Rao Shiv Rahadur Singh & ANR Vs.
The State Of Vindhya Pradesh [1954] INSC 16 (5 March 1954)
BHAGWATI, NATWARLAL H.
JAGANNADHADAS, B.
AIYYAR, T.L. VENKATARAMA
CITATION: 1954 AIR 322 1954 SCR 1038
CITATOR INFO :
R 1955 SC 104 (20) F 1956 SC 476 (11) R 1956
SC 643 (37) R 1958 SC 500 (6,7,9,10,11,12,13,15) D 1960 SC 961 (5) R 1961 SC
715 (7) F 1964 SC 358 (13) R 1968 SC1323 (7) E 1973 SC 28 (15) RF 1974 SC1516
(9) R 1975 SC 915 (25) R 1975 SC1320 (5) R 1979 SC 400 (9)
ACT:
Code of Criminal Procedure (Act V of 1898),
s.164Magistrate not recording statement of accused as required by the
section-Whether competent to give oral evidence of such statement-Disapproval
of the action of Police in6 entrapping the accused and providing the
bribe-giver the instruments of offence.
HEADNOTE:
After the investigation into an offence has
been started on the registration of the First Information Report by the Police,
no statement made by the -accused to the Magiarate can be proved unless the
statement has been recorded in accordance with the provisions of s. 164 of the
Code of Criminal Procedure and therefore, if the non-confessional statement has
not been recorded by the Magistrate in the manner indicated in s. 164, the
Magistrate would not be competent to give oral evidence of such statement
having been made by the accused.
Nazir Ahmad v. King Emperor (A.I.R. 1936 P.
C. 253), Legal Bomembrancer v. Lalit Mohan Singh Boy (I.L.R. 49 Cal.
167), Abdul Bahim and Others v. Emperor (26
Cr. L. J. 1279) and Karu Mansukh Gond v. Emperor (A.I.R. 1937 Nag. 254)
referred to.
The conduct of the Police and the Additional
District Magistrate inactively instigating the accused to commit the off once
of which he was charged by furnishing him with the necessary materials (without
which he could not have committed the offence), for the purpose of trapping
him, was strongly disapproved.
It is the duty of the police to prevent the
crimes being committed. It, is no part of their duty to provide the instruments
of the offence.
The observations of Mr. Justice P. B.
Mukherji in the case of M. 0. Mitra v. The State (A.I.R. 1951 Cal. 524 at p.
528) condemning the practice of sending
Magistrates as witnesses of Police trap endorsed because such practice makes a Magistrate
a party or a limb of the Police during police investigation and undermines
seriously the independence of the Magistrates and perverts their judicial
outlook.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No., 7 of 1951.
Appeal under article 134(1)(c) of the
Constitution of India from the Judgment and Order dated the 10th March,,' 1951,
of the judicial Commissioner Vindhya 1099 Pradesh, Rewa in Criminal Appeal No.
81 of 1950 arising out of the Judgment and Order dated the 26th July, 1950, of the
Court of the Special Judge, Rewa, in' Criminal Case No. 1 of 1949.
Jai Gopal sethi (K. B. Asthana, with him) for
appellant No.1.
S.C. Isaacs (Murtza Fazl Ali, with him) for
appellant No. 2.
Porus A. Mehta for the respondent.
1954. March 5. The Judgment of the Court was
delivered by BHAGWATI J.-The appellant No. 1 was the Minister *of Industries
and the appellant No. 2 was the Secretary to the Government of the Commerce and
Industries Department of the State of Vindhya Pradesh. The appellant No. 1 was
charged with having committed offences under sections 120-B, 161, 465 and 466
of theIndian Penal Code and the appellant No.
2 under sections 120-B and 161 of the Indian
Penal Code as adopted by the Vindhya Pradesh Ordinance No. 48 of 1949.
They were tried in the Court of the Special
Judge at Rewa under the Vindhya Pradesh Criminal Law Amendment (Special Courts)
Ordinance No. LVI of 1949 and the Special Judge acquitted both of them. The
State of Vindhya Pradesh took an appeal to the Court of the Judicial
Commissioner, Rewa.
The Judicial Commissioner reversed the order
of acquittal passed by the Special Judge and convicted both the appellants of
the several offences with which they were charged. The Judicial Commissioner
awarded to the appellant No. 1 a sentence of 3 years rigorous imprisonment and
a fine of Rs. 2,000 in default rigorous imprisonment of 9 months under section
120-B of the Indian Penal Code and a sentence of three years' rigorous
imprisonment under section 161 of the Indian Penal Code, both the sentences to
run concurrently. He imposed no sentence upon the appellant No. 1 under
sections 465 and 466 of the Indian Penal Code. He awarded to the appellant No.
