1. The question that has been referred to the Full Bench runs as follows:
Whether the documents like Ex. 28, being the statement of the complainant recorded by P.S.I. Sarakwas (P.W. 13), Ex. 33 being the first panchanama made in the presence of panchas and signed by the panchas, Ex. 34 being the second panchanama prepared under the signature of the panchas by P.S.I. Sarakwas (P.W. 13) after the trap was successful and Ex. 35 being panchanama prepared by P.S.I. Sarakwas (P.W. 13) are in any manner hit by the provisions of Section 162 of the Code of Criminal Procedure and if at all to what extent and whether they can be entirely excluded as inadmissible?
2. The question framed arises in these circumstances: In the year 1967 one Vidyadhar Bakare was appointed an Arbitrator for Town Planning Scheme Nos. I and III and the locality known as Parvati was included in Scheme No. III. The Scheme was prepared by Poona Municipality in the year 1934 and thereafter the draft scheme was approved in the year 1943. Various arbitrators were appointed but ultimately it was Vidyadhar Bakare who was in charge of implementation of the Scheme. Original accused No. 1 Ramakant Vishnu Brahme (since acquitted) was working as Assistant Engineer while original accused No. 2 Vishnu Krishna Belurkar (appellant No. 1 in the appeal) and original accused No. 3 Shriram Balkrishna Vaidya (appellant No. 2 in the appeal) were respectively working as a Junior Assistant and a Draughtsman in the Office of the Arbitrator. In the concerned locality one Omprakash. Mundada the, complainant owned a plot bearing S. No. 250-B which was included in the reservation made for a garden, called Peshwe Park, in the Scheme. It appears that the complainant along with a couple of other plot holders were making attempts to get their plots excluded from the reservation made in the Town Planning Scheme and according to the prosecution for showing this favour the accused had conspired to obtain illegal gratification from the plot-holders. The prosecution case was that initially in January 1970 original accused No. 1 had promised to exclude the plots from reservation and had demanded reward in the sum of Es. 5000 but later on complainant Omprakash accompanied by one Mahetab singh, another plot-holder, jointly met accused No. 1 as well as accused No. 2 when it was agreed that Es. 4000 should be paid for the work, Es. 2000 by each of the plot-holders; it was further agreed that out of this amount of Rs. 2000 payable by each Rs. 500 were to be paid in advance and Es. 1500 after the work was done. The last meeting which complainant Omprakash had with accused No. 2 was on February 16, 1970 and on this occasion the complainant is said to have told accused No. 2 that he would pay the money within two or three days. The complainant then decided to trap the persons demanding such bribe and therefore on February 18, 1970 he approached the Anti-Corruption Police and he lodged a complaint with P.S.I. Sarakwas alleging that illegal gratification to the tune of Es. 2000 was being demanded from him by accused Nos. 1 and 2 for exclusion of his plot from reservation that was made for the garden in the scheme and that he was going to pay Es. 500 being the first instalment of the bribe to accused No. 2 in the latter's office and that therefore necessary action he taken. This complaint was produced at the trial at exh. 28. On the very day P.S.T. Sarakwas decided to lay a trap and with that end in view called two panchas and in their presence the complainant was made to repeat the entire story to the two pamchas, demonstration of application of the anthracene powder to the currency notes produced by the complainant was given under ultra violet lamp and instructions were issued to the complainant not to part with the amount unless demand was made by accused No. 2; a panchanama recording all that transpired was drawn by P.S.T. Sarakwas and the said panchanama (hereinafter called 'pre-trap panchanama') was produced at, the trial at exh. 33. As arranged the complainant accompanied by one of the panchas viz. Bendre walked in the office of accused No. 2 while the other members of the raiding party including P.S.T. Sarakwas and the other panch Ambedkar waited at some distance from the office of accused No. 2. Punch Bendre was introduced to rernfiin along with the complainant throughout and listen to the conversation and watch everything that would take place at the time when the bribe amount would pass from the complainant to the accused. Accordingly, panch Bendre and the complainant entered the cabin of accused No. 2 who asked them to take their seats and the complainant stated that he had come as settled. Accused No. 2 got the relevant maps pertaining to the Scheme in question produced on his table through one Patwardhan and on the basis of those maps accused No. 2 told the complainant as to how much land from his plot would be acquired. Thereafter he called accused No. 3 to his cabin and on his arrival accused No. 2 told accused No. 3 that the complainant had come prepared and further told him that he (accused No. 3) should receive whatever the complainant would give. Thereupon accused No. 3 asked the complainant to see him at his residence at night, where after they all left the cabin of accused No. 2. While going to the 2nd floor where accused No. 3 had his cabin the complainant told accused No. 3 that he had no time to go to his (accused No. 3's) residence at night and hence he should receive then and there. Accused No. 3 asked the complainant and the panch witness to wait and after doing some work in his cabin he returned and along with the complainant and the panch he climbed down to the ground floor. Prosecution case further was that while proceeding to a hotel they came across sugarcane juice shop and at the instance of accused No. 3 they all entered that shop, sugarcane juice was ordered for three of them and before sugarcane juice was served, according to the prosecution, accused No. 3 asked the complainant to 'give as instructed by Saheb', whereupon the complainant took out the currency notes from his pocket and handed them over to accused No. 3 and told him to accept after counting the same. Accused No. 3 said he had confidence in him and there was no necessity to count and he kept the notes in his pant pocket. After having juice they all left the shop and proceeded towards the arbitrator's office, but when they arrived near the compound of a school the complainant gave the agreed signal whereupon P.S.I. Sarakwas and the members of the raiding party rushed to the spot. P.S.I. Sarakwas disclosed his identity to accused No. 3 and asked him about the money and also asked accused No. 3 to go to Municipal dispensary for his search. In the search the currency notes were recovered from accused No. 3 and under ultra violet lamp the notes, the hands of accused No. 3 and his pant pocket were seen and all these emitted bluish glow. The numbers of the currency notes recovered from accused No. 3 tallied with the numbers that had been mentioned in the pre-trap panchanama. Another panchanama (hereinafter referred to as 'post-trap pom-chanama') was drawn regarding all that had transpired during the raid and it was produced at the trial at exh. 34. Later on, on that very day, yet another panchanama was also drawn wherein it was recorded that the bottle of anthracene powder which had been sealed previously had its seal intact; this was produced at exh. 35 at the trial. After completing the investigation a charge-sheet was submitted against the three accused for the offences of conspiracy, acceptance of bribe and criminal misconduct. In the Court of the learned Special Judge charges under Section 120B, Section 161 read with Section 120B and Section 5(7)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 read with Section 120B were framed. In the alternative, charges were also framed for the offences tinder Section 161 and Section 5(7)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 read with Section 34, Indian Penal Code. On an appreciation of evidence that was led before him the learned Special Judge, Poona acquitted accused No. 1 of all the charges levelled against him but recorded a conviction against accused No. 2 and accused No. 3 (appellants Nos. 1 and 2 in the appeal) under Section 161 read with Section 34, Indian Penal Code and under Section 5(7)(d) with Section 5(2) of the Prevention of Corruption Act read with Section 34, Indian Penal Code and sentenced each one of them to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500 and in default he directed each of them to suffer rigorous imprisonment for three months. Accused Nos. 2 and 3 preferred an appeal to this Court being Criminal Appeal No. 948 of 1972 challenging their convictions and sentences imposed upon them by the learned Special Judge, Poona.
