1. This Rule was obtained by the petitioner Maidhandas Agarwalla against an order of acquittal passed in the case in favour of opposite party Sricharan Barua by Sri B. C. Medhi, Special Judge at Dhubri, in Case No. 1 of 1952 under Section 5 of Act II of 1947 (The Prevention of Corruption Act, 1947) and Section 161, I.P.C. Along with the order of acquittal passed on 14-6-54, the learned Special Judge directed that the complainant Maidhandas Agarwalla should be prosecuted under Section 211, I.P.C. for bringing a false case, and that the complainant and his brother, Ramananda, should further be prosecuted under Section 193, I.P.C. for fabricating false evidence in the shape of preparing account-books to suit the prosecution.
2. The complainant had moved the local Government for an appeal against the acquittal, and on his failure to get a favourable order, he obtained the Rule from this Court on 31-1-55, on an application under Section 439, Cr. P.C. The opposite party showed cause and tried to support the judgment of the Special Judge.
3. The case for the prosecution was that the complainant Maidhandas Agarwalla was a partner and proprietor of a rice and oil mill at Fakiragram, a place within the jurisdiction of Kokrajhar Police Station in the district of Goalpara. The opposite party Sricharan Barua was at the material time the Circle Inspector of Police at Kokrajhar from the year 1950 till sometime in the year 1951 or thereafter.
The allegation was that on 10-7-51, when the complainant Maidhandas Agarwalla went to Kokrajhar Railway station on some personal business, he was sent therefrom to the 'thana' by an Assistant Sub Inspector of Police, and on his reaching there, he was put in the 'thana' lock-up. Maidhan das sent words through his driver to his mill at Fakiragram, and on the following morning his, brother, Ramananda, and another partner, Hirendra Samaddar, came to the thana and wanted to take him out on bail, and with that purpose, they approached the accused who then asked for an illegal gratification of Rs. 5000/-.
The party not having consented to the payment of the above amount, the complainant, a respectable man, was, at the instance of the accused, made to undergo deep humiliation as he was taken to the Railway Station on foot, tied with a rope and handcuffs on, and was paraded through the Bazar area, though it did not lie in the direct route to the Railway Station. It was alleged that the complainant was detained in the lock-up till the evening of the 11th July though there were earlier transports to Dhubri, where he was taken.
While the complainant was forwarded to the Magistrate at Dhubri, the accused wrote a strong note objecting to the enlargement of Maidhandas Agarwalla on bail, and making strong allegations against him, for which there was no material support. The complainant's men, Ramananda and Hirendra Samaddar, reached Dhubri on 11-7-51 and reported the matter to Mr. J. N. Chatterji, the pleader whom they engaged for the purpose of securing bail for Maidhandas Agarwalla. The petition for bail was moved the next day in Court, and Maidhandas was released on bail of Rs. 1000/- that day by the learned Additional District Magistrate.
The arrest was allged to be made on the basis of a case registered by the thana Officer of Kokrajhar on 8-7-51 on the strength of an. P. I. R. made by himself to the effect that the complainant was possessing some quantity of rice and paddy without a legal permit, which fact appeared as a result of a search carried in the premises of the Fakiragram
Rice and Oil Mill, on 26-6-51 on the basis of a search warrant signed by a Magistrate and issued at the instance of the accused Sricharan Barua, though formally applied for by the Officer-in-charge, Kokrajhar.
The other two persons, Hirendra Samaddar and Ramananda, were also made accused in the case, and one of them was arrested on the 16th July, who subsequently obtained bail from the Court. The seizure of the paddy by the Police did not seem to be communicated to the Supply Department who were directly concerned with the violation of relevant rules and provisions of the Essential Supplies Act, or, of the Assam Foodgrains Control Order, and no sanction was sought from the Director of Supplies who was the competent authority for issuing such sauctions in proper cases.
The Police, however, managed to get a sanction for prosecution of Maidhandas Agarwalla and other partners of the Rice Mill from the additional District Magistrate of Dhubri, and the trial proceeded against the accused, which ended in the discharge of all the accused persons on 26-9-51.
