JUDGMENT R.S. Sodhi, J.
1. Shri P.V. Narasimha Rao and Shri Buta Singh have filed Criminal Appeal Nos. 638 of 2000 and 621 of 2000 respectively 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 move “No Confidence Motion” against the government well in advance. On 28.7.93 “No Confidence Motion” was put to vote after the debate and it was defeated with the support of four J.M.M. M.Ps. i.e. Shri Suraj Mandal (A-3), Shibu Soren (A-4), Shri Simon Marandi (A-5) and Shailender Mahto (A-6) respectively as well as A-16 to A-21 namely S/Shri Ram Lakhan Singh Yadav, Ram Sharan Yadav, Roshan Lal, Anadi Charan Dass, Abhey Pratap Singh and Haji Gulam Mohd. Khan respectively and late Shri G.C. Munda, M.P. the break-away group of Janta Dal (A) Party.
2. Complainant, Ravinder Kumar, President of Rashtriya Mukti Morcha filed a complaint with C.B.I. allegithat Shri P.V. Narasimha Rao had hatched a criminal ng conspiracy with Shri V.C. Shukla, Shri R.K. Dhawan, Capt. Satish Sharma, Shri Ajit Singh, Shri Bhajan Lal and Shri Lalit Suri with the object to prove the majority of the Government on the floor of the house by resorting to bribing some of the members of the Parliament to the extent of over Rs. 4 crores. On the basis of said complaint, CBI registered four cases R.C. Nos. 1(A)/96 to R.C. No. 4(A)/96/CBI/ACU-VIII/N.D. against four J.M.M. M.Ps. (A3 to A6) since discharged). However, no FIR was registered against A-1, A-2, A-14, A-15 and others named in the complaint. Feeling aggrieved, complainant Ravinder Kumar filed a writ petition in High Court of Delhi for direction to C.B.I. to register a proper FIR as per allegations in the complaint. In the aforesaid writ petition directions were issued by Division Bench of Hon’ble High Court and pursuant to that C.B.I. registered case R.C. No. 5(A)/96/ACU-VIII/C.B.I./N.D. against the persons named in the complaint.
3. Pursuant to the investigation conducted in Case R.C. Nos. 1(A)/96 to R.C. Nos. 5(A)/96-ACU-VIII/ C.B.I./N.D., prosecution sought to try Shri P.V. Narasimha Rao (hereinafter referred to as A.1), Capt. Satish Sharma (hereinafter referred to As. A.2), Suraj Mandal (hereinafter referred to as A.3), Shri Shibu Soren (hereinafter referred to as A.4), Shri Simon Marandi (hereinafter referred to as A.5), Shri Shailender Mahto (approval) (hereinafter referred to as A.6), Shri Buta Singh (hereinafter referred to as A.7), Shri V. Rajeshwar Rao (hereinafter referred to as A.8), Shri H.M. Revenna (hereinafter referred to as A.9), Shri Ramalinga Reddy (hereinafter referred to as A.10), Shri 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 clear that opposition parties intended to bring no confidence motion against the minority government headed by accused P.V. Narashima Rao (A-1). At that point of time effective strength of Lok Sabha was 528 and strength of Congress (I) members in the Lok Sabha was 251. Thus, there was a real possibility of defeat of the government on the floor of the house. In order to avoid the situation, a conspiracy was hatched between accused P.V. Narasimha Rao (A-1) and his supporters namely Capt. Satish Sharma (A-2), Shri Buta Singh (A-7), Shri V.Rajeshwar Rao (A-8), Shri H.M. Revenna (A-9), Shri Ramalinga Reddy (A-10), Shri M. Veerappa Moily (A-11), Shri D.K. Audikeshvulu (A-12), Shri M.
Thimme Gowda (A-13) and Shri Bhajan Lal (A-14) to procure the support of sufficient number of Members of Parliament belonging to the opposition for the government by luring them with the offer of bribe. On the other hand, some members of Parliament belonging to the opposition namely 4 JMM, MPs, Suraj Mandal (A-3), Shibu Soren (A-4), Simon Marandi (A-5), approver Shailender Mahto and Janta Dal Dal (A) M.Ps. namely Shri Ajit Singh (A-15), Shri Ram Lakhan Singh Lakhan Singh Yadav (A-16), Shri Ram Sharan Yadav (A-17), Shri Roshan Lal (A-18), Shri Anadi Charan Dass (A-19), Abhay Partap Sigh (A-20), Shri Hazi Gulam Mohd. Khan (A-21) and late Shri G.C. Munda also smelled the opportunity and started the efforts to extract maximum advantage from the situation. As a result, a multi cornered conspiracy was hatched amongst A-1 to A-21 and late Shri G.C. Munda against the no confidence motion by giving of bribe to those members of parliament and acceptance of bribe by those members of parliament. In order to achieve the object of the conspiracy various participants played different roles at Delhi and Bangalore. Shri P.V. Narasimha Rao was the kingpin of the conspiracy.
5. It is alleged that hectic political activities to save the government started in July, 1993. Capt. Satish Sharma (A-2) took active role in the conspiracy and he mobilized and provided the funds for bribing the opposition members. It is alleged that at the relevant time, Capt. Satish Sharma was the Minister of Petrolem in the Government headed by Shri P.V. Narasimha Rao (A-1). Shri B.N. Safaya was his Additional Private Secretary.
Shri B.N. Safaya during the period between April 1993 to May 1994 received substantial amounts 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 Rs. 10 lakhs from the residence of Capt. Satish Sharma and delivered it to Simon Marandi in the evening.
6. It is also alleged that four J.M.M., M.Ps namely, Shri Suraj Mandal (A-3), Shibu Soren (A-4) Shri Simon Marandi (A-5) and approver Shri Shailender Mahto (A-6) did realise the potential of the situation. Thus, they got together in order to extract maximum advantage out of the predicament of Congress (I) Govt. Approver Shailender Mahto approached Shri Ashok Rao Deshmukh, M.P. few days before the voting on no confidence motion and requested him to arrange a direct meeting between him and the Prime Minister Shri P.V. Narasimha Rao (A-1), as he along with other three J.M.M. M.Ps. namely Suraj Mandal, Shibu Soren and Simon Marandi (A-3 to A-5) wanted to vote against no confidence motion, if some of their demands were met. On 25.7.93 Shri Ashok Rao Deshmukh met accused Shri P.V. Narasimha Rao (A-1) and apprised him about said talks with approver Shailender Mahto. Shri P.V. Narasimha Rao (A-
1) told him to ascertain the demands of J.M.M. M.Ps. Thereafter, Sailender Mahto informed that Ashok Rao Deshmukh that they would put their demands directly to the Prime Minister. This information was conveyed by Shri Ashok Rao Deshmukh to Shri P.V. Narasimha Rao (A-1), who then advised Ashok Rao Deshmukh to take J.M.M. M.Ps. to Shri V. Rajeshwar Rao (A-8) for further discussion.
7. Shri Ashok Rao Deshmukh contacted Shri V. Rajeshwar Rao (A-8) on 26.7.93 and fixed a meeting between J.M.M., M.Ps. and V. Rajeshwar Rao (A-8) for 11.00 A.M. At the stipulated time, J.M.M. M.Ps. arrived at Andhra Bhawan and Shri Ashok Rao Deshmukh took them to the residence of accused V. Rajeshwar Rao (A-8), 7, Swaranamukh Apartments, Andhra Bhavan. V. Rajeshwar Rao (A-8) also confirmed about the message received by him from Shri P.V. Narasimha Rao and thereafter Shri Ashok Rao Deshmukh left the flat. It is alleged that Shri V. Rajeshwar Rao (A-8) had a separate conversation with Suraj Mandal (A-3) and made some offer to him. After said discussion, they came back to the room and thereafter J.M.M. M.Ps. left the residence of Shri V. Rajeshwar Rao (A-8). Suraj Mandal (A-3) told other J.M.M. M.Ps. (A-4 to A-6) that discussion with V. Rajeshwar Rao (A-8) was not fruitful as he was offering a meager amount and he suggested a direct meeting with the Prime Minister. In the evening of 26.7.93, all the four J.M.M. M.Ps., A-3 to A-6, collected at the residence 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 paid was not specified.
8. On 26.7.93, no confidence motion moved by Shri Ajay Mukhopadhaya, M.P. was put to discussion. After the conclusion of debate, motion was put to vote on 28.7.93 and it was defeated by the help of votes given by JMM MPs (A-3 to A-6) and Janta Dal break-away group MPs (A-16 to A-21) and late Shri G.C. Munda, MP.) 8A. It is further alleged that on 29.7.1993 at about 8.00 A.M. 4-5 persons visited the residence of Suraj Mandal at 14, Ferozeshah Road, New Delhi and delivered five suitcases and one bag which were kept locked in a room. It is also alleged that in the same morning in pursuance of the telephone call from Suraj Mandal (A-3), approver Shailender Mahto (A-6) visited his residence. Accused V. Rajeshwar Rao (A-8) was already present there and in his presence Suraj Mandal (A-3) told the approver Shailender Mahto (A-6) that Rs. 50 lakhs have already been paid and remaining amount would be paid within two days. During said conversation accused V. Rajeshwar Rao (A-8) informed that all the 4 JMM MPs (A-3 to A-6) would be paid Rs. 50 lakhs each and the break away group of Ram Lakhan Singh Yadav (A-16) would also be paid Rs. 50 lakhs each besides the allotment of petrol pumps and residential plots of H.U.D.A. in Haryana. Accused V. Rajeshwar Rao (A-8) further informed that the M.Ps. who had absented or abstained from voting on no confidence motion would be paid Rs. 30 lakhs each.
9. It is further alleged that on 30.7.93, 3 boris and 1 suit case supposedly containing money were delivered at the residence of Suraj Mandal (A-3).