3. When the appeal came up for hearing before Masodkar J., on behalf of the appellants a contention was raised that some material aspects o the conversation which allegedly transpired at the time of the passing of the money from the complainant to accused No. 3 which were deposed to by punch Bendre in his deposition did not find place in the post-trap panchanama (exh, 34) and such omission introduced a serious infirmity in the prosecution case, and as such the prosecution evidence, particularly the evidence of panch witness Bendre should not be relied upon. In particular it was pointed out that the complainant had stated in his evidence that accused No. 3 'then asked me to Pay the amount as told by Saheb' while punch Bendre had stated that accused No. 3 asked the complainant 'to give as instructed by Saheb' but in exh. 34 the post-trap panchanama it had been merely recited that accused No. 3 thereafter demanded money from the complainant and as such the prosecution evidence should not be accepted. In answer to the above contention it was urged on behalf of the State by the learned Assistant Government Pleader Mr. Chitnis that the entire post-trap panchanama (exh. 34) was itself inadmissible, the contents whereof were hit by the provisions of Section 162 of Criminal Procedure Code and if that was so, there was no question of there being any infirmity as suggested on behalf of the accused and the prosecution evidence, particularly of the panch, could not be rejected. Incidentally, we really fail to appreciate how such a contention could advance the prosecution case any further, for assuming that the entire panchanama (exh. 34) is hit by Section 162, Criminal Procedure Code, still under the proviso it could be used as a previous statement of the panch witness to contradict him and a significant omission amounting to a contradiction could be brought on record with the result that it will introduce an infirmity in the evidence of the panch witness. However, the contention was raised and in support thereof Mr. Chitnis relied upon a judgment of the Division Bench of this Court consisting of Bhasme and Joshi JJ. in fillip Sadashiv Apte v. The State of Maharashtra (1972) Criminal Appeal No. 840 of 1972, decided by Bhasme and Joshi JJ,, on August 29, 1972 (Unrep.) where the Division Bench has taken the view that in corruption cases though the commission of crime and investigation ran side by side, these were distinct and independent events having separate legal character and that the incorporation of facts seen and conversation heard in the panchanama that was being drawn while the investigation was on, will have to be regarded as statements made by the panch to the police officer during the course of investigation and as such the contents or at any rate the material portion of such panchanama would come within the ban of Section 162. It appears that though Mr. Chitnis confined his contention to the post-trap panchanama being hit by Section 162, reference seems to have been made to all such documents like the initial complaint, the pre-trap and post-trap panchanama etc. in which statements come to be recorded after the investigation has commenced and the same being hit by Section 162. When the aforesaid view expressed by the Division Bench was pressed into service for acceptance of the contention that the contents of the post-trap panchanama exh. 34 would be hit by the provisions of Section 162, Criminal Procedure Code, Masodkar J. felt that it raised a very important question which required consideration by a larger Bench and since he was told that in State v. Naru 'Minhomal Rohira (1868) Criminal Appeal No. 705 of 1966, decided by Chandrachud and Gatne JJ. on February 13/14, 1968 (Unrep.) a contrary view by implication had been taken by another Division Bench consisting of Chandrachud and Gatne JJ., he directed that the papers of the appeal be placed before the Hon'ble the Chief Justice for making a reference to a Full Bench for decision of the question involved and that is how the question set out at the commencement of this judgment has been referred to us for decision.
