Bangalore District CourtState Karnataka Represented By vs ) Dinesh A.M. S/O Late Mariyappa on 30 July, 20201\n\n\n  IN THE COURT OF THE XXIII ADDITIONAL CITY CIVIL\n      AND SESSIONS JUDGE AND SPECIAL JUDGE,\nBENGALURU URBAN DISTRICT, BENGALURU CITY (CCH-\n                       24)\n        Dated this the 30th day of JULY, 2020\n\n                     PRESENT\n          SMT.MANJULA ITTY, B.A.L, LL.B.,\n           XXIII ADDITIONAL CITY CIVIL\n            AND SESSIONS JUDGE AND\n        SPECIAL JUDGE, BENGALURU URBAN\n              DISTRICT, BENGALURU\n\n               Special C.C.No.41/2018\n\nComplainant:    State Karnataka represented by\n                Assistant Commissioner of Police,\n                Electronic     City  Sub-Division,\n                Bengaluru City\n\n                (By Sri. D. Ramesh Babu, Public\n                Prosecutor)\n                V/s\n\nAccused :        1) Dinesh A.M. S/o Late Mariyappa,\n                  aged about 27 years, A.P.C.\n                  No.790, City Armed Reserve Police\n                  Squad, South Division, Adugodi,\n                  Bengaluru Permanent Resident of\n                  Arekadakalu village, Maralavadi\n                  Hobli,     Kanakapura       Taluk,\n                  Ramanagara District.\n                (By Sri.P.N.Hegde,    Advocate   for\n                accused )\n                             2\n\n\n\n\n                                11.10.2017\n Date of offence\n Date of report of\n                                12.10.2017\n     offence\n Date of arrest of\n                                12.10.2017\n   the accused\nDate of release on\n                                20.01.2018\n        bail\n  Total period of\n                           03 months and 18 days\n     custody\n                          Sri.Somashekhar, Chief\n   Name of the         Superintendent, Central Prison,\n   complainant                   Bengaluru\n\n      Date of\ncommencement of                 28.08.2018\nrecording evidence\n Date of closing of\n                                16.09.2019\n     evidence\n                       13(1)(c) and 13 (1)(d) read withsection 13(2)of Prevention of\n    Offences          Corruption Act, 1988, Section 424\n  complained of        ofIPCandSection 42of Prisons\n                                  Act, 1894\n\n  Opinion of the\n                         Accused is found not guilty\n      Judge\nState represented        Sri.D.Ramesh Babu Public\n        by                       Prosecutor\n\nAccused defended         Sri.P.N.Hegde, Advocate for\n       by                          accused\n                            3\n\n\n                        JUDGMENTThe Assistant Commissioner of Police, Electronic\n\nCity Division, Bengaluru City has submitted the charge\n\nsheet against 2 accused persons for the offence\n\npunishable undersections 13(1)(c)and13(1)(d)read\n\nwithsection 13(2)of Prevention of Corruption Act,\n\n1988 ("thePC Act" in short),Section 424,120(B)of\n\nIndian Penal Code, 1860 ("IPC" in short) andSection 42of Prisons Act, 1894.2.   The prosecution case in brief is that on\n\n11.10.2017 accused No.1 while reporting to Central\n\nPrison as part of escort to prisoners' duty, he had\n\nwarrants issued by several Sessions Courts dated\n\n10.10.2017 in his possession which he had obtained\n\nfrom his fellow policeman who was assigned with\n\nwarrant return duty. After depositing his mobile phone\n\nat the main gate of the Parapana Agrahara Central4Prison, Bengaluru, he reached the second gate where\n\nhe was searched by CW2 and he was found in\n\npossession of two Samsung J brand new mobile\n\nphones, which is a banned item inside the central\n\nprison,   wrapped   in   the       warrant   papers.   After\n\nverification, it was found that A1 was not assigned with\n\nany warrant return duty officially on that day and\n\nhence, suspecting that A1 being a public servant after\n\nreceiving illegal gratification from someone to help any\n\nof the inmates of the Central Prison tried to smuggle\n\nthe banned item, mobile phones into the Central Prison\n\nand thus, A1 was detained by CW1, the Chief\n\nSuperintendent of the prison and the mobile phones\n\nwere seized and CW1 forwarded A1 and the mobile\n\nphones along with a written complaint to the Parapana\n\nAgrahara Police Station and Crime No.474/2017 came\n\nto be registered for the offences mentioned above. A1\n\nwas produced before this Court and he was remanded5to police custody.   While in custody his confession\n\nstatement was recorded by the Investigating Officer\n\nwherein he had stated that he purchased the mobile\n\nphones on instructions of one Nazeer who is a prisoner\n\nhoused in Parapana Agrahara Central Prison serving his\n\nlife imprisonment sentence, who      had given him\n\nRs.15,000/- and promised that he would give him\n\nRs.20,000/- as bribe if A1 would buy two new mobile\n\nphones and handover the same to him and hence, A1\n\nbought the mobile phones from a mobile shop and A1\n\ninformed the Investigating Officer that he would show\n\nthe shop from where he purchased the said mobile\n\nphones. On the information so received from A1, the\n\nInvestigating Officer recovered the copies of purchase\n\nbills of the said mobile phones from a mobile shop at\n\nJigani. Thereafter, relying on the statement given by\n\nA1, the said Nazeer was arrayed as accused No.2 in\n\nthe case and he was also remanded to Judicial Custody6in this case.   After investigation, charge sheet is laid\n\nbefore this Court. Later A1 was released on bail as per\n\nthe order of the Hon'ble High Court of Karnataka and\n\nA2 did not prefer any bail application.3.   Presence of Accused No.1 was secured\n\nthrough summons before this court and is represented\n\nby his counsel Advocate Sri. P.N.Hedge and accused\n\nNo.2 is produced before this Court under production\n\nwarrant issued by this court. He did not have any legal\n\nassistance and he refused to avail the legal assistance\n\noffered by this court and he insisted that he would\n\ndefend his case by himself. Both the accused filed\n\nseparate applicationsu/s 239of the Code of Criminal\n\nProcedure (hereinafter referred as 'CrPC' for brevity) to\n\ndischarge them from the alleged offences and this\n\ncourt after hearing the 2nd accused and the learned\n\ncounsel for the first accused,        vide order dated\n\n19.06.2018 discharged A2 from the offence punishable7undersection 120-Band424of IPC andSection 42of\n\nPrisoners Act and prayer of the accused No.1 for his\n\ndischarge was rejected and on 04.07.2018 charges\n\nwere framed against Accused No.1 alone for the\n\noffence punishable undersections 13(1)(e)and13 (1)(d) read withsection 13(2)of Prevention of Corruption\n\nAct andSection 42of Prisons Act 1894, read over and\n\nexplained to him to which he pleaded not guilty and\n\nclaimed to be tried.4.       In order to prove the prosecution case, the\n\nprosecution has examined in all 19 witnesses cited by\n\nthe prosecution as PWs 1 to 19 and got marked\n\ndocuments at Ex.P1 to P18 and MOs 1 and 2 were\n\nidentified.     After closure of the prosecution evidence,\n\nstatement of A1 undersection 313CrPC is recorded.\n\nThe accused denied all the incriminating circumstances\n\nappearing against him in the prosecution evidence and\n\nhe did not choose to adduce any defence evidence on8his behalf. I have heard the arguments addressed by\n\nthe learned Public Prosecutor and the learned counsel\n\nfor the accused. While the arguments were in progress\n\nthe learned Public Prosecutor filed applicationu/s 216of the CrPC to addsection 424of IPC to the charges\n\nalready framed against the accused and submitted\n\nthat the from the available prosecution evidence on\n\nrecord there are prima facie materials to show that the\n\naccused has committed offenceu/s 424of IPC also.