T.N.R. Tirumalpad, J.C.
1.The appellant Gopal Paul was convicted by the learned Special Judge under Section 165A, I.P.C. and sentenced to 6 months' rigorous imprisonment. There were two other accused persons Amar Chandra Saha and Bhakta Ranjan Saha who were also charged under the same section. But they were acquitted by the Judge and there is no appeal by the State against the said acquittal.
2. The prosecution case was as follows: In Agartala town ration cards were issued by the authorities for the purchase of rice and flour to the heads of families and they were entitled to draw rations according to the number of family members. In August 1957 the ration cards for Ward Nos. 5 and 7 of the town were checked and it was found that the number of persons drawing rations was in excess of the total population. Hence an order was issued that no rations would be supplied against the ration cards unless they were duly certified. P.W. 1 Khiti Bhusan Datta was appointed as a Food Inspector in August 1957 and he was one of the persons authorised to certify the ration cordss.
The appellant and the other two accused approached Khiti Bhusan Datta P.W. 1 on the 8th or 9th of August, 1957 and offered him Rs. 5/-per ration card as bribe for issuing certificates. P.W. 1 reported the matter to P.W. 16 the District Magistrate and P.W. 16 who was anxious to catch the culprits told P.W. 1 that he would be busy till the 15th August and asked him to fix a date atter the 15th for the receipt of the bribe so that P.W. 16 could personally catch the culprits red-handed.
Accordingly 17th August was fixed by P.W. 1' with the appellant and the other two co-accused and information was sent to P.W. 16 that it was fixed for 5 P.M. in his house. P.W. 16 requested P.W. 1. to send word to him when they actually arrived with the ration cards and the money. Accordingly, when the 3 persons met P.W. 1 in his house that evening, he sent his peon to inform P.W. 16 and accordingly P.W. 16 along with P.Ws. 6, 11 and 17 rushed to the house. In the meantime the appellant had produced 14 ration cards along with Rs. 10/- and the other two accused also produced some ration cards and the accused Amar Chandra Saha gave Rs. 20/- also.
All these ration cards and the money were kept on the 'Taktapoush' on which P.W. 1 was sitting. What was happening was also being observed by the owner of the house P.W. 14 under whom P.W. 1 was a tenant and by P.W. 3 who was at that time on a visit to P.W. 14. P.W. 14 was sitting in another 'Taktapoush' at the other end of the same room. When the District Magistrate and others arrived, P.W. 1 produced the ration cards given by the appellant and the other two accused as also the money given by the appellant and accused Amar Chandra Saha and pointed out the three accused to P.W. 16.
But Amar Chandra Saha managed in that confusion to throw outside all except one of the ration cards produced by him. Those ration cards which were thrown out were collected by P.W. 17 the Sub-Inspector who had accompanied the District Magistrate's party. The ration cards and the money produced by P.W. 1 were signed by the witnesses-present and a written report Ext. 2 was made by P.W. 1 to P.W. 16. On the said report P.W. 16 passed an order Ext. 17 directing the O/C Kotwali Police Station to draw up the First Information Report under Section 165-A, I.P.C. and authorising P.W. 17 the Sub-Inspector to investigate the case. P.W. 17 accordingly investigated the case and examined P.Ws. 3 and 14 and submitted a charge-sheet on 19-4-1958 against the appellant and the two others as also against 6 other persons.
But at the time of framing charges against the accused persons the Public Prosecutor conceded that there was no material to frame charge against the 6 others and' they were discharged and charges were framed against the appellant and the two others on 11-9-1958.
3. The charge against the appellant was that on 17-8-1957 he abetted P.W. 1 in the commission of an offence punishable under Section 161, I.P.C. (though that offence was not committed to consequence of the said abetment) by giving illegal gratification to the said P.W. 1 for the purpose of getting 14 false ration cards certified by P.W. 1' to be genuine.
4. On 2-1-1959 the Public Prosecutor applied to the District Magistrate, Tripura requesting for a supplementary investigation on certain points in the case (Ext. 19) and the District Magistrate permitted P.W. 17 to make the supplementary investigation and accordingly some more witnesses were exannned by the Investigating Officer, while the case was pending before the Special Judge, Copies of such statements recorded by the Sub-Inspector or of the documents on which the prosecution relied as a result or the supplementary investigation were not supplied to the defence. The trial of the case started on 27-1-1959 and the appellant was convicted on 23-2-1959 as stated above. The other two accused were acquitted.
5. It was pointed out to me for the appellant that a peculiar procedure was followed in this case of a further investigation on the orders of the District Magistrate in January 1959 when the case was pending trial before the Special Judge after the framing of the charge in September 1958 and further that the copies of statements recorded and documents gathered in the course of the further investigation were not made available to the appellant before the trial of the case commenced and that the appellant was left entirely in the dark regarding the evidence collected in such further investigation and therefore the entire trial has been vitiated.
