MAHA SINGH V. STATE  INSC 2 (8
CITATION: 1976 AIR 449 1976 SCR (3) 119 1976
SCC (1) 644
Criminal Procedure Code (Act V) 1898-Sec. 367
contents of judgment- Verdict of guilty-Duty of the Court to exercise caution.
Criminal Procedure Code (Act V) 1898-Sections
222, 223 and 225- When evidence is led to prove a charge and the accused is
fully aware of the charge and made no mistake in taking a definite defence
omission of a name in the charge is not "material prejudicial" to the
accused - Plea of defence in Prevention of Corruption Act cases- Plea of
planting of incriminating object without the knowledge or acquiescence of the
accused is valid.
"Participes criminis" -Whether an
unwilling and a forced bribe given an accomplice-Indian Evidence Act (Act 1)
1872, S. 133.
Indian Evidence Act (Act 1) 1872-Sec. 3 read
with s. 133 evidentiary value of a trap witness in a pre- arranged raid-Trap
witness is neither an accomplice per se nor an interested witness-Appreciation
of such evidence.
Criminal Procedure Code .(Act 5),
1,898-Sections 4), 161 and 162- Steps taken by the Inspector of the Anti-
Corruption Department to detect the accused in a case under the Prevention of
Corruption Act, 1947 is "investigation" within the meaning of s. 4)
Sending complaint of the investigation for formal registration does not take
away the character of "investigation".- Statement made by the accused
in such an "investigation" admitting to have received the incriminating
object is a statement under s. 161, Cr. P.C.
and hence inadmissible under s. 162, Cr. P.C.
Indian Evidence Act (Act 1) 1872-Sec. 8
relevancy of the conduct of the accused in prosecution for offence of bribery
under Prevention of Corruption Act.
After recording a complaint dated 7-4-1969 by
one "SDM" that the-accused appellant, a head constable, demanded a
sum of Rs. 10/- for not putting up a challan on 8-4-1969 before the SDM, Delhi
in a case pending against him, (the said sum being payable by 3.00 p.m. On
7-4-1969 and also a sum of Rs.
50/- For not challenging him in future, the
Anti-Corruption Department arranged a raid to detect the accused, as his name
was not known to the complainant. On a signal from the complainant, after the
receipt of the G.C. Note of Rs. 10/ (the number of which was already noted by
the Anti- Corruption Department by the accused, the raid party including the
trap witnesses surrounded the accused, recovered the G.C. note of Rs. 10/-
which tallied with the number already noted besides a further sum of Rs. 51/-
and two challans referred to in the complaint of "SDM". The statement
of the accused duly signed by him and witnessed by the trap witnesses and also
a search memo duly signed by the accused and the trap witnesses, were produced
as documentary evidence at the ", trial. The accused was charged under s,
161, I.P.C. read with s. 5(2) read with s. (5) (d) of the Prevention of
Corruption Act, 1947, found guilty, convicted and sentenced to one year
rigorous imprisonment besides fine. On appeal the High Court affirmed the
conviction and the sentence.
Dismissing the appeal by special leave, the
HELD: (1) In a case under s. 161 I.P.C. and
s. 5(2) read with s.(5)(d) of the Prevention of Corruption Act, 1947, where
there was a clinching factor that a particular already marked currency note was
recovered from the left side front pocket of the shirt of the accused that too
immediately after its receipt from the complainant and which fact is
corroborated by the seizure memo duly signed by the accused about the state of
its recovery duly witnessed and also by 9-L390SCI/76 120 the oral evidence, the
defence story of the complainant giving a ten rupee note wrapped inside the
"purchee" is absolutely false. When such a conclusive proot is found
with regard to this part of the case, viz. "seizure of the currency note;
deficiency of corroboration with regard to the negotiation of the accused with
the complainant pales into insignificance. [126 A-F] (2) When witnesses swear
home through a two inch board and sometimes quantitatively the defence musters
up a number of witnesses, the court has to be extremely cautious and careful to
enter a verdict of guilty only if the complainant's version is supported by
some clinching circumstance of such character and quality as may reasonably
assure the judicial mind about the truth of the real position against the
accused. [126 G-H] (3) A defence plea of planting any incriminating object, in
answer to a . charge, to be successful must be or at any rate should reasonably
appear to have been made without the knowledge or acquiesence of the accused.