\n\nAfter hearing learned Public Prosecutor and the learned\n\ncounsel for the accused on this point, this court\n\ninvoking powersu/s 216of the CrPC framed additional\n\ncharge against the accused for offenceu/s 424of the\n\nIPC read over and explained to him to which also he\n\npleaded not guilty and claimed trail. The prosecution\n\ndid not choose to adduce any further evidence with\n\nrespect to the added charges.95.   Now      the   following        points       arise    for    my\n\nconsideration:1.   Whether the prosecution proves beyond\n              all reasonable doubt that the accused\n              being a public servant working as Police\n              Constable       in       Central    Armed        Reserve\n              Police    at     Adugodi,          Bengaluru       South\n              Division, on prisoners' escort duty from\n              Parapana Agrahara Central Prison, on\n              11.10.2017       at       7.30     am     smuggled       2\n              mobiles        phones        into    the        Parapana\n              Agrahara       Central       Prison       wrapped        in\n              Warrant        Return       papers       issued        from\n              Session Courts to the jail authorities thus,\n              accused        has       committed        an     offence\n              punishable       undersection       42of     the\n              Prisons Act, 1894?2.      Whether the prosecution proves beyond\n              all reasonable doubt that the accused\n              being     a     public       servant       dishonestly\n              misappropriated            the      warrant       papers\n              issued from Session Courts to the jail\n              authorities entrusted to him by CW5 to\n              smuggle the mobile phones into the10prison     and        thereby        accused         has\n     committed offence defined undersection\n     13(1)(c)and which is punishable undersection    13(2)of     The     Prevention       of\n     Corruption Act, 1988.3.   Whether the prosecution proves beyond\n     all reasonable doubt that the accused\n     working as Police Constable in Central\n     Armed      Reserve          Police     in    Adugodi,\n     Bengaluru     South         Division,       and      was\n     deputed on prisoners' escort duty from\n     Parapana     Agrahara         Central       Prison    on\n     10.10.2017 abused his position as a\n     public servant and while holding the office\n     as such public servant, obtained 2 mobile\n     phones to be supplied to an inmate\n     housed in the Parapana Agrahara Central\n     Prison      after          receiving        pecuniary\n     advantage without any public interest and\n     thereby committed criminal misconduct\n     and thus, accused have committed an\n     offence within the ambit of section 13(d)(ii) & (iii) of the Prevention of Corruption11Act, 1988, punishable undersection 13(2)of the said Act ?4.   Whether the prosecution proves beyond\n              all reasonable doubt that the accused on\n              11.10.2017    at    7.30   am   dishonestly\n              concealed 2 mobiles phones wrapped in\n              warrant return papers issued from Session\n              Courts to the jail authorities to hand over\n              the same to a prisoner and thus, accused\n              has committed an offence punishable\n              undersection 424of the Indian Penal\n              Code?5.   What order?6.      Having heard the arguments on both\n\nsides and taking into consideration of evidence on\n\nrecord, my findings on the above points are as:Point No.1: In the Negative\n\n     Point No.2: In the Negative\n\n     Point No.3: In the Negative\n\n     Point No.4: In the Negative12Point No.5: As per final order, for the following\n\n                           REASONS7.    Before going to the merits of the case, it is\n\nnecessary to decide the validity of the sanction order\n\nmarked at Ex.P2. It is not in dispute that the accused is\n\na public servant holding the post of police constable,\n\nCity Armed Reserve Police Squad, South Division,\n\nAdugodi,     Bengaluru    and     to   prosecute   accused\n\nprosecution    sanction   order     from   the   competent\n\nauthority of the accused undersection 19of the PC Act\n\nis essential, since, grant of proper sanction by the\n\ncompetent authority is sine qua non for taking\n\ncognizance of the offence. Ex.P2 is the sanction order\n\nproduced by the prosecution issued by the Deputy\n\nCommissioner of Police, Central Armed Force (South),\n\nBengaluru. Two components have to be established by\n\nthe prosecution before this court for this court to\n\naccept a sanction order.        First one is competency of13the sanctioning authority and the other one is the\n\napplication of mind by the sanctioning authority. Here\n\nin   this   case,   PW15,        Sri.S.Siddaraju,   Deputy\n\nCommissioner of Police is examined to prove the\n\nprosecution sanction order issued by him to prosecute\n\naccused. PW15 in his testimony before this court says\n\nthat, on 25.12.2017 the Additional Director General of\n\nPolice, Karnataka Lokayuktha, Bengaluru had made a\n\nrequisition to his office to accord prosecution sanction\n\nto prosecute accused with copies of the complaint, FIR,\n\nmahazars,   property    list,    seizure   mahazar,   spot\n\nmahazar, duty assignment register extract, statements\n\nof the witnesses and draft charge sheet. After perusal\n\nof the prosecution papers and all the documents, he\n\nfound that there is a prima facie case against the\n\naccused of his involvement in the aforesaid crime and\n\nhence, he issued the Ex.P2 prosecution sanction order\n\nfor prosecuting the accused. He further deposes that14he is the empowered officer to remove the police\n\nofficials of the cadre of constables from service and\n\nhence, he issued the Ex.P2 prosecution sanction order.8. Before going to the validity of the Ex. P2\n\nsanction order I am persuaded to look into some of the\n\ndecisions of the Hon'ble Supreme Court in this regard\n\nrelied by the learned Public Prosecutor. He drew my\n\nattention to the following case laws:i. Hon'ble Supreme Court inC S Krishnamurthy\n\nVs. State of Karnatakareported in (2005)4 SCC 81\n\nhas held that\n\n     "the sanction order should speak for itself\n     and in case the facts do not so appear, it\n     should be proved by leading evidence that\n     all the particulars were placed before the\n     sanctioning authority for due application of\n     mind. In case the sanction speaks for itself\n     then the satisfaction of the sanctioning15authority   is    apparent   by   reading     the\n     order".ii. In State of Maharashtra throughC.B.I. Vs.