4. It may be stated at the outset that Mr. Adik who appeared for appellant No. 1 (original accused No. 2) and Mr. Tipnis who appeared for appellant No. 2 (original accused No. 3) were obviously not interested in getting the entire panchanamas excluded from consideration and both of them, therefore, raised the same contention before us which was urged before Mr. Justice Masodkar, namely that since the post-trap panchanama (exh. 34) was silent about certain important aspects of the conversation that took place between the com. plainant on the one hand and accused No. 3 on the other on the occasion of the passing of the money, the punch's evidence suffered from serious infirmities and as such the prosecution case should not be accepted. In fact, in order to maintain that there were such infirmities in the prosecution evidence, it was contended by them that the post-trap panchanama (exh. 34) could not be rendered inadmissible on the basis of any ban contained in Section 162, Criminal Procedure Code. It was Mr. Chitnis appearing for the State who raised a contention that several documents which have been referred to in the question framed for our determination, particularly post-trap panchanama (exh. 34) would become inadmissible by reason of the ban contained in Section 162, Criminal Procedure Code. Mr. Chitnis pointed out that in anti-corruption cases, like the one before us, cognizance of offences alleged to have been committed by an accused either under Section 161, Indian Penal Code or under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act could be said to have been taken by the investigating officer no sooner a complaint in respect of the alleged demand of a bribe by a public servant is lodged and investigation undertaken by the investigating officer must be deemed to be an investigation in respect of both the offences--one of demanding a bribe allegedly already committed by a public servant and the other about to be committed, namely of acceptance of bribe by such public servant. He went on to point out further that things that usually take place, particularly the passing of the money from the complainant to the accused and the conversation between the two on that occasion occur during the course of investigation that has already commenced and though it is true that services of the panchas are usually requisitioned for observing the passing of money and hearing the conversation, the post-trap panchanama is usually drawn by the police officer or the police scribe reciting what the panch states about all that he had seen or heard and therefore the contents or recitals in such panchanama will have to be held as statements made by the panch, to the police officer who has been investigating the offence or offences. His contention in substance was that what is recorded in the panchanama is nothing but communication made by the panch as to what he had seen and what he heard to the police officer who has been investigating the offence, for, according to him, it is implicit in the act of writing the panchanama by the police officer or the police scribe that the panch narrates or communicates what he has seen or heard both before the arrival of the investigating officer on the scene or after his arrival. In other words, according to Mr. Chitnis, communication in fact precedes the record that is made by the police scribe at the dictation of the panch and in that sense the contents of the panchanama, particularly as to what transpired at the time of passing of the money, will have to be regarded as statements made by the panch witness to the investigating officer and therefore such statements would become inadmissible by reason of the ban contained in Section 162, Criminal Procedure Code. He thus urged that-the recitals in the panchanama as to what the panch had seen and as to what he had heard would always be a narration by the panch witness to the police officer and therefore the same would be hit by Section 162, Criminal Procedure Code. He undoubtedly relied upon the judgment of the Division Bench of this Court Dilip Sadashiv Apte v. The State of Maharashtra where such a contention was accepted. He also relied upon the Supreme Court judgment in the case of Ramktehan Mithanlal v. State of Bombay (1934) 57 Bom. L.R. 600. popularly known as the Lloyds Bank case. Mr. Chitnis particularly pointed out that in that case the Supreme Court accepted the view of the Calcutta High Court and the Allahabad High Court which made a distinction between mental act of identification and communication of that fact to another person, the former not falling within the ban contained in Section 162, Criminal Procedure Code while the latter being hit by the ban contained in that section, but the Supreme Court held that the physical fact of identification, which fact either took the form of oral statement or making a sigh, or gesture including1 the pointing out by finger or nod of assent in answer to a question, had no separate existence apart from the statement involved in the very process of identification and in so far as a police officer sought to prove the fact of such identification, such evidence of his would attract the operation of Section 162, Criminal Procedure Code and would be inadmissible in evidence. It was urged by Mr. Chitnis that by parity of reasoning it should be held that after the trap was carried out and when panchas set about to record what they had seen and heard at the time of passing of the money as also all that transpired subsequently, the recording of the same in a panchanama written out by the police officer or the police scribe has no separate existence but constitutes a record of narration or statement made by the panch to the police officer of what he had seen and heard and therefore such record should be deemed to be a statement made by the panch witness to the police officer during the investigation under Chapter XIV and the same would be hit by Section 162, Criminal Procedure Code. He also relied upon a judgment of the Supremo Court in Kanu Ambu Vish v. State of Maharashtra : 1971CriLJ1547 where, according to him, his contention has been by implication accepted because in that case in regard to a post-trap panchanama in anti-corruption case the Court has made observation to the effect that, 'any statement made in the panchanama cannot be used in evidence except for the purpose of contradicting the witness whose statement is contained in the panchanama.' He also brought to our notice that the view taken by the Division Bench in Dilip Sadashiv Apte v. The State of Maharashtra had been approved by Justice S.K. Desai in his judgment Akbar Ismail Sheikh v. The Stale of Maharashtra (1973) Cri App 868 , decided by S.K. Desai J., on October 3, 1973 (Unrep.) and the reasoning was also approved of by Mr. Justice Naik and applied to a panchanama made recording the statement made by accused leading to discovery under Section 27 of the Evidence Act.
5. In order to decide whether the contention is well-founded or not, it will be necessary to have regard to the purpose for which panchanamas are made during the course of investigation of any offence. In the entire Criminal Procedure Code there are two provisions, one contained in Section 103 and the other in Section 174 which deal with making of a panchanama by police during the course of investigation of an offence; the panchanama contemplated by the former provision pertains to a search and seizure of articles to be made during the search which is required to be done in the presence of two or more respectable inhabitants of the locality in which the place to be searched is situated, while under the latter provision an inquest panchanama about the condition of a dead body is required to be made. Section 103 and Section 174 cannot obviously be regarded as exhaustive of the occasions when panchanamas are made by the police during the investigation of an offence. Panchanamas in regard to test identifications done either for identifying property being the subject-matter of the offence or persons connected with the offence are drawn up by the police officers during the course of investigation. Specimen hand-writings or finger prints or other characteristics of an accused person are usually obtained in the presence of panchas by drawing up panchanamas. In anti-corruption cases drawing up of two panchanamas, one pre-trap and the other post-trap panchanama, is very common. Similarly, a panchanama is also made if the police officer feels it necessary to make a record of any statement that might be made by the accused--a statement leading to discovery of any fact as contemplated by Section 27 of the Evidence Act and such record is made at the time when the accused makes the statement in the presence of the panchas. The question is what is the real purpose of making these panchanamas during the course of investigation undertaken by the police. In Emperor v. Mohanlal Bababhai (1940) 43 Bom. L.R. 163 Chief Justice Beaumont has explained the nature and purpose of the document styled as panchanama as follows (p. 166) :.The Panchnama is merely a record of what a panch sees, and the only use to which it can properly be put is that when the panch goes into the witness box and swears as to what he saw, the panchnama can be used as a contemporary record to refresh his memory.
These observations, though made in the context of a panchanama pertaining to an identification parade, are applicable to all types of panchanamas made by the police during the investigation and bring out the nature and purpose of these documents. In our view, therefore, the primary and essential Purpose of making such panchanamas is to make a record of things which occur in the presence of panchas and which are seen and heard by them and the purpose is never to convey or inform or impart knowledge to the police officer about the things that are seen or heard by them; the secondary purpose which is served by these panchanamas is1 that such record should serve as aid memoir to the panchas when they enter the witness-box in the Court at the time of the trial and depose about the things which they had seen and heard and such record having been made contemporaneously at about the time when the panchas had seen and heard the things also serve the purpose of corroborating their evidence given at the trial. Undoubtedly, such panchanamas cannot take the place of substantive evidence but they merely corroborate the substantive evidence if given by the panch from the witness box at the trial. In other words, the use of such contemporary record being in the nature of previous statement made by the panch for corroborating the evidence of the panch is perfectly valid under Section 157 of the Evidence Act.
