1. Nitya Nand has been found guilty by a Special Judge appointed under the Prevention of Corruption Act 1917 as amended in 1952 of having committed an offence under Section 5(1)(a) of the Act punishable under Section 5(2) of the Act. He was sentenced on 12-5-1953 to one month's rigorous imprisonment and to pay a fine of Rs. 50/-. He has appealed. When this appeal came up for preliminary hearing he was bailed out by an order of the Chief Justice, made on the 26th of May, 1953.
2. The facts which led to this case are given in the first information report which was lodged on the 17th of October. 1951 at Ambala Canton-ment Railway Station Police Station at 7.45 p.m. The offence is said to have been committed at 5.30 p.m. at Railway Station Barera. The information was given by Mr. Ram Rang, A. S. I., Anti-Corruption Staff, at 6.15 p.m. in which he states that on receiving information that the Railway Staff at Barara took bribes besides Government dues in doing official work, that they would not discharge their legitimate duty without taking bribe and that people of the neighbouring places had to give illegal gratification for getting their goods booked, he formed a raiding party including Dewan Chand Constable and a man called Lal Singh and had with them Mr. B. K. Chotani, Magistrate 1st Class, Ambala, who was sent after- a special request had been made to the A. D. M. Ambala for that purpose. When the party reached Barara they searched the person of one Chaman Lal from whom nothing was recovered.
Thereafter Mr. Chotani put his initials 'B. K.' on three currency notes of one rupee each and gave them to Chaman Lal. He was instructed to get his fresh Tindas weighing three and a half maunds booked for Jagadhari station, and to hand over all the three above-mentioned currency notes to the Assistant Station Master on duty. He was told to give a signal if the Assistant Station Master received from him any amount as bribe besides the charges in connection with the railway receipt. Accordingly at 5.30 p.m. Chaman Lal took his four baskets of fresh Tindas to the railway station. At that time Nitya Nand (the present accused) was on duty. Nitya Nand prepared a railway receipt for three and a half
maunds and gave it to Chaman Lal. Chaman LSI gave the currency notes to Nitya Nand. Nitya Nand handed over some balance to Chaman Lal. Lal Singh had been sent with Chaman Lal for his supervision. At the given signal Ram Rang, Mr. Chotani and Dewan Chand Constable reached, the spot and searching Chaman Lal a railway receipt for Rs. 1/2/- from Barara to Jaga-dhari, four labels and sis anna pieces were re-covered.
Vishan Das Station Master, Barara, was sent for. In the presence of the aforesaid Magistrate the booking cash was checked. The amount was found to be Rs. 12/6/- containing the three marked currency notes. After scrutiny of his record the Station Master, Barara, told them that there was an excess of Rs. 1/8/- in the Government cash. On that the three currency notes of one rupee each and six anna pieces, the railway receipt and labels recovered from Chaman Lal were taken into possession. The present complaint was sent for the registration of a first information report. This first information report stated that investigation would be made after taking permission from a first class magistrate.
3. It is clear from this first information report that the police party became a party of persons engaged in committing an offence, the offence being aiding, abetting, instigating and conspiring with Chaman Lal in corrupting the Railway Staff. It is said in --'Khadam Ali v. Emperor', AIR 1919 Lah 234 (A), that persons merely present when money is given to a bribe-taker are not accomplices, but the case is different if they have cooperated in the payment of the bribe, or taken some part in the negotiations for its payment. In the latter case they cannot be regarded as independent witnesses and their evidence is tainted. In another case -- 'Rajoni Kant v. Asan Mullick', 2 Cal WN 672 (B), it is said that where certain persons accompanied another who was entrusted with and carried the money intended to be given as a bribe to the head-constable, in the knowledge that it was to be so paid and in order to witness and assist in such payment, they were held to be accomplices. In this case Chaman Lal according to himself is habitually given to offering bribes. He was accosted by Ram Rang and others. Mr. Chotani has stated that he gave Chaman Lal instructions. Ram Rang has stated that he asked Chaman Lal to offer the money.