\n\nMahesh G.Jainreported in (2013) 8 SCC 119, the\n\nHon'ble Supreme Court has held that "Grant of\n\nsanction is irrefragably a sacrosanct act and is entitled\n\nto provide safeguard to a public servant against\n\nfrivolous and vexatious litigations. Satisfaction of the\n\nsanctioning authority is essential to validate an order\n\ngranting sanction". The Hon'ble Court has culled out\n\ncertain principles with respect to the sanction order\n\nwhich are as under:a) It is incumbent on the prosecution to\n          prove that the valid sanction has been\n          granted by the sanctioning authority\n          after being satisfied that a case for\n          sanction has been made out.b) The sanction order may expressly show\n          that   the    sanctioning    authority   has16perused the materials placed before it\n              and,    after   consideration   of   the\n              circumstances has granted sanction for\n              prosecution;c) The    prosecution    may     prove  by\n               adducing the evidence that the\n               materials were placed before the\n               sanctioning     authority     and    its\n               satisfaction was arrived at upon perusal\n               of the materials placed before it.iii.InManzoor Ali Khan Vs. Union of India\n\nand othersreported in (2015)2 SCC 33, Hon'ble\n\nApex Court held that "a fine balance has to be\n\nmaintained between need to protect a public servant\n\nagainst mala fide prosecutions on the one hand and\n\nthe object of upholding the probity in public life in\n\nprosecuting the public servant against whom prima\n\nfacie material in support of allegation of corruption\n\nexists on the other hand."179.   Here, in this case, the prosecution has\n\nproduced and marked the Ex. P2 sanction order which\n\nclearly shows that all the materials were placed before\n\nPW15 and after scrutiny of those materials the\n\nsanction order has been issued. The learned counsel\n\nfor accused has not raised any serious dispute about\n\nthe validity of the sanction order even at trial and in\n\nhis final arguments. All the relevant documents\n\npertaining to the allegation against the accused finds\n\nmention in the proceedings which clearly shows that\n\nthe prosecution sanction order is issued after thorough\n\napplication of mind by the sanctioning authority and\n\nthe same is signed by the Deputy Commissioner of\n\nPolice, who is the competent authority to remove\n\naccused from service. From the light of the above\n\ndiscussed decisions and the from the prosecution\n\nevidence adduced in this case, it can be safely\n\nconcluded that there was sufficient material before the18sanctioning authority and the Ex. P2 prosecution\n\nsanction order is issued by the Competent Authority of\n\nthe accused after applying his mind and hence, the\n\nEx.P2 sanction order is valid.10. Now, coming to the facts of the case, the\n\nspecific case of the prosecution is that accused being a\n\npublic servant deputed for escort duty misused his\n\nposition as such public servant in conspiration with\n\none T.Nazeer, who is a convict prisoner serving life\n\nimprisonment sentence in the Parapana Agrahara\n\nCentral Prison. The accused on instruction of the said\n\nNazeer,   after   receiving        Rs.15,000/-   from   him,\n\npurchased two mobile phones and agreed to obtain\n\nillegal gratification of Rs.20,000/- from the said Nazeer\n\nwhen the two mobile phones are handed over to him.\n\nThe further prosecution case is that PW6 was officially\n\ndeputed with Warrant Return duty to the jail by the19Courts and the accused obtained warrant return\n\npapers from PW5, who had obtained those from PW6.\n\nAccused used those bunch of warrant return papers to\n\nconceal the two mobile phones to smuggle them into\n\nthe prison to hand over the same to Nazeer and was\n\ncaught red-handed by PW3 in front of A2 gate of the\n\nCentral Prison and the mobile phones were seized by\n\nthe Jail Authorities.   It is the prosecution case that\n\nmobile phones are listed under prohibited articles\n\ninside the prison and hence accused committed\n\noffence undersection 42of Prisons Act.       The Jail\n\nSuperintendent handed over the accused along with\n\ncomplaint and seized mobile before the Parapana\n\nAgrahara Police Station and on investigation by the\n\nParapana Agrahara Police it is revealed that accused\n\nhad purchased the mobile phones to hand over the\n\nsame to Nazeer after receiving bribe from Nazeer and\n\nused the Warrant Return Papers to conceal the mobile20phones and hence he committed offence of criminal\n\nmisconduct    by    misappropriation         of     property\n\npunishable undersection 13(1)(c)of the PC Act and\n\nabused his position as a public servant punishable\n\nundersection 13(d)of the PC Act. Since the accused\n\nentered the prison premises with the mobile phones in\n\nconcealed manner he is charged with the offence of\n\nconcealment of property punishable undersection 424of IPC.11. Point No. 1:   To     prove   the        charge   for\n\noffence punishable undersection 42of Prison Act, the\n\nprosecution has to first prove that the mobile phones\n\nare prohibited items as per the Prisons Rules.             The\n\nlearned counsel for the accused during his arguments\n\nbefore this Court pointed out the main issue that,\n\nnowhere inPrisons Act, 1894or Karnataka State\n\nPrisons Rules or Prison Manual, mobile phones are\n\nlisted under the prohibited articles and hence, no21offence     can     be    attributed          against    the   accused\n\npunishable undersection 42of Prisons Act.12.Section 42of Prisons Act prescribes for\n\npunishment of contravention ofsection 3(9)of the said\n\nAct andSection 3(9)of Prisons Act defines prohibited\n\narticles.Section 42of the Prisons Act, 1894 reads thus:"Penalty for introduction or removal of\n          prohibited articles into or from prison and\n          communication with prisoners: Whoever,\n          contrary       to   any      rule     under     section\n          introduces or removed or attempts by any\n          means whatever to introduce or remove,\n          into or from any prison, or supplies or\n          attempts       to   supply      to       any   prisoner\n          outside    the      limits     of    a    prison,    any\n          prohibited article,\n            and every officer of a prison who,\n          contrary to any such rule, knowingly\n          suffers any such article to be introduced\n          into or removed from any prison, to be\n          possessed by any prisoner, or to be22supplied to any prisoner outside the limits\n       of a prison,\n          and whoever, contrary to any such\n       rule,   communicates       or    attempts   to\n       communicate with any prisoner,\n          and whoever abets any offence made\n       punishable by this section\n          shall,      on   conviction     before   a\n       Magistrate, be liable to imprisonment for\n       a term not exceeding six months, or to\n       fine not exceeding two hundred rupees,\n       or to both."Section 3(9)of Prisons Act, 1894 says\n\n          "Prohibited article means an article the\n          introduction or removal of which into or\n          out of a prison is prohibited by any rule\n          under this Act".13.Section 53of the Prisons Act empowers the\n\nState Government concerned to make Rules and as per\n\nthis the Karnataka State has notified the Karnataka\n\nPrison Rules, 1974 on 25.07.1974 which consists of 19423Rules and as rightly pointed out by the learned counsel\n\nfor the accused that none of the above Rules lists any\n\nprohibited articles as mentioned inSection 3(9)of the\n\nPrisons Act. The Jail Manual also does not contain any\n\nlist wherein mobile phones are listed as prohibited\n\narticle. The learned Public Prosecutor submits that the\n\nRules were notified in 1974 when mobile phones were\n\nnot in use and hence the 1974 Rules does not consists\n\nthe list including the mobile phones in prohibited\n\narticles.14. True, when the Karnataka State Prisons Rules,\n\n1974, was notified, during that period, mobile phone\n\nwas not in use and hence, the question of including the\n\nsame as pointed out by the learned Public Prosecutor\n\nunder prohibited item will not arise.   