2 a sentence of rigorous imprisonment for one year and a fine of Re. 1,000 and
in default rigorous imprisonment for 1100 nine months under section 120-B of
the Indian Penal Code. He did not award any separate sentence to appellant No.
2 under section 161 of the Indian Penal Code. On an application made to the
Judicial 'Commissioner, Rewa, for leave to appeal to the Supreme Court the
Judicial Commissioner granted the appellants leave to appeal under article
134(1)(c) of the Constitution in regard to the four points of law raised in the
case before him.
The constitutional points involved in the
appeal came up for hearing before the Constitution Bench of this court and were
dealt with by the Judgment of this court delivered on the 22nd May, 1953. The
Constitution Bench held that the appeal to the Judicial Commissioner from the
acquittal by the Special Judge was competent and that there was no infringement
of the fundamental rights of. the appellants under articles 14 and 20 of the
Constitution (Vide [1953] S.C.R. 1188). The appeal was accordingly directed to
be posted for consideration whether it was to be heard on the merits. An
application wag thereafter made by the appellants to this court for leave to
urge additional grounds and this court on the 20th October, 1953, made an order
that the appeal should be heard on merits. The appeal has accordingly come up
for hearing and final disposal before us.
The case for the prosecution was as follows.
By an agreement executed on the 1st August, 1936, between the Panna Durbar of
the one part and the Panna Diamond Mining Syndicate represented by Sir Chintubhai
Madholal and Hiralal Motilal Shah of the other part, the Panna Durbar granted
to the syndicate a lease to carry on diamond mining operations for a period of
15 years. The period of the lease was to expire on the 30th October, 1951, but
there was an option reserved to the lessee to have a renewal of the lease for a
further period of 15 years from the date of such expiration.
There were disputes between the syndicate on
the one hand and the Panna Durbar on the other and by his order dated the 31st
October, 1946, the Political Minister of Panna stopped the mining operations of
the syndicate. The, State of 1101 Panna became integrated in the Unit of
Vindhya Pradesh in July, 1948, and the administration of Panna came under the
control and superintendence of the Government of Vindhya Pradesh with its seat
at Rewa under His Highness the Maharaja of Rewa as Rajpramukh and the appellant
No. I became the Minister in charge of the Industries Department in the Cabinet
which was formed by the Rajpramukh. The appellant No. 2 held the post of
Secretary, Commerce and Industries Department, and was working under the
appellant No. 1. On the 1st September, 1948, the syndicate appointed one
Pannalal as Field Manager to get the said order of the Panna Durbar stopping the
working of the mines rescinded.
Pannalal made several applications for
procuring the cancellation of the said order and on the 13th January, 1949, and
the 26th January, 1949, Pannalal made two applications and handed them over
personally to the appellant No. I requesting for the resumption of the mining
operations and was asked to come in February for the purpose. The appellant No.
I consulted the legal advisers of the State and a questionnaire was framed
which was to be addressed to the syndicate for its answers. When Pannalal went
to Rewa the questionnaire. was handed over to him on the 9th February, 1949,
for being sent to Sir Chinubbai Sir Chinubhai sent the replies to the said
questionnaire along with a covering letter dated the 18th February, 1949, wherein
he expressed a desire to meet the appellant No. 1 for personal discussion in
regard to the settlement of the matter of the resumption of the mining
operations etc. In reply to the telegrams sent by Sir Chinubhai on the 19th
February, 1949, the Personal Assistant to appellant No. 1 intimated to Sir
Chinubhai that he could go to Rewa and see the appellant No. 1 on the 7th
March, 1949. As Sir Chinubhai was ill he deputed his Personal Assistant,
Nagindas Mehta to go to Rewa and see the appellant No. 1 on his behalf Nagindas
arrived at Rewa on the evening of the 6th March, 1949. The appellant No. 1 had
gone out of Rewa and Nagindas had to wait. He saw the appellant No. 1 on the
morning. of the 8th March, 1949, but was asked 1102 to see the appellant No. 2.
The appellant No.2 saw Nagindas at the Guest House where lie had put up and
informed Nagindas that a third party was offering Rs. 50,000 for the mining
rights. Nagindas told the appellant No. 2 that the syndicate was a limited
concern and could not afford to pay so much money . but if the amount was
reduced they would makean effort to pay the sum. The appellant No. 2 then told
Nagindas that he would talk over the matter with the appellant No. I and let
him know. The same day in the afternoon the appellant No. 2 saw Nagindas at the
Guest House and informed him that as the syndicate was working for the last so
many years the appellant No. 1 was prepared to reduce the amount to about Rs.