In the case of -- 'Brannaa v. Peek', decided by the King's Bench Division in England reported as -- '1947-2 All ER 572 (C)', the Lord Chief Justice of England, Lord Goddard, said as follows at page 573 :
'There is another point of much greater public importance. The Court observes with concern and disapproval the fact that the police authority at Derby thought it right to send a police officer into a public house to commit an offence. It cannot be too strongly emphasised that, unless an Act of Parliament provides for such a course of conduct -- and I do not think any Act of Parliament does so provide -- it is wholly wrong for a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected. It is not right that police authorities should instruct, allow or permit detective officers or plain clothes constables to commit an offence so that they can prove that another person has committed an offence. It would have been Just as much an offence for the police constable in the present case to make the bet In the public house as it would have been for the bookmaker to take the bet if in doing so he had committed an offence. I hope the day is far distant when it will become a common practice in this country for police officers to be told to commit an offence themselves for the purpose of getting evidence against someone; if they do commit offences they ought also to be convicted and punished, for the order of their superior would afford no defence.'
4. This is strong language used by the Chief Justice of England. The thing that had happened in the present case is worse because here the Magistrate joined the police in committing the offence of the abetment of the abetment of criminal misconduct in discharge of official duty.
5. Chaman Lal has appeared in the witness box and so have Mr. Chotani, Ram Rang an Lal Singh. Chanian Lal's evidence is that was carrying four baskets of Tindas from village Rajoli to Barara. When he reached the railway station he met three persons, a Magistrate, an Assistant Sub Inspector of Police and a police constable. They questioned him as to where he was taking these baskets of Tindas and he told them that he was going to have them booked to Abdullapur. They asked him if the Station authorities accepted bribes from him and he told them that they would charge four or five annas per bundle besides railway freight. He had been getting vegetables booked previously and paying those charges as stated by him. He was searched and there was nothing left on his person except his clothes. Everything else had been handed over to the Kumhar who was the owner of the donkeys on which the baskets of Tindas were being carried. When nothing had been left on his person the police and the Magistrate gave him three notes of one rupee each.
Lal Singh was asked to go with him. Lal Singh kept standing outside the door of the room while he entered the room for booking the goods. The Magistrate and the Assistant Sub Inspector kept strolling on the railway platform. They had asked him to make a sign by taking his hand over his head when ho had handed over the notes to the accused. This sign was to be made to Lal Singh. Chaman Lal went inside, the accused being present there. The Tindas were weighed and were found to be 4 1/2 maunds and were booked by the accused. The accused gave him the railway receipt and four labels for the four baskets. The accused told him that the freight was Rs. 1/2/- and his due was Rs. 1/8/-. The accused was given the three notes and he returned Chaman Lal six annas. When this had happened he gave a sign to Lal Singh and Lal Singh came inside the room followed by the Assistant Sub Inspector and the Magistrate. They came and searched him and found six annas with him. He gave the railway receipt and the labels to the police.
The Station Master was sent for and after the cash box or the tube where the accused had kept the money was searched three notes of one rupee each were found. They were taken possession of by the police. No contradictions have been brought out in the statement of this witness. He is supported in his evidence by Lal Singh who also says that after the baskets had been weighed the accused issued a railway receipt and four labels and demanded Rs. 1727- as railway freight and Rs. 1/6/- for himself. Mr. Chotani has also appeared in the witness-box and has supported Chaman Lal and stated that after the signal had been received he entered the Assistant Station Master's office where the accused was_ sitting. Chaman Lal was there. He searched his person and found one railway receipt, four labels and six annas cash. Chaman Lal stated that he had paid Rs. 1/2/- as freight charges and Rs. 1/8/-as bribe to the accused and has got back six annas as balance. The accused was sitting in the chair. Mr. Chotani told him that he was a Magistrate and was going to search him because he had accepted Rs. 1/8/- as bribe from Chaman Lal.
Mr. Chotani says that the accused admitted that he had committed the offence. Mr, Chotani found from the tube in which cash was kept and also the railway tickets for sale, three currency notes of Re. 1/- each which he had given to Chaman Lal. It is extremely unsatisfactory to note that Ex. P.K. which is the permission for investigation of this case was given after the episodeby Mr. Chotani himself to Ram Rang, the very person who brought about the incident. Vishan Das, the Station Master of Barara, appeared as a witness but does not seem to have supported the prosecution in its entirety. He says in his evidence that he was told by Mr. Chotam that there had been a case of corruption in his railway office. He told the Court that in his presence no one was searched, not even Chaman Lal. He searched the tube and found Rs. 12/6/- including three notes of one rupee each which were in the hand of Mr. Chotani. In the tube there were only Rs. 9/6/-. He found Rs. 2/- short in the cash box according to the account.
