1. The appellant 1, Bhanuprasad Hariprasad Dave, and appellant 2, Rajuji Gambhirji, were accused 1 and 2 respectively, in the trial Court. At the relevant time, appellant 1 (who for convenience, will be referred to as accused 1 hereinafter) was a police sub-inspector in charge of the Navrangpura Police Station, Ahmedabad, and appellant 2 (who, for convenience, will be referred to as accused 2 hereinafter) was his writer-constable. The case relates to an alleged offence of acceptance of bribe by accused 1 with the assistance of and through accused 2. Accused 1 was charged with an offence under S. 161 of the and S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, 1947. Accused 2 was charged with an offence under S. 161 read with S. 165A of the Indian Penal Code and S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act 1947. Both of them have been found guilty of the offences with which they were charged by the learned Special Judge, Ahmedabad, who by his judgment and order dated 9 June, 1964, sentenced each of them to rigorous imprisonment for two and a half years and a fine of Rs. 1,000 in default further rigorous imprisonment for one year. Against those convictions and sentences both the accused have come in appeal.
2. The prosecution case is set out in detail in the testimony of the principal witness, the complainant Ramanlal Ramjibhai Patel (Ex. 19). We shall set out that testimony later on. In brief, the prosecution case broadly falls into three stages :
(1) Ramanlal, the witness just referred to, wrote a post-card on or about 11 February, 1963 to one Kumari Madhukanta Ranchhodlal, a school teacher who has been examined as a witness at Ex. 10. In that letter, the contents of which we shall refer to later, he desired one Chandrakanta Natverlal Patel (Ex. 13, also a teacher in the same school, to go and see him suggesting at the same time that if possible Madhukanta may also accompany her. This post-card reached the principal of the school Manilal Gordhandas (Ex. 14) and he rebuked Madhukanta. Accordingly, Madhukanta decided to bring Ramanlal to senses, and according to the prosecution case that post-card of Ramanlal was passed on to accused 1 Dave.
(2) On 16 February, 1963, accused 2, who is referred to in the evidence as Rajuji, came to Ramanlal's house in the morning and asked him to accompany him on the plea that he (Ramanlal) was to see Chandrakanta and Madhukanta and took him to the Navrangpura police station where the complainant Ramanlal found none of the two ladies present but he was taken to accused 1 Dave. According to the prosecution, accused 1 ill-treated Ramanlal and threatened him in connexion with the post-card above referred, to and he was allowed to go thereafter on his promising to pay a bribe of Rs. 100 to accused 1. Ramanlal tried to obtain money immediately but on his failing to succeed, it was agreed that he was to pay the amount of Rs. 100 to accused 1 on the morning of 18 February, 1963.
(3) On the morning of 18 February, 1963, Ramanlal went to the Anti-Corruption Branch and eventually succeeded in seeing Deputy Superintendent Medh of that branch at about 11. His complaint was recorded there and panch witnesses were called. Necessary steps relating to the marking on notes with anthracene powder, making the panchnama, etc. were taken and Ramanlal was asked to go ahead and pay the amount of Rs. 100 in the notes so marked to police sub inspector Dave at Navrangpura police station, if demanded. He was accompanied by one of the panchas, viz., Dahyabhai Vadilal Shah, who has been examined in this case at Ex. 23. Accused 1 at that time being out of police station, the trap had to be abandoned and in the morning it was decided to repeat the trap in evening. Accordingly, at about 5.30 p.m. That evening again the same procedure was gone through afresh, another set of notes being used, and Ramanlal and Dahyabhai proceeded to the police station at Navrangpura. Accused 1 had not arrived by that time but accused 2 was present. The two witnesses along with accused 2 went to a restaurant to take tea and by the time they returned, accused 1 had arrived. Money was offered to accused 1 who directed that the money be paid to accused 2 in another room and accordingly it was so paid by the complainant. With that money accused 2 went out. The complainant, finding accused 2 gone, got confused and went to Deputy Superintendent Madh who accordingly came to the police station and started investigation. Accused 2 who had been followed by one of the constables, viz., Santramji of the raiding party, was noticed exchanging some of the notes with shopkeepers. Those notes were attached and after the completion of the investigation and after obtaining necessary sanction the two accused were chargesheeted.
These are broadly the three stages of the prosecution story.
3. The defence case is simple. The first stage of the prosecution story is not seriously disputed. The only part of it which is disputed is the case that the post-card written by Ramanlal to Madhukanta, was passed on to the police for further action. The defence suggestion is that the post-card was destroyed. There is also an alternative suggestion, viz., that if it was not destroyed, it was not passed on to accused 1 but to police sub inspector Sisodia. In the statement of both the accused, however, they have attempted to plead ignorance about the post-card and about what happened to it. As regards the second stage of the story, both the accused have categorically denied the allegations made against them. They have denied that part of the prosecution story which relates to the event of 16 instant. As regards the third stage of the prosecution story, viz, the events of 18 instant, accused 2 pleads alibi saying that he was not present at the police station Navrangpura after 5 p.m. As he left the police station at that time to go to a cinema and did not return thereafter to the police station. Accused 1 admit his presence at the police station at the time of the incident in question but denies having any knowledge of what happened. He states that he was in police inspector's room all the while whereas the whole incident admittedly took place in the police sub-inspector's room. His suggestion appears to be that it must be some other police officer who must be concerned with the incident. He does not say who that officer was but he alleges that he has been falsely involved by the complainant at the instance of police sub-inspector Sisodiya with whom he is on bad terms. Accused 2 states that he has been falsely involved because he was the writer-constable of accused 1.
4. The learned Judge having discussed the prosecution evidence and the materials placed before him came to the conclusion that in spite of some of the infirmities, to which attention will be drawn hereafter, the evidence was no the whole reliable and deserved to be accepted. He rejected the defence theory and accordingly he has convicted and sentenced the appellants as earlier stated.
5. At the hearing Sri Shelat who argued the appeal on behalf of the appellants made the following submissions :
(1) The post card written by Ramanlal to Madhukanta on which the whole of the prosecution story rests, was in fact destroyed by Madhukanta immediately on its being handed over to her by her principal and therefore the whole foundation for the alleged events of 16 and 18 instants is lacking.
(2) The story of the events of 16 February as regards the payment of bribe rests only on the testimony of Ramanlal, who it is argued by Sri Shelat, is not a reliable or truthful witness and therefore that story cannot be said to have been satisfactorily made out. It has been suggested further in the argument that presumably it was police sub inspector Sisodia and not accused 1 who must have called Ramanlal to the police station on 16 instant. The defence suggestion is that if the post-card written to Madhukanta was not destroyed by her, it must have been handed over by her to police sub-inspector Sisodia for further action.
(3) The evidence regarding what happened on 18 February, should not be accepted because the witnesses who depose to the events of that day are not reliable and are deposing falsely at the instance of police sub-inspector Sisodiya who was on bad terms with accused 1.
(4) The prosecution is barred under S. 161(1) of the Bombay Police Act, 1951, as it was instituted more than six months after the commission of the offence.
There are certain other points of law urged at the time of argument which we shall deal with at appropriate places.