10. According to the prosecution, the money delivered at the residence of Suraj Mandal was the bribe money which was distributed by the four JMM MPs amongst each other and the said amount was deposited in Punjab National Bank, Naroji Nagar, New Delhi with the help of one Sushil Kumar, Chartered Accountant who was maintaining his bank accounts in the said branch. It is alleged that most of the aforesaid bribe money reached Punjab National Bank, Naroji Nagar Branch by the evening of 31.7.93, but since it was already late and counting of such a huge cash was impossible on that date, entire cash received in the branch on 31.7.93 was kept in the strong room. On the next day, i.e. 1.8.93 money was counted and various accounts were opened as per the instructions of JMM M.Ps.
11. It is alleged that on the basis of final counting a sum of Rs. 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 Rs. 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 Rs. 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 Rs. 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 Rs. 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 Rs. 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 Rs. 21 lakhs in F.D.A./C No. 197. After opening of Sugam F.D. Accounts by three JMM M.Ps nemly Shibu Soren (A-4), Simon Marandi (A-5) and approver Shailender Mahto (A-6) they also opened Saving Account Nos. 19100, 19307 and 18983 respectively on 8.10.93, 18.9.93 and 10.9.93.
13. It is further alleged that accused M.V. Moily (A-11) at the relevant time was Chief Minister of Karnataka. He also played an active role in the conspiracy and he was also one of of the leaders who had been assigned the job of organising funds for bribing JMM MPs. It is alleged that Shri M. Veerappa Moily (A-11) came to Delhi on 25.7.93 by morning flight from Bangalore and he camped at Delhi till 29.7.93. During his stay, he called on accused P.V. Narasimha Rao (A-1) repeatedly and he also made three attempts to contact Shri V. Rajeshwar Rao (A-
8) but he could meet him only on one occasion. He further called on Capt. Satish Sharma (A-2), Ajit Singh (A-15) and K. Karunakaran.
14. It is also alleged that even before the visit of accused M. Veerappa Moily (A-11) to Delhi, hectic political activities were gold on at his official residence at Bangalore. Shri H.M. Revenna (A-9), Shri RAmalinga Reddy (A-10), Shri D.K. Audikeshvulu (A-12) and Shri M. Thimmegowda (A-13) and others had been frequently visiting the official residence of accused M. Veerappa Moily (A-11) and some suitcases supposedly containing money were delivered by them.
15. It is alleged that accused D.K. Audikeshvulu (A-12) was very close to accused V. Rajeshwar Rao (A-8). He (A-12) was also camping at Delhi from 24.7.93 to 29.7.1993. During said period, he had visited V. Rajeshwar Rao (A-8). Even on 26.7.93, he was seen at the residence of accused V. Rajeshwar Rao (A-8) by Shri Ashok Rao Deshmukh when he had visited said place for introducing four JMM MPs to Shri V. Rajeshwar Rao (A-8). Shri D.K. Audikeshvulu (A-12) also left for Bangalore on 29.7.1993 by evening flight of Indian Airlines. It is alleged that Shri D.K. Audikeshvulu is the owner of number of companies/firms under various names and address.
16. M/s Karnataka Breweries and Distilleries (P) Limited (hereinafter referred to M/s K.B.D.L.) is a major liquor manufacturing company. Shri D.K. Audikeshvulu (A-12) is the Managing Director of the said company. He is also one of the partners of M/s Sapthagiri Enterprises, which is also engaged in the business 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 Rs. 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 Rs. 6,17,349/- and Rs. 14,78,125/- respectively favoring Shri V.P. Ramakrishna, an employee of M/s. K.B.D.L.
18. The cheque No. 348507 for Rs. 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 cheque was received by Shri Dwarka Nath, an employee of M/s. K.B.D.L. The funds against other two cheques mentioned above were also withdrawn in cash on 30-7-93. On the reverse of cheque No. 372415 issued by M/s. K.B.D.L. in favor of Shri V.P. Ramakrishna details of Rs. 50,95,474/- have been mentioned which is total of the amount of aforesaid three cheques. This indicates that funds of aforesaid three cheques were received by Shri Dwarka Nath on 30-7-93. He delivered that amount to Sh. D.K. Audikeshvulu (A-12).
19. It is also alleged that M/s. Padmavati Enterprises is a non existent firm. The account opening form relating to the bank account of M/s. Padmavati Enterprises have been filled up by Shri Dwarka Nath who is a close relative of accused D.K. Audikeshvulu (A-12) and employee of M/s. K.B.D.L. That Shri Dwarka Nath filled said account opening form at the instance of accused D.K. Audikeshvuly (A-12) and said account was introduced by M/s. Sreevari Enterprises having account No. 732 with Canara Bank, R.M.V. Extension, Bangalore. Said firm has also been found to be non existent.
20. It is further alleged that Shri M. Thimmegowda is the Managing Director of M/s. S.P.R. Group Holding (P) Limited. It is maintaining a Current Account No. 1968 with Canara Bank, Seshadripuram Branch, Bangalore.
21. That on 30-7-93 Shri M. Themmegowda approached the branch manager and applied for a temporary over-draft of Rs. 1 Crore for 10 days on the pretext of meeting some urgent business commitments. The branch manager then contacted Shri V.A. Prabhu the then Gneral Manager, Circle Office, Canara Bank, Bangalore on telephone and requested for sanction of said temporary over-draft. Shri V.A. Prabhu obtained the approval on telephone and conveyed the sanction to Sheshadripuram branch after the banking hours. However, accused M. Themmegowda insisted for withdrawal of the whole amount on 30-7-1993 itself. Canara Bank, Sheshadripuram Branch, then arranged the money from cash chest, Canara Bank, R.M.V. Extension. As soon as the cash was received in the branch, Shri M. Themmegowda (A-13) issued cheques Nos. 959799 and 959798, both dated 30-7-1993 for Rs. 60 lakhs and Rs. 25 lakhs in favor of M/s. Ranganatha Group and M/s. Yellamma Enterprises. He also issued a self cheque No. 959800 dated 30-7-93 for Rs. 15 lakhs on the account of M/s. S.P.R. Group Holdings (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 Rs. 60 lakhs and Rs. 25 lakhs respectively and withdrew the cash. Similarly, Shri M. Themmegowda also withdrew a sum of Rs. 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 Rs. 1 Crore withdrawn from the bank. After sometime, Shri M. Thimmegowda left his residence with 2 big VIP suitcases supposedly containing said Rs. 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) also arrived at the residence of accused M. Verappa Moily (A.11) when the aforesaid suitcases were delivered. It is further alleged that Shri M. Verappa Moily (A.11), Shri H.M. Revenna (A.9) and RAmalinga Reddy (A.10) remained together at the residence of Shri M. Veerappa Moily for sometime. During said period; Shri M. Veerappa Moily (A.11) asked his household servant to bring one suitcase and one hand bag from the first floor room of his residence which supposedly contained the money. Thereafter, Shri H.M. Revanna (A.9) and Ramalinga Reddy (A.10) left the residence of Shri M. Veerappa Moily (A.11) in a car with 3 suitcases and one hand bag including the two suitcases delivered by accused M. Thimmegowda for Bangalore Airport.
22. It is further alleged that accused Shri D.K. Audikeshvulu (A.12) came from Bangalore to Delhi on 30-7-93 by Indian Airlines evening flight with one V.I.P. suitcase supposedly containing aforesaid money withdrawn by him from the bank. Shri H.M. Revenna (A.9) and Ramalinga Reddy (A.10) also came to Delhi by the same flight Along with said 3 suitcases and hand bag supposedly containing money. The flight landed at Delhi Airport at about 10.30 P.M. They were received by Shri Bachan Singh, Roop Ram and one Darmyan Singh Attendant of M/s Mohan Brewereies & Distilleries Limited (hereinafter referred to M/s. M.B.D.L.) Guest House, who had also been detailed by Shri K. Narayanan, Care Taker to receive them. They loaded the 3 V.I.P. Suitcases and one hand bag in the taxi driven by Shri Roop Ram, whereas V.I.P. suitcases brought by Shri D.K. Audikeshvulu (A.12) they all left for Andhra Bhawan, where D.K. Audikeshvulu (A.12), H.M. Revenna (A.9) and Rama Linga Reddy (A.10) called on Shri V. Rajeshwar Rao (A.8) at Swaranamukhi Apartments Andhra Bhawan, New Delhi. After some discussion, they left for Hotel Claridges. It is further alleged that after making arrangement for the stay of H.M. Revenna (A.9), Ramalinga Reddy (A.10) D.K. Audikeshvuly (A.12) left for M/s. M.B.D.L. Guest House. The three V.I.P. suitcases and one handbag brought by H.M. Revenna (A.9), Ramalinga Reddy (A.10) were unloaded by Roop Ram at Hotel Claridges.
23. It is further alleged that accused Buta Singh (A-7) also visited Bangalore at the relevant time. He came back from Bangalore to Delhi on 30-7-1993 by same Indian Airlines Flight I.C.No. 404 in which Shri H.M. Revenna (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 was a person well known to accused V. Rajeshwar Rao (A-8). Shri H.M. Revenna (A-9) thereafter sat in the taxi of Roop Ram. The white Maruti Car driven by Vijay Kumar Handa along with P.W.
Harsharan Lal and P.W. Ganga Singh left for the residence of Suraj Mandal (A-3) at Ferozeshah Road, New Delhi and Roop Ram was asked to follow them. They visited the residence of Suraj Mandal and delivered aforesaid 4 VIP suitcases and hand bags to him. Thus, according to the prosecution, the bribe money was delivered at the residence of accused Suraj Mandal (A-3).
25. It is alleged that accused Bhajan Lal also played a very important role to achieve the object of the conspiracy. On 24-7-93, the visited the residence of accused Ajit Singh in the morning. He requested Ajit Singh for supporting Congress (I) Government stating that fate of the government headed by Sh. P.V. Narasimha Rao (A-1) was in his hands. He further delivered three packets containing Rs. 1 Crore each to accused Ajit Singh as a motive or reward for seeking the support of his group for the government. Those packets were unloaded from his car by Capt. Dilawar Singh. One of those packet, was opened after accused Bhajan Lal left and it was found to contain 200 wads of currency notes of Rs. 500/- denomination.