4. After his release on bail on 12-7-51, Maidhandas wrote an application on 19-7-51 to the Chief Minister of the Province of Assam and to the Inspector General of Police and the Anti-Corruption Branch, complaining that the accused Sricharan Barua had unduly harassed and humiliated the complainant Maidhandas Agarwalla because of not paying the bribe of Rs. 5000/-, which the accused had asked for consequent to the arrest of the complainant on 10-7-51, and in the said petition, he mentioned that the accused had, on earlier occasions, taken bribes from the complainant due to various exigencies, and those items were given as follows:
1. On 10-9-50 - the complainant Maidhandas had been obliged to pay the accused Sricharan Barua a bribe of Rs. 1000/- in cash in connection with G. R. Case No. 806 of 1950 of the Dhubri Court.
2. On 4-5-51 - the accused Sricharan Barua had taken a bribe of Rs. 500/- from the complainant Maidhandas in connection with G. R. Case No 447 of 1951; and
3. On 25-3-51 -- the accused had taken a bribe of Rs. 250/- from the same party in relation to G. R. Case No. 487 of 1951 of the Dhubri Court. The application to the Chief Minister of the State is marked as Ex. 4, and on receipt of the said application, the State Government directed that a preliminary enquiry should be made by the District Magistrate as to the truth of the allegations made by the complainant Maidhandas Agarwalla agains'; Sricharan Barua.
5. An inquiry was accordingly held by the Additional District Magistrate, Mr. H. N. Deka, who submitted his report to the State Government through the Deputy Commissioner. The Government, on receipt of the report, wrote Ex. 5 to the complainant, dated 2-11-51, whereby he was requested to file a formal complaint before the Deputy Commissioner, Goalpara, if he so liked, and accordingly he filed his complaint on 3-3-52, reiterating the same set of allegations.
The Deputy Commissioner examined the complainant and a number of witnesses and asked for sanction of the State Government to prosecute the accused of offences under Section 161, I.P.C. and Section 5. Prevention of Corruption Act No. II of 1947, and for sanction under Section 197, Cr. P.C. He further forwarded a long statement as to the prosecution case which he found prima facie proved. On Government sanction being obtained, the trial proceeded in the Court of the Special Judge, Dhubri, after passing through some intermediate stages, to which we need not refer.
6. The complainant had examined twelve witnesses besides himself in support of the prosecution case and had produced his own books of account showing the payments to the accused purported to be made on 10-9-50, 4-5-51, and 25-6-51. No charge, however, was framed as to the alleged payment of Rs. 250/- on 25-6-51, there being only three charges - one with respect to the attempt at taking bribe of Rs. 5000/- on 11-7-51, one for taking Rs. 1000/- on 10-9-50, and one for taking a bribe of Rs. 500/- on 4-5-51.
The complainant stated that he had made the payments himself in cash, and he produced other witnesses supporting those payments, they being his employees, His brother, Ramnanda, spoke as to the entries in the books of account, and his partner, Hirendra Samaddar. also deposed in support of the prosecution case. There was one Dr. Jagadish Ch. Pal who was examined to prove that Maidhandas was sent for by the Inspector on a particular date when he is alleged to have received one of the payments of the bribes the day following.
The pleader at Dhubri, Sri J. N. Chatterjee, deposed in support of the fact that the complainant's partner, Hirendra Samaddar, and his brother, Ramananda, stated to him that the accused Sricharan Barua had pressed for payment of Rs. 5000/- on 11-7-51 and had refused to let out the complainant on bail because of not paying the same. The learned Special Judge refused to place any reliance on the oral evidence adduced in the case and has summarily brushed off the statements of the two independent witnesses, namely, the lawyer and the doctor, for reasons which do not appear to us to be either cogent or reasonable.
The learned Special Judge has come to the finding that the entries in the books of account were fabricated purely for the purpose of supporting the prosecution case, and he was strongly of opinion that, the complainant had falsely and maliciously brought this case against the accused, and directed their prosecution under relevant charges, as I have already indicated.