6. Now if these are the purposes for which such panchanamas are made, the question that arises for consideration is whether the fact that such record is scribed by the police officer investigating the offence or by a constable working under him during the course of such investigation converts such record into statements made by the panch to the police officer within the meaning of Section 162, Criminal Procedure Code, for, unless such record amounts to statements made to a police officer within the meaning of that section it would not fall within the ban contained therein. It was not disputed before us that Section 157 of the Evidence Act is controlled by the special provisions of Section 162, Criminal Procedure Code, and therefore, if the statements, though falling under Section 157 of the Evidence Act, were also to fall under Section 162, Criminal Procedure Code such statements would become inadmissible and could be made use of only for the purpose mentioned in the proviso to Section 162, that is to say, for contradicting the witness after following the procedure indicated in Section 145 of the Evidence Act. Reading Section 157 of the Evidence Act and Section 162, Criminal Procedure Code, together it would be clear that the expression 'statement' in Section 157 has a wider connotation than it has in Section 162, Criminal Procedure Code. It is clear that, having regard to the context in which the expression 'statement' occurs in Section 162, Criminal Procedure Code, it must mean narration. As has been pointed out in Shyamlal Sharma v. King-Emperor : AIR1949All483 , F.B. a statement made to one person would connote the idea that the narration is addressed to that person and implies an animus or intention to communicate the subject-matter of the statement to such person. Section 161 of the Code empowers any police officer making an investigation under Chapter XIV to examine orally any person supposed to be acquainted with the facts and circumstances of the case and it is in regard to the examination of such person and the consequential narration or a record thereof if made by the police officer during the course of investigation done under that Chapter that the ban contemplated by Section 162(7) has been imposed. Section 162(7) provides that no statement made by any person to a police officer in the course of an investigation shall, if reduced into writing, be signed by the person making it nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. In order, therefore, that the previous statement of a witness which would ordinarily fall within Section 157 of the Evidence Act should also fall under Section 162 of the Code two conditions are required to be fulfilled: (a) that it must be a statement made to the police officer and (b) that it must have been made in the course of investigation under Chapter XIV of the Code. Now the question is whether the. recitals which are contained in the various types of panchanamas, particularly in the pre-trap and post-trap panchanamas in anti-corruption cases fulfill the first condition, namely that these constitute statements of the panchas made to the police officer in the sense that these statements are intended to be communicated to the police officer who is investigating the offence in question or whether these amount to a record of things seen and heard by panchas intended to serve as aid memoir to them so that the contents thereof could be used as and by way of corroborative evidence to support substantive evidence given by the panchas at the trial? In our view, having regard to the primary and essential purpose for which these panchanamas are made during the course of investigation of an offence, it is not possible to come to the conclusion that there is an element of communication, that is to say, there is an intention to communicate to the police officer the subject-matter of the things seen and heard by the panchas which are recorded in these documents. In our view, there is a clear distinction between a narration made to the police officer with a view to communicate or impart knowledge of the subject-matter of such narration to the police officer and a mere record of what the panchas have seen and heard which is intended to serve as aid memoir to the panchas when they give evidence at the trial. That there is such a distinction can be easily appreciated from the contents which are usually incorporated in a post-trap panchanama in anti-corruption eases. In the first place, such a panchanama records what the panchas have seen and heard prior to arrival of the investigating officer on the scene, namely the passing of the money from the complainant to the accused and the conversation between the two on that occasion when neither the police officer nor the other members of the raiding party are present; secondly it records all that transpires after the arrival of police officer on the scene, namely disclosure of his identity by the police officer, recovery of the money from the accused, the accused's exclamation or explanation, if any, the result of examining the currency notes, the hands and clothes of the accused under ultra violet lamp, tallying of the denominations and numbers of the currency notes etc.--everything that transpires in the presence of the police officer. Now so far as the things that transpire after the arrival of and in the presence of the police officer are concerned, these things cannot be said to be recorded with a view to communicate or impart knowledge thereof to the police officer but it is essentially done for the purpose of recording what the panchas have seen and heard after the arrival of police, the record being intended to serve as aid memoir to panchas when they give evidence at the trial. We will deal with all the documents which are mentioned in the question referred to us for our determination a little later but the instance of a post-trap panchanama is being specifically referred to with a view to bringing out the fact that the panchanama is primarily and essentially a record of what the panchas have seen and heard. Similarly, seizure panchanamas, inquest panchanama or panchanamas Tinder which specimen hand writings are obtained or statement leading to discovery under Section 27 by the accused is recorded pertain to matters and things which occur in the presence of the police and hence these documents are primarily a record of what the panchas have seen and heard and the recitals thereof are not in the nature of any statements made by the panchas to the police officer. In fact the object of keeping two respectable and independent panchas present when these things are done by the investigating officer is to ward off any suspicion of chicanery on the part of the police during their investigation. If once this distinction is borne in mind, it will become clear that the previous statements of the panchas which are to be found in. the panchanamas do not fall within the phrase 'statement made to the police officer' as contemplated by Section 162, Criminal Procedure Code and, therefore, the contents of such panchanamas would not come within the ban of that section and such previous statements could be legitimately used for corroboration under Section 157 of the Evidence Act.