26. It is also alleged that accused Ajit Singh (A-15) wanted to gobble up entire money. However, accused Ram Lakhan Singh Yadav (A-16) caught the wind of the matter. He called on accused Ajit Singh (A-15) in the morning of 26-7-93 and insisted for his share of Rs. 15 lakhs from the amount received by him from Bhajan Lal. Accused Ajit Singh (A-15) denied having received any amount from Bhajan Lal (A-14) and told Ram Lakhan Singh Yadav (A-16) that Bhajan Lal himself was a corrupt person who accused others of corruption. After the aforesaid incident, accused Ajit Singh (A-15) called for a meeting of MPs belonging to his party. During said meeting, he expressed his desire to vote in favor of no confidence motion against Congress (I) Government. This led to heated exchanges between Ram Lakhan Singh Yadav (A-16) and Ajit Singh (A-15) and both accused each other for hobnobbing and bargaining with Congress (I) Leaders. Thereafter, Ram Lakhan Singh Yadav (A.15) walked out of the meeting. Shri Ram Sharan Yadav, Roshanl Lal, Abhay Pratap Singh and Anadi Charan Dass namely (A-18 to A.20) as well as 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 Partap Singh and late Shri G.C. Munda again assembled at the residence of Ram Lakhan Singh Yadav. On that day, Captain Satish Sharma (A.2), Bhajan Lal (A.14), V.C. Shukla, K. Karunakaran and Jitender Prasad met those M.Ps Shri Bhajan Lal delivered some suitcases at the residence of Ram Lakhan Singh Yadav on the said day, upon which Parkash Chand Yadav, son of Ram Lakhan Singh, informed the members belonging to break away group that Bhajan Lal has fulfillled the promises which he made.
29. It is alleged that on 28-7-93 Shri V.C. Shukla contacted accused Bhajan Lal (A-14) on telephone and informed him that Hazi Gulam Mohd. Khan was present in his parliament house office. Accused Bhajan Lal then went to parliament house and returned after half an hour with Hazi Gulam Mohd. Khan. It is further alleged that Bhajan Lal and Captain Satish Sharma then assured that Rs. 20 lakhs would be paid to every member of Janta Dal break away group led by Ram Lakhan Singh Yadav before the voting and another sum of Rs. 20 lakhs each would be paid after the voting of no confidence motion. Besides that, they also promised the allotment of petrol pumps to those M.Ps or their family members. From the residence of Ram Lakhan Singh Yadav, all those 7 M.Ps. proceeded to parliament house along with Bhajan lal and they received their respective shares of Rs. 20 lakhs each before leaving for parliament on 28-7-93. It is further alleged that subsequently on 28-7-93 above referred 7 M.Ps led by Ram Lakhan Singh Yadav voted against no confidence motion and motion was defeated.
30. According to the prosecution, accused Ajit Singh sent Captain Dilawar Singh Sangwan to meet Hazi Gulam Mohd. Khan and Ram Sharan Yadav to persuade them to rejoin the Janta Dal(A). Both Haji Gulam Mohd. Khan and Ram Sharan yadav admitted before Captain Dilawar Singh Sangawan about receiving a payment of Rs. 20 lakhs in cash from Bhajan Lal. They also told him about promise of allotment of petrol pumps.
31. It is alleged that Bhajan Lal was camping at Delhi to pursue the object of conspiracy from 23-7-93 to 2-8-93, except of 26-7-93. During this period, he was in constant touch with P.V. Narasimha Rao (A-1), Captain Satish Sharma (A-2) and other accused persons. He also actively mobilized the funds before voting on no confidence motion and obtained Rs. 30/Rs. 40 lakhs from the office bearers of 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 Rs. 40,000/-. He also provided a taxi to Hazi Gulam Mohd. Khan for a period of one month and paid the bill of Rs. 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 Rs. 2.75 lakhs during October, 1993 and constructed a palatial house costing more than Rs. 20 lakhs on the said plot. It is further alleged that son of Ram Sharan Yadav namely Ajay Akela has also been allotted a petrol pump at Khagaria District in Bihar in September, 1994 for which he applied for 10-3-1993.
33. According to the prosecution, Prakash Chand Yadav called one Shri Anil Sanghi, Chartered Accountant in August, 1993 and sought his advice for laundering some money received by his father. Accordingly, on the advice of Anil Sanghi, a company in the name of M/s. Patliputra Credit and Securities Limited was registered with the Registrar of Companies. Account of the said company was opened with State Bank of India, Main Branch, New Delhi. Thereafter, Parkash Chand Yadav stared delivering cash to Shri Anil Sanghi for arranging cheques for crediting the amount to the account of the said company. Sh. Anil Sanghi opened two current accounts in the names of M/s. Anil Sanghi and Associates and M/s. Ganpati Investment Consultants with Jammu & Kashmir Bank, NOIDA branch on 1.3.94. It is alleged that during the period w.e.f. 5.3.94 to 31.7.94, Shri Anil Sanghi deposited Rs. 1.5 crores in the said accounts in cash as provided by Parkash Chand Yadav. Against those cash deposits, Anil Sanghi then issued cheques from the said bank accounts in favor of M/s. Patliputra Credit and Securities Limited. Thus, as per prosecution, the amount received as bribe by Parkash Chand Yadav was laundered through said device.
34. It is also alleged that after the defeat of no confidence motion, accused Roshan Lal has deposited a sum of Rs. 12.80 lakhs during July to November, 1993 in South Indian Bank and State Bank of India, Delhi and Punjab and Sindh Bank and Central bank of India in Dehradun. he has also acquired a flat on 6.9.93 for a sum of Rs. 9 lakhs, out of which, he paid a sum of Rs. 5,51,000/- approximately till date.
35. It is further alleged that during the investigation of this case, in order to avoid detection, accused Suraj Mandal, Shibu Soren, Simon Marandi and Shailender Mahto, all JMM MPs (A-3 to A-6) in pursuance of criminal conspiracy have fabricated false document i.e. donation coupons, proceeding book and books of accounts with the intention to use those documents during the judicial proceedings or any other proceedings initiated in accordance with law before a public servant, so as to suggest that above referred amounts deposited in the bank accounts were the proceeds of donation received in favor of JMM Party.
36. On the aforesaid allegations, 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) read with 13(1)(d) of P.C. Act, 1988 and 193 IPC and substantive offences committed by respective accused persons.
38. Feeling aggrieved, accused persons went in revision. Hon’ble High Court dismissed the revision petition and rejected legal pleas of accused persons as well as their contentions on merits of the case. Accused persons then preferred to file Special Leave Petition in Hon’ble Supreme Court. Matter was initially heard by three Judges Bench of the Apex Court. Since important constitutional questions were involved, the case was referred to the constitution bench of the Appellate Bench. Constitution Bench disposed of the reference vide three different judgments. As per majority view, it was held that member of parliament is a public servant within the scope of P.C. Act, 1988.
39. The claim of alleged bribe taking MPs except Ajit Singh (a-15) seeking immunity from prosecution under Article 105 of the Constitution of India was accepted by majority judgment of the Constitution Bench of the Apex Court. However, majority view held that since accused Ajit Singh (A-15) did not vote on no confidence motion in the Lok Sabha, he could not claim immunity under Article 105 of the Constitution of India. Regarding remaining accused persons i.e. alleged bribe givers, it was held that no immunity under Article 105 of the Constitution was available to them.
40. In view of the finding of the Constitution Bench of the Apex Court, accused Ram Lakhan Singh Yadav (A-16), Ram Sharan Yadav (A-17), Roshan Lal (A-18), Anadi Charan Dass (A-19), Abhay Partap Singh (A-20) and Hazi Gulam Mohd. Khan (A-21) were discharged. Charges under Section 120B IPC read with Sections 7, 12, 13(2) read with 13(1)(d) of P.C. Act, 1988 and substantive offences under Sections 7 and 13(2) read with 13(1)(d) of P.C. Act, 1988 against accused Suraj Mandal (A-3), Shibu Soren (A-4) and Simon Marandi (A-5) were dropped. Since the offence punishable under Section 193 IPC is a magisterial trial and it was allegedly committed much after the alleged transaction of bribing of MPs in furtherance of conspiracy, it was directed that separate charge sheet for offence punishable under Section 193 IPC be filed in the court of competent jurisdiction.
41. Charges against accused persons, namely, Shri P.V. Narasimha Rao (A-1), Captain Satish Sharma (A-2), Shri Buta Singh (A-7), Shri V. Rajeshwar Rao (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 circumstances pointed out on behalf of accused Shir P.V. Narasimha Rao and Shir Buta Singh for the offence punishable u/s 120-B IPC read with Sections 7, 12, 13(2) read with Section 13(1)(d) of P.C. Act, 1988, I hereby sentence convict Shri P.V. Narasimha Rao and Shri Buta Singh to undergo R.I. for the period of 3 years. they are further sentenced to pay a fine of Rs. 1 lakhs respectively. In the vent of any of the accused failing to pay the fine imposed, he shall undergo R.I. for further period of 6 months. For the offence punishable under Section 12 of the P.C. Act, 1988, both the convicts are further sentenced to undergo RI for the period of 3 years and also to pay fine of Rs. 1 lakh each. In the event of any of the accused failing to pay the fine imposed, he shall undergo RI for further period of 6 months.
Substantive sentences awarded to both the convict persons for respective offences shall run concurrently.”
4. Shri R.K. Anand, learned senior counsel appearing for Shri P.V. Narasimha Rao, submitted that the Constitution Bench of the Supreme Court adjudicated upon question of law that arose for consideration before it, namely:
(i) Whether Article 105 of the Constitution of India confers immunity on a Member of Parliament from being prosecuted in a criminal court for an offence involving offer or acceptance of bribe?