When the witness had made this statement the witness was declared hostile. His statement to the police was put to him. Vishan Das said that he could not say whether he told the police that Chaman Lal was searched in his presence and from his person six annas, four labels and one railway receipt were recovered. He admitted having stated to the police that he checked the cash and had found Rs. 12/6/- while as a matter of fact the Government cash should have been Rs. 10/14/-, there thus being an excess of Rs. 1/8/- in cash. He also stated to the police that the railway freight charged from Chaman Lal was Rs. 1/2/-. He also stated before the police that the railway freight according to the Railway Receipt was Rs. 1/2/- and tho balance of six annas was returned to Chaman Lal and that thus Nitya Nand in fact got Rs. 1/8/- as bribe.
In cross-examination he stated that the cash which he checked was in fact short according to the account including the three notes which Mr. Chotani had in his hand. He stated that the imprest was Rs. 10/-. One third class ticket costing Rs. 1/4/- to Nangal was sold by the accused. Two parcel labels costing Rs. 1/14/- were issued by the accused. This total came to Rs. 14/6/-, while there were only Rs. 12/6/- including Rs. 3/- with the Magistrate, hence the shortage.
6. In this state of the evidence the accused was examined. He admitted having booked four baskets of vegetables containing Tindas for Chaman Lal and charged Rs. 1/2/- as freight. He admitted having given him the four labels. He denied having taken a bribe of Rs. 1/8/- from Chaman Lal for booking the said baskets. He denied that Chaman Lal had paid the freight of Rs. 1/2/- and Rs. 1/8/- as bribe in the shape of the three marked notes. He was asked whether the three marked notes were recovered from the tube in which he kept the cash and railway tickets and which tube was in his charge at the time when he was on duty, the recovery having been made by Mr. Chotani in the presence of the other P. Ws. His answer was no. He was asked whether he was on duty in charge of Railway Station Barara and also of the tube containing the cash and the tickets at the time when the four baskets of Tindas were booked by Chaman Lal and his answer was yes. He was asked whether he demanded Rs. 1/8/- as a bribe from Chaman Lal for booking the four baskets. His answer was no.
He was asked why this case had been brought against him to which he replied that he did not know. He was asked whether he had anything else to say to which he replied that he had nothing to say but that he would file a written statement if necessary. No written statement has been filed. The Special Judge on this charged him as follows:
'That you on or about the 17th day of October, 1951 at Barara Railway Station took Rs. 1/8/- as bribery from Chaman Lal P. W. for booking his four baskets of Tinda vegetables and thereby committed an offence punishable under Section 5 of the Prevention of Corruption Act, and within my cognizance.'
7. To this charge the accused pleaded not guilty. After the charge Lal Singh was recalled for further cross-examination but nothing has been brought out in that cross-examination. Chaman Lal was recalled. He told the Court that Ram Bang never told him that he would produce him before the Magistrate as he was to offer bribe to the Station Master. He says he went to the Magistrate of his own accord and that he was not called by Ram Rang. Ram Rang had appeared as a witness. He deposed to what happened and stated that sanction for the prosecution of the accused was obtained from the railway authorities, in cross-examination nothing has been brought out in the statement of Ram Rang. A witness has been produced to prove the signature of Mr. Ahuja, Divisional Transportation Officer on a document Ex. P.O. which states that Nitya Nand was removable from service by Mr. Ahuja and Mr. Ahuja was giving the sanction for the prosecution.
8. In defence evidence of good character has been produced by the accused. The first defence witness is the Station Master of Mustafabad who has stated that the accused worked with him for eight or nine months and bore very good moral character and that there was no complaint against him. D. W. 2 is Kahan Chand, another Station Master. He also says the same thing. D. W. 3 is a retired Chief Parcel Clerk from Ambala Cantonment who also gives the accused good character. D. W. 4 is a tradesman of Meerut Cantonment where the accused had been posted and he says that whenever he booked his goods the accused never demanded any money from him besides the railway freight. To the same effect is the evidence of D. W. 5 Tillan Ram, a vegetable vendor of Meerut Cantonment. To the same effect is the evident of Khairati Lal, a tea vendor of Ambala Cantonment. D. W. 7 Lal Chand, a Despatch Clerk of the Biscuit Factory at Rajpura makes a similar statement.