7. The learned advocate for the accused Sricharan Barua has very forcefully argued that the learned Special Judge considered the evidence for what it is worth, and he has reasonably come to a finding that no case had been made out against the accused, and, therefore, he was quite within his rights in acquitting the accused of the charges framed against him. We have paid due attention to the arguments advanced on the point and have considered the relevant rulings placed by the learned advocate before us.
We fully appreciate the observations of their Lordships of the Supreme Court made in the case of 'D. Stephens v. Nosibolla' : 1951CriLJ510 that the revisional jurisdiction conferred on the High Courts under Section 439, Cr. P.C. is not to be lightly exercised when it is invoked by private complaint against an order of acquittal, against which the Government has a right of appeal under Section 417, Cr. P.C. and that it could be exercised only in exceptional cases where the interests of public Justice require interference for the correction of a manifest illegality or for the prevention of a gross miscarriage of justice.
Their Lordships further observed that this jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on the record.
8. After giving due consideration to this principle, which we respectfully endorse, we find that there has been a gross miscarriage of justice because of the learned Special Judge failing to apply his mind judicially to the evidence on record and writing a judgment, which, in our estimation, contains various inaccuracies and speculative arguments ignoring positive and direct materials available from the record. The judgment, as a whole, looks almost one-sided and lacks the judicial balancing of facts and sitting of evidence.
It does not appear to us that the learned Special Judge took an objective and dispassionate view of things clearly emerging torn the record. Since, however, we propose to send the case back on remand, because of the bar under Sub-section (4) of Section 439, Cr. P.C. we do not propose to go into the evidence as such and discuss the probabilities of the case, lest it should prejudice any of the parties at a later stage of the trial.
9. The allegations, gainst the accused mada by the Complainant are of a very serious nature, and the accused being a responsible public officer, it would have been better if his conduct had been properly examined by the learned Judge. There were certain circumstances that might be interpreted against the accused, - as for instance, the particular zeal in prosecuting the complainant or the treatment meted out to him, - or the accused's request to the Distrist Magistrate not to let out the complainant on bail, - though it may be contended to be inspired by sheer zeal for duty. These fact rs were to be considered by the learned Judge in a proper perspective.
We are fully aware that a remand for fresh trial shall cause inconvenience and harassment to both the parties, - and that the proceedings started about four years back, - but what weighs with us in making that order is that the learned Judge seems to have entirely ignored some mateiial evidence, either as to the conduct of the accused or as to the probabilities in the case; and he does not seem to have arrived at his findings after full and due consideration of ail the evidence avai.able. The case is of grave consequence to both the parties, and it is mete and proper that a well thought out judgement should have been given - rather than a judgement which lacks cohesion and balance.
10. I would, therefore, just point out where the learned Special Judge has substantially gone wrong in coming to his decision:
11. I first take the question of sanction for the purpose of prosecution of the accused for an attempt at taking bribe of Rs. 5000/- on the 10th or nth July, 1951. The learned Special Judge has said that since the number of the case, namely, G. R. Case No. 800 of 1951, was not mentioned in the Government letter of sanction, marked Ext. 17, the trial for the said offence was not valid in law.
There the learned Judge has obviously gone wrong, because the report and a statement of facts that accompanied the letter of the Deputy Commissioner for the grant of sanction, fully bring out that sanction was sought for the purpose of prosecuting the accused for an attempt at collecting a bribe of Rs. 1000/-on that occasion. The letter of sanction, Ex. 17. itself speaks of the allegations against the accused to the effect that he, on different dates, obtained & also attempted to obtain illegal gratifications, as reward, from one Maidhandas Agarwalla, and sanction was given for prosecuting the accused in respect of those charges, and there references to some case numbers are given having relation to the allegations.
The learned Judge, therefore, had no good ground to interpret that there was any absence of sanction for the offence of attempt at taking bribe, on the oart of the accused. In the case of 'Biswabhusan'Naik v. State of Orissa' : 1954CriLJ1002 , it was held that it is not necessary for the sanction under the Prevention of Corruption Act to be in any particular form or in writing or for it to set out the facts in respect of which it is given, and when the facts are not set out in the sanction, proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged, but an omission to do so is not fatal so long as the facts can be, and are, proved in some other way.