But, thereafter,\n\nwhen mobile phones are extensively in use and has\n\nbecome part and parcel of every person's daily needs,24definitely the Rules should have been amended\n\nincluding the mobile phone which has not been done\n\nso for.15. The learned counsel for accused drew my\n\nattention to the Hon'ble Supreme Court decision in\n\nVarinder Singh V/s State of Punjab reported in\n\n(2014) 3 SCC 151, AIR 2014 SC 1817, wherein the\n\naccusedin that casewas charged for commission of\n\noffence undersection 42of Prison Act among other\n\noffences and while considering the question whether\n\nan offence undersection 42of Prisoners Act is made\n\nout, the Hon'ble Supreme Court answers in the\n\nnegative. The brief facts of that case are that a mobile\n\nphone and charger was recovered from the turban of\n\nthe accused by the jail authorities when the accused\n\nwas searched while he had been to Ferozepur Central\n\nPrison as a visitor and hence a case is registered25against the accused for offence undersection 42and45of Prisons Act.    Para 606 of Punjab Jail Manual\n\nenumerates the prohibited articles but it does not list\n\nmobile phone.    The Punjab Prison (Amendment) Bill,\n\n2011 provided for the addition of Section 52-A to the\n\nAct which makes the possession of mobile phone and\n\nsupplying phone by any person an offence and the\n\nnotification of the section came into force on 8.3.2011.\n\nAs per the prosecution the offence committed by the\n\naccusedin that casewas on 24.9.2009, the Hon'ble\n\nSupreme Court ruled that as on the date of offence\n\nmobile phone was not listed as one of the prohibited\n\narticles under section Punjab Prison Manual and hence\n\nno offence undersection 42is made out against the\n\naccused.16.        PW17, the Investigating Officer who laid\n\nthe charge sheet before this court in his testimony26before this court has admitted that there are no rules\n\nor circulars or notifications issued by the Karnataka\n\nState Government specifying that mobile phones are\n\nlisted   as   prohibited   items    inside     the   prisons    in\n\nKarnataka state. Therefore, the sum and substance of\n\nthe above referred case is similar to the facts of this\n\ncase and the lawlaid down bythe Hon'ble Apex Court\n\nin the aforementioned decision squarely applies to this\n\ncase     as   the   prosecution    has   not    produced       any\n\ndocuments which shows that mobile phone has been\n\nlisted as prohibited article inside the prison within the\n\nState of Karnataka under Karnataka State Prisons Rules\n\n1974, to attract punishment for introducing the same\n\ninto the prison by the accused as alleged by the\n\nprosecution to hold him guilty for the same. Hence,\n\nPoint No. 1 taken for consideration is answered in the\n\nNegative.2717. Point    No.   2:        The   next   point    to   be\n\nconsidered is with respect to the prosecution allegation\n\nof commission of offences defined undersection 13(1)(c) of thePC Act.   The prosecution alleges that the\n\naccused   dishonestly   misappropriated        the     Warrant\n\nReturn Papers issued by the Courts which were to be\n\nserved to the Jail Authorities and he used those papers\n\nto conceal two mobile phones which he had purchased\n\nto hand over to a prisoner housed in the Central Prison.\n\nThe Sessions Courts of Bengaluru City had entrusted\n\nWarrant Return Papers to PW6 who was officially\n\nassigned with Warrant Return duty. PW6 had handed\n\nover these bunches of papers in a plastic cover to PW5\n\nto deliver the same to jail authorities.       Accused was\n\nassigned with escort duty of prisoners of Central Prison\n\nfrom Jail to the 48th Additional City Civil and Sessions\n\nJudge's Court, the City Civil Court Hall No. 49 and back\n\nfrom the Court to the jail on 11.10.2017 and while he28was en route towards Central Prison for his duty, he\n\nobtained Warrant Return Papers from PW5 in the\n\npretext that he will deliver the same to the Jail\n\nauthorities and he dishonestly used those bunch of\n\nWarrant Return papers to conceal the mobile phones\n\nfrom the jail wardens who were on duty at the gates of\n\nthe prison. Thus, accused committed offence defined\n\nundersection 13(1)(c)of PC Act.18.Section 13(1)(c)defines criminal misconduct\n\nand says\n\n\n\n           "If a public servant dishonestly or\n           fraudulently    misappropriates     or\n           otherwise converts for his own use any\n           property entrusted to him or under his\n           control as a public servant or allows\n           any other person to do so".2919. Criminal misappropriation and criminal breach\n\nof trust are defined insection 403and405of IPC.\n\nUndersection 403of IPC,\n\n          "whoever, dishonestly misappropriates\n          or converts to his own use any movable\n          property     shall        be   punished     with\n          imprisonment of either description for a\n          term which may extend to 2 years, or\n          with fine or with both".20. The dishonest misappropriation is with regard\n\nto movable property and there need not be any formal\n\nentrustment of that property to the accused.                 The\n\nessence of the offence undersection 403of IPC is that\n\nthe movable property of another person comes into the\n\npossession of the accused in some manner and he\n\nmisappropriates or converts the same to his own use.\n\nUndersection 405of IPC wherein criminal breach of\n\ntrust is defined section specifies that the accused\n\nshould   have   been    entrusted        with   the   property30(movable or immovable) or he should have dominion\n\nover the property and dishonestly misappropriates or\n\nconverts to his own use or dishonestly uses or disposes\n\nof that property in violation of any direction of law\n\nprescribing the mode in which such trust is to be\n\ndischarged. Undersection 13(1)(c)the property should\n\nhave been entrusted to accused, or as a public\n\nservant, he should have gained a control over the\n\nproperty   and    he       dishonestly   or   fraudulently\n\nmisappropriates the same, or allows any other person\n\nto do so, then the conduct of the accused is termed as\n\ncriminal misconduct which attracts punishment undersection 13(2)of PC Act.21. Hence, as persection 13(1)(c)of the Act, the\n\nprosecution has to prove the following ingredients:a) accused is a public servant.31b) accused should have been entrusted with\nproperty or should have gained control over the\nproperty as a public servantc)   dishonestly    or    fraudulently    he\nmisappropriated or otherwise converts for his own\nuse of that property or allows any person to do\nso.22. In case on hand accused is a public servant is\n\nnot in dispute. The properties the prosecution refers\n\nherein are the Warrant Return Papers issued by\n\nSessions Courts. Whether accused as a public servant\n\nwas entrusted with those Warrant Return Papers or he\n\nsomehow had control over the Warrant Return Papers\n\nas a public servant is the question to be decided.\n\nVarious Sessions Courts functioning in Bengaluru City\n\nissued warrants against persons addressed to the Jail\n\nSuperintendent, Central Prison for production of those\n\npersons mentioned in the warrants who are housed in\n\nCentral Prison. PW6, Vasanth Kumar is the police32constable who was deputed to collect these warrants\n\nfrom all the Courts and handover the same to Jail\n\nAuthorities.   