(ii) Whether a Member of Parliament is excluded from the ambit of Prevention of Corruption Act, 1988 for the reason that – he is not a public servant as defined under Section 2(SIC) of the Prevention of Corruption Act, 1988; and he is not a person under Clauses (a), (b) and
(c) of Sub-section (1) of Section 19 of the Prevention of Corruption Act, 1988.
5. The Constitution Bench of the Supreme Court vide its judgment dated 17.4.1998 [(1988) 4 SCC 626] held that:
“We now set down the effect upon the accused of our finding.
We have held that the alleged bribe-takers who voted upon the no confidence motion, that is Suraj Mandal, Shibu Soren, Simon Marandi, Shailendra Mahto, Ram Lakhan Singh Yadav, Ram Sharan Yadav, Roshan Lal, Anadicharan Das, Abhay Pratap Singh and haji Gulam Mohammed (Accused 3, 4, 5, 6, 16, 17, 18, 19, 20 and 21) are entitled to the immunity conferred by Article 105(2).
D.K. Audikesavulu and M. Themmegowda (Accused 12 and 13) were at all relevant times private persons. The trial on all charges against 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 now be placed before a Bench of three learned Judges for hearing on any other points that may be involved and for final disposal.
6. The CBI filed a review petition dated 12.11.1998 against the judgment dated 17-4-1998 which was dismissed on 16.12.1998. The Supreme Court further vide order dated 5.5.1999 disposed of the Special Leave Petitions with the following order:
“….While the matter was heard before a three-Judge Bench of this Court, it was felt necessary that the matter should be referred to the Constitution Bench for expressing opinion as to whether the Members of Parliaments are “public servants” within the ambit of Prevention of Corruption Act and whether privilege under Article 105 of the Constitution of India can at all be claimed. These two questions have now been answered by the Constitution Bench in three different judgments since [P.V. Narasimha Rao v. State (CBI/SPE)]…..it is not necessary for us to go into any other questions raised in these appeals since those questions have to be answered by the learned Trial Judge bearing in mind the law laid down by the Constitution Bench in the aforesaid case. Needless to mention that any observation that has been made by the High Court on the merits of the proceeding will not weigh with the learned Trial Judge in disposing of the matter and the contentions raised before him…”
7. In view of the law enunciated by the Supreme Court, he learned trial Judge vide order dated 4.6.1999 dropped proceedings and charges under Section 120-B IPC read with Sections 7, 12, 13(2)read with Section 13(1)(d) of the Prevention of Corruption Act 1988 framed against Shri Suraj Mandal, Shri Shibu Soren, Shri Simon Marandi, Shri Shailender Mahto, Shri Ram Lakhan Singh Yadav, Shri Ram Saran Yadav, Shri Roshan Lal, Shri Anadi Charan Das, Shri Abhay Pratap Singh and Shri Haji Gulam Mohd. Khan although the learned trial Judge ruled that charge under Section 193 IPC against Shri Suraj Mandal, Shri Shibu Soren and Shri Simon Marandi shall proceed. The trial for charges under Section 193 IPC against the aforesaid accused persons was separated and directed to be tried by a separate court.
8. Also following the Supreme Court judgment, an amended charge was framed on 20.7.1999 against the remaining accused. The charges framed were under Section 120-B IPC read with Sections 7, 12, 13(2) read with Section 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, submitted that the only evidence to connect his client with the offence is the alleged “close door” meeting between Shri P.V. Narasimha Rao, Shri Buta Singh and Shri Suraj Mandal on 26.7.1993 at the residence of Shri P.V. Narasimha Rao and this has been introduced for the first time in the statement dated 22.3.1997 under Section 164 Cr.P.C. after it was known to the Prosecution, during the arguments on framing of charge, that the material put up for examination by the Prosecution did not establish, the much harped off, conspiracy and, therefore, in the statement dated 22.3.1997 under Section 164 Cr.P.C., the Prosecution got PW-1 to introduce “a close door meeting” between Shri P.V. Narasimha Rao, Shri Buta Singh and Shri Suraj Mandal to be the conspiracy to give bribe to JMM MPs in consideration of their vote against the Motion in Parliament. He submitted that Shri Shailender Mahto was extensively interrogated and examined by senior CBI officers on at least four different dates and four different statements were recorded under Section 161Cr.P.C., but in none of the statements is there any mention of the so-called “close door meeting” which is the crux of the Prosecution’s case to establish conspiracy. He further submitted that a self-confessed liar like PW-1 cannot pass the first test of reliability that is essential for a witness before his statement can be considered.
12. Shri R.K. Anand, learned Senior Counsel appearing on behalf of the appellant, Shri P.V. Narasimha Rao, submitted that Shri Shailender Mahto, PW-1, could not have been made as an Approver and granted pardon as for the offence charged he could not have been prosecuted and punished in view of the immunity enjoyed under Article 105(2) of the Constitution nor statement of this accomplice be treated to be that of an ordinary witness as the same would be hit by Section 163 Cr.P.C. and Section 24 of the Evidence Act. He submitted tat if this witness is discarded, the Prosecution has no other material on which it can base its claim that a conspiracy was hatched by Shri P.V. Narasimha Rao, Shir Buta Singh and Shri Suraj Mandal to bribe JMM MPs to exercise their vote against the Motion in Parliament.
13. It was argued by learned counsel that the learned Special Judge has, in his judgment dated 29.9.2000, after recording the facts of the case, divided the entire case into 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 Prosecution as no appeal was filed by them. According to the trial court, the Prosecution’s case dealing with the role of Shri P.V. Narasimha Rao and Shri Buta Singh in the conspiracy to bribe the JMM MPs is based on common evidence the key stone of which is the statement of PW-1, Shri Shailender Mahto.
15. According to the learned counsel the trial court has wrongly held that PW-1′ statement connects Shri P.V. Narasimha Rao and Shri Buta Singh with the conspiracy.
16. It was contended by learned counsel for the appellants that the reasoning of the trial court in holding that the Approver is a trustworthy witness inspite of contradictions and improvements and further by corroborating him with his own previous statement was bad. In other words, it was contended by learned counsel that firstly the reasoning of the trial court in coming to the conclusion that the Approver is trustworthy witness, is not correct and secondly the grant of pardon is also bad.
17. It was argued n behalf of the State that the pardon granted to the Approver, PW-1, is valid and his statement pursuant to that pardon can be taken into consideration as statement of an Approver. Mr. Sud, learned Additional Solicitor General, argued that it is not necessary that the Approver must be an accused but can be any person supposed to have been directly or indirectly concerned in or a privy to an offence. He drew my attention to the fact that PW-1, Shri Shailender Mahto, filed an application dated 16.3.1997 under Section 306 Cr.P.C. before the trial court on 17.3.1997. At that stage arguments on framing of charge were being addressed by counsel for the accused including that of the Approver. Earlier to moving the application on 17.3.1997, PW-1 had moved an application while he was in custody but when he was produced before the learned Metropolitan Magistrate, he declined to make such statement giving his reasons that he was being pressurized to do so. At the time when the Approver made a second application for grant of pardon dated 16.3.1997, he was being prosecuted for the offence under the Prevention of Corruptions Act before the Special Judge. The application for grant of pardon was dealt with under Section 5(2) of the Prevention of corruption Act which application was supported by the Prosecution. Consequently, the learned Special Judge allowed recording of statement under Section 164 Cr.P.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 pardon cannot be termed as “illegal”. The pardon so tendered under Section 5(2) of the Prevention of Corruption Act shall, for the purposes of Sub-sections (1) to (5) of Section 308 Cr.P.C. be deemed to have been tendered under Section 307 Cr.P.C. which, in turn, gives power to the Court of Session to grant pardon on the case being committed to Sessions. The learned Special Judge, while exercising power under Section 5(2) of the Prevention of Corruption Act, combines in it the power of a Magistrate to commit and the power of the Sessions to try. Therefore, when power is exercised by a Special Judge under Section 5(2) of the Prevention of Corruption Act, he is deemed to have the powers of the Magistrate as also that of the Sessions Judge. Section 308 Cr.P.C. does not provide any safeguard or pre-condition for granting pardon. Therefore, Article 105(2) of the Constitution does not reflect on the competency of such person making a statement as an Approver. The mere fact that Shri Shailender Mahto, PW-1, has deposed before the trial court and has been cross-examined by the defense, can be of no prejudice nor can the evidence adduced on record be wished away.
19. On immunity under Article 105(2) of the Constitution conferred upon PW-1, learned Additional Solicitor General submitted that the constitution bench judgment of the Supreme Court provided immunity from prosecution to alleged bribe-takers who voted on 28.7.1993. It does not wash off or efface the crime, rather immunity presupposes the guilt or being concerned or being privy to the crime. He referred to the judgment of the Supreme Court in Jasbir Singh v. Vipin Kumar Jaggi and Ors. (2001 Crl.L.J. 3993) under the NDPS Act, the relevant portion thereof is as under:
“The underlying rationale of Section 64 is that the Government which is vitally interested in getting hold of the culprits, must be allowed to assess the strength of the evidence available to it and, if necessary, bolster its case with evidence of an accomplice. Therefore, the Section serves the same purpose as the grant of pardon to approvers under Section 307 Cr.P.C. The object of Section 64 being the same as Section 307, it should logically follow that it may be exercised at any time during the course of the trial. It is true that the words ‘immunity from prosecution’ have been used, but the phrase does not mean anything 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 person who had actually been involved in commission of an offence but has not been charged by the prosecution can also approach the court and pray for pardon and can be examined as an Approver and if he answers fully the character of an Approver witness and his competence to depose as a witness is not impaired or whittled down. Learned Additional Solicitor General relied upon the decision of the Privy Council as reported in Balraj Kunwar and Anr. v. Jagat Pal Singh (1904) 2nd 26 11 393 PC and submitted that the meaning of the words “any person” in Section 337(i) Cr.P.C. (old code), which corresponds to Section 306 of the new code appears to be abundantly clear being subject to the qualification expressly laid down in the said provision viz. “supposed to have been directly or indirectly concerned in or privy to the offence” and not in any way otherwise circumscribed to denote a person who has actually been made an accused. The only condition is that he would make “a full and true disclosure of the circumstances etc.
