TMI Blog1954 (3) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Criminal Appeal No., 7 of 1951 - - - Dated:- 5-3-1954 - BHAGWATI, NATWARLAL H., JAGANNADHADAS, B., AND AIYYAR, T.L. VENKATARAMA, JJ. For the Appellant : Jai Gopal sethi K. B. Asthana, S.C. Isaacs, Murtza Fazl Ali For the Respondent : Porus A. Mehta JUDGMENT 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 the- Indian 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anna 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 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 stopp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ₹ 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 ₹ 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 Hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ₹ 40,000 from his home out of which ₹ 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratification 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that section and if no such record had 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 the- provisions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 ₹ 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 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 inadmissib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 ₹ 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 turne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts 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 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 ₹ 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 ₹ 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 ₹ 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 -woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elegated 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 policetraps. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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