Ram Prakash Arora v. State of Punjab  3
(4) When, in a trial against a head constable
for not challaning, evidence was clearly led regarding the said challan, which
had been handed over to the accused by the complainant along with the currency
note, and the accused was fully aware of the charge, he had to meet and made no
mistake in taking a defence, a particular mention of the challan against the
complainant instead of Charan Dass in the charge, does not result in any
"material prejudice" to the accused. [127 A-B] (5) Where the
complainant comes from a class of poor hawkers who somehow eke out their
living, unable to pay the demanded bribe for purchasing immunity from being
challaned by the accused head constable, and out of desperation, takes recourse
to public authorities against such illegal proposals he is an unwilling or
forced bribe- giver. Such an unwilling or forced bribe-giver may not even be
stagmatised as an accomplice in the strict sense of the term of
"participes criminis". [127 D-F] (6) There is no rule of law that
even if a witness is otherwise reliable and independent his association in a
pre- arranged raid about which he had become acquainted makes him an accomplice
or a partisan witness. In the absence of anything to warrant a contrary
conclusion, conviction is not untenable merely because it is based on the
testimony of such a witness. Every witness of a raiding party cannot be dubbed
as an accomplice per se or even as an interested witness in total absence of
materials justifying such an inference. [128 A-13] (7) In a case, where on a
complaint made to the Inspector of the Anti-Corruption Department he recorded
the same, arranged for the raid by noting each step taken, thereafter in a
regular manner, the steps taken by him in order to detect the accused while
taking the bribe comes within the term "investigation" under s. 4 of
the Criminal Procedure Code, 1898. The fact that he, had also later on
forwarded the complaint for formal registration of the case at the police
station having the jurisdiction did not do away with the character of the
"investigation" already commenced, by the Inspector on recording the
Complainant's statement disclosing a cognizable offence. [128 F-H] Therefore,
any statement made by the accused in answer to questions put by the Inspector
is inadmissible under s.
162, Criminal Procedure Code and neither the
prosecution nor the accused can take advantage of these answers.
[129 A] (8) For an offence under the
Prevention of Corruption Act, 1947, the conduct of the accused would be
relevant under s. 8 of the evidence Act, if his Immediate reactions to the
illegal overture of the complainant or his action in inserting unwanted
something in his pocket were revealed in the form of acts accompanied then and
there or immediately thereafter by words or gestures reliably established. In
the present case, there is no evidence to support an innocent Piece of conduct
of the accused. [129 B-C] 121
CRIMINAL APPELLATE JURISDICTION: Criminal
209 of 1971.
Appeal by special leave from the judgement
and order dated the 19th January, 1971 of the Delhi High Court at New Delhi in
Criminal Appeal No. 71 of 1970.
Frank Anthony, K. B. Rohtagi and V. K. Jain,
for the appellant.
S. N. Anand and R. N. Sachthey, for the
The Judgment of the Court was delivered by
Goswami, J.-The complainant Shiv Darshan Nath, (PW 1) was an unlicensed hawker
selling oranges and fruits in what is described as a 'chabba' around Novelty
Cinema area in Delhi. The locality is within the jurisdiction of the Lahori
Gate Police Station. C The accused Maha Singh was enrolled as a Constable in
the Delhi Police in July 1957 and was promoted as Head Constable (Havaldar) in
August 1963. He was posted to the Lahori Gate Police Station on November 21,
1967 and had since been serving there in that capacity until his suspension in
connection with the present case.
During April 1969 the accused was deputed for
prosecuting unauthorised squatters and persons indulging in petty offences
within the area of the said Police Station.