21. Learned Additional Solicitor General further relied upon the decisions in Kashiram v. Emperor, AIR 1923 Nag. 248, Santosh Saha v. State and Anr., 1973 Crl. L.J. 968, Rabi Das and Ors. v. State, 1976 Cuttak Law Reports 25 and Lt. Commander Pascal Fernanades v. State of Maharashtra and Ors., . He submitted that there can be no doubt that the section is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in or privy to an offence. This must necessarily include a person arraigned before him. But it may possible to tender pardon to a person not so arraigned. The power so conferred can also be exercised at any time after the case is received for trial and before its conclusion. Learned Additional Solicitor General further submitted that pardon is not only granted to a person already charged for an offence but also to a person not charged for an offence just to remove the fear from his mind that the disclosure made by him before the court will not make him liable to be tried for the offence even henceforth. This is the raison detre of the pardon i.e. to remove even the remotest fear psychosis while making clean breast or guilt or conduct of unworthy nature.
22. An Approver need not inculpate himself in the offence. The 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 framing of charges against them had also questioned legality and propriety of order dated 8.4.1997 granting pardon to PW-1. The above petitions were dismissed on 12.9.1997 and the order granting pardon was not interfered with. The above judgment is reported as 1997 (5) AD (Delhi) 265, P.V. Narasimha Rao and Ors. v. Central Bureau of Investigation.
25. While dismissing the petition, the court observed that there is nothing under Section 164 Cr.P.C. which warrants the proposition that if a statement or confession is recorded during trial, the same becomes inadmissible and, in any case, it is not a defect of substance. The court also held that the powers of Special Judge are not circumscribed by any condition excepting that the person must be one who is supposed to have been directly or indirectly concerned in or privy to an offence. The power so conferred can be exercised at any time after the case is received and before its conclusion. But, then before the Special Judge acts or tenders pardon, he must know the nature of the evidence the person seeking conditional pardon is likely to give, the nature of complicity and the degree of his culpability in relation to the offence and in relation to co-accused. After all it is the duty of the Special Judge to be very cautious as to whom he admits to give evidence as an Approver and should carefully inquire to what extent this Approver, if mixed up with the transaction and if he be an accomplice, into the extent of guilt. This court, in ultimate result held that the statement so recorded shall be admissible in evidence.
26. The appellants along with others also filed Special Leave Petitions in the Supreme Court impugning the order dated 12.9.1997 of this court. The Special Leave Petitions were finally disposed of on 5.5.1999 after the constitution bench judgment dated 17.4.1998. It is important to note that the order dated 8.4.1997 of the trial court granting pardon to PW-1 was not interfered with by the Supreme Court and met the approval of the Supreme Court and it is not open to agitate the same at this stage once again.
27. While disposing of the Special Leave Petitions, the Supreme Court left it for the trial court to deal with other accused persons (other than the persons entitled for immunity under Article 105(2) of the Constitution) in accordance with law and so has allowed the trial to proceed ahead. Neither 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, for the sake of this argument, it would mean that the mind of the Approver is free from fear of prosecution and it will mean that the Approver is more trustworthy because he will not be liable for prosecution even if he deviated during the deposition as PW-1 from the facts stated by him in his statement under Section 164 Cr. P.C.
30. The learned Additional Solicitor General further submitted that even till today, the approver has not appeared before any competent authority or court retracting from the facts stated by him in his deposition as PW-1. Thus the evidence adduced by the Approver has a high degree of reliability.
31. To establish the veracity of the statement of the Approver, the learned Additional Solicitor General submitted that the statement of the Approver stands substantially corroborated by independent evidence in all material particulars. The nature of corroboration is to be found in the judgment of the Supreme Court in Rameshwar v. State of Rajasthan, . It was contended that it is not necessary that there should be independent confirmation of every material substance but the corroboration from an independent source must be substantial rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. The nature of corroboration in this case, according to the learned Additional Solicitor General that has been brought on record is that in the monsoon session of 10th Lok Sabha in 1993, a No Confidence Motion against the Govt. headed by the appellant, Shri P.V. Narasimha Rao was moved. The appellant’s Government was short by 14 votes to win the No Confidence Motion and required the support of MPs of other parties. It is also undisputed that at the relevant point of time, appellant, Shri Buta Singh, was the person competent to deal with the bribe-takers being in a position of the Home Minister in the Government. There was a meeting of JMM MPs with appellant, Shri Buta Singh, and subsequently with the appellant, Shri Narasimha Rao. Discussions/bargaining took place for the purpose of buying over the votes of bribe-takers. The main aspect being the passing of money. Appellant, Buta Singh’s trip to Bangalore and return to Delhi on the same day along with the other accused. Withdrawal of money from the Banks in Bangalore after the banking hours. Deposit of money in the bank accounts of 4 JMM MPs 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 inLachhi 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 discarded. It is only after exercising caution and care and sifting the evidence to separate the truth from untruth, exaggeration, embellishments and improvements, the court come sot the conclusion what can be accepted. Supreme Court has held that “falsus in uno, falsus in omnibus” is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. Sohrab and Anr. v. State of Madhya Pradesh).
34. The contradiction on ancillary or incidental matters of details or omissions of irrelevant details not going to the root of prosecution case in cases of nature at hand need not be given importance and do not detract the evidentiary nature of the statement of the approver.
35. Efforts should be made to find the truth, this is the very object for which courts are created. One has to comprehend the totality of the facts and the circumstances as spelled out through the evidence, depending on the facts of each case. – Mohan Singh and Anr. v. State of M.P.] “Falsus in Uno, Falsus in Omnibus” does not apply to criminal trials and it is the duty of the court to disengage the truth from falsehood, Chand Khan and Anr. v. State of U.P., . The maxim “Falsus in Uno, Falsus in Omnibus”, is not a sound rule to be applied in India, – Ranbir Singh and Ors. v. State of Punjab).
36. Inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies etc. go to the root of the matter, –Krishna Pillai Sree Kumar and Anr. v. State of Kerala). Exaggeration and falsehood in prosecution evidence on points which do not touch the core of the prosecution story are not be given undue importance, – Dharam Das and Ors. v. State of U.P.). (1973 SCC (Crl.) 765
37. Learned Additional Solicitor General also relied on a number of judgments of the Supreme Court in Inder Singh and Anr. v. The State (Delhi Administration), , State of Punjab v. Jagir Singh, Baljit Singh and Karam Singh , State of Himachal Pradesh v. Lekh Raj and Anr., , M. Narsinga Rao v. State of A.P., , State of W.B. v. Mir Mohammad Omar and Ors., 2000(2) SCC (Crl.) 1516, Pawan Kumar v. State of Haryana, , Yash Pal Mittal v. State of Punjab , Firozuddin Basheeruddin and Ors. v. State 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 witness and, if so, is the grant of pardon, in view of the judgment of the Supreme Court holding that he was shielded from prosecution on account of Article 105(2) of the Constitution, appropriate?
41. It is the admitted case of the parties that in the charge-sheet filed before the Special Court, PW-1,Shri Shailender Mahto, was an accused facing a charge framed against him. During the course of trial, the Supreme Court, vide its judgment dated 17.4.1998, held that he was protected from prosecution for his acts in Parliament under Article 105(2) of the Constitution.
42. Consequently, the status of Shri Shailender Mahto became clear and charges against him were dropped, but before this stage, his deposition had already been recorded by the Court as an accomplish/Approver. There is no gainsaying that the judgment of the Supreme Court declared the law, as was at the advent of the Constitution. In other words, Shri Shailender Mahto, enjoyed an immunity and could never have been prosecuted for the charge for which he was arrayed as an accused. The law on pardon is well settled. It is a contract between the State and the individual in which the State bargains for a full and true disclosure within his knowledge relating to the offence and to every other individual person whether principal or an abettor in the commission of the crime. It is a surrender of the right of the State to prosecute the individual in the event of his being implicated in the crime by granting a pardon. The Supreme Court in The State v. Hiralal Girdhari Lal Kothari and Ors., has held that “protection granted under Section 337 of the Code of Criminal Procedure (now Section 306/307Cr.P.C. and Section 5(2) of the Prevention of Corruption Act), is a protection from prosecution, failure to comply with the condition on which the pardon is granted, removes that protection”. In other words, the grant of pardon carries an imputation of guilt and an acceptance thereof. A pardon is an act of grace which exempts the individual, on whom it is bestowed, from prosecution/punishment that the law may inflict for the Act. A person to be entitled to pardon under Section 5(2) of the Prevention of Corruption Act, must be directly or indirectly concerned with or privy to the offence. Such persons should then make a full and true disclosure of the circumstances within his knowledge relating to the offence 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 it appropriate to reflect even at the cost of repetition on the conditions under which this case has seen the light of the day. It is admitted case between the parties that in the General Elections of the 10th Lok Sabha held in 1991, Congress (I) Party emerged as a single largest party and was called upon to form Government at the Center with Shri P.V. Narasimha Rao as Prime Minister. In 1993, during the monsoon session of Lok Sabha commencing on 26.7.1993, a No Confidence Motion had been moved against the Government by PW-14, Shri Ajay Mukhopadhyay. At that time the effective strength of the Lok Sabha was 528 of which Congress (I) Party had 251 Members. The Congress (I) Party needed 14 votes to avert the No Confidence Motion. The Congress Party, as a whole, including the Prime Minister was busy garnishing strength to infuse the much needed life blood. The Government did succeed in defeating the Motion by a slender margin. On the defeat of the Motion, there was hue and cry about the methods used to obtain the result. The question of use of money to buy support was serious enough to warrant a discussion in Parliament. The Nation watched aghast their Representatives discussing the state of affairs. It took three years for PW-1 to spill the beans before Shri Atal Bihari Vajpayee who, in turn, referred him to Shri Ram Jethmalani who heard PW-1 at length and dictated a Press Note which was released at a Press Conference. The revelation shocked the conscience of every right thinking person while the wheels of criminal justice stood jammed. Even Shri Jethmalani, a Senior Advocate, except for deriving political mileage and media coverage showed no inclination to set into motion the investigative machinery. In any event, the powers that controlled the system at the highest level were themselves allegedly responsible for flouting the rule of law, public morality and parliamentary discipline. It took Shri Ravinder Kumar, an Advocate, to move the High Court by way of a writ petition to get an FIR registered.
