Complainant and shadow witness in trap case of corruption related

[Anonymous]

Conspiracy Case is booked against me under Prevention of Corruption Act-1988. In my case Complainant’s father and shadow witnesses are related i.e. they are working in Bank in Same city. Can be taken this point for defence in trial?

[Dr. Ashok Dhamija]

In a trap arranged to catch a public servant red-handed while demanding and accepting bribe from a complainant, it is a common practice of sending an independent witness, i.e., a panch or shadow witness, along with the complainant who could witness the whole incident including the transaction, of currency notes as well as the conversation relating thereto, taking place between the accused public servant and the complainant. As a complainant is a person who is very much interested in the success of the trap case, it is necessary to have an independent and disinterested person as a panch witness in the trap case. It has become a common practice nowadays with the CBI and other investigating agencies dealing with the corruption matters to take some other public servants for acting as panch witnesses in the trap cases.

Highlighting such a need for employing independent witnesses as shadow witnesses in trap cases, in Raghbir Singh v. State of Punjab, AIR 1976 SC 91 : 1976 Cri LJ 172 : (1976) 1 SCC 145 : 1975 SCC (Cri) 776 [See also, Panchanan Rout v. State of Orissa, 1991 Cri LJ 2442 (Ori) : (1991) 71 Cut LT 823; Pooran Chandra Rastogi v. State of U.P., 1992 Cri LJ 2430 : 1992 All LJ 800; Sabhapati Tiwari v. State of U.P., 1978 Cri LJ (NOC) 32 (All); Abdul Rahman Sheikh v. State of M.P., 2002 (2) MPLJ 251 (MP) : 2002 (3) CCR 17 : 2002 (3) MPHT 330.], the Supreme Court observed that the Officers functioning in the anti-corruption department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the Court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. They should insist on observing this safeguard for the protection of public servants against whom a trap may have been laid.

In a trap case the duty of the officer to prove the allegations made against a government officer for taking bribe is serious, and therefore, the officers functioning in the Vigilance Department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt whether or not any money was paid to the public servant by way of bribe. It is also the duty of the officers in the Vigilance Department to safeguard for the protection of public servants against whom a trap case may have been laid. [Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211 at p. 222 : AIR 2005 SC 3123 : 2005 Cri LJ 3454.]

Where the material witnesses in a trap case were alleged to be relations of the complainant, it was held by the Himachal Pradesh High Court that it is the duty of the prosecution, to join independent and disinterested person in the raiding party. The prosecution could have easily, while on way to the place of the accused, included independent, disinterested and reputable persons of the area and locality for evidencing the trap. The absence of any reason by the prosecution for not including independent, disinterested and reputed witnesses in the raiding party, therefore indicates that the incident has not taken place in the manner as the prosecution had contended. It further throws doubt on the whole case and the result is that the explanation given by the accused appears to be more sound and convincing. [State of H.P. v. Tej Ram, 1990 Cri LJ 995 : (1989) 2 Sim LC 9.]

It is the common practice in a trap case that an independent witness would be accompanying the decoy, to witness the actual offer and acceptance of the bribe and to overhear the conversation that takes place between the accused and the complainant at the relevant time. So such a witness must be really independent so that his evidence can be safely relied on. The decoy is a highly interested witness and so a person closely associated with him is likely to share his interestedness and so no useful purpose would be served by making such a person as the accompanying witness. The proposition that it is always necessary to associate really independent and respectable witnesses in a trap party to inspire confidence in the mind of the Court needs no emphasis. [Niranjan Khatua v. State of Orissa, 1990 Cri LJ 2790 (Ori).]

It is the duty of the prosecution to join independent and disinterested person in the raiding party. In the instant case, the absence of any reason stated by the prosecution for not including independent, disinterested and reputed witnesses in the raiding party, indicates that the incident has not taken place in the manner as the prosecution has contended. It further throws doubt on the whole case and the result is that the explanation given by the accused that the complainant and other witnesses were all interested witnesses appeared to be more sound and convincing. [State of H.P. v. Ram Krishan, 2001 (3) Shim LC 275 at pp. 283-84 (HP) : 2002 (2) Chand LR 178; relying upon Raghbir Singh v. State of Punjab, AIR 1976 SC 91 : 1976 Cri LJ 172 : (1976) 1 SCC 145 : 1975 SCC (Cri) 776.]

It can thus be seen that the shadow witnesses in a trap case under the Prevention of Corruption Act, 1988, are required to be independent witnesses. They are supposed to witness the transaction of demand and acceptance of bribe by the accused public servant from the complainant. They are also supposed to witness the proceedings of the trap and be independent witnesses to the same. Therefore, if a shadow witness is not independent and is related to the complainant or his father, it may dent the credibility of his evidence. Accordingly, you can definitely raise the issue in your defence that the shadow witness is not an independent person. How far his evidence is reliable and trustworthy will ultimately depend on the facts and circumstances of the case.

[Note: Some extracts have been taken from my book: Prevention of Corruption Act, Second Edition (2009), by Dr. Ashok Dhamija, appx. 2250 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-592-6).]

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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