It was not disputed by the Government Advocate that there was such a further investigation and that copies of the statements and documents were not given to the appellant. I find on a perusal of all the papers that the further investigation was intended to collect evidence that the ration cards produced by the appellant and by the other two accused (who were acquitted) were false ration cards or as the learned Special Judge put it 'ghost' ration cards. It is not shown under what provision of law the learned Government Advocate applied to the District Magistrate for further investigation and the District Magistrate permitted such investigation when the case was already pending trial before the Special Judge after the framing of the charge.
The report contemplated under Section 170 (1), Cr.P.C. when it appeared to the Officer-in-charge of the Police Station that there was sufficient evidence, had already been submitted in this case. In fact the report under Section 173 after the conclusion of the investigation had also been submitted and it was after that that the Magistrate who dealt with the case sent it to the Special Judge as the Special judge alone had jurisdiction to try this case. The Special Judge is in no sense subordinate to the District Magistrate. Under these circumstances I fail to understand how the Government Advocate could have applied to the District Magistrate for permission for further investigation after the framing of the charge by the Special Judge and how the District Magistrate could have ordered further investigation to get evidence that the ration cards were false or ghost ration cards. Perhaps the permission was asked for under Section 5-A of the Prevention of Corruption Act to enable P.W. 17, a Sub-Inspector to investigate and not for the in-vestigation itself.
6. The question arises whether such further Investigation by the police without the knowledge of the Special Judge or the accused is permissible for collecting further evidence against the accused, after the Special Judge had framed charges. The decision 'Emperor v. Ali' AIR 1932 Lah 611, holds that there is no legal sanction for further investigation by the police, if the case has been sent up for trial under Section 173, Cr.P.C. This-case has been cited with approval in 'Hanuman. v. Has' . In certain other decisions like 'Mohd. Niwaz v. The Crown' 4 is Cri LJ 774 (Lah) and 'Prosecuting Inspector v. Minaketan-Mahato : AIR1952Ori350 it has been held that the police have the right to reopen investigation even after the submission of the charge-sheet under Section 173, Cr.P.C. if fresh facts come to light, which means on further information received.
That must be on information received under Section 154, Cr.P.C. and recorded by him. But that is not the case here. No further information is said to have been, received under Section 154, Cr.P.C The further investigation was sought because the police had made an imperfect investigation in order to submit the charge-sheet under Section 173, Cr.P.C. and it was found after the charges were-framed by the Special Judge that further evidence has to be collected to prove that the ration cards were false. I have no doubt that there is no provision in the Criminal Procedure Code for such further investigation or for the District Magistrate to accord permission for it.
7. The amended Sub-section 4 of Section 173-which requires that copies of the report under Section 173 (1), of the first information report under Section 154, and of all other documents which' the prosecution proposes to rely on including statements recorded under Section 161 of all the persons whom the prosecution proposes to examine should be furnished to the accused person before the enquiry or trial is commenced, makes the limitation of the power of the police for further investigation clear beyond doubt. Section 8 of the Criminal Law (Amendment) Act makes the procedure for the trial of warrant cases applicable to trials before the Special Judge.
If we turn to the new Section 251-A, Cr.P.C. we find that in warrant cases, the Court has to see before the commencement of the trial that the documents and statements referred to in Section 173 are furnished to the accused. Then the Court has to consider the said documents and statements referred to in Section 173 before it decides whether a charge is to be framed. All that stage is past to the present case and a charge has been framed. Thus the trial has commenced. How can there be-a further investigation by the police to collect further evidence against the accused on the charge framed against him And that too without the knowledge of the Court and the accused?
8. I have no doubt in my mind that after the report under Section 173, Cr.P.C. has been submitted by the police, and the enquiry is pending before the Court, the police have no power for a further investigation into the Very same case against the same accused. If under any special circumstances, such further investigation is found necessary, the police have to inform the Court before it commences the trial under Section 251-A and get his permission, because the Court has to see that the documents the prosecution would propose to rely on and the statements of further persons whom the prosecution would propose to examine as a result of such further investigation must be given to the accused before the trial commences. After the trial has commenced by the framing of a charge, there can be no further investigation into the case against the accused who are before Court even if the police received further information under Section 154, Cr.P.C.
9. The decisions cited above are all prior to the amendment of Section 173 and the enactment of Section 251-A. Still the principle enunciated in the two decisions appears to have been approved by the Legislature by the Amending Act 26 of 1955.
10. Even granting that such investigation was permissible it was the duty of the police under Section 173 (4), Cr.P.C. to have given copies of the further documents including statements recorded in such investigation proposed to be relied on by the prosecution to the accused persons before the trial commenced. Nay, it was the duty of the Court under Section 251-A to see that the documents referred to in Section 173 were furnished to the accused. That has also not been done in the present case. I find that many witnesses were examined in the case to prove the falsity of the cards and many documents were exhibited through those witnesses even though the witnesses were not summoned to produce those document's and that strong reliance has been placed by the Special Judge on the evidence of those witnesses and on the entries in those documents to prove that the cards were false.