45. Being seized of the matter, it fell to the lot of the judiciary to goad the unwilling investigative agency, (the CBI, to investigate the complaint of Shri Ravinder Kumar. Finally, a report under Section 173 Code of Criminal Procedure was placed before the trial court forming the basis of a charge against 21 persons who were arrayed as accused. At the stage of 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 error and PW-1, who was an accused, could very well be granted pardon. The Supreme Court interpretation of law in respect of Article 105(2) of the Constitution, does set at naught a valid proceedings taken by a court of competent jurisdiction. What was correctly admitted into evidence could not be wished away.
47. The effect of the law declared by the Supreme Court while interpreting Article 105(2) of the Constitution is, that those Members of Parliament who allegedly accepted illegal gratification and cast their vote in the proceedings of the No confidence Motion were protected. This does not mean that a person envisaged under Section 5(2) of the Prevention of Corruption Act could not be a person protected from prosecution within the narrow ambit of the judgment of the Supreme Court. The grant of pardon implies immunity from prosecution not only from the offence for which charge has been framed, but also allied offences which may arise consequent to the disclosure implicating the Approver. Therefore, it is legitimate for the court to accept the grant of pardon to a person who is not an accused. A person who is not an accused but fears that he may be prosecuted on his disclosures can ask for pardon and the State in order to get information relevant to the case within his special knowledge may bargain, in the interest of the case, to secure conviction. Merely because a limited protection is granted under Article 105(2) of the Constitution is no ground to disentitle a person from turning Approver. There may be other offences for which he may be prosecuted.
48. In this view of the matter, the testimony of PW-1 is admissible and can be relied upon as that of an Approver. In A. Devedran v. State of Tamil Nadu, , the question was of jurisdiction and, therefore, the Supreme Court held that the individual who could not be made an Approver for want of jurisdiction, stood discarded, his testimony cannot be used at all for any purpose. Such a statement cannot be treated as that of an ordinary witness as the same would be hit by Section 163 of the Code of Criminal Procedure and Section 24 of the Indian Evidence Act. This is not the case here. The statement of the Approver is admissible.
49. Now, coming to the question of reliability of PW-1, the Approver. His statement has been attacked on various grounds by learned counsel for the appellants, namely, his competence 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 extract the various statements made by the Approver.
52. In the Press release dated 26.2.1996, he has stated as under:
“In July 1993, i.e. two days before the voting on the No Confidence Motion, Shri Suraj Mandal, MP, telephoned me. I was told to come to the house of Shibu Soren, MP, at 51, Gurdwara Rakab Ganj Road. The time was of the evening. When I reached the house of Shibu Soren, there I found Simon Marandi, MP, and Suraj Mandal.
Suraj Mandal told us that we have to meet Shri Buta Singh and thereafter we have to go to meet the Prime Minister. We were further told that the Central Government is ready to accept our demand of formation of the Jharkhand Council provided we support the Government during the vote on the No Confidence Motion. All of us, at about 8 PM, went to the house of Shri Buta Singh. From there, we went to the house of the Prime Minister at 7, Race Course Road, with him. There, we along with Shri Buta Singh went inside and found the Prime Minister waiting for us. I clearly remember that Pradhan Mantri was sitting in a very pensive mood and posture. The Prime Minister requested us to take a seat.
Thereafter, Shri Buta Singh raised the issue of Jharkhand Council. He told the Prime Minister that he should resolve this issue at his personal level.
Shri Buta Singh further said that JMM should vote in favor of the Government during the No Confidence Motion. The Prime Minister said that he would personally call for the file from the Home Minister and would resolve the issue. However, this may take some time. However, till then, I would also do something for you. He said that whatever has been talked between Shri Buta Singh and Suraj Mandal, shall also be fulfillled. At that time, I could not understand the exact context of above.
Thereafter, Suraj Mandal said that against our previous inclination to vote against, now we would vote against the No Confidence Motion. We all acted accordingly and voted against the No Confidence Motion. This saved the Government by two votes. In fact, Shri Buta Singh contacted us only after Shri Ajit Singh disappointed the Prime Minister.”
53. In his confession application dated 16.3.1997, he states as under:
“On 26 July, 1993, the monsoon Session of the Parliament started. On the same day, the opposition parties moved a No Confidence Motion against the Government of Shri P.V. Narasimha Rao.
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 solution for the same. On this, Buta Singh stated that if it is so, then we should directly talk to the Prime Minister on this issue. After having tea, we and Buta Singh proceeded to the house of the Prime Minister at 7, Race Course Road, in our respective vehicles. From the gate, we walked on foot and then sat in the waiting room. After sometime, we were called to the room of the Prime Minister. There, he was sitting alone in a pensive posture. Buta Singh started the talk by saying that when he was the Home Minister, the talks of formation of Jharkhand Council was initiated and Committee was formed, and the said Committee gave its report as well.
Further, no decision has been taken on the said report. On this, Suraj Mandal also said that you have not taken any decision on the Jharkhand matter till date and therefore how can we support you. The Prime Minister told us that he would call for the file and would ensure personally that the work is completed. Thereafter, the Prime Minister, Buta Singh and Suraj Mandal went to a separate room. They talked for some time and then came out. The Prime Minister told all 3 of us waiting MPs that we should help him and he would also help us. The Prime Minister also stated that whatever has been talked with Suraj Mandal separately shall also be fulfillled. Thereafter we walked on foot up to the gate and from there Buta Singh went to his residence and we 4 MPs also came back.”
On the way back, I asked Suraj Mandal that what was talked separately between 3 of you. Then, Suraj Mandal told that talks for our benefit have taken place. On this, Simon Marandi intervened and said that Suraj you should state more elaborately as to what was talked, otherwise we will not vote. On this, Mandal said that be patient as talks of money have also taken place. However, how much money would be paid, is still not clear. I was dropped at 51, South Avenue.”
55. in his statement before the Court as PW-1, this witness deposed as under:
“On the evening of 26.7.1993 at 7.00 P.M., accused Suraj Mandal rang me up on telephone and told me to come to the house of accused Shibu Soren at 17, Gurdwara Rakab Ganj Road. We all four members of JMM (Soren Party) had collected at the house of Shibu Soren. Suraj Mandal told us that we were required to go to the house of Shri Buta Singh. From the house of Shibu Soren, myself, Shibu Soren, Suraj 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. He further told the Prime Minister that during his tenure as Home Minister one committee was formed about Jharkhand matters and the said committee had already submitted its report. Despite of that matter of Jharkhand Council was unresolved. Accused Suraj Mandal intervened and said “you have not resolved the matter of Jharkhand and as such how can we support your Government”. Accused Shri P.V. Narasimha Rao replied that he would summon the file of Jharkhand matter from Home Ministry and look into the matter and resolve it. He said at present you should help me. Thereafter, accused P.V. Narasimha Rao and Buta Singh went to the other room. After some time Suraj Mandal accused was also called to that room. We remained waiting in the first room. 5/6 minutes later, Shri P.V. Narasimha Rao, Buta Singh and Suraj Mandal came back to our room. Shri P.V. Narasimha Rao said “at present you should help me and in return I will also help you”. He also said that “whatever conversation has taken place with Suraj Mandal, those promises shall be fulfillled. Thereafter, we all came on foot till main gate of the residence of Shri P.V. Narasimha Rao. Accused Buta Singh went away on his car and we returned back on our car and I was dropped at my residence. In the way I asked Suraj Mandal about the conversation which has taken place between him, Buta Singh and the Prime Minister. Suraj Mandal replied “Phayde ki baat hai”. On this Simon Marandi said “Suraj tum spasht batao nahi to hum vote nahin denge”. On this Suraj Mandal told “paise ke bhi baat hui hai, kitna paise milega abhi tai nahin hua”.
No conversation regarding payment of money, took place in my presence at the residence of Prime Minister in the aforesaid meeting at the residence of Prime Minister. We had a conversation with the Prime Minister and we told him that if he was ready to accept our demand for creation of Jharkhand Autonomous council we would support the government.