6. Now before examining the first stage of the prosecution case, it would be appropriate to refer to Ramanlal's testimony as it covers all the stages of the prosecution case. Ramanlal as his deposition shows is studying for the degree of M.A. and LL.B., but at the same time serving in the Accounts Department of the Ahmedabad Electricity Company. In February 1963, he was staying in Sabarmati but before that he was staying at Shahpur and at that time he came to know Chandrakanta through one Laxmiben, who requested him to find a good job for Chandrakanta if possible. That was why he wrote the post-card earlier referred to on or about 11 February, 1963. In that post-card he desired Chandrakanta to meet him in the evening and also stated that Madhukanta may also accompany her. He goes on to say that he did not receive any reply to this post-card but the following Saturday (meaning 16 February) accused 2 came to his house in the morning saying that he was coming from Chandrakanta and Madhukanta who had called him. Accordingly, Ramanlal accompanied him on his bicycle but when they reached incometax office, accused 2 turned towards Navrangpura police station. On being asked why he was going towards that direction, accused 2 told that the two ladies were waiting at the police station. After they reached the police station, accused 1 came there. On being informed that Ramanlal had come, accused 1 showed him (Ramanlal) the post-card which he (Ramanlal) had written to Madhukanta and slapped him twice. In the meanwhile one Raisanghani arrived and therefore Ramanlal was asked to wait. After Raisanghani left he was called inside. On his inquiring after some time that how long he was to wait accused 1 assaulted him and went to his room. Then he asked accused 2 as to how long to wait and eventually accused 2 took him to accused 1 who demanded a payment of Rs. 250 promising to destroy the post-card or tear it off if the agreed payment was made, and threatened that if it was not made, he (Ramanlal) would be discharged from service and also from his studies in college or get dismissed and further that he would be humiliated. On Ramanlal's expressing his inability to pay such a large amount of money accused 1 agreed eventually to accept Rs. 100 and Ramanlal proceeded to Delhi Chakla branch of Bank of Baroda to withdraw the amount from his account in the bank. By that time the bank was closed and therefore he came back and told accused 1 that he would goto him on Monday between 10 and 12 in the morning to pay the amount. On Monday, according to Ramanlal, he went to the Anti Corruption Office between 8 and 9 and was told that Deputy Superintendent Medh had gone to Inspector-General of Police's office and he would be available later. Then Ramanlal went to Inspector-General of Police's office and not meeting him there he came back to the Anti Corruption Office and found Medh and police sub-inspector Erulkar and police inspector Rana there. He told them what had happened and his complaint was recorded. Thereafter, two panchas were called and the numbers of ten notes of Rs. 10 each, which Ramanlal produced, were noted down and the panchas were informed of the facts of the case. One constable applied some powder of cement or light green colour to these notes. He rubbed it off thereafter. Then these notes were shown to them in ordinary daylight and nothing unusual was found on the notes. Thereafter, the constable switched on ultra-violet lamp and held these notes in its light. In ultra-violet light a silvery-white shining powder was found on those notes. Ramanlal's search was taken in the presence of panchas. Then those notes were placed in the right pocket of his pant, and the first panch (Dahyabhai) was instructed to accompany him. Both of them went to Navrangpura police station and inquired of police sub-inspector Dave but were told that he (Dave) had gone to Court and would not be available till 6 in the evening. Accordingly they went away to the place where the Deputy Superintendent Medh and other police officers were waiting. Having thus failed, the complainant as also the panch Dahyabhai were asked to come again in the evening between 4 and 5 p.m. with fresh notes. Accordingly Ramanlal went to the Anti-Corruption Office again at about 3-30 to 3-45 p.m. Dahyabhai and another panch witness also came there. The same procedure about the application of anthracene powder, the markings on the notes and making of the panchnama, the putting the notes in the pocket of the complainant was repeated. The notes so marked were different from the notes previously used. The complainant and Dahyabhai then went to the Navrangpura police station. Accused 1 was not there but accused 2 was present and as there was still time for accused 1 to arrive, all the three of them went to a nearby restaurant for tea. Soon after they returned from the restaurant accused 1 arrived and the complainant and Dahyabhai met him in the police sub-inspector's room. There the complainant offered him a sum of Rs. 100 in those marked notes at which accused 1 told him to pay the amount to accused 2, Ramanlal's story is that accordingly he, panch Dahyabhai and accused 2 went into the next room meaning the police sub-inspector's room and there he handed over those ten notes of Rs. 10 each. He goes on to say that on his coming out of the room accused 2 went out and did not come near accused 1. Accused 1 took out the post-card and showed it to panch Dahyabhai and then tore away the post-card into pieces and set fire to them and threw the burnt pieces outside from the window. On not finding accused 2 Ramanlal got confused as to what he should do and therefore he ran towards the Deputy Superintendent Medh and informed him of what had happened. Accordingly Deputy Superintendent Medh came to the police station. He was accompanied by other officers including police sub inspector Erulkar. Police sub-inspector Erulkar and constable Santramji had been watching the incident from a nearby bungalow. The hands and the clothes of accused 1 were examined in the ultra-violet lamp and nothing was found. Some traces of anthracene powder were found in ultra-violet light on the bench of the room and on the table where police sub-inspector Dave was sitting. Ramanlal was searched and those stained currency notes were not found with him. The torn pieces of the post-card were collected from outside the window and Ramanlal states that on one of the pieces he could recognize his handwriting. He states that these were pieces of the post-card written by him to Madhukanta a week before the incident. A panchnama of this was made. In the meanwhile constable Santramji who, as we shall later point out, was also watching the incident from a nearby bungalow and had followed accused 2, came running to inform the Deputy Superintendent Medh of what he had seen. Accordingly the Deputy Superintendent Medh proposed to two shops, one a ship of the Sanghvi and another a pan-shop and found in the former one stained note and from the latter three stained notes out of the ten notes handed over to the complainant and given by him to accused 2. They were attached under a panchnama. This in substance is the testimony of Ramanlal.
9 September, 1965
The defence counsel has urged certain criticism against the testimony of Ramanlal with a view to make out that he is not a truthful or reliable witness. We propose to consider these criticisms later.
7. It is true that the foundation of the prosecution story lies in the prosecution case about the post-card written by Ramanlal to Madhukanta. The fact that such a post-card was written has been deposed to by Ramanlal and has not been disputed. That fact receives corroboration, if one is needed, from the testimony of Madhukanta Ranchhodlal (Ex. 10) and of her principal Manilal Gordhandas (Ex. 14). What is more important, however, is the contents of the post-card. We have already stated what Ramanlal's testimony is as regards the contents. But the principal witness as regards its contents is the one just mentioned, Manilal Gordhandas. He is the principal of the Gnyan Yagna Vidyavihar since 1968 in which both Madhukanta and Chandrakanta were teachers. He states that on 4 February, 1963, a post-card addressed to Madhukanta was received purported to be by Ramanlal and it was stated in that post-card that Chandrakanta may be told to meet the writer and that if Madhukanta also accompanied her the writer would get the benefits of her darshan. There is no cross-examination of this witness and there is no sufficient reason why this part of his deposition should not be a accepted. As a matter of fact, that part of his deposition receives corroboration also from the testimony of panch witness Dahyabhai who states that on 18 February, in the evening when he and Ramanlal had gone to Navrangpura police station for the purpose of payment of bribe of Rs. 100 to the police officer at that police station that police officer had shown him the post-card in his possession and given him for reading. The post-card in fact was written by Ramanlal and was addressed to Madhukanta but the contents were addressed to Chandrakanta. It was stated in that post-card that Chandrakanta had gone to Navsari and the writer had received post-card of Madhukanta and that if Chandrakanta had returned from Navsari, she may be asked to meet the writer and if Madhukanta also came, the writer would be pleased. This part of Dahyabhai's evidence, therefore, corroborates Manilal's evidence. Now, Manilal's testimony shows that on reading this post-card he felt that it was not proper for a teacher in his school to receive such a post-card and therefore he called Madhukanta and told her so and then he handed over the post-card to her. The fact that Ramanlal's post-card was handed over to Madhukanta and she was rebuked is also deposed to by Madhukanta, who states that Manilal told her that if such letter is received again she would be discharged from service. Up to its part of the prosecution story there does not appear to be any dispute. The dispute concerns the question whether the post-card was handed over to police sub-inspector Dave or to any police officer by Madhukanta so that Ramanlal may be brought to his senses or was destroyed. The defence suggestion is that it was destroyed and that suggestions is founded on the statement of Madhukanta in her deposition that she destroyed the post-card on its being handed over to her by her principal Manilal. The learned trial Judge has not believed Madhukanta's statement and in our view rightly. Madhukanta was, on an application by the Public Prosecutor, permitted to be put questions in the nature of cross-examination under S. 154 of the Indian Evidence Act. The defence counsel has urged before us that that permission was wrongly given and we shall consider that point presently. But on being so permitted it was brought out that in her police statement she had stated that she had handed over the post-card to accused 1. It is true that her police statement is not substrative evidence and therefore whether the destroyed the post-card as she states or the post-card was still existing on 18 February, as deposed to by Ramanlal and Dahyabhai was have to determined in the light of other evidence. We see to reason to disbelieve Ramanlal on the fact that the post-card was shown to him at the Navrangpura police station on 16 instant and again on 18 instant. That statement is consistent with the testimony of Dahyabhai which we shall consider later and also consistent with the probabilities and in particular the finding of torn pieces of post-card one of which has been identified by Ramanlal as a part of the post-card which he had written. Therefore, if this evidence is believed Madhukanta's story of her having destroyed the post-card deserves to be rejected. Even otherwise the story does not appear to be consistent with the probabilities. Madhukanta had been rebuked by Manilal. It would be natural for her to see that either Ramanlal was brought to his senses or at least the rebuke passed on to Ramanlal so that, in future, he may not indulge in such activities and jeopardize her service. It is therefore difficult to believe that the post-card was in fact destroyed by Madhukanta. The defence itself appears to have been in two minds as to the case of destruction because the alternative defence is that this post-card was handed over to police sub-inspector Sisodiya by Madhukanta. This is what has been suggested by the defence in cross-examination of Madhukanta herself. There is no doubt on the evidence, therefore, that the post-card was not destroyed and the probabilities are that it was handed over to a police officer by Madhukanta so that suitable steps be taken against Ramanlal. If the evidence of Ramanlal is to be believed that police officer was accused 1.