7. It was, however, urged by Mr. Chitnis that having regard to what actually takes place at the time of recording the panchanamas, it should be held that the recitals in the panchanamas amount to statements made by the panchas to the police officer, for, according to him, usually it happens, as has happened in regard to the post-trap panchanama exh. 34 in the instant case, that the panchanamas are written either by the police officer or the police scribe at the dictation of the panchas and according to Mr. Chitnis, no recording is possible by such scribe unless the panch narrates to the scribe all that he has seen and heard; in other words, communication to the police officer precedes the act of recording of all that has ti'anspired in the presence of the panchas and as such narration to the police officer is inherent in the process. Moreover, the panchanamas are signed by the panchas and these are retained by the police officer till they are produced at the trial. Hence it should be held that the recitals in the panchanamas are hit by the ban contained in Section 162. Once it is borne in mind that the recitals in the panchanamas are not made with intent to narrate or communicate the subject-matter of the recitals to the police officer but it is a record of what the panchas have seen and heard and made with a view to serving as aid memoir to the panchas when they give evidence at the trial, this contention cannot be accepted. It was not disputed by Mr. Chitnis before us that if the panchas happen to be literate and if they draw up the panchanama in their own hand as to what they had seen and heard such record would not come within the ban of Section 162 but it would serve as aid memoir to the panchas. It was further not disputed by him that if panchas happen to he illiterate and if they take the help of any scribe unconnected with the police to write the panchanama then such record of what they have seen and heard would not be hit by Section 162'. The question is whether if for writing the panchanama the services of a police scribe connected with the investigation are requisitioned such panchanama would cease to be a record intended to serve as aid memoir and amount to a statement made to the police officer within the meaning of Section 162? We think not. In our view, the fact that the panchanama is written out by the police officer or the police scribe as dictated to him by the panchas would not make any difference, for, that would merely be a mode in which the panchanama is recorded. Of course, if a panchanama does incorporate a statement which amounts to a statement intended as a narration to a police officer during his investigation, it would fall within Section 162 and will have to be excluded but that is the duty which the Court must perform every time a panchanama, is tendered in evidence. It was, however, urged that a police officer can circumvent the bar of Section 162 by asking the witness, whom he has interrogated under Section 161 during the course of his investigation, to make a record of what he has seen or known about the offence in the form of a panchanama and such record would become admissible for purposes of corroboration under Section 157 of the Evidence Act. But if such a thing happens it would clearly be an abuse of power or colourable exercise of power possessed by the police to make panchanamas during the course of investigation and surely the Court will not regard the resultant document as being a panchanama in its true sense; it would be a question of fact which the Court will have to decide and if on the material on record it comes to the conclusion that the document styled as panchanama is the result of any fraud on the power possessed by the police it will not permit its use for purposes of corroboration under Section 157. But if a document styled as panchanama is in reality and in substance a mere record of the thing that occurs in the presence of the panchas and of what the panchas have seen and heard, the mere fact that such record has been scribed by the police officer or a police scribe will not convert the recitals thereof into any statements communicated to the police officer within the meaning of Section 162, Criminal Procedure Code. Similarly the further fact that such record is retained by the police officer with him till it is Produced at the trial also will not affect the position nor will the fact that the panchas have subscribed or appended their signatures at the foot of the panchanamas make any difference.
8. In this context it will be useful to refer to a decision of the Gujarat High Court in the case of Valibhai Omarji v. State : AIR1963Guj145 where a view similar to one which we are taking has been taken about the panchanamas in the context of Section 162, Criminal Procedure Code. After referring to the observations of Chief Justice Beaumont in Emperor v. Mohanlal Bababhai on the nature and purpose of the panchanama, this is what the Gujarat High Court has observed (p. 147):.As stated before, a previous statement of a witness complying with the conditions laid down in Section 157 of the Evidence Act is admissible. The exception is that if it fulfills the two conditions laid down in Section 162 of the Code, it becomes inadmissible thereunder, except for the limited purpose therein stated. The important words in Section 162 of the Code are 'No statement made by any person to a police officer'. Therefore the statement must be one to a police officer and unless it is to a police officer, it does not fall within the mischief of Section 162 of the Code. Therefore it is necessary that the statement in question must have the element of communication to a police officer. If a Panchnama is merely a record of facts which took place in the presence of panchas and of what the Panchas saw and heard, as observed in Emperor v. Mohanlal Bababhai but is not a record of a statement communicated to a police officer, it would be admissible under Section 157 of the Evidence Act and would not fall within the ban of Section 162 of the Code of Criminal Procedure. As its very name signifies, it is a document recording what the Panchas saw and heard. At the same time, if a Panchnama does contain a statement which amounts to a statement communicated to a police officer during the course of his investigation, it would fall within Section 162 of the Code. Therefore every time when a Panchnama is tendered in evidence, it would be the duty of the Court to ascertain whether any part of it falls within the mischief of Section 162 of the Code of Criminal Procedure and if it does fall, the Court should take out that portion from being admitted in evidence. It was urged, however, by Mr. Barot that in the instant case, the Panchnama was not recorded by the panchas themselves but its contents were dictated by them and it was the police officer investigating this case who wrote it out and kept the Panchnama in his custody until it was produced in the trial Court. The fact however that it was written out by the officer as dictated to him by the panchas would not, in our view, make any difference, for that is merely a mode in which the Panchnama is recorded, nor would the officer keeping that document with him make any difference. As held in Santo Singh v. State of Punjab : 1976CriLJ1875 the mere presence of a police officer when a statement is made does not by itself render such a statement inadmissible. So long as a Panchnama is a mere record of things heard and seen by Panchas and does not constitute a statement communicated to a police officer in the course of investigation by him, it would not fall within the mischief of Section 162 of the Code.
It would be pertinent to mention that these observations were in connection with a post-trap panchanama in an anti-corruption case and, with respect, we feel that the observations state the legal position correctly. Having dealt with the legal position, as above, we shall now proceed to indicate briefly our views on the four documents referred to in the question framed for our determination.
9. The four documents all dated February 18, 1970 mentioned in the question referred to us are: Exhibit 28 being the complaint of Omprakash Mundada recorded by P.S.I. Sarakwas, exh. 33 being the pre-trap panchanama, exh. 34 being the post-trap panchanama and exh. 35 being the panchanama made by P.S.I. Sarakwas about ascertainment of the fact that the bottle of anthracene powder with its seal had remained intact after the trap was over. We shall deal with each of these documents separately.