It is correct that on 26.7.1993 Suraj Mandal rang me up. He told me on telephone to reach at the residence of Shibu Soren. Probably I might have stated to CBI during investigation that on 26.7.1993 Suraj Mandal came to my residence. In the evening of 26.7.1993 in pursuance of the message of Suraj Mandal, I visited the house of Shibu Soren. Perhaps I went to the residence of Shibu Soren on 26.7.93 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 confession statement dated 22.3.1997, there is an omission of invitation and also going to the house of the Prime Minister. From further comparison between the Press release and the confession statement it is evident that there is a contradiction in the manner of meeting between the JMM MPs, Shri Buta Singh and the Prime Minister. In one version he says JMM MPs along with Shri Buta Singh together went inside and met the Prime Minister while in the later statement he says that initially only Mr. Buta Singh was called inside first and they were called inside later on. In the Press release dated 26.2.1996, which was admittedly prepared at the behest of Shri Ram Jethmalani, he does not speak of the close-door meeting between Shri Suraj Mandal, Shri Buta Singh and the Prime Minister, while in his confession statement dated 22.3.1997 this fact has been introduced for the first time, namely, ” thereafter the Prime Minister, Shri Buta Singh and Shri Suraj Mandal went to a separate room. They talked for some time and then came out. The Prime Minister told all 3 of us waiting MPs that we should help him and he would help us. The Prime Minister also stated that whatever has been talked with Suraj Mandal separately shall also be fulfillled”. Interestingly, in the Press statement, there is no separate “close door meeting” and the words attributed to the Prime Minister are – ” he said that whatever has been talked between Shri Buta Singh and Shri Suraj Mandal, shall also be fulfillled” implying thereby that a meeting had taken place between Shri Buta Singh and Shri Suraj Mandal in the absence of the Prime Minister. This meeting obviously was not at the house of the Prime Minister and from the evidence it appears that the meeting between Shri Buta Singh, Shri Suraj Mandal and the JMM MPs was regarding formation of the Jharkhand Council; money did not figure anywhere.
57. The confession statement dated 22.3.1997 is a clear improvement on his past statements where he has deliberately introduced two more elements i.e. separate meeting in separate room and also supports the separate meeting by saying that the Prime Minister said that whatever he has talked with Shri Suraj Mandal separately shall also be fulfillled. This is a material contradiction and gives an impression that these statements were Made at the behest of the Prosecution as a bargain 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 mention Mr. Buta Singh. This shows that in the so-called separate meeting, Shri Buta Singh was not present and, therefore, not a party to any understanding between the Prime Minister and Shri Suraj Mandal. These contradictions are material.
59. From an analysis of the material in the statements made By the Approver it appears that the question of money was never an item for discussion. Even as per the settled law, to make the statement of a co-conspirator relevant under Section 10 of the Evidence Act, the accomplice should be the agent of any other co-conspirators to make him an accomplice. Here it is clear that even if Shri Suraj Mandal went in the separate room to talk to the Prime Minister and Shri Buta Singh, he had no authority or agency of the other JMM MPs to talk about money and the only issue which could have been discussed by him was formation of Jharkhand Council as that was the only issue on which JMM MPs were working from the beginning when they contacted Mr. Buta Singh and also the Prime Minister. Therefore, even if it is assumed that a separate meeting took place in the separate room, then at the best it was an independent conspiracy between the Prime Minister, Shri Buta Singh and Shri Suraj Mandal and since no other person was present, only one out of the three could be a relevant witness underSection 10 of the Evidence Act. In so far as the Approver is concerned, since he was admittedly not there in the meeting, he is not a co-conspirator in respect thereof and accordingly his statement is neither relevant nor admissible under Section 10 of the Evidence Act. In fact, the same is barred under Section 60 of the Evidence Act as it is only hearsay. Accordingly, the testimony of the Approver is liable to be rejected on this score. Reference may be had to , CBI v. V.C. Shukla Ors. , State of Gujarat v. Mohammed Atik and Ors. and , State v. Nalini and Ors.
60. It is the law of evidence that the story of a person especially of the Approver must be consistent and logical. Therefore, omissions and contradiction s cannot be overlooked and statement of the Approver could be his by Section 155 of the Indian Evidence Act as the testimony stands impeached and discredited. There are material contradictions, improvements and omissions regarding the meeting on 24/25/.7.1993 between the JMM MPs and Shri Ajit Singh.
there are material contradictions and improvements 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 Conference was a lie. It is difficult to place reliance, for the purpose of conviction, on such a witness. His statement is riddled with material contradictions/improvements making it unreliable, therefore, ought to be discarded.
61. If there was any substance in the conspiracy theory propounded by the prosecution by introducing a “close door meeting” between the Prime Minister, Shri Buta Singh and Shri Suraj Mandal, there is no reason why this important facet was not got corroborated by independent evidence. PW-1 relating the entire story to Shri Atal Bihari Vajapayee, who then sent him to Shri Ram Jethmalani. There too this witness narrated the entire incidence. On the basis of the information supplied to Shri Ram Jethmalani, a press Note was prepared where this important aspect of a close door meeting is missing. It is not possible that Shri Ram Jethmalani, a Senior Advocate, having extensive practice on criminal side could have overlooked this important facet of “close door meeting” had it been told to him. Even otherwise, the Prosecution knew very well that the cornerstone of the case lies in the statement of the Approver insofar as he has introduced the “close door meeting” with the Prime Minister, Shri Buta Singh and Shri Suraj Mandal. There was nothing stopping them from corroborating this important fact by calling Shri Ram Jethmalani and of Shri Atal Bihari Vajapayee into the witness box. the very fact that the prosecution, knowing its case fully well did not deliberately examine Shri Atal Bihari Vajpayee or Shri Jethmalani as prosecution witnesses, whose that this introduction by the Approver of the “close door meeting” was merely a “red hearing” To give further instances of the unreliability of PW-1, he is also a self-confessed liar admittedly making false statements. He states “my statement to CBI during investigation as well as statement dated 29.2.1996 in the Parliament had no relation with truth”. He further admits “I did not tell the CBI about meeting with Shri Narasimah Rao and Shri Suraj Mandal in the separate room. I must have concealed this fact from CBI before recording my aforesaid statement. I was advised by CBI Officers to narrate the truth. It is correct that some other CBI officer recorded my statement on 20.6.1996. He thoroughly examined me for about three hours. I do not 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 Jharkhand. When we met Shri Buta Singh we told him that out demand for creation of Jharkhand Council was not fulfillled and on this he suggested a meeting with Shri P.V. Narasimha Rao and told “let’s goand resolve this issue with the Prime Minister”. It is admitted byu the witness that “no conversation regarding payment of money took place in his presence at the residence of Prime Minister”. It is further admitted by this witness that “it is correct that prior to my statement dated 22.3.1997, I did not disclose it in my earlier statement about the fact that while coming form the residence of Shri P.V. Narasimah Rao I asked Suraj Mandal the nature of conversation which took place between him. Shri Buta Singh and Shri P.V. Narasimha Rao and on this Suraj Mandal replied that it was of our benefit and thereafter Siman Marandi intervened and told Suraj Mandal to clearly specify the conversation failing which he threatened that he would not vote in favor of the Govt. and on this Mandal replied that talks regarding money has taken place but quantum has not been settled”.
62. The law regarding appreciation of evidence of an Approver is quite clear. Firstly, he must be a reliable witness and, if found to be reliable, then his statement must be corroborated by independent witness in material particulars. Reference may be had to , Sarwan Singh Rattan Singh v. State of Punjab where the Supreme Court has held :
“In other words, the appreciation of an approver’s evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test, which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver’s evidence must receive sufficient corroborations. This test is special in the cases of weak or tainted evidence like that of the approver”.
63. Reference may also be had to Alil Mollah and Anr. v. State of W.B. where the Court has held that :
“conviction can be based on the testimony of a single eve wetness provided that Court finds from the scrutiny of his evidence that if he is wholly reliable wetness. Where, however, the Court is of the opinion that the single eye witness is only partly reliable, prudence requires that corroborations of his testimony in material particulars should be sought before recording conviction.”
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 crime was committed but, must in some way, reasonably connect or tend to connect the accused with it by confirming in some material particulars the testimony of the accomplice or complainant that the accused committed the crime. The corroboration must come from independent source and thus ordinarily the testimony of one accomplish would not be sufficient to corroborate that of another. In the present case, the material particulars is the “close door meeting” for which the only additional evidence is the money lying in the bank which has not been connected with the appellants herein. Moreover, this has been disbelieved by the trial court and there is not appeal against this finding. In the present case, the total evidence against Shri Buta Singh and Shir P.V. Narasimha Rao is the separate meeting between them and Shri Suraj Mandal for about 5-6 minutes where, according to the Prosecution, the money deal was settled. Therefore, the only incriminating act of Shri Buta Singh is coming to another room with Shri P.V. Narasimha Rao and Shri Suraj Mandal and their deciding about money deal. It was incumbent upon the prosecution to lead evidence to corroborate this incident which is woefully absent. On the contrary, the fact of the matter is that in no pervious statements other than under Section 164 Code of Criminal Procedure this meeting is highlighted. It is settled law that where important evidence or allegations are not disclosed by witness at the earliest occasion or when it would have been natural for him to disclose, does amount to contradiction (Section 162 Cr.P.C. Explanation). In Mohd. Hussain Umar Kochra etc. v. K.S. Dalipsinghji and Anr. etc., , the Supreme Court has held “that combined effect of Sections 133and 144, Illustration B, is heat though a conviction based upon accomplice evidence is legal, the Court will not accept such evidence unless it is corroborated in material particulars, the corroboration must connect the accused with the crime. It may be direct or circumstantial. It is not necessary that corroboration should confirm all the circumstances of the crime. It is sufficient if the corroboration is in material particulars. Corroboration must be from an independent source. One accomplice cannot corroborate the to , Bhuboni Sahu v. The King, lays down “the statement made by an Approver under Section 164 Code of Criminal Procedure 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., , R. v. Lambert, 2001(3) ALL ER 577, Rejendra Prasad v. State of Uttar Pradesh, ,Nidamarti Meheshkumar v. State of Maharashtra and Ors. , Candler v. Crane Christmas and Co., 1951 (1) ALL ER 426, State of Uttar Pradesh v. Kishori Lal Minocha, , Warehousing and Forwarding Company of East Africa Ltd. v. Jafferali & Sons, Ltd., 1963 (3) ALL ER 571, Midland Bank Trust Co.Ltd. and Anr. v. Hett, Stubbs & Kemp, 1978 (3) ALL ER 571, Henderson and Ors. v. Merrett Syndicates Ltd. and Ors., Hallam-Eames and Ors. v. Merrett Syndicates Ltd., Hughes and Ors. v. Merrett Syndicates Ltd. and Ors., Arbuthnott and Ors. v. Feltrim Underwriting Agencies Ltd and Ors., Deeny and Ors. v. Gooda Walker Ltd. and Ors., 1994 (3) ALL ER 506 and Dalbir Singh and Ors. v. State of Punjab, AIR 1979 SC 1384.