25,000. Nagindas told the appellant No. 2 that he would talk over the matter
with Sir Chinubhai in Bombay and would let him know about it.
Nagindas then left for Bombay but he reached
Bombay on the 29th March, 1949, having been detained on the way for some other
business of his. He saw Sir Chinubhai in Bombay and reported to him what had
happened, at Rewa and gave him to understand that resumption orders would not
be passed unless a bribe of Rs. 25,000 was paid. Sir Chinubhai did not approve
of the idea of giving a bribe and suggested that Nagindas should lay a trap for
catching the appellant No. 1.
Nagindas sent a telegram on the 29th March,
1949, agreeing to go to Rewa in the week thereafter for completion. On receipt
of that telegram the appellant No. 2 in the absence of appellant No. 1 who was
on tour sent a telegram on the 1st April, 1949, to Sir Chinubhai pressing him
to come the same week as his presence was essential to complete the matter
which had been already delayed. On the 4th April, 1949, Pannalal was informed
by the appellant No. 2 that the appellant No. 1 was leaving for Delhi that day
and that he should go to Bombay and send Sir Chinubhai to Delhi to meet the
appellant No. I in the Constitution House where he would be staying. He also
gave a letter to Pannalal to the same effect. Appellant No. 1 left for Delhi on
the 4th April,, 1949, with the files of the Panna Diamond Mining 1103 Syndicate
and reached Delhi on the 5th April, 1949. On the 6th April, 1949, the appellant
No. 1 sent a telegram through his Personal Assistant Mukherji to Sir Chinubhai
at Bombay asking him to meet the appellant No. I on the 7th, 8th or 9th April,
1949, at 31 Constitution House for final talks regarding the Panna Diamond
Mining Syndicate. On receipt of the said telegram Sir Chinubhai sent a telegram
in reply stating that his Personal Assistant, Nagindas and Pannalal were
reaching Delhi on the 9th April, 1949. Nagindas reached Delhi on the 8th April,
1949, and put up at the Maidens Hotel and Pannalal reached Delhi on the 10th
April, 1949, and put up at the Regal Hotel. On the 9th April, 1949, Nagindas
informed the appellant No. I on the telephone about his arrival at Delhi and an
appointment was fixed for 10-30 am. on the 10th April, 1949 Nagindas contacted
Shri.Bambawala, the inspector General of Police of the Special Police Establishment
on the morning of the 10th April, 1949, before, coming to meet the appellant
No. I and told him how the appellant No. 1 was coercing him to pay a bribe.
Shri Bambawala referred Nagindas to Pandit Dhanraj, Superintendent,, Special
Police Establishment, and Nagindas told him the whole story of his harassment
by the appellant No. 1 and it was then decided to lay a trap for, appellant No.
1. Nagindas informed Pandit Dhanraj that he would meet the appellant No. 1 at
about 11 a.m. and then report their talk to him in the afternoon. Nagindas then
saw the appellant No. 1 at the Constitution House at the appointed time and at
this meeting the appellant No. 1 demanded from Nagindas a sum of Rs. 25,000 as
a bribe for allowing the resumption of the mining operations and made it quite
clear that he would not accept anything less than' Rs. 25,000. As Nagindas had
not received the moneys from Bombay, the following day, ie., the 11th April,
1949, at 3 p.m. was fixed for the next meeting. Nagindas thereafter informed Pandit
Dhanraj as to what had taken place at the aforesaid meeting between him and the
appellant No. 1. Nagindas went to the Constitution House and saw the appellant
No. I at about 3 p.m. on the 11th April,, 1949. Pannalal was already 143 1104
there. Nagindas and the appellant No. 1 went into the bedroom where Nagindas
requested the appellant No. I to extend the period of the lease for 10 years so
that the syndicate might be compensated for the loss sustained by the stoppage
of the mining operations. The appellant No. I thereupon asked Nagindas to
submit a written application in Hindi and as Nagindas did not know it he called
Pannalal into the bedroom and asked him to write out an application to that
effect. The appellant No. I after making sure from Pannalal that Pannalal was
present at Rewa on the 1st April, 1949, asked Pannalal to put the date on the
said application as the 1st April, 1949. The appellant No. 1 made an
endorsement at the foot of the said application and dated it as of the 1st
April, 1949. It was arranged that Nagindas should see the appellant No. 1 at 9
p.m. that day, that Nagindas should pay Rs. 25,000 to the appellant No. I atthat
time and the appellant No. I would deliver the resumption order to Nagindas on
payment of the said sum of Rs. 25,000. Nagindas then left the Constitution
House and reported to Pandit Dhanraj what had transpired between him and
appellant No. 1. He further told Pandit Dhanraj that he had not received any
moneys upto that time. Pannalal was asked to proceed to the Constitution House
in advance and inform the appellant No. 1 that Nagindas would be coming along
at 9 p.m. that night. Nagindas and Pandit Dhanraj then proceeded to the house
of Shri Shanti Lal Ahuja, Additional District Magistrate. Pandit Dhanraj made arrangements
for a raiding party. Nagindas's statement was recorded on oath and a search of
his person was made and he was then given three bundles containing 250