The accused in performance of these duties
was required to and did maintain a petty offences Register and he had "to
do pervi of these cases challenged by him in the court." The complainant
approached the Anti-Corruption Inspector Delhi, Bal Krishan (PW 7) on April 7,
1969 at about 11.00 a.m. and made a complaint to him. This complaint was recorded
by the Inspector (PW1/A). The material allegations disclosed therein were:-
".... Now, for some days a new Havaldar of P.S.
Lahori Gate, has been coming there for
challaning under , section 33, Bombay Police Act, and he has been harassing
people unlawfully. He has challaned me also a number of times. He drew up one
challan (against me) on 3-4-69, which stands fixed for hearing on 8-4-69, in
the Court of Shri O. P. Yadav, SDM. This Havaldar says that he will not put up
this challan in case I pay him Rs. 10/-, and that in case I give him Rs. 50/-
p.m. I will not be challaned in future. I am poor man and unable to meet his
said desire. On 5-4-69, the Havaldar aforesaid came to me, and said that he
would come again on 7-5-69 about 3.00 p.m. and that in case rupees ten were not
paid, the challan would be put in Court. Since the Havaldar of Lahori Gate
Police Station has demanded Rs. 10/- from me as bribe, I have come for report.
Suitable action may be taken.. ".
The words "against me" in
parentheses in the above extract are not to be found in the original statement
recorded in the Urdu language. his has to be mentioned as Mr. Frank Anthony
appearing on behalf of the accused strenuously submitted that since there had
been 122 no challan against the complainant the entire edifice of the case was
destroyed. We felt some doubt about the translation in the paper book and,
therefore, looked into the original document and we are satisfied that the
words "against me" are not to be found therein.
Now following the sequence, the Inspector
decided to arrange a raid and summoned two witnesses from the Deputy
Commissioner's J office (PWs 3 and 4) and recorded in a raid memo the number of
the d only ten rupee note (P-1) which the complainant had with him. The
Inspector proceeded to state that- "The said G.C. note was later returned
to the complainant with a direction to pass it on to the accused within the
sight of the panch witnesses having such talk with the accused as to indicate
the said G.C.
note had been passed on to the accused by way
Both the panch witnesses were also instructed
to remain close to the complainant and the accused, hear their talk, see the
passing of the bribe money and on ascertaining that the same had been passed to
the accused by way of bribe, Ved Prakash was further instructed to give the
The Inspector and the party with the
complainant were in the area of the Novelty Cinema from about 2.10 p.m. The
accused was not to be seen in the area till 5.45 p.m. when, however, he was
located in plain clothes in a three-wheeler scooter sitting in the rear seat
with Babu Ram (P.W. 6) a constable of the Lahori Gate Police Station on duty,
In addition to the complainant, Sohan Singh
(PW 3) stated that " .... somebody came and called the complainant.
He took him along with him." This has to
be particularly noted as the High Court put great reliance upon this piece of
evidence of PW 3 as will be noticed later.
The complainant approaching the accused sat
in the driver's seat inside the scooter. According to the complainant-
"The accused then asked me that if I had to get the challan cancelled, I
should pay Rs. 10/- and that if further challan were not desired, a sum of Rs.
50/- on my behalf and on behalf of my brother should be paid to him. I handed
over Rs. 10/- G.C. note P-l and the challan P-2 to the accused. The accused put
these in his front pocket of r the shirt." As arranged the signal was
given to the Inspector by PW 4 (Ved Parkash) and the Inspector and the party,
who were at an eye-shot, reached the place immediately. The Inspector recovered
the G.C. note P-1 from the pocket of the accused's shirt and comparing the -
number of the G.C. note found it to tally with the one already recorded by him.
On further search of the person of the accused a sum or Rs. Sl/- alongwith
carbon copies of two challans were also recovered.