All that is required is that the facts to which the sanction relates, were duly placed before the proper sanctioning authority. That they were so placed is obvious. Here, the allegations had been clearly made out not only in the complaint petition filed by the complainant in Court, but also in the report of the Deputy Commissioner accompanying the letter by which sanction was sought for and obtained
Exhibit 17 also makes that position clear from its wordings, and it is, there, ore, immaterial even if the case number was not mentioned in the Government letter granting sanction. In these circumstances, the learned Special Judge was wrong in holding that there was no valid sanction for the offence.
We would like to decide conclusively, for the purposes of this case, that there was proper sanction for the prosecution of the accused 5 icharan Barua in respect of the three charges which were framed against him. The Supreme Court has further accepted the view as expressed in the case of 'Nar Singh v. State of Uttar Pradesh' : 1SCR238 , that no sanction under Section 197, Cr. P.C. is necessary in cases of prosecuting the accused on charges of conspiracy and bribery, - following the cases of 'H. H. B. Gill v. The King' AIR 1948 PC 128 (D) and 'Phanindra Chandra v. The King' AIR 1949 PC 117 (E).
12. The next charge related to the allegation of accepting bribe of Rs. 1000/- on 10-9-50 by the accused. The learned Special Judge discarded the story in its entirety, more because of the entries in the diary of the accused, marked Exhibit S. which purported to show that on 10-9-1950, at 10-25 A.. M. the accused left for a place at a distance of about 4 1/2miles in his car and came back to Kokrajhar at about 5-15 P.M.
The allegation on behalf of the prosecution was that he had received the bribe at about 1 or 2 P.M. from the complainant, and, therefore, the learned Special Judge considered the prosecution version to be untrue. The entries in Exhibit 3, the diary of the accused, were not duly proved by any witness, nor did the accused refer to them in course of his statement under Section 342, Criminal P.C.
Exhibits may be an official document, but there the signature alone of the accused was proved, and nothing more. The entries are worth what they are, but they cannot surely be accepted to be absolutely correct for all purposes, in the absence of any definite proof. There may be circumstances which might seriously challenge their correctness. An entry in a record or a document made by a person for his own benefit even if admissible should not always be taken without scanning; other circumstances have to be considered along with the entry, must as in this case, whether the accused could have returned when he wanted because the distance was negligible. He had his car at his disposal.
It is not known whether the accused had to be absolutely engaged for a period of about seven hours, as appears from the diary. He had similarly discarded the story of acceptance of the bribe o Rs. 500/- on the basis of the personal diary (Ex. T) submitted by the accused, which showed that on 3-5-51 the accused left Kokrajhar in his own car at 7-30 A. M. and returned at 7-30 P.M. The story of P. W. Jagdish Pal meeting the accused at about 11-30 A. M. on that day at Kokrajhar had been disbelieved only on this ground. The payment of Rs. 500/- at 2 p. M. on the following day had been disbelieved because the Additional Superintendent of Police was expected on that date at Koarajhar at 3 P.M. and the bribe was alleged to be paid at 2 P.M.
To us, this over-emphasis on diary entries, irrespective of the circumstances, does not at all appear to be sound, whereas the entries in the diary could have been considered only along with other circumstances. These diaries were submitted to the Superintendent of Police once a week and could have been easily modulated to the needs of the officer concerned, and even suitably altered, - that is what is argued by the other side. The officer who kept these diaries is not examined.
13. The following paragraph will show the attitude that the learned Special Judge took as to the prosecution witnesses:
Except the three official witnesses, Sri J, N. Chatterjee, pleader, and Dr, Jagdish Pal, the rest of the witnesses are interested persons, being some brothers, partners or employees, of the mills. Dr. Jagdish Ch. Pal is a private medical practitioner at Fakiragram, appearing to depend upon the calls from complainant, and his evidence is negatived by the entry in the personal diary of the accused submitted at the time. The evidence of Sri Jatindra Nath Chatterjee based on matters placed before him for instructions and not being immediately after the occurrence, as provided under Section 157, I. E. Act, has no evidentiary value.