Government currency notes of Rs. 100 and a memorandum of the same was also
prepared. After these formalities were gone through Pandit Dhanraj, Nagindas
and the Additional District Magistrate along with the police party left for the
Constitution House. It was arranged that Pannalal should be sent out by
Nagindas after the completion of the transaction, on some pretext or other to
the taxi waiting outside and that this would serve as a signal for the raiding
party 1105 which would rush into the room No. 31 Constitution House which was
occupied by the appellant No. 1. Nagindas then went inside the suit of rooms
occupied by the appellant No. 1 and the appellant No. 1 took him to his bedroom
and closed the door which connected the bedroom with the sitting room where
Pannalal was already waiting. After this the appellant -No. 1 handed over the
resumption order to Nagindas and on reading the same Nagindas found that the
extension given was only for 4 years and be asked the appellant No. 1 why this
was so when the appellant No. 1 had promised before to give an extension for 10
years. On this the appellant No. I told Nagindas that he should put up another
application after a few months and then the appellant No. 1 would extend the
period. Appellant No. 1 then signed the resumption order and put down the date
thereunder as the 2nd April, 1949. As soon as the signed order was handed over
to him Nagindas handed over to the appellant No. I the Government currency
notes of the value of Rs. 25,000 which had been given to him previously by the
Additional District Magistrate. Nagindas then asked for an extra copy of the
said order and the same was accordingly given to him after being dated and
initialled by the appellant No. 1. The appellant No. 1 took the Government
currency notes and put them in the upper drawer of the dressing table in the
bedroom. After the transaction was thus completed Nagindas shouted to Pannalal
to go to the taxi and bring his cigarette case. Pannalal went opt to the taxi
and on receipt of this signal the Additional District Magistrate and Pandit
Dhanraj rushed into the sitting room along with the other members of the
raiding party. The appellant No. 1 met the raiding party at the communicating
door between the two rooms. After the Additional District Magistrate and Pandit
Dhanraj had disclosed their identity appellant No. I was asked by Pandit Dhanraj
whether he had received any money as a bribe to which the appellant No. 1
replied in the negative. Pandit Dhanraj then told appellant. No. 1 that he
should produce the money which he had received, otherwise he would be 1106
forced to search the room. On this appellant No. I went to the said dressing
table, opened the top drawer and brought out the three bundles of Government
currency notes given to him by Nagindas and handed them over to Pandit Dhanraj.
On inquiry by the Additional District Magistrate as to how he had come into
possession of the said notes, the Appellant No. 1 stated that he had brought
Rs. 40,000 from his home out of which Rs. 15,000 had been spent by him in the
purchase of a motor car and the remaining sum was with him which was required
by him to purchase some ornaments in connection with the marriage of his
daughter. In the meanwhile two respectable witnesses, Shri Gadkari, who was a
member of the Central Electricity Authority, Ministry of Works;, Mines and
Power, Government of India, and Shri Perulakar, who was the Minister for
Agriculture and Labour, Madhya Bharat, were brought to the bedroom of the
appellant No. 1 by the police. The appellant No. 1 repeated the said statement
and gave the same explanation before these two witnesses which he had given and
made before the Additional District Magistrate and Pandit Dhanraj a little
while before. Nagindas was then searched in the presence of these two witnesses
and the two copies of the order which had been given to him by appellant No. I
were recovered from his person. Two other copies of the said order and the
application and the file of the Panna Diamond Mining syndicate were recovered
from the. search of the upper drawer of, the dressing table in the bedroom of
appellant No. I Appellant No. 1 also produced a receipt in support of his story
of the purchase of the car. The relevant memos of the search were prepared and
also a list of the numbers of the Government currency notes of Rs. 25,000 which
had been produced by the appellant No. 1. This list was compared and checked by
the said witnesses Gadkari and Perulgkar with the numbers of notes and also
with those appearing in the list which was in the possession of the Aditional
District Magistrate and which, was shown to the said witnesses. They found that
the numbers in the said two lists tallied in all respects. After the completion
of the list the Additional 1107 District Magistrate confronted appellant No. 1
with the documents which were produced before him by Nagindas and also the list
of notes and asked appellant No. 1 if he had any explanation to offer. The
apppllant No. 1 was confused and could give no explanation. On further enquiry
whether the appellant No. I had any other money with him, he opened an iron
confidential box a key of which was in his possession and brought out a sum of
Rs. 132 which was not taken charge of as the same had no concern with the case.