8. It has been urged that the trial Judge was in error in permitting the Public Prosecutor to cross-examine Madhukanta. The argument is that such permission under S. 154 could not be given. That section provides that the Court may in its discretion permit a person who calls a witness to put any question which might be put in cross-examination by the adverse party. As observed by the Supreme Court in Dahyabhai v. State of Gujarat : 1964CriLJ472 the section in wide in scope and the discretion is entirely left to the Court to exercise the power when the circumstances demand. Therefore, the Court has a wide discretion. The discretion has, no doubt, to be exercised judicially and the question is whether in the present case it was so exercised. Our attention was in this connexion drawn to a decision of the Calcutta High Court in Tulsiram v. R. C. Pal, Ltd. : AIR1953Cal160 . There the dispute was between a landlord and a tenant, in an ejectment suit and the question was whether the property leased out was an open land as contended by the plaintiff or a built land as contended by the defendant. The plaintiff examined himself on the question. On behalf of the defendant one witness Jaiswal was examined, whose testimony on this point appeared to support the plaintiff and therefore the defendant's counsel asked for permission to cross-examine the witness. That permission was refused. Considering the scope of S. 154 the Court observed :
'There was, however, no material on the basis of which the witness Kali Charan Jaiswal could be declared hostile. There is no evidence that the testimony of this witness contracts any proof given by him. No reason or occasion is shown why he should bear any animus or prejudice against the defendant. Nothing on record; his testimony and his demeanour show that he was not desirous of telling the truth as he knew it. A witness is not necessarily hostile, if in speaking the truth as he knows and sees it his testimony happens to go against the party calling him. I do not consider that there is any proposition in the law of evidence as I understand it, that a witness who is not partial or partisan in favour of the party calling him is on that ground alone to be treated as hostile. The Court always aspires to find if the witness desires to tell the truth. That aspiration is the yardstick which measured the appreciation of the evidence of a witness. It is with that object that the Court is given the discretion to permit the person who calls a witness to put any question to the witness which might be put to him in cross-examination.'
These observations are relied on in support of the contention that witness Madhukanta in this case should not have been permitted to be cross-examined under S. 164 of the Evidence Act. In our opinion, the contention is not well-founded, because on the basis of these observations it would appear that the learned Judge was right in permitting such cross-examination. His lordship of the Calcutta High Court indicated the circumstances in which cross examination could reasonably be permitted, viz., if there is anything on record or in the testimony or if the behaviour of the witness is such that the witness was not desirous of telling the truth. There is in this case sufficient material in the testimony of Madhukanta herself in that regard. From the beginning she started pleading ignorance about the name of the person who wrote to her that post-card and about the contents of that post-card. This ignorance could not be natural or could not be attributed to lack of memory having regard to the trouble which the post-card created. Then again the demeanour of the witness struck the learned Judge as one indicating that permission under S. 154 should be given, and the learned Judge has specifically stated so in the record of her deposition. Lastly, it would appear that there was a materially different story in the police statement which the learned Judge was entitled to look into before deciding whether permission to cross-examine should be given. As to this last point it was urged on behalf of the defence that the learned Judge was not entitled to look into the first police statement. It does not appear from the record that it was only the first police statement that the learned Judge looked into and not both the statements recorded during the investigation. But assuming that it was so, the point is whether his looking into it was illegal. It appears that the first investigation in this case was undertaken by Deputy Superintendent Medh under the belief that he had the power to investigate without the permission of the magistrate is accordance with the provisions of S. 5A of the Prevention of Corruption Act, 1947. Under the section in the city of Ahmedabad the police officer entitled to investigate without such permission was the Superintendent of Police. In the districts the officer so entitled to investigate without such permission is the Deputy Superintendent of Police. The point was raised before the learned Judge and the learned Judge by his order dated 17 January, 1964 held that Medh as Deputy Superintendent could not investigate without such permission and it was ordered that the Superintendent of Police, Ahmedabad Division, in the city of Ahmedabad should re-investigate from the stage of completion of trap and submit his charge-sheet afresh to the Court within the period laid down in that order. Accordingly a fresh investigation was made by Superintendent Nerulla (Ex. 33). Madhukanta's statements were recorded in both the investigations one made by Medh which was held to be without authority and the other held by Superintendent Nerulla. The argument is that is so her as the learned Judge referred to the police statement of Madhukanta made in Medh's investigation he was referring to a statement which cannot be looked into. No provision of law was pointed out in support of the argument that such a statement cannot be looked into by the Judge for the purpose of deciding whether permission under S. 154 of the Evidence Act should be given or refused. If it was a statement recorded in the course of an investigation, such a statement could be used for the purpose of contradiction with the permission of the Court by the prosecution under the proviso to S. 162. Criminal Procedure Code. To all intents and purposes what Deputy Superintendent Medh did was an investigation as defined in S. 4(1)(b)(1) of the Criminal Procedure Code and the statement was recorded in the course of investigation. But assuming that S. 152 was not attracted and the statement was not a statement made in the course of investigation as urged on behalf of defence, it still is a previous statement of the witness, and unless it can be shown that such a statement cannot be lawfully looked into for the purposes of S. 154, we do not see any error in the learned Judge's looking into the statement; but as we have pointed out the learned Judge's decision to permit cross examination was based not merely on his perusal of the police statement of Madhukanta but also on some of the apparently untruthful answers given by her and her demeanour is the witness-box. On the principles enunciated in the Calcutta ruling to which our attention has been invited, that permission, in our view, was rightly given.
9. Therefore, the prosecution evidence as to the first stage of the prosecution case is sufficient, reliable and satisfactory. It must be held that Madhukanta received a post card from Ramanlal with the contents earlier stated, that she was rebuked by her principal and that after being handed over that post-card she did not destroy it but handed it over to a police officer in order to bring Ramanlal to his senses. Whether that police officer was accused 1 as disclosed in the evidence of Ramanlal or police sub-inspector Sisodiya as suggested by defence is a point which we shall examine later.
10. On the second stage of the prosecution story the principal witness is Ramanlal whose testimony we have already summarized. Ramanlal is no doubt a partisan witness and we shall consider later the law on the point whether or not his testimony is required to be corroborated from independent sources in material particulars. The learned trial Judge was satisfied that he was a reliable witness. For the present we may proceed on the assumption that even so it is desirable that his testimony should receive corroboration. With respect of the incidents on 16 instant it must be stated that there is not other witness who corroborates the testimony of this witness. He is however, corroborated by his own conduct two days later, i.e., on 18 instant when he goes to the Anti-Corruption Office and lodges his complaint. In that complaint which is at Ex. 20 he has set out substantially the same story of what happened on 16 instant as he has stated in the deposition. The immediate conduct therefore corroborates his testimony. Besides, if in respect of the first stage of the prosecution story the view we have taken is correct, then the probabilities are that Madhukanta would pass on the post-card to a police officer and Ramanlal would be called for the purposes of explaining his conduct. The probabilities therefore also corroborate his version of 16 instant. Now in this connexion it is relevant to refer to some of the suggestions made to the witness in his cross-examination. Those suggestions will be apparent from the following answers made by him in answers to questions put to him :
'It is not true that police sub-inspector Sisodiya had called me and met me at Navrangpura police station in connexion with this post-card. It is not true that police sub-inspector Sisodiya had told me that Madhukanta to whom I had written the post-card was of his native place and was known to him. It is not true that police sub-inspector Sisodiya had told me that he was in a position to ruin me. It is not true that I thereupon told him that I was prepared to do anything he suggested but I should be relieved of this ... It is not true that I played in the hands of Sisodiya and gave a false complaint against accused 1.'
