being sealedat any stage.

•PW-8 and PW-15 have clearly stated that they were notCpresent at the time of recovery of these tickets.

•They have also clearly stated that these tickets were notsealed, when they went to the Police Station.

•They have further stated that they do not know whetherDthese way-bills and tickets are connected or relevant toany of the vehicles mentioned in their report.

•They also stated that no numbers of the tickets issued tothe conductors by the Head office, were supplied to themfor comparison in checking.

E12. PW-20, PW-21 and PW-22 are the members of the InspectionCommittee constituted by the Deputy Commissioner. They had checkedthree buses on 11.05.1996, which are said to be manned by the presentappellants as conductors. Their statements are more or less similar, assuch, they are not being repeated but the contents as stated in theirexamination-in-chief and in their cross- examination are referred toFhereunder:

(i) In their examination-in-chief, it is stated that the Committeewas constituted by the Deputy Commissioner to check buses ofthe Punjab Roadways, Muktsar Depot, as there was complaintregarding use of already sold tickets (Khaddar tickets) by theGconductors in connivance with the officers of Muktsar Depot ofPunjab Roadways.

(ii) The Members of the Committee were Darshan Singh Sandhu,M.S. Sandhu and Mr. Amarjeet Singh Shahi.

(iii) They checked three buses and in one of the buses they founda suspended conductor was present in place of the regularconductor.

(iv) Upon enquiry, the conductors informed that they were carryingused tickets and that they were doing this on the orders of higherauthorities.

(v) They took the tickets in their possession.

(vi) They further stated that they cannot identify the accused fromwhom they had taken which ticket.

(vii) They made further enquiry after inspecting three buses andrecorded the statements of the General Manager and the TrafficManager and also the concerned conductors and also inspectedthe relevant records.

(viii) Upon enquiry, it was found that even some buses of PunjabRoadways were plying on roads without permit and without anytime schedule.

(ix) It is specifically stated in the examination-in-chief that theycould not tell the name of the conductor, number of the buses andthe number of the Khaddar tickets recovered from the accusedconductor and which Khaddar tickets were recovered from whichaccused.

(x) It is further stated that they had mentioned the details in theenquiry report Ext.PW-20/A.

(xi) They admitted that Ext. PW-20/A is photocopy. The originalenquiry report was submitted to the Deputy Commissioner,Muktsar, who had forwarded the same to the Secretary, Transportfor immediate action and suspension.

(xii) They also stated that their statements were recorded by thepolice.

(xiii) Apparently, in view of the statements given in the examination-in-chief not much of cross-examination was required, as such,only formal questions were put during cross-examination, whichwe need not refer to here.

A13. From the above statements of the Inspecting Team, they failedto firstly prove the recovery of the tickets to have been validly made.Secondly, they also failed to prove the enquiry report as only photocopywas filed and objections to the same was recorded in the statementitself, that the same would be exhibited subject to proof of the existenceof the documents in original and loss thereof. The prosecution did notBmake that effort to prove the existence of the original and loss thereof inorder to take an order for leading secondary evidence. Thus, no reliancecould be placed upon the enquiry report and even the High Court hasrecorded that enquiry report was not piece of evidence. Once, therecovery of the tickets is found to have not been made in accordanceCwith law, nor the seized tickets could be connected to the three differentbuses and the conductors manning the said buses (the appellants), itwould not be safe to rely upon the unconfirmed tickets to connect themto the appellants. Secondly, the enquiry report having not been proveddespite the State applying for leading secondary evidence and not pursuing

it any further, there appears to be complete vacuum of substratum onDthe basis of which, the entire case was set up by the prosecution.

14. In view of our finding that there is no evidence to establish thecharge against the appellants, we need not burden this judgment byreferring to the case laws relied upon by the appellants.

E15. Accordingly, the Appeals are allowed.

16. The judgment of the High Court and the trial court qua thepresent appellants are set aside.

17. The conviction of the appellants is set aside. They standacquitted of all the charges levelled against them. They are already onFbail. Their bail-bonds stand discharged.

Nidhi Jain

Appeals allowed.