Thereafter appellant No. I was put under
arrest and was subsequently released on bail.
* * * * After these documents were forged the
next important event was the passing, of the sum of Rs. 25,000 as and by way of
bribe or illegal gratification by Nagindas to the appellant No. 1. Here also it
would have been difficult for the prosecution to establish the guilt of the appellant
No.
1 if the matter had rested merely on the
evidence of Nagindas or that of the police witnesses supported a,% they were by
Shanti Lal Ahuja, the Additional District Magistrate. Nagindas's evidence
suffering from the infirmity pointed out before could not be enough to carry
conviction with the court. He was out to trap the appellant No. 1 and had been
clever enough also to have inveigled the police authorities to procure the
wherewithal of the bribe for him. It is patent that but for the procurement of
these Rs. 25,000 by the police authorities and their handing over the sum to
Nagindas, Nagindas would not have had the requisite amount with him and the
offence under section 161 would never have been committed. The police
authorities also exhibited an excessive zeal in the matter of bringing the
appellant No. 1 to book and their enthusiasm in the matter of trapping the'
appellant No. I was on a par. with that of Nagindas and both the parties were
thus equally to blame in the matter of entrapping the appellant No. 1. The
evidence of these witnesses therefore was not such as to inspire confidence in
the mind of the court. Shanti Lal Ahuja, the Additional District Magistrate,
also lent himself to the. police authorities and became 1108 almost a limb of the
police. His position as the Additional District Magistrate was submerged and he
reduced himself to the position of an ordinary witness taking part in the
affair as a member of the raiding. party and his evidence could be no better or
no worse than that of the police witnesses themselves. If therefore the matter
had rested merely upon their evidence it would have been difficult to carry the
guilt home to the appellant No. 1. The evidence as to the recovery of this sum
of Rs. 25,000 from the top drawer of the dressing table in the bedroom of the
appellant No. I and also in regard to the handing over of that sum by the
appellant No. I to Shanti Lal Ahuja, the Additional District Magistrate, was
equally tainted and if that evidence stood by itself no court would have been
safe in acting upon the same. The statement which was made by the appellant No.
I to Shanti Lal Ahuja, the Additional District Magistrate, was inadmissible in
evidence. Section 162 of the Criminal Procedure Code rendered the statement
made by the appellant No. I to the police officers inadmissible.
The investigation into the offence had
already started immediately on the First Information Report being registered by
the police authorities and Pandit Dhanraj himself admitted in his evidence that
the investigation into the offence had thus started before the raid actually
took place. The statement made by the appellant No. 1 to Shanti Lai Ahuja, the
Additional District Magistrate was therefore made after the investigation had
started and during the investigation of the offence and was therefore hit by
section 164 of the Criminal Procedure Code. It was urged on behalf of the
respondent that this statement was not a confessional statement and was
therefore not hit by section 164 and Shanti Lai Ahuja, the Additional District
Magistrate, could therefore depose to such statement even though the same was
not recorded as required by the provisions of section 164 of the Criminal
Procedure Code.
There is authority however for the
proposition that once the investigation had started any non-confessional
statement made by the accused also required to be recorded in the manner
-indicated in that section and if no such record had 1109 been made by the
Magistrate, the Magistrate would not be competent to give oral evidence of such
statement having been made by the accused. (See A.I.R. 1936 Privy Council 253
and Indian Law Reports 49 Calcutta 167 followed in 26 Criminal Law Journal 1279
and A.I.R. 1937 Nagpur 254). The statement made by the appellant No. 1 therefore
to Shanti Lal Ahuja, the Additional District Magistrate, not having been
recorded by him in accordance with theprovisions of section 164 was
inadmissible in evidence and could not be proved orally by him., If therefore
the statement was thus eliminated from evidence nothing remained so far as the
witnesses Nagindas and Pannalal on the one hand and the police witnesses as
well as Shanti Lal Ahuja, the Additional District Magistrate, on the other hand
were concerned which could bring the guilt home to the appellant No. 1.