These questions, therefore, do suggest that even according to the defence before the complain was filed Ramanlal had been called by the police sub-inspector and questioned and threatened about the post-card. Whether the police officer concerned was Sisodiya or Dave is a matter which must be considered in the light of the other prosecution evidence. It is however obvious that the probabilities are consistent with Ramanlal's story that he was called to the police station on 16 instant. Lastly, if the prosecution story of what happened on 18 instant is accepted that itself would be sufficient corroboration to the story of Ramanlal as to what happened on 16 instant. It is, therefore, now time to turn to the evidence of what happened on 18 instant.
11. In respect of the events of 18 instant the principal witness again is Ramanlal. There is not much dispute as to what happened in the morning on 18 instant. Ramanlal's testimony on that part of the question, viz, the events on the morning of 18 instant, is corroborated full by panch witness Dahyabhai and we do not see sufficient reason to disbelieve him as regards that part of his version. It is also corroborated by the testimony of the Deputy Superintendent Medh, sub-inspector Erulkar (Ex. 18) both of the Anti-Corruption Office and to some extent by head constable Chandrapal Ramprasad (Ex. 26) who was concerned with the procedure in connexion with the application of anthracene powder and putting of those notes in the pocket of the complainant. The events of the morning can therefore be held to have been sufficiently established in this case. However, it is the events of the evening which have material bearing on the prosecution case. It is the evidence in respect of these events that requires careful consideration.
12. The main witness in respect of the events of the evening of 18 instant are panch witness Dahyabhai, police sub inspector Erulkar and constable Santramji (Ex. 27) and it is necessary to summarize in brief the evidence of these witnesses before approaching it. But before we do so it would be convenient to refer to the defence of head constable Chandrapal just mentioned. He was serving in the Anti-Corruption Office in February, 1963. He states that at about noon on 18 instant of that month. Ramanlal lodged his complaint. Panchas were called. Then Ramanlal produced ten notes of rupees ten each. He applied anthracene powder on them. Before he applied the powder he showed those to us to the panchas under ultra-violet light and nothing was found on them. Then he applied anthracene powder to the notes and robbed it out with a piece of cloth and then he showed them in ordinary daylight but nothing was found on them. Then they two shown in ultra violet and shine of light blue colour of the powder was found on the notes. Then he placed those currency notes in the right pocket of Ramanlal's pant. Then he deposes about what happened with Ramanlal came to that office at about 4 in the evening. The same procedure was again gone through. After he had placed the notes this time also in the right pocket of Ramanlal's pant and washed his hands, he accompanied with the raiding party to the Navrangpura police station. He does not say any thing about the raid because he was concerned not with the raid but with the examination of persons and articles under the ultra-violet lamp with a view to detect traces of anthracene powder. He states that at the police station he examined the hands of accused 1 Dave in the light of the ultra violet lamp and found nothing there. Then he was taken to a store, meaning Sanghvi Stores, where the owner of the store produced a currency note of Rs. 10 it was examined in the ultra-violet light which showed a shine of light blue colour of powder. The hands of the owner were also examined in the ultra-violet lamp and some shine was found on his hands. Then according to him, he went to Laxmi Pan-House and there the owner of that pan-house took our currency notes from his cash box out of which when they were examined in the ultra-violet light three were found to be shining with the shine of anthracene powder. Similarly the hands of the shop owner were also examined and they also disclosed the same shine. He also visited two other shops and carried out further experiment but nothing was found having the shine of anthracene powder. Then they came back to Navrangpura police station and examined the room in which police sub-inspector Dave used to sit, in ultra-violet light. As a result of this examination he found a shine of anthracene powder on a corner of one table, on a bench and on the floor in that room. The hands of the complainant and his clothes were examined in ultra-violet light and shine of anthracene powder was found on his right hand and the right pocket of his pant. He goes on to say that at about 1 p.m., in the same night i.e., the night between 18 and 19 instants, he along with Deputy Superintendent Medh, two panchas and members of staff went to the house of accused 2. He examined the person of accused 2 in ultra-violet light and found shine of anthracene powder on both his hands, right up to the elbows, on the lips, the eye-brows and the hair. The evidence of this witness does not directly bear on the giving of the bribe or the acceptance of the bribe but has relevance as some of the notes used in payment of the bribe were traced immediately after the alleged payment of the bribe with two shopkeepers near the Navrangpura police station. With these observations we may proceed now to consider the evidence of other witnesses in so far as it has a bearing on the giving and acceptance of the bribe.
13. It could be convenient to refer to the testimony of police sub-inspector Erulkar (Ex. 18) first. After deposing to the events of the morning of 18 instant as to which there is, as we have stated, no dispute, he deposes to the arrival of Ramanlal and two panchas to the Anti-Corruption Office in the evening and making of the panchnama with respect to ten notes to which anthracene powder was applied as deposed to by the head constable, Chandrapal. He states that the complainant was told that if police sub-inspector Dave demanded the same he should hand over these ten notes and give signal and if police sub-inspector Dave told him to give the notes to another person, he should do accordingly and give signal. He states that Ramanlal and Dahyabhai accordingly went there and he and police constable Santramji were instructed by Deputy Superintendent Medh to remain concealed behind the bungalow opposite the Navrangpura police station. They did so accordingly and saw the complainant. Dahyabhai, and accused 2 coming out of the police station and going to the restaurant for taking tea. They also followed them. After taking tea these three returned to the police station and police sub inspector Erulkar and Santramji also returned to their position of concealment behind the bungalow opposite the police station. Then he goes on to say :
'At the time police sub-inspector Dave, i.e., accused 1, was seen inside the police station. I also saw through a window the complainant and the first panch sitting opposite to accused 1 across his table. We saw accused 2 going in and out of the room frequently. I also saw accused 1 moving about frequently. After some time I saw accused 2 taking the complainant and the first panch to a room opposite the room in which they were sitting. That other room was meant for the police inspector. After some time all the three of them came out of the chamber of the police inspector and went in the room of accused 1. We saw the complainant and first panch sitting opposite accused 1. After some time accused 2 came out of that room and started going towards the university. Thereafter I sent policed constable Santramsingh to follow him and watch his activities. Then our police inspector Rana came and stood near me. At that time I saw through the window accused 1 tearing some paper and burning the pieces and throwing them out of the window. I saw these pieces falling on the ground in burning condition. At that time the complainant came out of the room and went towards the place where Medh had concealed himself.'
The rest of the story is the same as the story of Ramanlal, viz., making of panchnama, going to the shops nearby, attaching the notes, etc. It is not necessary to deal with that part of the testimony of his witness.
14. Constable Santramji (Ex. 27) substantially corroborates Erulkar. He deposes about the lodging of the complaint, the panchnama in the morning, the second panchnama again in the evening about the going of the complainant and Dahyabhai to the Navrangpura police station, their coming out with accused 2 to the restaurant and their return from the restaurant and then arrival of accused 1 to the police station. He then states that he took the same position as police sub-inspector Erulkar by the side of a bungalow opposite the police station and was observing through the window of the police station what was happening in the police sub-inspector's room. Then he gives the same story as Erulkar with this difference that whereas Erulkar has stated that the complainant went along with Dahyabhai and accused 2 to the police sub-inspector's room, this witness states that the complainant and accused 2 only went there. He does not mention of Dahyabhai also along with them. He states that accused 2 then came out, as Erulkar has stated. He has not been able to speak about the alleged tearing of and burning of the post-card which is spoken to by Erulkar. His further story is that he followed accused 2 and saw him first going to Sanghvi store and exchanging something with the owner of that store at the counter. He then goes on to say that he saw accused 2 going to pan-shop and exchanging something at the pan-shop. Thereafter, accused 2 visited one or two other shops and this witness went towards the police station to inform Erulkar as by that time the police party was at the police station. Then the raiding party went to the shops where accused 2 had exchanged something but accused 2 had disappeared. He then speaks about the finding of the currency notes, one from the Sanghvi store and three from the pan shop. He states that the serial numbers of these notes tallied with the serial numbers of the notes mentioned in the panchnama.