As   per   the   evidence   of   PW6   on\n\n10.10.2017, he was deputed to collect the warrants\n\nfrom the Sessions Courts and as he was unwell, he\n\nrequested PW5 Ganesh to collect the warrants to be\n\nhanded over to jail authorities and as such PW5\n\ncollected the same.   Next day PW5 was deputed to\n\ncollect the Warrant Return Papers from jail authorities\n\nto hand over the same to respective courts and since\n\nhe (PW6) had duty to collect warrants from Magistrate\n\nCourts, he requested PW5 to hand over the warrants\n\ncollected on his behalf from the Sessions Court on the\n\nprevious day to the jail authorities and hence, PW5\n\nproceeded to Parappana Agrahara Central Prison with\n\nthe accused, who was deputed for escort duty of\n\nprisoners housed in central prison.   The testimony of\n\nPW5 is that he was entrusted with warrants duty of33Magistrate Court and PW6 with duty of Sessions Court\n\nand since PW6 was unwell as per the request of PW6,\n\nhe collected warrants papers from Sessions Court on\n\n10.10.2017 and the next day he was assigned with\n\nwarrant return duty of Sessions Court and hence, as\n\nper the request of PW6 he agreed to return the warrant\n\npapers of Sessions court collected by him the previous\n\nday on behalf of PW6 to the jail authorities. His further\n\ntestimony is that due to want of Government vehicle,\n\nhe   proceeded   towards   the   Central   Prison   on   a\n\nmotorbike belonging to the accused with the accused,\n\nwho was deputed with the escort duty of prisoners. On\n\nthe way, they stopped the motorbike at a hotel near\n\nParapana Agrahara Central Prison to have breakfast\n\nand since accused had already had his breakfast from\n\nhome, accused dropped PW5 near the hotel and\n\nobtained the warrant return papers from PW5 saying\n\nthat he would promptly deliver the same to jail34authorities.    Later,    after      having    breakfast    PW5\n\nproceeded to Central Prison and obtained the warrant\n\npapers from jail authority which were to be produced\n\nbefore respective Sessions Courts.               The learned\n\ncounsel for accused strenuously argued that there was\n\nno entrustment of property to the accused as specified\n\ninSection 13(1)(c)of the PC Act. The section requires\n\nthat accused should have been officially entrusted with\n\na property which he misappropriated to attract offence\n\nofSection 13(1)(c). Here, PW6 was entrusted with the\n\nwarrant papers to be returned to the jail authorities.\n\nPW6 handed over the same to PW5 who in turn handed\n\nover them to the accused.                Hence, there is no\n\nentrustment of any property as contemplated inSection   13(1)(c)of   the     Act.   The   learned     Public\n\nProsecutor opposed this and submits that the moment\n\naccused received the Warrant Papers from PW5, the\n\nentrustment as defined insection 13(1)(c)of the Act is35complete and accused is bound to deliver those papers\n\nto the jail authorities and instead he used those papers\n\nto conceal the mobile phones. He further submits thatsection 13(1)(c)also postulates situation wherein the\n\naccused misappropriated paper which was under his\n\ncontrol as a public servant, even though there is no\n\nofficial   entrustment   of    the   property.   Hence,   the\n\ningredients specified in the section are satisfied and\n\naccused is liable for that.23. Here, admittedly accused possessed the\n\nwarrant papers which the prosecution alleges that the\n\naccused used to conceal the mobile phones. His duty\n\nwas to go escort to the Prisoners housed in Central\n\nPrison to CCH 49 and back from the Court to Prison.\n\nThe warrant papers found in his possession did not\n\ncome to his possession as a police constable doing\n\nprisoners' escort duty.       These were given to him by36PW5, who was officially assigned with the warrant duty\n\nto the prison by Sessions Courts along with PW6 and\n\nanother       constable   named   Venkatesh.   13(1)(c)\n\nspecifically says that "under his control as a public\n\nservant". The legislature in its wisdom has suffixed the\n\nterm "as a public servant" with the words "under his\n\ncontrol" which do not find insection 406of the IPC.\n\nThis can be interpreted that the property should have\n\nbeen in the control of the accused under the colour of\n\nhis office.    Here PW6 was deputed with the duty to\n\nreceive warrant papers by the Court which were\n\nreceived by PW5 for and on behalf of PW6.          PW5\n\nreceived the warrant papers from Courts as a public\n\nservant entrusted with duty to receive warrant papers\n\nto be handed over to the Jail authorities. PW5 is also\n\nofficially deputed to receive warrant papers to hand\n\nover the same to jail authorities. Both PW6 and PW5\n\nhave deposed that PW5, PW6 and one Venkatesh were37deputed to receive warrant papers from various Courts\n\nacross   Bengaluru   City.        Hence,   there   is   valid\n\nentrustment of property with PW5 by the Courts. But\n\nas far as the receiving of papers by the accused from\n\nPW5 is concerned there is no entrustment nor the\n\naccused gained control over the same in the colour of\n\nthe duty he is performing. Here, the handing over of\n\nwarrant paper by PW5 to the accused is only a casual\n\none as the accused was proceeding towards the\n\nCentral Prison, PW5 gave those papers to accused to\n\nbe handed over to Jail Authority.           Therefore, the\n\naccused was not entrusted with any property or gained\n\ncontrol over any property as a public servant to\n\nmisappropriate or use it for his own use. Hence,\n\noffence as definedu/s 13(1)(c)of the PC Act is not\n\nmade out against the accused.3824.   The   mobile   phones   were   found   in   the\n\npossession of accused concealed in these warrant\n\npapers.   Even if it is assumed that there is an\n\nentrustment of these warrants papers whether the\n\nprosecution has proved that the accused dishonestly or\n\nfraudulently used these papers to conceal the mobile\n\nphones is to be probed. Here, when accused reached\n\nGate No.A2 of the central prison, he was inspected by\n\nPW3 and when PW3 searched the plastic cover held by\n\nthe accused two mobile phones were found in between\n\nthe warrant papers and PW3 brought the same to the\n\nnotice of PW4, Jailor Smt.Hemavathi, who in turn\n\ninformed PW1, the Chief Superintendent of the Central\n\nPrison. PW1 seized the phones and lodged a complaint\n\nbefore the Parapana Agrahara Police Station.      In his\n\ncross examination PW3 has testified that only warrant\n\npapers could be seen on the face of the plastic cover\n\nand mobiles phones were not visible. The accused was39caught at Gate A2 at 9.30 am. From the testimony of\n\nPW5 who had handed over the plastic cover containing\n\nwarrant papers to accused, the time was 9.20 am.\n\nTherefore, within 10 minutes after receiving the plastic\n\ncover from PW5, accused was caught with the phones\n\nconcealed within the papers in the plastic cover. The\n\ndefence of accused is that he had no knowledge of the\n\nmobile phones kept in the plastic bag.        It is the\n\nprosecution case that accused had purchased mobile\n\nphones from a mobile shop situated at Jigani. From the\n\ninformation given by accused to the PW19, the\n\nInvestigating Officer during investigation while accused\n\nwas in police custody, PW19 had recovered a bill book\n\nwhich depicts the sale of the mobile phones from a\n\nmobile shop named Mobile Palace.          PW19 in his\n\ntestimony has deposed that he had taken accused to\n\npolice custody for the purpose of investigation and\n\nduring interrogation the accused had given information40that he had purchased the phones from a mobile shop\n\nand if taken he would lead to the shop from where the\n\nphones were purchased and based on this information\n\nPW19 reached a mobile shop named Mobile Palace\n\nsituated at Jigani and Ex.P4 bill book was seized from\n\nthe shop.   