Reliance was therefore placed by the
prosecution on the evidence of Gadkari and Perulakar. They occupied responsible
positions in life and were absolutely independent witnesses. Two criticisms
were levelled against their evidence by the Special Judge. The one criticism
was that contrary to the evidence of Pandit Dhanraj they asserted that their,
statements were not recorded on the night of the 11th April, 1949. Pandit
Dbanraj had recorded their statements after they had left the bedroom of the
appellant No. I at the Constitution House relying upon his memory of the events
that had happened that night. These statements however were not read over to
them and therefore could not have the value which otherwise they would have
had. The other criticism was that they had appended their signatures to the
Panchnama of the numbers of the currency,notes recovered at that time which
Panchnama contained the statement that on being asked the appellant No. I had
produced the bundles of currency notes from the top drawer of the dressing
table. This statement was not factually correct as both these witnesses were
brought into the bedroom of the appellant No. I after the recovery of the
Government currency notes by the police from the appellant No., 1. It was certainly
indiscreet on their part not to have scrutinised 1110 the contents of the
Panchnama before they appended their signatures thereto. That is however a far
cry from coming to the conclusion that they acted in a highly irresponsible
manner and their testimony was unreliable. The circumstances under which the
numbers of the currency notes were recorded in the Panchnama, the statement
made by the appellant No. 1 to them and the confusion into which the appellant
No. 1 fell when he was questioned by the police authorities on the tallying of
the numbers contained in the memo prepared when the raid was organised with the
numbers of the currency notes actually found in the bedroom of the appellant
No. 1 were events which would indelibly print themselves in the memory of these
witnesses and even though they were examined in the Court of the Special Judge
about 10 months after the occurrence, these events and particularly the fact
that the appellant No. I claimed these moneys which were thus recovered as his
own would certainly not be in any manner whatever forgotten by them. The only
suggestion which was made against the credibility of these witnesses on this
point was that they must not have exactly remembered what transpired on that
night in the bedroom of the appellant No. I and that they might have committed
an honest mistake when narrating the events that had happened on that night. An
honest lapse of memory would no doubt be a possibility but having regard to the
circumstances of the case we are of the opinion that the events that happened
that night in the bedroom of the appellant No. I and which were deposed to, by
these witnesses were not such as to be easily forgotten by them and when these
witnesses deposed to the fact that the appellant No. I claimed this sum of Rs. 25,000
as his own and was utterly confused when explanation was sought from him by the
police authorities in regard to the tallying of the numbers of these Government
currency notes, it is not easy 'to surmise that they were suffering from any
lapse of memory.
The evidence of these witnesses in regard to
the statement made by the appellant No. 1 before them was also attacked on the
ground that Shanti Lal 1111 Ahuja, the Additional District Magistrate's asking
the appellant No. 1 to repeat the statement which he had earlier made before
him to these witnesses was a mere camouflage.
Shanti Lal Ahuja, the Additional District
Magistrate, knew very well that the statement made by the appellant No. 1 to
him was not recorded under the provisions of section 164 of the Criminal
Procedure, Code and was therefore inadmissible in evidence and he therefore
resorted to these tactics of having the appellant No. 1 repeat the very same
statement to these witnesses so as to avoid the bar of section 164.
Reliance was placed in this behalf on A.I.R.
1940 Lahore 129 (Full Bench) where it wag held that if on the facts of any case
it was found that a statement made to a third person was in reality intended to
be made to the police and was represented as having been made to a third person
merely as a colourable pretence in order to avoid the provisions of section 162
the court would hold it excluded by the section.
The same ratio it was submitted applied to
the statements made to these two witnesses because they were a colourable
pretence to avoid the provisions of section 164 of the Criminal Procedure Code
which had certainly not bee n complied with by Shanti Lal Ahuja, the Additional
District Magistrate. It has however to be observed that every statement made to
a person assisting the police durirng an investigation cannot be treated as a
statement made to the police or to the Magistrate and as such excluded by
section 162 or section 164 of the Criminal Procedure Code. The question is one
of fact and has got to be determined having regard to the circumstances of each
case. On a scrutinyof the evidence of these two witnesses and the circumstances
under which the statements came to be made by the appellant No. 1 to them we
are of the opinion that the appellant No. I was asked by Shanti Lal Ahuja, the
Additional, District Magistrate, to make the statements to these two witnesses
not with a view to avoid the bar of section 164 of the Criminal Procedure Code
or by way of colourable pretence but by way of greater caution particularly
having regard to the fact that the appellant No. 1 occupied the position .of a
Minister of 144 1112 industries in the State of Vindhya Pradesh. The statements
.made by the appellant No. 1 to these witnesses therefore did not suffer' from
this disability and were admissible in evidence.