The comment against the doctor witness was most uncalled for and very damaging, because he was an independent witness and of certain status in society. The discarding of the evidence of the lawyer witness is equally on very untenable and flimsy grounds. The report of the attempted to be was made to him by the complainant and his men on the 11th or the 12th of July, which were the material dates for the purposes of the accusation.
It was, therefore, obligatory on the Judge to discuss the merits of the evidence given by these two persons, in relation to the facts and circumstances of the case. The attitude taken by the learned Special Judge, as I have already indicated, shows that he had a strong bias against the prosecution. Even in case of interested persons, it is not desirable that the evidence should be at once discarded. In cases of bribery or corruption, what is normal to expect is that the bribe-giver would approach the officer or the person concerned either without any company or in the company of his own men.
If the oral evidence compared unfavourably with other circumstances, that was a different matter, and the learned Judge could have discarded the evidence on that ground alone. But he could not shut out the evidence from consideration simply because it came from interested parties. No evidence is tainted simply because it comes from quarters interested in the prosecution, but it has to be judged on its own merit.
The learned advocate for the complainant petitioner has placed before us the judgment of Hemeon, J. in the case of Narayan Prasad v. Emperor AIR 1948 Nag 342 (P) and contended that the evidence of bribery, howsoever slight and coming from the parties offering bribe may amount to good evidence to support the story of bribery, and should not be treated as evidence coming from an accomplice. Even the Privy Council has gone to the extent of saying that when the accomplices act under a form of pressure, which it would require some firmness to resist, reliance can be placed on the uncorroborated evidence, ref. Sriniwas Mall v. Emperor AIR 1947 PC 135 (G). These are principles, that the learned Special Judge ought to have remembered while discussing the evidence of the complainant and his witnesses, but unfortunately he discarded the evidence completely as tainted. What weight is to be given to a particular piece of evidence, would depend upon the nature of the evidence itself and the circumstances.
Our attention had been drawn to the case of Afzalur Rahman v. Emperor AIR 1943 PC 18 (H), and it was argued on behalf of the complainant that the circumstances and conduct of the accused raised an inference of guilt against the accused, - but, for the present, we refrain from expressing any opinion on the point. We are, however, of opinion that the learned Special Judge was wrong in discarding the oral evidence, without giving due consideration to the same, and his findings, therefore cannot be said to be properly arrived at.
14. The learned Judge observed almost the same attitude with regard to the entries in the books of account. It is not for us to express any opinion as to whether the entries in the books of account are genuine or not, but the attitude with which the learned Special Judge discussed the same, does not very much appeal to us. He began by suspecting their genuineness because of the delay in filing the complaint after receipt of the Government order, dated 2-11-51, but it is in evidence that the accounts were produced before the Additional District Magistrate at the stage of the preliminary enquiry on or about 23-8-51, before the letter from the Government was received, and the books were returned long after.
Right from the start, the Judge's mind is set very much against the account books. Normally the entries in books of account, if regularly kept, carry some weight, unless there be counteracting elements to throw sufficient doubt as to their genuineness. Here the entries in the books of account play an important part, though, by themselves, they may not be sufficient evidence of the offences alleged. Any way, they have to be carefully scanned and scrutinised. Even if the entries in the books of account are discarded, the oral evidence too has some weight, and it could have been considered apart from the documentary evidence, which the learned Judge has not done.
15. Another view taken by the learned Special Judge does not appear to be quite justified. He has strongly commented about the absence of the Thana Officer or other subordinate Police officials from the list of prosecution witnesses. In our opinion, the Government, if they approved of prosecuting the accused, should have really directed the Superintendent of Police or other competent authorities to conduct the prosecution on behalf of the State Government, and not leave it to a private party.
It could be well imagined what apprehension the complainant might naturally have in examining Police witnesses who were subordinate to the accused. It appears from relevant documents that the accused had, as a matter of fact, taken certain interest in prosecuting the complainant Maidhandas Agarwalla and his two partners, even though the Police had, no obligation to prosecute persons for offences coming under the Essential Supplies Act or the Assam roodgrains Control Order, and the case itself was found not substantiated.