Ex.P4 shows the description of the mobile\n\nphones which were seized from accused on 11.10.2017\n\nand the IMEI number of the phones mentioned in the\n\nbills tallies with the description mentioned in Ex.P3 the\n\nseizure mahazar of the mobile phones, prepared by\n\nPW13 on 12.10.2017 at Parapana Agrahara Police\n\nStation. The mobile phones are marked as MO1 and\n\nMO2 before this court. The MO1 and MO2 mobile\n\nphones were sent to the police station by PW1 through\n\nhis staff along with Ex.P1 complaint and the accused,\n\nwho was detained by PW1.          While receiving Ex.P1\n\ncomplaint   PW13,    the   PSI   attached   to   Parapana\n\nAgrahara Police Station has made an endorsement in41Ex.P1 stating that the said complaint is sent by Chief\n\nSuperintendent of Central Prison on 12.10.2017 at 7.00\n\nam through his staff along with the accused and the\n\nmobile phones, upon which Crime No.474/2017 undersection 13(1)(d)of PC Act andsection 424of IPC read\n\nwithsection 42of Prison Act is registered. The recovery\n\nof purchase bills of the mobile phones from the mobile\n\nshop at Jigani by PW19 on information provided by\n\naccused squarely comes under the sweep ofSection 27of Indian Evidence Act as the Investigating Officer got\n\nknowledge of the purchase of mobile phones from the\n\ninformation given to him by the accused while in\n\ncustody which information turned out to be true.\n\nHence, the MO1 and MO2 mobile phones were\n\npurchased from the said shop named Mobile Palace is\n\nproved. Name of accused is also found in Ex.P4 cash\n\nbill as the name of purchaser but the recovery\n\nmahazar witnesses of the bill book from the shop, the42salesman and the owner of the mobile shop did not\n\nidentify the accused as the purchaser of the mobile\n\nphones. The specific prosecution case is that accused\n\nwas caught by the PW3 on 11.10.2017 at 9.30 am at\n\nGate No.A2 of Central Prison with the mobile phones.\n\nPW3 informed the matter to PW4 jailor who in turn\n\nsubmitted the accused and the phones to PW1 the\n\nChief Superintendent of Central Prison immediately.\n\nBut Ex.P1 complaint is lodged on 12.10.2017 and the\n\naccused with mobile phones are produced after the\n\nlapse of nearly 24 hours before the police and the\n\nreason stated for the said delay in lodging a complaint\n\nbefore the jurisdictional police is that PW1 had to\n\ndiscuss the matter with his higher authorities before\n\nlodging the complaint. PW1 is not a layman. He is the\n\nChief Superintendent of Central Prison. No mahazar is\n\nprepared with respect to seizure of mobile phone from\n\nthe accused by the jail authorities, nor did they submit43the accused to the jurisdictional police immediately\n\nafter his detention, nor did they inform the police with\n\nrespect to seizure of phones on the same day.       The\n\nentire prosecution records are silent with respect the\n\nfact that where the accused and the phones were from\n\n9.30 am of 11.10.2017 till 7.00 am of 12.10.2017. This\n\naspect is not explained by the prosecution even during\n\nthe trail of the case. No documents are produced\n\nbefore this court by the prosecution to show that MO1\n\nand MO2 were recovered from the possession of\n\naccused to connect the accused with the MO1 and\n\nMO2 mobile phones. Only inconsistent oral testimony\n\nof PW3 and PW4 are found in the records with respect\n\nto recovery of the MOs from the accused. PW 4 states\n\nthat when PW3 caught the accused with MO1 and MO2,\n\nshe questioned the accused and then the accused had\n\ninformed that he had brought the phones to hand over\n\nthe same to a convict prisoner T.Nazeer and while44accused gave the information to her, PW3 was also\n\npresent with her.     But PW3 testifies that he had not\n\nreceived any information as to why accused had\n\nbrought the mobile phones, to whom accused had\n\nintended to give the phones, until he gave statement\n\nbefore the police. Since the seizure of mobile phone\n\nitself from the accused has not been proved by the\n\nprosecution     by   adducing    cogent   and   convincing\n\nevidence before this Court, the subsequent recovery of\n\nthe cash bills from the mobile shops also does not\n\ninspire the confidence of this Court to hold accused\n\nanswerable for the same even though technically the\n\nrequirements ofSection 27of Indian Evidence Act are\n\nfulfilled to bring the seizure within the purview of the\n\nsaid section.    From the very initiation of the case\n\nagainst the accused, one can see continuous chain of\n\nlapses. When accused was said to have been caught\n\nwith mobile phones and the mobile phones are45recovered from him, no mahazar is prepared with\n\nrespect to the seizure. At least the matter should have\n\nbeen informed at the Police Station which is just 30\n\nmeters away from the Central Prison. The accused and\n\nphones were kept in the custody of jail authorities for\n\nalmost a day and night and then the accused and\n\nphones are sent to Police Station through a staff\n\nattached to the Central Prison. Subsequently PW13,\n\nthe PSI attached to the Parapana Agrahara Police\n\nStation has prepared Ex.P3 seizure mahazar with\n\nrespect to the mobile phones as the same were\n\nproduced by one of the staff attached to the central\n\nprison sent by PW1. The name or designation or\n\nidentity of the said person is not revealed anywhere in\n\nthe Ex.P3 seizure mahazar of the phones.      The only\n\nrecord with respect to the seizure of the MOs is\n\ndocumented in Ex.P3 mahazar prepared by PW13 at\n\nthe Parapana Agrahara police station while registering46the written complaint sent to him by PW1 through one\n\nof his staff members. PW 13 in his evidence has\n\ndeposed that he received the complaint along with the\n\naccused produced by the staff of the Central Jail and on\n\nthe basis of the said complaint he registered a case in\n\nCrime No.472/2017 and submitted FIR to the Court and\n\nhe seized two Samsung mobile phones in the presence\n\nof witnesses Ramu and Asif as per mahazar Ex.P3 at\n\nthe Police Station. Whereas, PW9 one of the mahazar\n\nwitnesses in his evidence before this court testifies\n\nthat   PW13    seized   the   mobile   phones   from   the\n\npossession of the accused and then PW13 sealed the\n\nphones in a cover. PW16, the other mahazar witness\n\nturned completely hostile to the prosecution.25. It is not forthcoming from the prosecution\n\nrecords that from whom the MO1 and MO2 phones are\n\nseized and produced before this court. The mahazar47simply says the phones are produced by a staff\n\nattached to the Central Prison before the Police Sub-\n\nInspector. When accused is questioned undersection\n\n313of Cr.P.C. by this Court, he states before the Court\n\nthat he has no knowledge of the facts and he has no\n\nconnection in whatsoever manner with the case, which\n\nhas to be considered in the light of the facts that he\n\nreceived the warrant papers from PW5, just 10 minutes\n\nbefore he was caught at Gate No.2 with allegation of\n\npossessing   MO1   and   MO2    mobile   phones.   