According to the Inspector when challenged by
him the accused 123 "replied that he had taken a ten rupee G.C. note which
he had put in A the front pocket of his shirt. On his search one G.C. note of
Rs. 10/- was recovered from the front pocket of his shirt and fater comparing
its number with the raid report which was found to tally and it was taken into
possession vide memo. PW l/C. Besides, the two challans P-2 and P-3 and a sum
of Rs. 51/- were also recovered and were taken into possession vide memo PW
Although PWs 3 and 4 were requisitioned for
help in the arranged raid, as stated above, they did not come upto full
expectations. According to PW3 "I heard no talk between the complainant
and the accused, nor could I see the passing of the money". He stated that
he was standing at quite a distance whereas Ved Parkash was nearer to the
scooter". He also stated that on the accused being challenged by the
Inspector "if he had taken the bribe money", the accused replied
"that he had taken one challan 'purchee' P-2 and one G.C. note P-l of Rs.
10/-" and "on being searched G.C. note Ex. P-l was recovered from the
front pocket of the shirt of the accused which he was wearing." He further
stated that "from the personal search of the accused 51 currency notes and
two challan purchees P-2 and P-3 were also recovered and the same were taken
into possession vide memo PW1/D".
P.W. 4, on the other hand, stated that-
"the complainant handed over a ten rupee G.C. note major portion of which
was wrapped in a white paper to the accused Maha Singh present in court and
told the accused that my challan may be got corrected (mera challan theek kara
dena). The accused took the G.C.
note with the white paper and put the same in
his front shirt pocket. I gave the signal. Inspector Bal Krishan reached the
spot. He disclosed his identity and secured the accused. I told the Inspector
that G.C. note has been put by the accused in his shirt pocket. The same was
recovered by Inspector Bal Krishan vide memo PW 1/C. Two challans P-2 and p P-3
were also recovered besides Rs. 51/- from the accused vide memo PW 1/D".
P.W. 4, however, stated that "the
accused denied having taken any bribe when challenged by Inspector Bal
Krishan." It may be mentioned here that P-2 is the challan relating to the
complainant's brother, Charan Dass. It appears from P-2 that the case against
Charan Dass was fixed in the court of Shri O. P. Yadav, Sub-Divisional
Magistrate, on April 8, 1969. P-3 related to Mangal Sain (DW 5) showing that he
was to attend his case in the same court on the same date, April 8, 1969. Both
the cases were under section 33/13/131 Bombay Police Act (obstruction of public
passage) and P-2 and P-3 are personal recognizance bonds.
The case was investigated by the
Anti-Corruption Department and the charge-sheet was submitted after obtaining
sanction from the Superintendent of Police, North District, Delhi (PW 5).
124 The accused stands charged under section
161 I.P.C. and section 5(2) read with section 5(1)(d) of the Prevention of
Corruption Act (briefly the Act). His defence is that the case was concocted
against him by the complainant and the money was planted in his pocket as he "had
casually told him also not to obstruct the public way once earlier." He
further stated in his examination under section 342, Code of Criminal Procedure
"in fact the complainant hastened to put something in the challan in my
pocket against my wishes and I was trying to know what it was about when I was
surrounded by the Inspector. I told the Inspector also that I had not done
anything and might not be harassed unnecessarily".
From the above, the version of the
prosecution and that of the accused are clear. While according to the
prosecution the accused had earlier negotiated for a bribe and later on
accepted the same from the complainant, according to the accused he had made no
negotiation with the complainant nor did he voluntarily accept any money from
the complainant. On the other hand, the complainant planted the currency note
of Rs. 10/- in to his pocket against his wishes when he was all of a sudden
surrounded by the Inspector and the raiding party.
The trial court accepted the prosecution case
and convicted the accused under both the sections and sentenced him to rigorous
imprisonment for one year on both the counts running concurrently and to a fine
of Rs. 100/- in addition, in default one month's imprisonment. The High Court
affirmed the conviction and the sentence. Hence this appeal by special leave.