10. So far as the complaint lodged by a complainant with the Anti-Corruption Police is concerned, it cannot be disputed that it is by lodging of such complaint by a complainant in an anti-corruption ease that cognisance of the two offences, one said to be committed and the other about to be committed is taken by the investigating officer and the investigating machinery is set in motion. In the instant case, it was on February 18, 1970 that complainant Omprakash contacted the Anti-Corruption Police and gave information about the demand for illegal gratification made by the two accused and about his intention to offer the first instalment of the bribe pursuant to demand to one of them and he requested the police officer to take necessary action in that behalf. It was not disputed before us that offences under Sections 161, 165A of the Indian Penal Code and under Section 5 of the Prevention of Corruption Act, 1947 are cognizable offences and by an order passed by the Government of Maharashtra, Home Department, on October 23, 1961 in exercise of powers conferred by Section 5 of the Bombay Police Act, 1951 it has been provided that whenever any officer of and above the rank of a Police Sub-Inspector of the Anti-Corruption and Prohibition Intelligence Bureau of the Maharashtra State investigates, at any place in the State, any offence, he shall be deemed to be an officer in charge of the Police Station within the limits of which such place is situate. In view of this admitted position, the lodging of information or complaint by the complainant with P.S.I. Sarakwas on February 18, 1970 must be regarded as First Information Report lodged by him under Section 154 of Criminal Procedure Code in regard to cognizable offences upon which investigation commenced. Therefore, the contents of this complaint which amounts to F.I.R. under Section 154 would be clearly admissible under Section 157 of the Evidence Act as affording corroboration to the complainant's evidence at the trial and the contents of exh. 28 therefore could by no stretch of imagination be hit by the ban contained in Section 162, Criminal Procedure Code. Mr. Chitnis fairly conceded before us that that would be so and stated that he never intended to dispute this position even before Masodkar J. So far as exh. 28, which is the complaint lodged by the complainant with P.S.I. Sarakwas is concerned, therefore, there is no question of the contents thereof being hit by the ban contained in Section 162.
11. The next document is the pre-trap panchanama that was produced at exh. 33 at the trial. Now such pre-trap panchanama would normally contain recitals pertaining to the following matters: (a) repetition of the story by the complainant to the panchas, (b) production of the amount to be offered as bribe, (c) demonstration of application of anthracene powder to the currency produced under the ultra violet lamp, (d) instruction from the police to the complainant not to hand over the amount unless demanded by the accused and giving of the specified signal after acceptance of bribe and (e) instructions to one of the panchas to remain with the complainant all throughout to see and hear all that transpires at the time of passing of the money. It was not disputed before us that exh. 33 in the instant case contains nothing more than what is usually contained in such panchanamas as indicated above. It is possible that one additional aspect may be recited in such panchanamas, namely, upon being required to produce the money which is to be offered as bribe, the complainant might express his inability to provide the requisite amount. Obviously expressing inability to produce the amount by the complainant to the police officer would amount to a statement intended to be communicated to the police officer. But barring such statement, which obviously would be hit by Section 162 and which will have to be excluded, the rest of the recitals which are usually found in pre-trap panchanamas could by no stretch of imagination be regarded as amounting to any statements made by any person to a police officer. In this situation, barring the statement mentioned above, it is difficult to understand how the ban contained in Section 162 could be attracted to the other recitals that are to be found in pre-trap panchanamas such as one produced at exh. 33 in this case.
12. The next document with which we are concerned is the post-trap panchanama produced at exh. 34 at the trial. At the outset it may be stated that in anti-corruption eases the complainant is always regarded as a partisan witness and therefore services of two ponchos are requisitioned and one of them is directed to remain in the company of the complainant with the avowed object of observing and hearing all that transpires between the complainant and the accused throughout the material time so that at the trial evidence of an independent and respectable witness should be available. A post-trap panchanama usually records what the panch, who is asked to remain in the company of the complainant, sees and hears throughout the material period, particularly the passing of the money from the hands of the complainant to the accused and the conversation that takes place between the two at that time. Since all this takes place even before the arrival of the police on the scene it is certainly not addressed to the police officer investigating the offence; if at all, it is a record of statements made to person or persons assisting the police officer during the investigation. What transpires after the arrival of the police on the scene, namely apprehending of the accused, disclosure of identity of the investigating officer to the accused and recovery of the bribe amount from him, examination of the currency as also of the hands and clothes of the accused under ultra violet lamp, seizure of papers and documents, if any, from the accused etc. is also recorded in such panchanama and all this having taken place in the presence of the police officer and other members of the raiding party, there is no question of such record being in the nature of any statements intended as communication to the police officer. It is thus clear that such a panchanama is clearly intended to be a record of what the panchas have seen and heard both before and after the arrival of the police on the scene and the recitals thereof are not in the nature of any narration communicated or conveyed to the police officer and as such the same would not come within the ban of Section 162. Here again it is quite conceivable and it does happen that after disclosing his identity when the investigating officer interrogates the accused and calls upon him to produce the bribe amount allegedly accepted, the accused exhibits his reaction in several ways. He might make some statement disowning or denying acceptance of any amount; he might simply raise a protest or he might explain that amount recovered or found with him was planted on him or was not bribe but money connected with some other transaction like the return of a loan etc. Such statements made by the accused by way of replying to the interrogation would obviously be statements made to the police officer and would be hit by the ban contained in Section 162. But it is equally conceivable that upon apprehension the accused might exhibit some involuntary reaction or outburst or exclamation or indulge in utterances unto himself suggesting either innocence or involvement in the alleged crimes and these not being addressed to the police officer and not intended as any communications to the police officer would not fall within the mischief of Section 162 and would become admissible in evidence. Of course, it will be a question of fact to be decided by the Court having regard to all the material on record whether what the accused does or utters upon apprehension falls within the former category or latter category. But barring the statements that might fall in the former category which must be excluded while exhibiting the panchanama, the rest of the panchanama must be regarded as a mere record of what the panchas have seen and heard intended to serve as aid memoir to them capable of being used as corroborative evidence under Section 157 of the Evidence Act. Excepting the statements that must be excluded as indicated above a post-trap panchanama, it could be said, contains recitals which may amount to statements made to persons assisting the police during the course of investigation but the ban of Section 162 is attracted only to statements made to the police officer during such investigation and to no other statements. In this case, therefore, barring such statements which would amount to communications made to the police officer in reply to interrogation by him, if any, the rest of the recitals in exh. 34 would be admissible and not hit by the ban of Section 162.
13. As regards the last document produced at exh. 35, it is obvious that it merely records the fact of the panchas having ascertained that the seal of the anthracene powder bottle was intact after the trap was over and there is no question of anybody making any statement to the police officer while that fact was being ascertained and recorded. The contents of such a panchanama obviously would not be hit by the ban contained in Section 162, Criminal Procedure Code.