The evidence of these witnesses being thus
worthy of credit and the statements made by the appellant No. 1 to them being
admissible in evidence there is no doubt that the appellant No. 1 claimed these
moneys, viz., Rs. 25,000, -which were recovered from the top drawer of the
dressing table in the bedroom of the appellant No. 1 as his own being the
balance of Rs. 40,000 which he had brought from his home when he came to Delhi.
If this was' so the very fact that the numbers of these Government currency
notes of the value of Rs. 25,000 tallied with the numbers of the notes which
had been handed over to Nagindas earlier when the raid was organised and which
numbers were also specified in the memo prepared at that time was enough to
establish the falsity of the allegation made by the appellant No. 1 that he had
brought these moneys from his home These moneys were proved to have been
provided by the police authorities and given to Nagindas when the raid was
organised and were the instruments of the offence of the taking of the bribe or
illegal gratification by the appellant No. 1. If the numbers of these notes
tallied with the numbers of the notes which were thus handed over by the police
authorities to Nagindas they could not have belonged to the appellant No. 1 and
were certainly brought there by Nagindas and handed over by him to the
appellant No. 1 as alleged, by the prosecution. A suggestion was made that
there was oportunity for Nagindas to plant these moneys into the top drawer of
the dressing table when the back of the appellant No. 1 was turned upon him.
Even assuming that there was that possibility it is sufficiently negatived by
the fact that when these moneys were recovered from the top drawer either at
the instance Nagindas as alleged by the appellant No. 1 or at, the instance of
the appellant No. 1 as alleged by the prosecution the appellant No. 1 did not
express any surprise at these moneys being thus found there. If the version of
the appellant No. 1 1113 was correct he had only brought about Rs. 25,000 from
his house. Rs. 15,000 has been already spent by him in the purchase of the
car., About Rs. 10,600 were spent by him in the purchase of the ornaments and
only a sum of Rs. 100 odd was the, balance left with him. According to that
version there was not the slightest possibility of the sum of Rs. 25,000 being
found in the top drawer of the dressing table.
Far from expressing a surprise in this manner
the appellant No. 1 claimed these moneys as his own. The appellant No. 1 could
-not have by any mischance failed to appreciate that these Government currency
notes which were thus recovered from the to p drawer of the dressing table
exceeded by far the amount which according to him he had left with him by way of
balance and the most natural reaction to the recovery of this large sum of
money would . have been that he would have certainly denied that these moneys
were his and he would have been surprised at finding that such a large sum of
money was thus found there. No such reaction was registered on his face. On the
contrary if the evidence of the two witnesses Gadkari and Perulakar is to be
believed and we see no reason why it should not be believed, the appellant No.
1 claimed this sum of Rs. 25,000 as his own being the balance out of the money
which he had brought from his home when he came to Delhi. This is sufficient to
establish that these moneys which earlier bad been handed over by the police
authorities to Nagindas found their way into the top drawer of the dressing
table in the bedroom of the appellant No. 1 and were the primary evidence of
the offence under section 161 having been committed by the appellant No. 1. The
further circumstance that on the numbers of these notes being tallied and his
explanation in that behalf being asked for by the 'Police authorities the
appellant No. 1 was confused and could furnish no explanation in regard thereto
also -supports this conclusion and there is no doubt left in our minds that the
appellant No. 1 was guilty of the offence. under section 161 of the Indian
Penal Code with ;Which he was charged 1114 We cannot however leave this case
without expressing our strong disapproval of the part which the -police
authorities and Shanti Lal Ahuja, the Additional District Magistrate, took in
this affair. As already observed this offence would never have been committed
by the appellant No. I but for the fact that the Notice authorities provided
Nagindas with the wherewithal of the commission of the offence. Sir Chinubhai
as it appears from the evidence was not in a position to provide Nagindas with
this sum of Rs. 25,000 or any large sum and in fact in spite of the telephone
calls made by Nagindas upon him had not provided any amount beyond Rs. 3,000
which was meant for the other expenses of Nagindas, to him. Nagindas was
therefore not in a position to provide this sum of Rs. 25,000 for payment of
the bribe or the illegal gratification to the appellant No. 1. But for the
adventitious aid which he got from, the police authorities the matter would not
have progressed any further, and Nagindas -would I have left Delhi empty
handed. The police authorities however once they got scent of the intention of
Nagindas thought that it was too good an opportunity to miss for entrapping the
appellant No. 1 who occupied the position of the Minister of Industries in the
State of Vindhya Pradesh. They therefore provided the sum of Rs. 25,000 on
their own and handed it over to Nagindas. The police authorities in this step
which they took showed greater enthusiasm than Nagindas himself in the matter
of trapping the .appellant No. 1. It may be that the detection of corruption
may sometimes call for the laying of traps, but there is no justification for
the police authorities to bring about the taking of a bribe by supplying the
bribe money to the giver where he has neither got it nor has the capacity to
find it for himself. It is the duty of the police authorities to prevent crimes
being committed. It is no part of their business to provide the instruments of
the offence. We cannot too strongly disapprove of the step which the police
authorities took in this case in the matter of providing the sum of Rs. 25,000
to Nagindas who but for the 1115 police authorities thus coming to his aid
would never have been able to bring the whole Affair to its culmination.