Mr. Frank Anthony submitted that since the
prosecution failed to establish that there was any case instituted by the
accused against the complainant which might furnish an occasion for offering a
bribe the entire story of the complainant should stand discredited. He also
submitted that the complainant's brother, Charan Dass, was not even examined by
the police nor in the court. Mangal Sain was not examined by the prosecution
but had been examined by the accused. He further emphasised that the story of
the complainant with regard to the negotiation for the bribe stood on his
solitary uncorroborated testimony and he was not such an absolutely independent
witness whose testimony was worthy of credit for the purpose of basing a
Counsel further emphasised that while the
prosecution sought to prove that the accused voluntarily accepted the bribe and
himself put the currency note in his pocket, this story did not find
corroboration from any independent source.
PW 3, of course, does not state about the
passing of the money nor about any conversation. P.W. 4, however, supported the
complaint in his examination-in-chief although he added that "the accused
denied having taken any bribe when challenged by Inspector Bal Krishan".
In the course of his cross-examination, however, he stated that "he did
not hear the talk between the complainant and the accused." Constable Babu
Ram (PW 6), who was sitting with the accused in the scooter, deposed that his
attention was more towards 125 the road than towards the complainant and the
accused. He completely threw overboard the complainant's version and stated
"I saw the complainant Shiv Darshan Nath putting a purchee with a note in
the pocket of the accused." He further stated that "I did not hear
the accused telling the Inspector that he had taken no bribe and should not be
harassed." The High Court accepted the version of the complainant and
found that the prosecution case stood established beyond any doubt. The learned
"To me it appears an admission that the
appellant allowed PW 1 to put something in his pocket. If that was against his
wishes he should have thrown it out".
The High Court also accepted the testimony of
PW 3 corroborating the complainant in that a person had called PW 1 to the
scooter where the accused was sitting. From this the High Court concluded-
"Why at all was PW 1 sent for if there were no prior negotiations and if
the accused was not sure that in fulfillment thereof he will be receiving the
money from PW 1".
Nothing has been elicited against PW 3 as to
why he should be disbelieved. He has not gone to the entire length of
supporting every detail of the prosecution case. It is, therefore, not possible
to hold that the High Court was absolutely wrong in accepting his statement
that the complainant had been sent for by the accused to the scooter through
some persons who could not be later identified for the purpose of examination
in court. It was not possible in such a situation to recognise and locate the
messenger. E The trial court does not seem to have relied upon the evidence of
PW 4. From the evidence of the defence witnesses (DWs 1, 2, 3, 4 and 7) it is
clear that the witness is not an independent person, nor a very reliable one.
There was a case against him under section 161 IPC and section 5(2) of the Act.
His services were terminated for massing of certain records although he was
later on re-employed in July 1968.
He was a raid witness for the police in
several anti- corruption cases. The High Court also has not relied upon his
In view of the defence of the accused which
is supported by PW 4, PW6, DW5 and DW6 with regard to the fact of the
complainant putting the currency note wrapped inside 'purchee' P-2 into the
pocket of the accused, the recovery of the note by the Inspector from the ,
accused's pocket is absolutely inconsequential says Mr. Frank Anthony. There
are, however, more things than meet the eye.
There were two persons, DW 5, Mangal Sain and
Charan Dass (complainant's brother), who has been sent up by the accused on
April 3, 1969, under the Bombay Police Act for prosecution in Court. It is
understandable that while performing these duties policeman may clash with H
the shopkeepers. There is also equal possibility of patching up with concerned
offenders. In this situation it is extremely important for 126 the court to
find by unerring and cogent evidence whether the accused had committed the
In our view there is a clinching factor. If
the accused's version is true, the recovery of the note would have been inside
'purchee' P-2 since the accused and his four supporting witnesses had deposed
to that effect. If this version is even prima facie reliable, the accused will
be entitled to the benefit of doubt. We are however, unable to hold so. The
seizure memo PW l/C about`which there has been no cross-examination shows that
a currency note of Rs.
10/- bearing number C-67-090721 was recovered
from the left side front pocket of the shirt worn by the accused. There is
nothing to show that this currency not was recovered from his pocket being
wrapped inside the particular 'Purchee' or for the matter of that inside
"another white paper". This fact of recovery is proved by the Police
Inspector as well as by PW3 and the complainant who had signed the memo. Even
Ved Prakash (PW 4) had signed this memo. Similarly, we have the seizure memo.