One\n\nThammanna Gowda is examined as PW8 by the\n\nprosecution and he in his evidence before this court\n\nstates that PW1 had sent him to the Parapana\n\nAgrahara Police station to hand over the written\n\ncompliant before the police. His further testimony is\n\nthat accused who was detained by PW1 and a sealed\n\ncover containing 2 mobile phones seized from the\n\naccused were also given to him to hand over the same48to the police and hence, he produced the accused, the\n\nsealed cover and the written complaint to PW13. But\n\nname or identity of this Thammanna Gowda is nowhere\n\nmentioned in Ex.P3 mahazar. This name is not\n\nmentioned even by PW13 or PW1 in their substantive\n\nevidence before this court as the person entrusted to\n\nhand over the phones and the accused to PW13 on\n\nbehalf of PW1. Ex.P8 is the FIR registered by PW13 on\n\nthe basis of Ex.P1 complaint and column No.12 of the\n\nFIR wherein signature or thumb impression of the\n\ninformant is to be recorded is left blank which reveals\n\nthat the copy of the FIR is not supplied to the\n\ninformant. The name of PW8 comes into the witness\n\nlist of the charge sheet from nowhere. At this juncture,\n\nthe evidence of mahazar witnesses PW9 and PW16\n\nbecomes more relevant which throws doubt on the\n\nprosecution story of seizure of MOs which is said to be\n\nkept by the accused in a concealed manner from the49possession of the accused. Hence, from the above\n\ndiscussed reasons I am of the opinion that the\n\nprosecution failed to prove that the accused was\n\nentrusted or had gained control over the Warrant\n\nPapers as a public servant and he used the same to\n\nconceal the MOs to smuggle the same into the prison.\n\nProsecution also failed to prove beyond reasonable\n\ndoubt that the MO1 and 2 mobile phones were seized\n\nfrom the possession of the accused by adducing\n\ncogent and convincing evidence before this court\n\nhence, offence definedu/s 13(1)(c)of the PC Act\n\nstands not proved and the Point No. 2 is answered in\n\nthe Negative.26. Point No. 3:Section 13(1)(d)(ii)is charged\n\nagainst the accused alleging that he had received\n\nRs.15,000/- from T.Nazeer to purchase the MO1 and 2\n\nmobile phones and the accused had agreed to receive50Rs.20,000/- from the said Nazeer when the phones are\n\ngiven to him.     Prosecution has miserably failed to\n\nprove the receipt of Rs. 15,000/- from anybody by the\n\naccused much less from the said T. Nazeer, who is a\n\nconvict prisoner housed in the central prison.        The\n\nInvestigating Officer has submitted the charge sheet\n\non the basis of the confession statement of accused\n\nthat he had received bribe from T.Nazeer which is hit\n\nbysection 25of the Indian Evidence Act. Investigating\n\nOfficer of this case PW13, H.M.Anand, PSI attached to\n\nthe   Parapana    Agrahara      Police   Station,   PW17,\n\nK.N.Ramesh, ACP, Electronic City Sub Division, PW19\n\nT.D.Jayaramu, ACP, Electronic City Sub Division have\n\ninvestigated this case and none of them have made\n\nany effort to investigate with respect to the allegation\n\nof receiving bribe by the accused from T.Nazeer for\n\nproviding mobiles phones to him. PW19 in his evidence\n\nbefore this court has testified that he arrested the51accused    on     12-10-2017        and     the     accused   was\n\nremanded to judicial custody the same day. It is his\n\nevidence   that      he   interrogated       the    accused   and\n\nrecorded his confession statement before producing\n\nhim before this court. Later, after 7 days i.e., on 19-10-\n\n2017 the accused was taken to police custody and\n\nagain on interrogation he confessed with respect to the\n\nreceipt of bribe amount from T.Nazeer in lieu of\n\nproviding MO1 and 2 mobile phones to him. It is his\n\nfurther testimony that, based on this confession he did\n\nnot conduct any investigation with respect to the\n\ninvolvement     of    T.Nazeer      in    this    case.   PW19   is\n\nextensively cross examined by the learned counsel for\n\naccused and it is brought out in cross examination that\n\nPW19 did not conduct any investigation of this case\n\nduring the period from 12-10-2017 to 19-10-2017 as he\n\nwas held up in investigation of some other cases.5227. The confession statement of the accused is\n\nrecorded by PW19 on 12-10-2017 and later on 19-10-\n\n2017. Based on the 2nd confession statement of the\n\naccused,   a    prisoner   who    is   sentenced    to    life\n\nimprisonment in the notorious Bangalore bomb blast\n\ncase and serving his sentence at the Parapana\n\nAgrahara central prison by name T. Nazeer was\n\narrayed as A2 in this case. No investigation with\n\nrespect involvement of this Nazeer is conducted by\n\neither PW19 or his successor Investigating Officers who\n\ntook over investigation of this case. This court vide\n\norder   dated   19.6.2018   had    discharged      the   said\n\nT.Nazeer who was arrayed as A2 in this case for want\n\nof sufficient prima facie materials to proceed against\n\nhim to face the trail of this case. Not a single piece of\n\nlegally admissible either documentary or oral evidence\n\nhas been placed before this Court by the prosecution\n\nto prove the charge of commission of the offence of53criminal misconduct by the accused by abusing his\n\nposition as a public servant by obtaining pecuniary\n\nadvantage from T.Nazeer or from any other person.\n\nRight from the registration of this case by the police till\n\nthe   filing   of   charge   sheet,   lack   of    disciplined\n\ninvestigation can be seen protruded throughout each\n\nand   every     stage   of   investigation    by     all   the\n\ninvestigating officers. PW1, the Chief Superintendent\n\nof the Central Prison also has dealt with this case in a\n\nvery casual manner even though grave allegation is\n\nmade against the accused and the said T.Nazeer. Had\n\nthe accused and the said Nazeer were successful in\n\ncommitting the offence as alleged by the prosecution,\n\nthe security of the nation would have been at stake.\n\nProviding mobile phones to a prisoner who is accused\n\nof series of terrorist activities across the country, by a\n\npolice man who is on escort duty to the said prisoner\n\nto court has to be viewed very seriously. But PW1, the54Chief Superintendent of the Prison, the Police Sub-\n\nInspector who registered the case, the Investigating\n\nOfficers who investigated the case, all have dealt with\n\nthis case in a very casual manner which shows serious\n\nlapses on their part.    Settled position of law is that\n\nCourts cannot give benefit of doubt to the accused for\n\nerrors   committed      during   investigation    by   the\n\nInvestigating Officers, but however, Courts cannot turn\n\nblind eye towards the investigation deficiencies which\n\ngoes to the root of the prosecution case.28. The only circumstance the prosecution has\n\nproved in the case is that the MO1 and MO2 phones\n\nproduced before the Court bears the same IMIE\n\nnumbers mentioned in Ex.P4 cash bill and the bill bears\n\nthe name of one Dinesh. The mahazar witness of the\n\ncash bill did not identify the accused.          This non-\n\nidentification of accused by the mahazar witness would55not have attained much relevance had the prosecution\n\nproved that the mobile phones were kept by the\n\naccused himself inside the warrant papers and the\n\nphones were seized and produced before the Court in\n\naccordance with law under proper seizure mahazar.\n\nSince, the allegation of seizure of phones from the\n\naccused itself is to be appreciated with the pinch of\n\nshadow of doubt, then the testimony of PW10 and\n\nPW18, the cash bill seizure mahazar witnesses that\n\nthey do not know whether it was accused who had\n\npurchased the mobile phones cannot be brushed aside\n\nas such. PW11, owner of the mobile shop testifies that\n\nthe police had come to his shop with the purchaser of\n\nthe phones, but he did not identify the accused who\n\nwas in dock on the day of his examination. In this\n\ncircumstance their testimony of has to be believed.