15. Now, before turning to Dahyabhai's evidence, we may refer in brief to the testimony of witness Medh. He speaks of the events of the morning and making of the panchnama, etc. The events of the evening and making of another panchnama on 18 instant and then states that he waited at the appointed place for the signal of the complainant. He goes on to say that at about 7.30 p.m. he saw the complainant suddenly coming to him instead of giving any signal and after the complainant told him what had happened he proceeded to the police station where he met accused 1 in the room and got his hands and clothes examined by the ultra-violet lamp by the head constable. Then he states that upon receiving information from the panch witness meaning Dahyabhai he went to the place near the window and attached burnt pieces of papers and one half burnt piece of post-card on the ground outside the window. He identified the half-burnt piece as article 1 to which we have already referred. A match box and certain match sticks were also attached. Thereafter on receiving information from constable Santramji who had come by that time, he went to Sanghvi store and the pan-shop and attached one note and three notes respectively. He states that the numbers of these notes tallied with the numbers of the notes kept with the complainant for giving bribe as noted in the panchnama and these notes showed a shine of the anthracene powder. He then states that when he raided the Navrangpura police station no other sub-inspector except accused 1 was present, at that time. He goes on to say that on that night, i.e., the night between 18 and 19 instants, went to the house of accused 2 and on examination of his person in ultra-violet light plenty of shine of anthracene powder was found on both his hands, lips eyebrows and forehead.
16. The witness Medh therefore furnishes broad corroboration to the prosecution story but in respect of actual giving and acceptance of money the evidence is of witnesses Erulkar, Santramji and Dahyabhai. Now before coming to Dahyabhai's testimony we may consider the criticism urged against witness Erulkar and witness Santramji. One broad criticism that has been urged is that both these witnesses according to their own version were standing at a distance of about 60 feet from the window of the police sub-inspector's room and through that window they watched what was going on in the room of accused 1. It is argued that the time being 6-30 or 7 p.m. according to the evidence, it was not possible for them to see at that distance in that light particularly when according to the evidence there was a tree in the compound of the police station near the window. Now there is nothing in the evidence to suggest that the tree obstructed the view. As to the distance a distance of 60 feet is not such a distance as would create any difficulties for normal eye-sight to reach. It is true that the time was 6-30 or 7 p.m. in the month of February. We have nothing on record as to the time of sun, set on that day but on reference we find that the sunsets time was 6-35 p.m. It is a matter of common experience that twilight continues for some time after sunset on a clear day. We therefore see no substance in the argument that at that time and at that distance it was not possible either for Erulkar or Santramji to observe what was going on in the room of police sub-inspector in the police station. The only other criticism about these two witnesses is with respect to the contradiction on a small point between what they have stated before the Court and what they have stated before the police. Before the Court Erulkar stated that he asked Santramji to follow accused 2 when the latter came out of the police station and proceeded to the shop's and he himself went towards the police station. In the police statement he stated that he also followed accused 2 for some time. In his deposition when he was asked whether he had followed accused 2 he denied that part and therefore there is a contradiction in the two statements. The learned trial Judge before whom the same argument was advanced as has been advanced before us in respect of the two statements, has stated that he was not able to understand why Erulkar was not willing to admit in the cross-examination that he had also followed accused 2 for some time. Even so, according to the learned trial Judge there was so sufficient reason in not accepting the testimony of Erulkar. We do not see any reason to differ from the learned Judge's view. As regards Santramji it has been urged by the defence counsel that in his police statement he has stated that accused 2 went out of sight after he had gone to a few shops but he was not prepared to make this admission before the Court. The relevant part of his testimony in the police statement was put to him for the purpose of contradiction. The learned Judge before whom the same argument was advanced stated that it did not appear to him to be such a contradiction as was sufficient to discredit the witness or to hold that his evidence is not satisfactory. The witness, as the learned Judge rightly pointed out, has confined his evidence to what he actually saw. Thus, for example, he did not speak of panch Dahyabhai accompanying the complainant and accused 2 into the police inspector's room and he does not speak of the burning by accused 1 of some paper and throwing away the burnt piece's outside the window. There is no dispute about the fact, and the evidence of all the witnesses bears it out, that it was he who informed Medh in midst of the raid at the police station as to what he saw as a result of which four currency notes came to be attached from Sanghvi store and Laxmi pan house. The conduct of Santramji and the finding of the notes from the Sanghvi store and pan-shop corroborate his testimony.
17. The evidence of these two witnesses Erulkar and Santramji therefore deserves to be accepted and was, in our view, rightly accepted by the learned trial Judge. If that evidence is accepted, it goes to prove that the complainant and Dahyabhai along with accused 2 went to the restaurant sometime after 5 p.m. and by the time they returned to the police station, accused 1 came, that accused 1 sat at the table near the window in the office meant for police sub-inspector and the complainant and Dahyabhai sat opposite him, that some talks took place between them as a result of which accused 2 and complainant and possibly also Dahyabhai went into the room which is referred to as the police inspector's room and thereafter accused 2 came out of the police station and went towards some of the shops nearby and then complainant came out and went to Medh and on his narrating what had happened, Medh raided the police station but nothing was found but when the shops to which accused 2 had gone and exchanged something were inspected one of the notes was found from the Sanghvi store and three of the notes from the pan-shop. The evidence of Erulkar also proves that after accused 2 had gone out of the police station accused 1 tore some papers and threw the torn pieces out of the window and those pieces were then attached. Those pieces, if the evidence of Ramanlal is believed, are the pieces of the post-card. If this evidence is accepted, it substantially corroborates Ramanlal's evidence in material particulars as regards the payment of the bribe. Whether in law this corroboration can be accepted as sufficient is a point which we shall consider later but before we do so we may turn to the evidence of Dahyabhai.
18. Dahyabhai who has been examined at Ex. 23 first states about the morning incident. It is not necessary to set out that part of his testimony except to point out one statement made by him which has drawn the attention of the learned trial Judge. He states that at the police station, the complainant Ramanlal told one police sub-inspector and two constables.
'I have brought moneys to be given to police sub-inspector Dave and want to meet him. Where is he ?'
and thereupon one of the constables said that police sub-inspector Dave had gone to the Court and would be available in the evening. The learned Judge points out that it would be absurd to believe that Ramanlal would tell any police officer or any constable at the police station that he had come to give moneys in such way. Even Ramanlal does not say that he made any such statement. The witness therefore tried to say something which was inherently improbable. To that extent he has shown himself not wholly reliable but a consideration of the whole of his testimony would show that this statement by the witness of something improbable could not be meant to help the prosecution but was presumably meant to help the accused. This would become apparent on a further consideration of his testimony.
19. Dahyabhai states that he went to the Anti-Corruption Office at 5-30 p.m. It appears that he had been asked by the Deputy Superintendent Medh to come in the evening when the morning trap had failed. After he and other panches had arrived the usual procedure was gone through and the notes with anthracene powder applied were placed in the right-hand pocket of the pant of the complainant. He then gives the same story as the complainant about their arrival at the police station and finding Rajuji alone there, their going to the restaurant with Rajuji, for taking tea, their return to the police station and the arrival of police sub-inspector there by that time. As the witness has been at some pains to state that he was not able to recognize who the police officer was to whom the bribe was offered or who the police constable was to whom the bribe money was paid, it is at this stage relevant to mention some of his statements relating to this part of the story that is relating to the incidents immediately preceding the arrival of accused at the police station. He states that the constable who accompanied him to the restaurant was known as Rajuji but that he is unable to say whether it was accused 2. This is surprising because he was with the constable for a considerable time. He was contradicted by the police statement but it is not necessary to refer to that contradiction. He states that when they had gone in the morning to the police station there Ramanlal had inquired about police sub-inspector Dave and when they returned from the restaurant and made inquiries about Dave be was told that he had come. However, he is unable to say whether that police sub-inspector Dave is accused 1. With these observations we may now proceed to his further story as to what happened after they returned from the restaurant. He states that one police sub-inspector came there whose name he did not know and that police sub-inspector took out one post-card and gave that postcard to him (Dahyabhai) for reading. The post-card was written by Ramanlal and addressed to Madhukanta. He, thereafter, referred to the contents of the post-card and that part of his deposition we have referred to earlier. He states that after reading the post-card he handed over the same to the police sub-inspector. At this stage he was asked whether he recognized the police sub-inspector and he stated that he was not able to recognize the police sub-inspector. There is a note by the learned trial Judge in the record of the deposition of this witness. That note is as under :
'Notes. - The witness looked at the dock where the two accused are siting, pondered for a little while and then gave the above reply with a smile of his face.'