Those witnesses and documents were not mentioned in the charge-sheet submitted by the police and were brought in after the further investigation. There is no doubt that the appellant has been taken by surprise by the production of such evidence in the course of the trial. If the appellant had known or been informed that such evidence was going to be let in, he could have made arrangements for production of rebuttal evidence to prove that they were not false ration cards. Peculiarly enough I find in this case that the teamed Special Judge has acquitted Amar Chandra Saha even though he found that Amar Chandra Saha had paid Rs. 20/- as illegal gratification to P.W. 1 because the Special Judge found on such evidence that the one ration card produced by him was a true card and not a false card.
11. If I found in this case that it was necessary for the prosecution to establish that the ration cards were false ones in order to bring home the charge under Section 165-A, I.P.C. to the appellant, I would have had no hesitation to hold that the further investigation and the further evidence let in had prejudiced the defence and had vitiated the trial and to allow the appeal and set aside the conviction and sentence of the appellant. But a perusal of the charge against the appellant satisfied me that it was not necessary at all for the prosecution to establish that the cards were false.
No doubt, the charge as framed mentions that they were false ration cards. Actually it was not necessary to have even mentioned in the charge about the false nature of the cards. The learned Special Judge does not appear to have applied his mind properly to secs. 161 to 165-A, I.P.C. in framing the charge and in conducting the trial and a lot of totally unnecessary evidence has been let in and an elaborate discussion followed in his judgment about the true or. false nature of the cards, all to no real purpose. It was altogether beside the point, as I shall presently show.
12. The appellant was charged under Section 165-A, I.P.C. with having abetted P.W. 1 in the commission of an offence under Section 161, I.P.C. even though the said offence under Section 161 was not committed in consequence of the said abetment. If we turn to Section 161, I.P.C. what the prosecution has to prove was that a public servant accepted or obtained or agreed to accept or attempted to obtain from any person any gratification other than legal remuneration as a motive or reward for doing any official act in the exercise of his official functions. It was this offence which the appellant is said to have abetted.
The prosecution case was that the appellant paid Rs. 10/- to P.W. 1, the Food Inspector as a motive or reward for giving certificates in respect of 10 ration cards produced before him by P.W. 1. P.W. 1 was authorised to issue such certificates as part of his official duty. It was the prosecution case that issue of ration on all ration cards in Ward Nos. 5 and 7 of the town of Agartala had been stopped unless the ration cards were certified by the Food Inspectors. Thus for doing the official act of certifying P.W. 1 was given this gratification of Rs. 10/- as a motive or reward. The question whether the ration cards were true or false ration cards did not enter into the picture.
It may be that they were true cards. Still if the appellant paid Rs. 10/- to P.W. 1 for certifying those true cards, it will amount to an offence under Section 161. It may be said that if they were true ration cards, there was no necessity to pay the bribe and perhaps it was for that reason that the prosecution attempted to prove that the cards were false. But it did not follow ipso facto that if they were true ration cards the bribe would not have been paid. It was for P.W. 1 to hold an enquiry as to whether the cards were true or false cards which will mean considerable delay in the issue of certificates. The persons whose names appear on the cards will have to appear before P.W. 1 and it is quite possible that in the course of the enquiry some of the cards may be found to be not true cards. Thus to avoid an enquiry and to avoid the persons whose names appear on the cards having to appear before P.W. 1, the appellant may offer the bribe whether the cards were true cards or false cards.
The prosecution did not have to prove the reasons which impelled the appellant to pay the bribe to P.W. 1 for certifying the cards. Thus, the question of the truth or falsity of the cards has nothing to do with the case and all the elaborate evidence let in and the further investigation into the case were totally unnecessary. The simple facts to be proved were: (1) Did the appellant produce the cards before P.W. 1? (2) Did he pay Rs. 10/- to P.W. 1? (3) Was the amount paid to P.W. 1 for certifying the cards in his capacity as Food Inspector? If these facts are established, the offence of abetment under Section 165A is proved against the appellant.
In considering the evidence in this case, I am, therefore; totally excluding the evidence regarding the truth or falsity of the cards let in at the trial or in other words the entire evidence collected by the police in the course of their further investigation. If we exclude such evidence totally from consideration, it cannot be said that there has been any unfairness to the appellant, I shall now proceed to consider the rest of the evidence which remains.
(After discussing the evidence in Paras 13-25, the judgment proceeded:)
26. It follows therefore that the conviction of the appellant was fully justified even though I disagree with the Special Judge in the reasons given by him. It would have been better if the Special Judge had not entered into a discussion about the truth or falsity of the ration cards but had instead discussed the evidence as I have done which would show that the appellant was guilty of the abetment of the offence under Section 161, I.P.C. The trial of the case has been unnecessarily complicated by such irrelevant evidence. As there is no appeal by the State against the acquittal of Amar Chandra Saha who had also paid the bribe just like the appellant but who was acquitted by the Special Judge because the card produced by him happened to be a true card, I am not going to discuss the evidence against him in the present appeal.
27. As for the sentence, the sentence of 8 months does not appear to me to be in any way excessive. The appeal is, therefore, dismissed. The bail bond of the appellant shall be cancelled.