14. In this context it would be appropriate to refer to the decision of the Supreme Court in the case of Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh : 1954CriLJ910 . The question which arose in that case was whether the statements made to the persons assisting the police officer were hit by Section 162 or Section 164 of the Code of Criminal Procedure. In carrying out the raid in that case the services of an Additional District Magistrate were requisitioned. The Additional District Magistrate not only recorded the statement of the complainant prior to raid but also searched his person, the currency notes handed over to him and in fact accompanied the raiding party to the room of the accused where he was staying. The Additional District Magistrate was made a member of the raiding party itself and was reduced to the position of a witness. When the raiding party entered the room of the accused the latter made certain statement with regard to which the Additional District Magistrate gave evidence. It was argued on behalf of the accused that the Additional District Magistrate knew that the statement which was made to him was not recorded under the provisions of Section 164, Criminal Procedure Code. The Additional District Magistrate had asked the accused to repeat certain statements which the accused had made before the two witnesses who were the panch witnesses in the raiding party. It was contended that these were only tactics adopted to avoid the bar of Section 164. Rejecting these arguments the Supreme Court observed that every statement made to a person assisting the police during an investigation cannot be treated as a statement made to the police or to the Magistrate and as such excluded by Section 162 or Section 164 of the Criminal Procedure Code. The Supreme Court then observed as follows (p. 1111):.The question is one of fact and has got to be determined having regard to the circumstances of each case. On a scrutiny of the evidence of these two witnesses and the circumstances under which the statements came to be made by the appellant No. 1 to them we are of the opinion that the appellant No. 1 was asked by Shanti Lal Ahuja, the Additional District Magistrate, to make the statements to these two witnesses not with a view to avoid the bar of Section 164 of the Criminal Procedure Code or by way of colourable pretence but by way of greater caution particularly having regard to the fact that the appellant No. 1 occupied the position of a Minister of Industries in the State of Vindhya Pradesh.
In other words, even when the Supreme Court itself observed that the Additional District Magistrate was reduced to the position of an ordinary witness by being included in the raiding party, it was held that the question whether or not a statement recorded by him would be hit by Section 162 or Section 164 would depend upon the answer to the question whether the intention was to avoid the bar or these two sections or whether the statements were recorded as a colourable pretence. If the intention was not to avoid the bar of these two sections or by way of colourable pretence but if the statements were recorded by way of greater caution, they could not be hit by Section 162 or Section 164 of the 'Code of Criminal Procedure, The above decision clearly brings out two or three aspects. In the first place, the mere presence of the police officer when the statements are made to the panch witnesses would not make any difference; secondly, the fact that the Additional District Magistrate who had not taken care to observe the Provisions under Section 164 while recording the statement made to him by the accused also did not matter; and thirdly, the question whether the statements which the accused was made to repeat to the panchas could be deposed to by the panchas at the trial or not depended upon the answer to the question whether the Magistrate did so with a view to avoid the bar under Section 162 or Section 164 or the statements were got repeated as colourable pretence or whether the statements were not repeated to the panchas out of abundant caution and if the repetition to the panchas was not with a view to avoid the bar or by way of colourable pretence but out of greater caution the statements would become admissible. This decision of the Supreme Court lends support to the view which we have taken in this ease and in every case the question will have to be answered as to whether the panchanamas are really the record of what the panchas have seen and heard or the drawing up of panchanamas has been resorted to as a device or colourable pretence to avoid the bar of Section 162 and if on facts it is found that latter is the case, then such documents will be hit by Section 162, but if as in the normal cases the panchanamas are drawn merely with a view to record what the panchas have seen and heard, the bar under Section 162 would not be attracted.
15. Before parting with the case we would like to refer to two decisions of the Supreme Court on which reliance was sought to be placed by Mr. Chitnis. One is the decision in Lloyds Bank case and the other in Kanu Ambu's case. It is true that in the former case the Supreme Court expressly accepted the view of the Calcutta High Court and Allahabad High Court which made a distinction between the mental act of identification and the communication of that fact to another person and further observed that the physical fact of identification on the part of identifiers had no separate existence apart from the statement involved in the very process of identification and therefore the Court declared the contents of the identification panchanama as inadmissible under Section 162, Criminal Procedure Code. However, in connection with that decision it needs to be pointed out that in that case the Court was dealing with an identification parade which was held by and under the supervision of police and the panchas had played a very minor role in conducting the parade, which practice has been, since that decision, given up by the police and the police have since then been arranging the holding of such identification parades entirely under control and supervision of Honorary Magistrate or J.P. with the help of pemchas. Prior to that decision the practice was that such test identification parades were always held by and under the direction, supervision and control of the police officers and panchas used to play very nominal role and it was with such type of identification parade that the Court was concerned in that case. In fact the learned Attorney-General had raised a contention that a distinction should be made between the statements made to the police officers and those made to the panch witnesses called by the police when conducting the test identification parades and that a statement made to police officers would be within the ban of Section 162 and not those made to the panch witnesses and the Supreme Court has observed that such an argument would have availed the learned Attorney-General if after arranging the test identification parade the police had completely obliterated themselves and the panchas were left solely in charge of the parade. It was in reference to this contention of the learned Attorney-General that the Supreme Court observed as follows (p. 608):.The whole of the identification parades were thus directed and supervised by the police officers and the panch witnesses took a minor part in the same and were there only for the purpose of guaranteeing that the requirements of the law in regard to the holding of the identification parades: were satisfied. We feel very great reluctance in holding under these circumstances that the statements, if any, involved in the process of identification were statements made by the identifiers to the panch witnesses and not to the police officers as otherwise it will be easy for the police officers to circumvent the provisions of Section 162 by formally asking the panch witnesses to be present and contending that the statements, if any, made by the identifiers were to the paneh witnesses and not to themselves.
In other words, because the parade was conducted under the direction, supervision and control of the police and the panchas played a very minor role that the Supreme Court took the view that the statements made by the identifiers--statements taking the form of either oral statements or pointing out by finger or nod of assent in answer to a question--could not be regarded as statements made by them to the panch witnesses. In fact, while rejecting the contention of the learned Attorney-General the Court has pointed out (p. 608) that if after arranging the parade the police leave the field so to say and allow the identification to be made under the supervision and direction of the panch witnesses, the statements of the identifiers would be outside the purview of Section 162. This decision, therefore, does not conflict with our view on the point raised before us.