Having cleared himself of the burden of identifying either accused 1 or accused 2, panch Dahyabhai does not appear to have found any difficulty to speak the truth about the remaining part of the prosecution story. He goes on to say that after he had handed over the post-card to the police sub-inspector, Ramanlal took out ten currency notes of Rs. 10 each and offered them to that police sub-inspector but the police sub-inspector refused to accept them and told Ramanlal to go with the constable and then Ramanlal and the constable started going towards that office. He states that he also rose to go but the police sub-inspector told him to sit there as he wanted to burn that post-card in his presence and therefore he remained there. He states that the constable with whom Ramanlal went to the other room was the same who had accompanied them to the restaurant. He goes on to say that the police sub-inspector tore the post-card into four places an then burnt them standing near the window and thereafter threw out those burnt pieces through the window. He further says that Ramanlal came back from the inspector's room in about ten minutes but the constable who had gone with him immediately went away from there. Then Dahyabhai told Ramanlal to go out and give signal and therefore he went out and came back with Medh and others. Then in the inspector's room the hands and the clothes of Dave were examined. He thus happened to give the name of Dave unconsciously but realizing this he on being further questioned tried to explain that the person who had said that he was Dave was other than the police sub-inspector who had refused to take moneys from Ramanlal in the office, had asked him to go in the inspector's room with the constable and had torn and burnt the pieces of the post-card. This in substance is the testimony of Dahyabhai. He has also deposed to the subsequent events, i.e., the making of panchnama, the panchnama of the notes found in the two shops, etc, but it is not necessary to examine that part of his evidence because the same has been already deposed to by other witnesses.
20. Now it will be noticed that except for the fact that Dahyabhai does not identify accused 1 and 2 as the police sub-inspector and constable concerned, he has given practically the same story as Ramanlal in respect of the events of the evening of 18 instant. It must however be conceded that having regard to his demeanour in the witness-box to which the learned Judge has drawn attention he cannot be said to be a truthful witness. He is willing to oblige the accused with reference to the identity. He is willing to oblige the prosecution with reference to other parts of the prosecution story. He appears to be a friend of Ramanlal because both of them were at one stage working in the same office and therefore he could not get away wholly from the prosecution story. Although, therefore, to the extent to which his testimony corroborates Ramanlal's testimony, it can be taken into consideration, it would be unsafe to rely on it as sufficient corroboration to Ramanlal's testimony. The learned trial Judge has proceeded to evaluate the prosecution evidence on the basis that no useful purpose would be served by trying to use the evidence of this witness to corroborate Ramanlal's testimony.
21. The evidence of two other witnesses may now be considered in brief in relation to the events of 18 instant and those witnesses are Pranlal Chhotalal Sanghavi (Ex. 15) and the Sendhalal Shivram (Ex. 16). Witness Sanghvi is the owner of Sanghvi store opposite the Navrangpura police station. He states that on 18 February, 1963 when he was sitting on the counter, one police constable in uniform came to his store and gave him one currency note of Rs. 10 and asked for change. He therefore took the note and gave the change to the constable. Thereafter a C.I.D. Officer came to his store with two or three persons and that officer after making inquiries from him took away the currency note but before doing so the currency note was held in the light of a lamp and he could see the stain on it of white powder. On examination of his hands, he states that the white powder was found on his right hand. A panchnama about all this was made on the verandah of his shop. Witness Sendhalal has a pan-shop near Navrangpura baniyan tree. He states that in the evening at sunset time a person came to his shop and gave him three currency notes of Rs. 10 each and obtained their change from him, and thereafter many people came and the notes were attached after it was found under the light of the lamp that they gave out shine of light. He states that a panchnama of this was made. The evidence of these two witnesses, therefore, corroborates Santramji. It is true that these witnesses are unable to recognize the person who handed over these notes to them. It is also true that whereas Sanghvi says that the person was in uniform of a constable, Sandhalal says that he was not in the uniform. This is the contradiction to which much weight need not be attached. If the probabilities are consistent with Ramanlal's story that the notes were handed over by Ramanlal in the police station to a constable, the fact that those very notes were found in these two shops after accused 2 was seen going towards them and if Santramji could be believed as regards the identify of accused 2, and there is no reason why he should not be believed, the finding of the notes in these shops furnishes corroboration to the testimony of Ramanlal of his having passed on the notes to accused 2 at the police station.
22. To summarize, on the prosecution case relating to what happened on the evening of 18 instant we have the testimony of Ramanlal which in so far it tends to establish that a sum of Rs. 100 was paid to accused 2 at the instance of accused 1 and that thereafter accused 1 tore away the post-card written by him to Madhukanta, receives sufficient corroboration from the testimony of Erulkar and Santramji, from the finding of four incriminating notes from the two shopkeepers and from the finding of burnt pieces of post-card outside the window one of which pieces lends support to Ramanlal's testimony that the post-card so torn and burnt was the post-card which he had written to Madhukanta. This evidence was considered by the learned trial Judge as sufficient and the questioned is whether the trial Judge was right in doing so. On that point the learned counsel for the defence has referred to certain decisions as to the need of corroboration of a witness's testimony. But before we go to those decisions the criticism urged against Ramanlal may now be noticed. It was firstly pointed out that he was not a truthful witness. It appears that in his testimony he has stated that on 16 instant accused 2 came to call him to his house at about 7 a.m. whereas in the complaint which he filed he has stated that he came at about 9 a.m. This is one instance on which reliance is placed. It further appears that in cross-examination when he was first asked whether Dahyabhai was known to him he has first denied it but immediately thereafter he admitted that Dahyabhai was serving in the same company in which he was and in fact he and Dahyabhai had stayed together for some time at the same place. Now, as to the first of these two untruthful statements there is nothing unusual about it because as the learned trial Judge rightly points out as error of time can occur after a witness is questioned about it so many months after the incident. As to the second statement the learned Judge states that immediately after his initial denial the witness showed his willingness to admit his acquaintanceship with Dahyabhai. The witness himself having regard to his demeanour struck him as one who was not deliberately speaking falsehood. That appreciation of his demeanour by the learned Judge is entitled to weight. In our view, there is not much force in the argument that on the basis of these two untruthful statements Ramanlal should be held to be an untruthful witness. It is argued that even so, Ramanlal's testimony cannot be accepted or should be accepted with caution because the story he gives is an improbable story. In this connexion attention is invited to the fact firstly that when accused 2 went to Ramanlal on the morning of 16 instant on the plea that he was to come and see Madhukanta and when he turned towards Navrangpura police station, Ramanlal did not make any further inquiries in the matter. It is also argued that when he (Ramanlal) was ill-treated by accused 1 at the police station he did not protest even when in the meanwhile officer Raisinghani had come there nor did he file any complaint thereafter. In respect of this criticism which was also advanced before the learned trial Judge, the learned Judge has pointed out that Ramanlal was naturally under the sense of guilt for having written that post-card in which he had suggested that Madhukanta may come and see him and it was in respect of that post-card that a chastisement was being given to him. It is lastly contended that Ramanlal's story of 16 instant is inconsistent with the record that he had prepared about his meter-reading and therefore, either that story was false or the record was false and in either case Ramanlal would not be a reliable witness. Ramanlal, as we have stated earlier, was employed in the Accounts Department of the Ahmedabad Electricity Company. He was partly a field-worker and partly an office-worker. From 8.30 to 12 it was his duty to go from house to house and read about 100 meters per day. In the afternoon it was his duty to go to the office and attend office-work. Now almost on the whole of the morning of 16 instant he was at the police station, according to his story, but the record of meter-reading which he was expected to keep and a copy of which appears at Ex. 22 shows that he had done meter-reading of 91 meters. He was asked in the cross-examination whether he had actually done the reading of 91 meters and he stated that he had not. When he was confronted with this record he explained by saying that the meters which are stated to have been read on 16 instant were actually read on 17 instant. According to him, he did the meter-reading of 16 and 17 instants on 17 instant. The learned Judge has believed it, and has pointed out that this was a human weakness which by itself was not sufficient to discredit Ramanlal who had to look after keeping his job. It was argued by the learned counsel for the defence that it is improbable that Ramanlal could do so much meter-reading of both days on 17 instant. It appears that on 17 instant he did meter-reading of 94 meters. Taking both the figures together, viz, 91 and 94, the total comes to 185 and the argument is that it is physically impossible for a person to read so many meters in the morning hours including the meter-reading of 17 instant. No cross-examination on that point has been done. On the other hand the record produced at Ex. 22 itself shows that on some days more than 100 meters were read. On the first of the month 170 are stated to have been read. On 12 instant 174 are stated to have been read. As against that on some days very few meters have been read, for example, on 4 instant only 60 meters and on 5 instant only 32 meters are read. Therefore nothing much turns on the number of meters read. It is obvious that if the number of a particular day is less than the average an attempt would be made to make up the balance in the other days. Merely because he made an entry on 16 instant of having read 91 meters although he actually read them on 17 instant, is not, in our opinion, sufficient reason to hold that Ramanlal was on that count an unreliable witness.