PW l/d which is prepared by the Inspector and signed by the complainant and PWs
3 and 4. This seizure memo shows that the currency notes of Rs. 51/-, a carbon
copy of challan of Charan Dass (P-2) and another carbon copy of challan of
Mangal Sain (P-3) admittedly received by the accused a short while ago were
recovered from the left side front pocket of the shirt.
From the above it is clear that the defence
story of the complainant giving a ten rupee note wrapped inside the 'purchee'
relating to Charan Dass is absolutely false. If, as stated by the accused, the
Inspector arrived immediately after the money was put inside his pocket,
namely, wrapped inside a 'purchee', the seizure memo (PW 1/C) would have shown
the recovery in that state. We do not find it to be so. The evidence of the
complainant is corroborated by the Inspector and PW 3 and also corroborated by
the documentary evidence, PW 1/c, coupled with the manner of the recovery of
the note. When we find such a conclusive proof with regard to this part of the
case, deficiency of evidence of corroboration with regard to the negotiation of
the accused with the complainant pales into insignificance.
Further, one of the witnesses, who deposed
with regard to the recovery of the note as per PW l/C was cross-examined to the
effect that the note was recovered wrapped in the 'purchee' (P-2). Even the
evidence of PW4, PW 6, DW5, and DW 6 called in aid to support the accused's
plea of planting the currency notes, is belied by the lone recovery of the
marked currency note of Rs. 10/- by itself detached from the 'purchee' in which
it was said to be more or less concealed from external view.' When witness
swear home through a two inch board and sometimes quantitatively the defence
musters up a number of witnesses, the court has to be extremely cautious and
careful to enter a verdict of guilty only if the complainant's version is
supported by some clinching circumstance of such character and quality as may
reasonably assure the judicial mind about the truth of the real position
against the accused. This we have been able to find in this case as noted
127 It was also argued at the stage that the
charge being with reference A to favour shown to the complainant in person,
with regard to his own case, the accused was entitled to an acquittal as the
case in court was that it related to his brother Charan Dass. We do not think
that a particular mention of the challan against the complainant instead of
against Charan Dass, in the charge, has resulted in any material prejudice to
the accused in the present trial. Evidence was clearly led regarding the
challan against Charan Dass and it was his 'purchee' which had been handed over
to the accused by the complainant alongwith the currency note. The accused was
fully aware of the charge he had to meet and made no mistake in taking a
definite defence although, unfortunately, the same could not be established.
even the grievance of non-examination of
Charan Dass as a prosecution witness in presence of admitted 'purchee' is not
of any consequence.
A defence plea of planting of any
incriminating object in answer to a charge, to be successful must be or, at any
rate, should reasonably appear to have been, made without the knowledge or
acquiescence of the accused. The case in hand is not such a case. The learned
counsel strenuously relied upon Ram Prakash Arora v. State of Punjab(1) where
notwithstanding recovery of the two marked ten rupee currency notes the accused
was acquitted in a bribery charge. But in that case recovery of the currency
notes which was denied by the accused, assumed great importance and the fact
that the same could not be established by reliable and independent search
witnesses was considered by this Court as one of the serious infirmities.
The class from which the complainant comes is
one of poor hawkers who somehow eke out their living. Nothing is known whether
they just deliberately avoid payment of licence fees for hawking, which may not
even be exorbitant, or they avoid being trucked to a particular place being
subject to a licence in absence of which they may squat at any place of their
choice and convenience. It is, however, manifest that such encroachment of
public place will be a continuing offence and, if repeated, will be committed
every day afresh. In that view a demand of Rs. 10/- for clearing one single
day's offence and Rs. 50/- for purchasing immunity for the whole month may
drive such a person to desperation prompting recourse to public authorities
against such illegal proposals. In this view of the matter, an unwilling or
forced bribe-giver, as in the case at hand, may not even be stigmatised as an
accomplice in the strict sense of the term of particeps criminis.