16. The other decision in Kanu Amiu's case is clearly distinguishable from the case before us. In fact the particular observation relied upon by Mr. Chitnis must be read in the context of the facts that obtained in the case. In that case out of the two panchas one had not supported the prosecution case even in examination-in-chief and yet no attempt had been made by the prosecution for permission to cross-examine him, while the other had half-heartedly supported it but on important aspects, when confronted with statements in the post-trap panchanama, he had sought to resile from the original statements and in this situation the High Court had commented that the Special Judge ought to have not merely compared the evidence of the two panchas but ought to have come to a definite conclusion as to which out of the two panchas was a witness of truth, presumably having regard to the recitals found in the panchanama which was regarded as a proved document. It was in reference to this comment of the High Court that the Supreme Court observed (p. 510) :.It may be pointed out that any statement made in the Panchanama cannot be used in evidence except for the purposes of contradicting the witness whose statement is contained in the Panchnama, but if it is intended to contradict him by the writing his attention must before the writing call be proved, be called to those parts of it which are to be used for contradicting him. This is what is required under Section 145 of the Evidence Act but even where a witness is confronted by his previous statement and given an opportunity to explain that part of the statement that is put to him does not constitute substantive evidence.
Apparently having regard to the manner in which both the panchas had given evidence the Supreme Court was not satisfied that the contents of the panchanama, had been proved; hence it found fault with the High Court's comment on the Special Judge's appreciation of evidence that the Special Judge ought to have given his finding as to who out of the two panchas was a witness of truth by having regard to the 'proved document' (viz. the panchanama). It was in that context that the Supreme Court observed that any statement in that panchanama could not be used except for purposes of contradiction and it further went on to point out that even the use of the panchanama for contradicting the panch witness could not be made except by following the provisions of Section 145 of the Evidence Act and that even if portion of the panchanama were used for contradicting the panch after following Section 145, those portions could not become substantive evidence--obviously because the panch witness had not substantively deposed about those portions with which he was required to be confronted. The observation relied upon by Mr. Chitnis read in the above context, therefore, does not support him as contended for by him.
17. Mr. Chitnis then, invited our attention to the view taken by Naik J. in Button Dinshaw Shroff v. The State (1974) Criminal Appeal No. 105 of 1972 (with Criminal Revision Application No. 1074 of 1971), decided by Naik J., on January 24/25, 1074 (Unrep.). In that case during the course of investigation a memorandum of a statement made by the accused leading to discovery of certain fact under Section 27 of the Evidence Act was made in the presence of two panchas and an objection was taken to the admissibility of the panch's evidence about such statement made by the accused. Principally the punch's evidence was objected to on a two-fold contention urged before the learned Judge. It was urged in the first place that the memorandum which had been attested by the panch witness amounted to a signed statement made to the police officer during the investigation and it was further urged that since the panch witness had made material use of such statement while giving evidence from the witness box, his evidence was rendered inadmissible as falling within the ratio of the the Privy Council decision in Zahiruddin v. Emperor (1947) 49 Bom. L.R. 521. in other words, it was urged that the memorandum which had been attested by the panch witness amounted to a statement signed and made by the panch to a police officer within the meaning of Section 162, Criminal Procedure Code and therefore when the panch witness had made material use of such a statement while giving evidence from the witness box, his evidence was rendered inadmissible in view of the Privy Council's decision in Zahiruddin's case. The learned Judge upheld the objection and in doing so he first held that when the panch witness signed or attested the memorandum containing the statement of the accused under Section 27 of the Evidence Act and handed it over to the police, such conduct amounted to the panch making a statement to the police in the course of investigation about his having heard the accused making that particular statement and he further held that in fact the panch witness had made material use of such record in the course of his evidence at the trial by saying that that was the statement which was made by the accused and that it was signed by him, and in doing so he was using his statement before the police in contravention of the provisions of Section 162 and therefore in view of the Privy Council's decision in Zahiruddin's case such evidence was clearly inadmissible. It is clear that further finding recorded by the learned Judge, namely that the punch's evidence fell within the ratio of the Privy Council's decision in Zahiruddin's case because he had made material use of his statement during the trial, could not have been made unless initially the learned Judge had come to the conclusion that the memorandum of statement of the accused under Section 27 of the Evidence Act which had been signed or attested by the panch witness amounted to a statement made by the panch witness to the police officer within the meaning of Section 162. With great respect, it is not possible to accept the view taken by the learned Judge that in signing or attesting such a memorandum and handing it over to the police officer the panch witnesses could be said to have made a statement to the police officer within the mischief of Section 162(7). If regard be had to the normal course in which such a memorandum is made, it will appear clear that the same usually comes to be made in one of two ways; either during the course of interrogation when the police officer feels that the accused is about to make a statement leading to discovery under Section 27 of the Evidence Act he may call for the panchas and then make a record of the accused's statement leading to discovery in the presence of panchas, or during the course of interrogation after the accused had made a statement to the police officer leading to discovery under Section 27 the police officer may call for the panchas and may ask the accused to repeat such statement before the panchas. In the former case the statement which is made by the accused once only before the police officer as well as before the panch witnesses would become admissible under Sub-section (2) of Section 162, Criminal Procedure Code and would be outside the ban contained in Sub-section (2) of Section 162, Criminal Procedure Code and in the latter case when the accused is made to repeat the statement before the panchas and record thereof is made either in the form of a memorandum or a panchanama, clearly there is no question of panch making a statement to the police officer in the sense of communicating the contents of the accused's statement to the police officer, for, the police officer has already known what that statement by the accused is going to be and, therefore, there would be no question of such memorandum or panchanama amounting to any statement made by the panchas to the police officer within the meaning of Section 162, Criminal Procedure Code. On the other hand, the making of such record would obviously be out of greater caution and not with the intention of avoiding the bar of Section 162 and would fall within the ratio of Rao Shiv Bahadur Singh's case. We are not concerned with the question whether the finding recorded by the learned Judge in that case that the panch's evidence was inadmissible because his evidence fell within the ratio of the Privy Council decision in Zahiruddin's case is correct or not. But, with respect, it is difficult to agree with the view of the learned Judge on the first finding recorded by him qua the memorandum containing the statement of the accused amounting to a statement made by the panch to the police officer during the course of investigation. For the reasons which we have indicated in our judgment above, it must be held that that view of the learned Judge is incorrect.
18. In view of our answer to the question indicated above, the matter will go back to the learned single Judge for disposal according to law.