The learned Special Judge at one place observes that if Ext. 26, the Search Warrant, was written out by the accused himself, that was not very material, since sometimes higher officers did ministerial work. On the other hand, he observes that the record showed that the accused did nothing, he being only an inspecting and supervising officer. There are certain circumstances, as I have already indicated, appearing against the accused, which the learned Special Judge did not try to meet. They are stated to be:
(1) that the accused made a strong comment against Maidhandas Agarwalla in Exhibit 25(1), the forwarding note in the report of the officer-in-Charge who sent him and his partners up for trial of offences under the Essential Supplies Act in eonnexion with Case No. 800 of 1951 without sufficient reasons;
(2) that the complainant Maidhandas Agarwalla was unduly humiliated by the accused in the matter of sending him in ropes under handcuff through the Bazar area of Kokrajhar township; and
(3) the accused had suddenly started up a case long after the alleged seizure of rice and paddy, when the complainant Maidhandas happened to pass through the town of Kokrajhar, and had him arrested and put in Police lock-up. The defence case on the other hand is that the accused had discharged only his official functions, and most of the actions alleged were done by the Officer-in-Charge of the Kokrajhar Thana, for which the accused had no responsibility, - and that the accused was implicated only out of grudge or spite.
We need not comment on the strength or weakmess of these arguments raised by either party, but. as we have already indicated, the judgment moved against is far from a satisfactory one, and the matter being of great public importance, we think it only desirable that, to do justice between the parties, the case should be re-heard by a competent officer except the one who had already heard and disposed of it.
16. Mr. Ghose having based his argument mainly on the observations of their Lordships of the Supreme Court in the decisions reported in : 1951CriLJ510 and Harihar Chakravarty v. The State of West Bengal : AIR1954SC266 . I have only to add that the circumstances in those cases were somewhat different from those in the present case. In the case reported in AIR 19S1 SC 19G (A) the allegation was that the accused, as Joint Secretary of the Calcutta Maritime Board, collected an illegal charge of Re. 1/- (rupee one only) from the complainant for issue of a Muster Card, and thus contravened the provisions of Section 26, Merchant Shipping Act, and that he was, therefore, guilty of an offence within the meaning of Sub-clause (2) of that section.
The Chief Presidency Magistrate acquitted the accused of the charge, but, on revision, the High Court at Calcutta directed re-trial, holding that the accused had contravened the provisions of Section 25 of the said Act. The second trial also ended in an acquittal and there was a further order in revision for re-trial by the High Court. Their Lordships did not approve of this order and made observations which I have quoted in the beginning of the judgment.
In : AIR1954SC266 , the same observations were quoted with approval, and the facts of that case have little similarity to the facts of the present case. There, the High Court had further uggested amendment of the charge and proposed to send the case back for re-trial. The offence in the present case is undoubtedly of a very grave nature, and it is only in the interest of justice and fair play that we consider it necessary that there should, be a proper adjudication.
We are quite alive to the situation that a retrial means a great harassment to the accused, and not less even to the prosecution, but here the remand could not be helped because of the grounds stated above. Further, the learned Judge had directed prosecution of the petitioner and his brother on a charge of fabricating false accounts to help prosecution, and they were not even asked to show cause - a step which we could not quite approve of, To dub the accounts as false or fabricated, is, by itself, sufficiently damaging to the reputation of a commercial firm of some standing, and they were entitled to be heard before prosecution was ordered for.
17. Having scrutinised the judgment of the lower Court with all the care and caution that it deserves, we feel satisfied that there has been grave miscarriage of justice in the case by the manner in which the learned Special Judge approached and dealt with the evidence in the case. In our view, the judgment of the learned Special Judge has to be set aside, which We do accordingly.
It is further directed that the case should go back to the trial Court and the accused be re-tried according to law, as already indicated. The accused should be re-summoned, the order of acquittal being set aside. The Rule is made absolute.
18. The records to go down immediately
Sarjoo Prosad, C.J.
19. I agree.