67. He submitted that by order dated 8.4.1997 the trial court granted pardon to PW-1, Shri Shailender Mahto. In his deposition, PW-1 has referred to special events which were to take place in Parliament. He has referred to Capt. Satish Sharma, Shri Ajit Singh, Shri Ashok Rao Deshmukh and Shri V.Rajeshwar Rao and has pointed out that Shri Suraj Mandal told them that Shri Rajeshwar Rao had offered a meager amount and, therefore, it was suggested that they meet Shri P.V. Narasimha Rao. He has also mentioned about Shri Buta Singh waiting for the JMM MPs to take them to a meeting with Shri P.V. Narasimha Rao. This witness has also referred to the meeting with Shri Sita Ram kesri and his appeal to the JMM MPs to save the Government with the assurance that whatever Shri P.V. Narasimha Rao had promised shall be fulfilled. PW-1 has also deposed to the effect that Shri Rajeshwar Rao told them that they would be paid rupees fifty lakhs each, a petrol pump and a plot in HUDA. He has also stated that Shri Ram Lakhan Singh Yadav was going to join Congress. This witness has also deposed receiving of bribe money and the manner in which it was deposited in the Punjab National Bank. He has described the happenings of 2.4.1996 at Ranchi Airport when his signature was obtained in the Minute Book of the JMM party on a back dated document, the purpose being to create evidence regarding printing of party coupons for collecting party funds although in 1993 when he was the General Secretary of his party no books of accounts were maintained. In fact, no meeting of the Executive of the Central Committee of JMM ever 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 contained in the affidavit were denied by him before the trial court but the court can always, while appreciating evidence, remove the chef from the grain. PW-74, B.N. Safaya has denied knowing anybody of the name of Shri Simon Marandi. He has also denied having made a statement to the CBI indicating the receipt o funds though in his statement under Section 161 of the Code of Criminal Procedure, he has given a detailed account of the amounts received from various sources and also the role he played in disbursing it to various accused persons. His pretended ignorance and his resiling from the statement under Section 161 Cr.P.C. is an act to cover up.
69. PW-75, R.K. Dayal, according to the learned counsel, was directed by the Editor of his paper to go to the residence of Shri Ram Lakhan Singh Yadav. He was hounded out of that place but he could see many people entering the house of Shri Ram Lakhan Singh Yadav on the day when No Confidence Motion was to be debated and the photographs he took are Ex.PW-75/D published in the newspaper issue dated 29.7.1993. These photographs show, amongst others, Capt. Satish Sharma, Shri Bhajan Lal, Shri Jitender Prased and Shri Karunakaran visiting the house of Shri Ram Lakhan Singh yadav. Except for Shri Ram Lakhan Singh Yadav, all other above named were on 28.7.1993 members of the political party of Shri P.V. Narasimha Rao. Shri Karunakaran was the Chief Minister of Kerala, Shri Bhajan Lal was the Chief Minister of Haryana and Shri Veerappa Moily was the Chief Minister of Karnataka. It is clear that all these Chief Ministers were put on the job to muster sufficient number of MPs to defeat the No Confidence Motion. PW-86, Raj Kumar Jain, has supported the testimony of PW-1, Shri Shailender Mahto since he neither admitted nor denied the questions put to him. The statement of PW-77, Shashi Ruia, tallies with the statement of PW-74, B.N. Safaya, which he gave to the CBI. The conspiracy to collect money is proved by the fact that money was available with Shri P.V. Narasimha Rao to keep his Government in power and all the accused persons were part of that conspiracy. The trial court erred in not noticing that circumstantial evidence existed.
70. Learned counsel submitted that PW-60, Padmanabha Rao, Chief Manager of Canara Bank, Bangalore, proved withdrawal of rupees one crore on an application signed by Shri M.Thimme Gowda. This 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 inMohan 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 not to interfere with orders of acquittal. It should do so only on exceptional grounds. It further held as under :
“10. The revisional jurisdiction conferred on the H.C. under Section 439, Criminal P.C., is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal against which the Govt. 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 lower Ct. has taken a wrong view of the law or misappreciated the evidence on record.”
73. In Harihar Chakravarty v. State of West Bengal, , the Supreme Court has reiterated what was stated in D.Stephens’ (supra) case at para 11. In K.Chinnaswamy Reddy v. State of Andhra Pradesh, , the Supreme Court has held that :
“(7) It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes ti all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when ti cannot itself directly convert a finding of acquittal into one of conviction. This places limitation on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be; where the trial court has no jurisdiction to try the case but has still acquitted the accused or where the trial court has wrongly shut out evidence 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 are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Sessions or if even is misappreciation of evidence. Again, in Logendranath Jha v. Polailal Biswas, , this Court points out that the High Court is entitled in\ revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is “perverse” or “lacking in true correct perspective.” It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Again in K.Chinnaswamy Reddy v. State of Andhra Pradesh, , it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court. As stated not one of these points which have been laid down by this Court was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned Judge has reweighed the evidence from his own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them.”
75. In the present revision petition, none of these points, 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-trial, this Court, (see at p.681 of SCR : at p. 318 of AIR) said :
“Though Sub-section (1) of Section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a court of appeal by Section 423, Sub-section (4) specifically excludes the power to convert a finding of acquittal into one of conviction.”
This does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court could in the absence of any error on a point of law re-appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterizing the judgment of the trial court as “perverse” and lacking in perspective, the High Court cannot reverse pure findings of fact based on the trial court’s appreciation of the evidenced in the case.”
11. In K.Chinnaswamy Reddy v. State of Andhra Pradesh, , the court proceeded to define the limits of the jurisdiction of the High Court under Section 439 of the Criminal procedure Code while setting aside an order of acquittal. It was said :
“…..This jurisdiction should in our opinion be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure and there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice ….. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence 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.”
12. It may be that a case not covered by any of the contingencies mentioned above may still arise. But, where, as here, the appeal 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 in the decisions referred to above. Notwithstanding the fact that Sub-section (4) of Section 439 does not authorize the High Court to convert a finding of acquittal into one of conviction, it has in fact contravened this provision by recording a finding of guilt against the accused and directing the trial court to convict them after a retrial. There is no question of lack of jurisdiction in the trial court to try the case; nor was nay attack made that any evidence has been shut out at the trial. Whether the dying declaration, Ex.P.15, by Ratnababu can be taken into account regarding the attack on Kotwswara Rao, is a matter which the Trial Court was entitled to decide one way or the other. If its view was wrong, the High Court could have gone into that aspect and differed from this opinion of the Sessions Court if the State had filed an appeal against acquittal. Further the mere fact that the learned Trial Judge held that this piece of evidence is not relevant, while considering the attack on Koteswara Rao, does not amount to shutting out of evidence at the trial. In fact that evidence has already come on record. Therefore, in this case there has been no shutting out at the trial of any evidence which the prosecution wanted to adduce or the defense wanted to lead. All available evidence has been let in by both the prosecution and the accused.
20. Nor can ti be stated that there has been any glaring defect in the procedure or a manifest error on a point of law and consequently leading to a flagrant miscarriage of justice. As mentioned earlier, Sub-section (4) of Section 439 frobids a High Court from converting a finding of acquittal into one of conviction by an indirect method of ordering retrial when the High Court itself cannot directly convert a finding of acquittal into a finding of conviction. The High Court, in our opinion, has missed these very important limitations on its power to set aside the findings of acquittal in revision which could be done only in very exceptional circumstances. In the case on hand, the High Court was not justified in considering the evidence in such detail if it was really going to order a retrial. Such a detailed consideration of evidence and an expression of opinion about the guilt of the accused, in our opinion, has really loaded the dice against the accused when the case goes back for retrial. Much stress has been laid by 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. It may be that there are slight mistakes in some of the reaons given by him but the judgment as a while shows that he has really applied his mind to the various pieces of evidence before passing the order of acquittal in the manner he has done. In the particular circumstances of this case, the interference in revision by the High Court at the instance of the private party was not justified. The two appeals filed by the convicted accused, namely, Criminal Appeals Nos. 201 and 202 of 1969 have not ben dealt with by the High Court on merits. The appellants therein have a right to have those appeals heard and disposed of by the High Court according to law.”
77. To the same effect is the judgment of the Supreme Court in Pakalapati Narayana Gajapathi Raji and Ors. v. Bonapalli Peda Appadu and Anr., , (at para 3).
78. In view of the law on the subject clearly defining the limits in which the High Court can exercise its powers, what has to be seen is, therefore, whether the trial court has committed any of those errors which would justify this Court from exercising its revisional jurisdiction. Learned counsel has not brought to my notice any evidence which has been wrongly admitted or not considered or, if admitted, not considered and/or any other defect or illegality which may necessitate an interference by this Court. Bound by the law laid down by the Supreme Court, judicial propriety and discipline, I have no option but to hold that where the trial court has appreciated the evidence and there is no illegality by admitting inadmissible material or nay perversity, it would not be open for this Court to set aside its order merely because another opinion is possible on the same evidence.
79. Before parting, I must express my appreciation for the labour put in by learned counsel for the parties and for rendering great assistance in this case; a special mention is due in the case of learned Additional Solicitor General, Shri K.K. Sud, who has conducted the case with great fairness and professionalism.
80. In view of the above discussion, I allow Crl.A. 638 of 2000 and Crl.A. 621 of 2000, set aside the judgment of conviction and sentence of the Special Judge dated 29.9.2000 and 12.10.2000 and acquit the appellants of all charges. I also dismiss Criminal Revision Petition No. 33 of 2001.