9. The learned Special Judge believed the evidence against the accused and did not attach any weight to the evidence of the Station Master Vishan Das and found the accused guilty of having committed the offence under the provisions of Section 5(1)(a) of the Prevention of Corruption Act. In my opinion Clause (a) has obviously no application. That clause reads as follows :
'5.(1) A public servant is said to commit the offence of criminal misconduct in the discharge ef his duty--
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code.....'
It will be noticed that Clause (a) deals with a person who habitually accepts or obtains bribes. There is no evidence at all in this case of any previous habitual acceptance or obtaining of bribes by the accused. As a matter of fact the learned Special Judge in his judgment after giving the evidence of the defence witnesses says as follows :
'None of the defence witnesses help the accused at all. A person can be honest and have a very good moral character upto a certain time andafter that he can go wrong. I do not dispute the character of the accused or his being honest as stated by the D. Ws.'
10. If the learned Special Judge did not dispute the character of the accused he could not find him to be a habitual bribe-taker. The evidence led in this case is evidence in proof of one incident only. One incident does not prove a habit It is therefore impossible to convict the accused under Clause (a) of Section 5 of the Prevention of Corruption Act. I put this to the learned counsel for the State and after hesitation he agreed that the conviction could not stand under that clause. He, however, said that an offence has been made out under Clause (d) of Section 5(1). Clause (d) runs as follows:
'5.(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty :
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.'
The word used is 'obtains' which means to procure or gain as a result of effort. Moreover, in order to constitute an offence this obtaining must be by corrupt or illegal means or by otherwise abusing hfs position as public servant. It must be remembered that in this case the evidence of the commission of the offence is given by persons who were anxious to get evidence that an offence be committed. Chaman Lal was the abettor and the others were his accomplices. An accomplice can by twisting a word or two say something which may not have happened. The evidence given by Chaman Lal is-
'The accused told me that the railway freight is Rs. 1/2/- and his due which he takes is Rs. 1/8/-.'
Lal Singh says--
'After the baskets had been weighed the accused issued a railway receipt and four labels and demanded Rs. 1/2/- as railway freight and Rs. 1/8/- for himself.'
Chaman Lal has admitted in his evidence that he was in the habit of giving bribes, that is to say he is a habitual offender himself, and therefore it would be surprising if the accused had not said anything at all. Lal Singh has admitted that he appeared as a witness for the police in two other cases, one in the case of Mohan Singh which was their own and they had taken Mohan Singh to the police as a complainant, and the other was the present one. He admitted that he appeared as a witness against Gurbachan Singh. He said he could not say whether he was disbelieved in the case of Mohan Singh taut the accused was let off. In addition to being an abettor of Chaman Lal he does not appear to have been a witness of any standing and his cross-examination shows that he is given to appear as a police witness. The mere finding of the notes is not enough. Mr. Chotani states that the accused admitted that he committed the offence. I am doubtful of the admissibility of this confession. It was not put to the accused under Section 342, Criminal Procedure Code, when the accused was examined.
Moreover Mr. Chotani has become an interested person and assumed the role of an accomplice according to the rulings already quoted of the Punjab and Calcutta Courts and according to the observations of the Lord Chief Justice of England. It is surprising that Mr. Chotani himself should have been approached to give sanction to Ram Rang for the investigation of a case in which bothof them were themselves the actors and were going to appear as witnesses. It appears to me to be improper on Mr. Chotani's part to have done so. The authors of the Penal Code are supposed to have stated in note E which is given at page 386 of Ratanlal's Law of Crimes, Eighteenth Edition, as follows--
'The person who, without any demand express or implied on the part of a public servant, volunteers an offer of a bribe, and induces that public servant to accept it, will be punishable under the general rule (law of abetment) as an instigator, * * * We are strongly of opinion that it would be unjust and cruel to punish the giving of a bribe in any case in which it could not be proved that the giver had really by his instigations corrupted the virtue of a public servant, who, unless temptation had been put in his way, would have acted uprightly.'
11. I am not sure whether an offence under Clause (d) of Section 5(1) of the Prevention ot Corruption Act has been committed. The order for investigation should in my opinion have been given in this case by another Magistrate, and the investigation of the incident should have been in the hand of another Police Officer.
12. As this case has unusual features likely to affect other corruption cases I would like this case to be heard by a Division Bench and order accordingly.