23. Turning now to the legal contention raised on behalf of the defence, the first contention to be noticed is as regards that part of the evidence which relates to the proof of anthracene powder on the notes and on the hands on various persons and on the table and bench in police sub-inspector's room. It is urged by Sri Shelat for the appellants, that the prosecution not having led any evidence by by way of expert evidence or books of science to prove the sure method of detection of anthracene powder, the nature of the test to be applied, the nature of the result to be expected and whether a layman can detect anthracene powder when such a test is applied, the evidence relating to the presence of anthracene powder in the hands and other articles in this case should not be accepted. In respect of that proposition reliance was placed on a Division Bench decision of this Court in Ramsingh Badharsing v. State ( : AIR1960Guj7 ). In that case the proof of the prosecution case of acceptance of bribe substantially rested on the evidence relating to the presence of marks of anthracene powder on the hands of the officer who had accepted the bribe. It appears from the facts of that case stated in the judgment that before or after the powder was applied to the notes and the notes were handed over to the trap witness no demonstration was made to show as to what was the effect of the ultra-violet light on the notes or other articles before the powder was applied and after the powder was applied. It also appears from the two facts stated in that case that head constable Jaswantsingh who had applied the powder in that case and who, according to the evidence, was supposed to know something more about the powder and the means of detecting it had not been examined. It was in these circumstances that it was held that if the prosecution wanted to prove the presence of anthracene powder on the hands of the appellant, it was the duty of the prosecution to prove by means of expert evidence or books of science the nature of anthracene powder, the method of its detection and the nature of test to be applied. Such evidence was absent in that case. In the present case the position is different. The presence of anthracene powder plays a very minor role in the prosecution case here. Even if all the evidence relating to the presence of the anthracene powder on the hands, table and bench, and on the hands of certain persons is excluded, it makes no material difference to the other evidence in the case because the prosecution substantially rests on that other evidence and on the fact that the four notes which were traced were and could be identified even otherwise by reason of the identity of their serial numbers with the numbers noted in the panchnama which had been prepared before the investigation started. No doubt, in so far as the presence of anthracene powder lends any corroboration to the prosecution evidence in this case, the nature of the evidence indicated under the ruling is substantially led in the case because the evidence of the material witnesses shows that a demonstration was made as contemplated by that decision before the application of the powder and after the application of the powder and the constable who made the demonstration, viz., Chandrapal has been examined. In his evidence, the prosecution has sought to prove not only the fact of the demonstration both under the ordinary daylight and under ultra-violet light but also the fact that anthracene powder was seen under ultraviolet light emitting a shine of blue green colour. In the cross-examination the witness was asked whether he had made a special study of the powder and he stated that he had not. He also stated that there are other powders besides anthracene having their own shine. This statement would not in any way take away from the evidence given in his examination-in-chief. That being the position the decision relied on by Sri Shelat has no application to the facts of the present case.
24. The next contention of law urged by Sri Shelat is that Ramanlal being a decoy or a trap witness. Dahyabhai being not a wholly independent or reliable witness and the police witnesses, viz., Erulkar, Santramji and Chandrapal being members of the raiding party were all partisan witnesses and in law their evidence cannot be accepted as sufficient unless it is corroborated in material particulars from other independent evidence both as regards the commission of the offence and as regards the identity of the offender. In support of this proposition he relied on the observation of the Supreme Court in Major R. G. Barsay v. State of Bombay (A.I.R. 1964 S.C. 1762). We shall consider those observations presently, but before we do so, we would like to refer to an earlier decision of the Supreme Court to which Sri Nanavati for the State has invited our attention. That decision is in State of Bihar v. Basawan Singh (A.I.R. 1968 S.C. 500). That was a case in which the accused who was a sub-inspector in charge of the police station, was alleged to have demanded a bribe of Rs. 50 from two persons, one Bhagwandas who was a shopkeeper dealing in grain and the other Mahavir Prasad who purchased grains from the said Bhagwandas. It was reported to the police that Bhagwandas had sold grains in black market to the said Mahavir Prasad and on the basis of the report the accused Basawan Singh attached the grains that were being carried on two ponies by Mahavir Prasad, after he had purchased from the shop. While the grains were still lying with the police the alleged demand of a bribe was made. Both Bhagwandas and Mahavir Prasad reported to the Anti-Corruption Department of the Government of Bihar, as a result of which their complaints were recorded by one Mukherji, a Deputy Secretary to the Government of Bihar and he asked the police to lay a trap. The raiding party consisted of the two decoys and three officers, viz., Mukherji, Deputy Secretary, Deputy Superintendent Dharnidhar Mishra and a magistrate Rudra Dev Sahai. They proceeded to the house of the accused. The two decoy witnesses went up to the house of the accused and passed on Rs. 50 each to the accused and thereafter the three officer, viz., Mukherji, Misra and Sahai, rushed to the house (verandah) were the accused and the two witnesses standing and caught hold of the accused. The accused tried to throw away the notes which were in his hands but was prevented from doing so. Panchas were called and a panchnama was made and it was found that there were nine notes in the hands of the accused. The missing tenth note was on search found in a crumpled condition in the verandah of the accused. Before the Court the evidence of the two decoy witnesses and the three officers and two panchas was led. So far as panchas were concerned they were not present at the time when the three officers caught hold of the accused. The only important part of their testimony was the finding of a crumpled note in the verandah. The learned Special Judge who tried the case accepted the prosecution evidence as trustworthy, and convicted the accused. Against that conviction the accused went in appeal to the High Court and the learned Judge who heard the appeal acquitted him on the main ground that there was no independent witness to support the testimony of the raiding party which consisted of two decoy witnesses, two magistrates and a police officer. For holding that view the learned Judge relied on the decision of the Supreme Court in Shiv Bahadur Singh v. State of Vindhya Pradesh : 1954CriLJ910 . Against the acquittal the State came in appeal to the Supreme Court and the principal questions which arose decision in the appeal were : firstly, whether the learned Judge of the High Court was right in his view that the decision in Shiv Bahadur Singh case : 1954CriLJ910 ) laid down any universal or inflexible rule that the testimony of witnesses who formed the raiding party must be discarded unless corroborated by independent witnesses; secondly, if not, what was the correct rule with regard to such testimony in cases of this nature, and thirdly, whether the learned Judge was right in his view that there was no independent corroboration of the testimoney of the witnesses of the raiding party in that case. The Supreme Court held that its earlier decision in Shiv Bahadur Singh case ( : 1954CriLJ910 ) did not lay down any such rule as was inferred by the learned Judge of the High Court. They went on to say :
'It is plain and obvious that no such rule can be laid down, for the value of the testimony of a witness depends on diverse factors, such as, the character of the witness, to what extent and in what manner he is interested, how he has fared in cross-examination etc., There is no doubt that the testimony of partisan or interested witnesses must be scrutinized with care and there may be cases, as in Shiv Bahadur Singh case ( : 1954CriLJ910 ) where the Court will, as a matter of prudence, look for independent corroboration. It is wrong, however, to deduce from that decision any universal or inflexible rule that the evidence of the witnesses of the raiding party must be discarded, unless independent corroboration is available.'
Later on their lordships have made the following observations :
'The correct rule is this : if any of the witnesses are accomplices who are participates carmines in respect of the actual crime charged, their evidence must be treated; if they are not accomplices but the partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person.'
Thereafter their lordships have discussed the question as to the nature of the corroboration in case the Court comes to the conclusion that some corroboration is necessary, and have observed :
'but independent corroboration does not mean that every detail of what the witnesses of the raiding party have said must be corroborated by independent witnesses. As was observed by Lord Reading in (1916) 2 KB 658 in respect of the evidence of an accomplice, all that is required is that there must be 'some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it.' In 1952 S.C.R. 377 at 385 : A.I.R. 1952 S.C. 57, to which we have referred in an earlier paragraph, the nature and extent of corroboration required, when it is not considered safe to dispense with it, have been clearly explained and it is merely necessary to reiterate that corroboration need not be direct evidence that the accused committed the crime; it is sufficient even though it is merely circumstantial evidence of his connexion with the crime.'