Even so we will adopt a cautious line in
following the dictate of prudence to seek for some material corroboration even
in this case to assure the judicial mind about the truthfulness of the crux of
the matter in respect of the offence charged and of the nexus of the crime with
The matter will be different when a person
himself abets the offences of bribery under section 161 and section 165 IPC
which is an independent offence under section 165A equivalent earlier to
section 161 read with section 109 or section 116 IPC.
(1)  3 S.C.C.. 652.
128 This also leads to the question whether
all witnesses, who are called upon to assist detection of a bribery case by
laying a trap, should be considered unreliable as accomplices or at any rate
partisan witnesses. There is no rule of law that even if a witness is otherwise
reliable and independent, his association in a pre-arranged raid about which he
has become acquainted, makes him an accomplice of a partisan witness. In
absence of anything to. warrant a contrary conclusion, conviction in not
untenable merely because it is based on the testimony of such a witness.
We are also not prepared to dub every witness
of a raiding party to be an accomplice per se or even as an interested witness
in total absence of materials justifying such an inference. While PW 4 will be
highly partisan witness in this case in his own interest to oblige the police,
nothing was shown against PW 3. P.W. 7, the Inspector, cannot be considered as
an absolutely partisan witness because he is a Police officer who took
immediate action on the complaint. Nothing unusual is suggested against him. We
have no hesitation in accepting the testimony of PW 3 and PW 7 on their own.
They do corroborate the complainant.
As demonstrated above, it is not a case where
conviction of the accused by the High Court is based only on the uncorroborated
testimony of the bribe-giver.
Even three or four days' time taken by the
complainant after the accused's demand of the bribe for the purpose of
reporting the matter to the Anti-Corruption Department is not such as to efface
the offence when it was actually committed on the very day of the report which
was faithfully recorded by the Inspector then and there without loss r r of
A question arose whether the statement of the
accused before the Inspector admitting to have received the bribe was
admissible in evidence. It is apparent from the evidence of the Inspector that
these cases are investigated by the Anti-Corruption Department which carries on
its work on its own. On a complaint made to the Inspector he recorded the same
and arranged the raid by noting each step taken thereafter in a regular manner.
What has been done by the Inspector in this case in order to detect the accused
while taking the bribe comes within the term 'investigation' under section 4(1)
of the . Code of Criminal Procedure, 1898. The moment the Inspector had
recorded the complaint with a view to take action to track the offended whose
name was not even known at that stage, and in this case proceeded to achieve
the object, visited the locality, questioned the accused, searched his person,
seized the note and other documents, turns the entire process into an
investigation under the Code. Indeed the Inspector himself stated that he
examined the witnesses under section 161 Cr. P.C. and completed the
investigation. The fact that he had also later on forwarded the complaint for
formal registration of the case at Lahori Gate Police Station does not do away
with the character of the investigation already commenced by the Inspector 129
On recording the complainant's statement disclosing a cognizable offence.
Therefore, any statement made by the accused
in answer to questions put by the Inspector is inadmissible under section 162
Cr. P.C. and neither the prosecution nor the accused can take advantage of
these answers. These are, therefore, excluded from consideration in this case
But all the same the conduct of the accused
would be relevant under section 8 of the Evidence Act if his immediate
reactions lo the illegal overture of the complainant or his action in inserting
unwanted something in his pocket were revealed in the form of acts accompanied
then and there or immediately thereafter by words or gestures reliably
established. There is no evidence to support an innocent piece of conduct. In
the entire circumstances of the case we agree with the High Court that it was
not against the wishes of the accused that the money passed from the hands of
the complainant into his pocket.
The High Court and the trial court cannot,
therefore, be said to have made any gross error of law in appreciating the
evidence and coming to the conclusion that the charges against the accused were
In the result the appeal fails and is
dismissed. The accused shall surrender to his bail to serve the sentence.
S.R. Appeal dismissed.