\n\nTherefore, for the reasons discussed above I hold that\n\nthe prosecution has not proved beyond doubt that the56accused   has   committed           the   offence    of    criminal\n\nmisconduct    defined    u/s    13(1)(d)      of    thePC   Acttherefore, I answer the point taken for consideration in\n\nthe Negative.29. Point No. 4: The offence charged against the\n\naccused isu/s 424of IPC for commission of offence of\n\ndishonest concealment of property.Section 424of IPC\n\nis extracted below for clear understanding of the\n\ningredients to attract the offence."Whoever dishonestly or fraudulently\n          conceals or removes any property of\n          himself   or    any        other    person,      or\n          dishonestly or fraudulently assists in\n          the concealment of removal thereof, or\n          dishonestly releases any demand or\n          claim to which he is entitled, shall be\n          punished with imprisonment of either\n          description    for    a     term   which        may\n          extend to 2 years, or with fine, or with\n          both."5730. From the facts of the prosecution case the\n\naccused concealed MO1 and 2 mobile phones when he\n\nentered the prison premises is the allegation against\n\nthe accused to include this section in the charge sheet\n\nand to prove this fact the prosecution examined PW1,\n\nPW3 and PW4 and Ex.P3 seizure mahazar is marked\n\nalong with the MO1 and MO2 mobile phones said to be\n\nseized from the accused. As discussed in the earlier\n\npart of this judgment, the testimony of PW3 and PW4\n\ndoes not inspire the confidence of this court to hold\n\nthat accused had kept the MOs in the plastic bag\n\ncontaining Warrant Return Papers in a concealed\n\nmanner. Even though no motive could be attributed to\n\nany of these witnesses for bringing a false allegation\n\nagainst the accused, the manner in which PW1 had\n\nhandled the situation persuades this court to believe\n\nthat the these witnesses failed to convincingly lay\n\ncredence to the prosecution case corroborating their58versions. The plastic bag said to be used to carry the\n\nMOs is not seized along with the phones. The MOs\n\nwere not produced before the court from proper\n\ncustody after the alleged seizure of the same from the\n\naccused.   The   prosecution   has   not   convincingly\n\nexplained the delay in registering the case and\n\ndrawing Ex.P3 seizure mahazar with respect seizure of\n\nthe MOs. These aspects along with the reasons\n\ndiscussed in the previous part of this judgment holds\n\nback this court from considering that the prosecution\n\nhas proved beyond doubt the concealment of the\n\nproperty as enumeratedu/s 424of IPC. Our criminal\n\njurisprudence does not permit the court to condemn a\n\nperson on mere assumptions and as the Hon'ble\n\nSupreme Court and the various High Courts of this\n\ncountry have time and again cautioned that the justice\n\naccording to law does not merely mean technical\n\njustice, but the law is to be administered to advance59justice. Keeping in view this proposition of law, the\n\nPoint No. 4 taken for consideration is also answered in\n\nthe Negative.31.Point No. 5: Thus, upon appreciation of the\n\nentire oral and documentary evidence on record, I hold\n\nthat the prosecution has failed to bring home the guilt\n\nof the accused beyond reasonable doubt for the\n\noffences with which he is charged.      In the result, I\n\nproceed to pass the following:ORDER\n          Undersection    248(1)Cr.P.C.   the\n     accused A.M.Dinesh is acquitted of the\n     offence punishable undersection 42of the\n     Prisons Act, 1894. The accused is also\n     acquitted of the offence defined undersection 13(1)(c)and13(1)(d)which are\n     punishable undersection 13(2)of The\n     Prevention of Corruption Act, 1988. He is\n     also acquitted of the offence punishableu/s\n     424of the IPC.60The bail bonds and surety bonds of\n    the accused other than the bonds executed\n    undersection   437Aof   Cr.P.C.   stands\n    cancelled.MOs 1 and 2 mobile phones are\n    ordered to be confiscated to the State. MOs\n    1(a) and 2(a) being worthless are ordered\n    to be destroyed. Ex P4 Invoice receipt book\n    is ordered to be returned to PW 11 after\n    obtaining the certified copy of the same.\n    Order regarding the disposal of MOs and Ex\n    P4 shall be given into effect after the\n    appeal period is over.(Typed on my dictation by the Judgment Writer\ndirectly on computer, print out signed and then\npronounced by me in open Court on this the 30 th day\nof July, 2020)\n\n\n\n\n                           Sd/-30.07.2020\n                          [MANJULA ITTY]\n            XXIII ADDITIONAL CITY CIVIL AND SESSIONS\n            JUDGE SPECIAL JUDGE, BENGALURU URBAN\n                    DISTRICT, BENGALURU61ANNEXURE\n\nList of witnesses       examined   on   behalf   of   the\nprosecution:PW 1 :    M.Somashekar\nPW.2 :    D.V.Ramesh\nPW.3 :    Basavaraj Mattur\nPW.4 :    G.Hemavathi\nPW.5:     N.Ganesh\nPW 6 :    M.V.Vasanth Kumar\nPW 7 :    T.Venkatesh\nPW 8 :    Thammanna Gowda\nPW 9 :    Ramu\nPW 10:    K.M.Sameer\nPW 11 :   Rasheed V.E\nPW 12:    Sunil Kumar\nPW 13:    H.M.Anand\nPW 14:    Ajith\nPW 15:    S.Siddaraju\nPW 16:    Asif\nPW 17:    K.N.Ramesh\nPW 18:    Rizwan\nPW 19:    T.D.Jayaramu62List of documents marked on behalf of prosecution:Ex P 1 :   Complaint\n\nEx P1(a) : Signature of PW 1\n\nEx P 2 :   Sanction Order\n\nEx P2(a) : Signature of PW 15\n\nEx P3 :     Seizure mahazar dtd 12.10.17\n\nEx P3(a) : Signature of PW 9\n\nEx P3(b) : Signature of PW 13\n\nEx P3(c) : Signature of PW 16\n\nEx P4 :     One Invoice book\n\nEx P4(a) : Cloth Cover\n\nEx P4(b) : Signature of PW 10\n\nEx P4(c) : Signature of PW 10\n\nEx P4(d)&(e) : Signature of PW 19\n\nEx P5 :     Relevant portion of the statement of PW 10\n\nEx P6 :     Seizure mahazar\n\nEx P6(a) : Signature of PW 11\n\nEx P6(b) : Signature of PW 1863Ex P4(c) : Signature of PW 19\n\nEx P7 :       Spot mahazar\n\nEx P7(a) : Signature of PW 12\n\nEx P7(b) : Signature of PW 14\n\nEx P7(c) : Signature of PW 19\n\nEx P8 :     FIR in Cr.No.474/2017\n\nEx P8(a) : Signature of PW 13\n\nEx P9:       PF No.180/2017\n\nExP10 :      Relevant portion of PW 16\n\nEx P11:       Duty Register extract Gate-2\n\nEx P11(a) : Signature of PW 17\n\nEx P12:       Nominal Roll of Prisoners (A2) details\n\nEx P13:     D.V.Ramesh Head Warden duty report details\n\nEx P14 : Statement ofPW 18 undersection 161Cr.PC\n\nEx P 15 : Relevant portion of the voluntary statement\n          of accused No.1\n\nEx   P16:       Letter   addressed    to     the   Assistant\n          Commissioner of police CAR (South), Bengaluru\n\nEx P17 : Letter addressed to the Chief Superintendent\n          Central Prison, Parapana Agrahara, Bengaluru64Ex P18 : Duty Register, Bank details and Escort duty\n         documents with letter of D.C.P, CAR (South),\n         dated 22.11.2017.List of material objects marked on behalf of the\nprosecution:MO 1 :     One Black colour Samsung J2 Mobile item\n           No.1\nMO 1(a) : Cover\n\n\nMO 2 :     One Black colour Samsung J2 Mobile item\n           No.2\nMO 2(a): Cover\n\n\nList of witnesses examined on behalf of accused:\nNIL\nList of documents marked on behalf of accused:NIL\n                              Sd/-30/07/2020\n                          [MANJULA ITTY]\n            XXIII ADDITIONAL CITY CIVIL AND SESSIONS\n            JUDGE SPECIAL JUDGE, BENGALURU URBAN\n                        DISTRICT, BENGALURU\n 65