Not only did the police authorities thus
become active parties in the matter of trapping the appellant No. I they also
provided a handy and an ostensibly independent witness in the person of Shanti
La] Ahuja, the Additional District Magistrate. Even though he was a member of
the judiciary be lent his services to the police authorities and became a limb
of the police as it were. The part which Shanti Lal Ahuja, the Additional
District Magistrate, took in this affair cannot be too strongly condemned. We
can only repeat in this connection the observations of the Privy Council in
A.I.R. 1936 Privy Council 253 at page 258 in regard to the Magistrates placing
themselves in positions where they would have to step into the witness box and
depose as ordinary citizens.:"In their Lordships view it would be
particularly unfortunate if Magistrates were asked at all generally to
act,rather as police officers under section 162 of the Code; and to be at the
same time freed, notwithstanding their position as Magistrates, from any
obligation to make records under section 164. In the result they would indeed
be relegated to the position of ordinary citizens as witnesses and then would
be required to depose to matters transacted by them in their official capacity
unregulated by any statutory rules of procedure or conduct whatever.........
" The position was laid down with greater emphasis by Mr. Justice P. B.
Mukharji in A.I.R. 1951 Calcutta 524 at page 528 where the learned Judge
observed:
"Before I conclude I wish to express
this court's great disapprobation of the practice that seems to have become
very -frequent of sending Magistrates as witnesses of police traps. The
Magistrate is made to go under disguise to witness the trap laid by the police.
'In this case it was Presidency Magistrate and in other cases which have come
to our notice there have been other Magistrates who became such witnesses. To
make -the Magistrate a party or a limb of the police during the police investigation
seriously 1116 undermines the independence of the Magistrates and ,perverts
their judicial outlook. The Magistrates are the normal custodians of the
general administration of criminal justice and it is they who normally decide
and pass judgments on the acts and conduct of the police. It is not enough to
say, therefore, that the Magistrate acting as a witness in a particular case
does not himself try that case. This practice is all the more indefensible here
specially when there is no separation of the executive from the judiciary. .
The basic merit of the administration of criminal justice in the State lies in
the fact that the person arrested by the police is entitled to come before an
independent and impartial Magistrate who is expected to deal with the case
without the Magistrate himself being in any way a partisan or a witness to
police activities. There is another danger and that is the Magistrates are put
in the unenviable and embarrassing position of having to give evidence as a
witness and then being disbelieved. That is not the Way to secure respect for
the Magistracy charged with the administration of justice. In my judgment this
is a practice which is unfair to the accused and unfair to, the Magistrates. It
is also unfair to the police. Because charged with the high responsibility and
duty of performing a great and essential public service of this State the
police cannot afford to -run the risk of opprobrium' even if unfounded, that
they have enlisted the Magistrate in their cause. That risk -is too great and
involves forfeiting public respect and confidence.................." We
perfectly endorse the above observations made 'by Mr. Justice P. B. Mukharji
and hope and trust that Magistrates will not be employed by the police
authorities in the manner it was done by the Special Police Establishment in
this case before us. The independence of the judiciary is a priceless treasure
to be cherished and safeguarded at all costs against predatory activities of
this character and it is of the essence that public confidence in the
independence of ,the judiciary should not be undermined by any such tactics
adopted. by the executive authorities We have therefore eliminated from our
consideration the whole of the evidence given by Shanti Lal Ahuja, the
Additional District Magistrate, and come to our conclusion in regard to the
guilt of the appellant No. I relying solely on the testimony of the two
independent witnesses Gadkari and Perulakar.
The result therefore is that the appeal of
the appellant No. 1 will be dismissed except with regard to his conviction and
sentence, under section 120-B of the Indian Penal Code and the convictions and
sentences passed upon him by the Judicial Commissioner under section 465 and
section 466 as also section 161 of the Indian Penal Code will be confirmed.
The appeal of the appellant No. 2 will be
allowed and he be acquitted -and discharged of the offences with which he was
charged and immediately set at liberty. The bail bond of the appellant No. 2
will be cancelled.
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