Their lordships proceeded to examine the evidence in that case in the light of these considerations. They found no difficulty in accepting the testimony of the raiding party in that case and they stated that testimony received even otherwise sufficient corroboration from the finding of the crumpled note as deposed by the panch witnesses. Accordingly the appeal was allowed and the acquittal was set aside and the accused was convicted. The principles enunciated by the Supreme Court in that decision are a sufficient answer to the argument urged by Sri Shelat on behalf of the appellants that the evidence of decoy witnesses or the members of the raiding party cannot be accepted unless corroborated in material particulars by independent evidence both as regards the commission of the crime and the identity of the offender. In that Supreme Court case the witnesses were either decoy witnesses or officers who formed the raiding party. The finding of the crumpled note was the only independent piece of evidence. The prosecution case rested substantially if not wholly on the oral evidence of the five witnesses in that case. That evidence was held sufficient in an acquittal appeal. Sri Shelat, however, argued that the later decision of the Supreme Court to which he has referred makes a difference in this legal position and we may now, therefore, turn to that decision. Before referring to the facts of that case it will be noticed that the decision of the Supreme Court in State of Bihar v. Basawan Singh ( : 1958CriLJ976 ) (vide supra) is a decision by five Judges whereas the decision of the Supreme Court in the case of Major R. G. Barsay v. State of Bombay (A.I.R. 1964 S.C. 1762) (vide supra) on which reliance has been placed by Sri Shelat is a decision of three Judges. Now, in that case, some army officers were prosecuted in respect of misappropriation of large amounts of army stores and one of the army officers so prosecuted was Major Barsay in that case, who was second in command of the army depot and was in charge of the store section. The prosecution case substantially rested on the testimony of one Lawrence who was at the relevant time acting as a security officer in that depot. Major Barsay planned a large-scale conspiracy for the removal of the stores and took into confidence several officers and one of the persons whom he took into confidence was this witness Lawrence. Lawrence took part in the plans of the conspirators from time to time and was instrumental in fabricating gate-pass so that the lorries containing the materials might be taken out from the gate and in fact accompanied the lorries on the date the lorries were eventually attached, after they were taken out from the gate. It appears that Lawrence ostensibly joined the conspiracy with a view to bring to book the culprits and was informing the superior officers and the police orally and in writing from time to time as and when the important events were taking place. The Special Judge who tried the case held on a consideration of the evidence before him that all the charges were made out against Major Barsay and he was of the view that there was no good ground to discard the evidence of Lawrence but he placed him in the category of an interested witness whose testimony required independent corroboration before acceptance. In his judgment the learned Special Judge observed as under :
'He (Lawrence) is obviously decoy or spy and agent provocateur and his evidence will have, therefore, to be approached with great caution and much weight cannot be attached to it unless it is corroborated by other independent evidence and circumstances in the case ... Not being tainted evidence, it would not suffer from a disability of being unworthy of acceptance without independent corroboration. But being interested evidence, caution requires that there should be corroboration from an independent source before its acceptance. To convict an accused on the tainted evidence of an accomplice is not illegal but it is imprudent; to convict an accused upon the partisan evidence of a person at whose instance a trap is laid by the police is neither illegal nor imprudent but inadvisable ... Sri Lawrence's evidence can, therefore, be accepted and relied upon, only if it is corroborated by other independent evidence and circumstances in the case.'
The High Court took the same view and observed as under :
'To convict an accused upon the particular evidence of a person at whose instance a trap is laid by the police is neither illegal nor imprudent ... All the same, as the person who lodges information with the police for the purpose of laying a trap for another is partisan witness interested in seeing that the trap succeeds, it would be necessary and advisable to look for corroboration to his evidence before accepting it.'
The Special Counsel for the State in that case accepted this position and desired the Court to examine the evidence of Lawrence on that basis. The Supreme Court stated that both the Courts had approached the evidence of Lawrence from a correct stand-point. Though he was not an approver, he was certainly an interested witness in the sense that he was interested to see that the trap laid by him succeeded. He could at least be equated with a partisan witness and it would not be admissible to rely upon such evidence without corroboration. It would be equally clear that his evidence was not a tainted one, but it would only make a difference in the degree of corroboration required rather than the necessity for it. Thereafter, dealing with the nature of necessary corroboration, their lordships observed as under :
'The corroboration must be by independent testimony confirming in some material particulars not only that the crime was committed but also that the appellant committed it. It is not necessary to have corroboration of all the circumstances of the case or every detail of the crime. It would be sufficient if there was corroboration as to the material circumstances of the crime and of the identity of the accused in relation to the crime. These principles have been settled in R. v. Baskerville (1916) 2 K.B. 658), which has rightly been considered as the locus classicus of the law of approver's evidence and has been followed by Courts in India.'
It will be noticed that the question before the Court was that Lawrence's evidence needed corroboration. Lawrence was there very much involved in the hatching of the conspiracy. The observations of the Supreme Court must be read in the light of that fact. In fact their lordships have referred to the principles in R. v. Baskerville (1916) 2 K.B. 658) which laid down the law of evidence of an approver and which has been followed in the Courts in India. It was, therefore, that point that the Supreme Court was considering viz., Lawrence's evidence who though not an accomplice was very much a partisan. In so far as the Supreme Court approved the statement of law laid down by the High Court, it meant not that in respect of a partisan witness corroboration is in law necessary but that it was advisable to look for corroboration. No doubt after saying that the evidence of witness Lawrence cannot be said to be tainted, they state that it would make only a difference in the degree of corroboration thereby emphasizing the necessity of corroboration, but the necessity of corroboration is emphasized in the light of the circumstances of the case and not as a matter of law. If it were otherwise, the Supreme Court would have had to reconsider its previous decision by five Judges in State of Bihar v. Baswan Singh : 1958CriLJ976 (vide supra). That decision has not been referred to and there is no reason to hold that any departure from the principles laid down in that decision was intended or made as contended by Sri Shelat on behalf of the appellants. Therefore from these two rulings of the Supreme Court the conclusion to be drawn is that the trap witnesses who are members of the raiding party may be treated as partisan witnesses but as regards partisan witnesses there is no rule of law that their evidence cannot be accepted in the absence of independent corroboration in material particulars. There cannot be such a rule of law when even the evidence of an accomplice is not by law required to be corroborated. It is only as a rule of prudence that the evidence of an accomplice is required to be corroborated. The object of corroborated is to produce mental satisfaction in the mind of the Court that the accomplice is a witness of truth. The rulings go to show that in a trial of jury if the Judge draws the attention of the jury to this rule of prudence in respect of the evidence of an accomplice and cautions it and the jury thereafter accepts the evidence of the accomplice as sufficient, a conviction based on such a verdict cannot be said to be wrong. Therefore the true position is that a decoy need not be corroborated but the weight to be attached to his evidence will depend on his character, his standing, his position, the circumstances under which he became a decoy and how he has fared in the witness-box. The considerations in the light of which his evidence is to be tested will naturally vary from case to case.
25. Now applying these principles to the evidence before us in the light of the criticisms urged by the defence counsel it would appear that Ramanlal though a partisan witness is a witness on whom reliance can be placed. Erulkar and Santramji, though members of the raiding party and to that extent interested, have, according to the learned trial Judge, given evidence in a manner which inspires confidence and that even after excluding the evidence of Dahyabhai and confining ourselves to the evidence of these three principal witnesses, that evidence receives corroboration not only from the probabilities of the case arising out of the writing of the post-card by Ramanlal to Madhukanta but also from two significant circumstances established by independent evidence. One circumstances is the finding of the pieces of the post-card torn and burnt out immediately after the payment of the bribe to accused 2 which pieces can be said to have been reasonably identified as the pieces of the post-card written by Ramanlal to Madhukanta. The other circumstance is the finding of four notes out of the bribe money from the two shops immediately after the money is stated to have been paid to accused 2. It is hardly necessary to set out separately the evidence against each of the accused because most of the evidence is common. But in so far as the incriminating circumstances are concerned, accused 1 is directly associated with the destruction and burning of the post-card and accused 2 with the exchange of the four notes at the shops. This evidence read as a whole goes to show that actual payment was made to accused 2. Considering the position of accused 2 with relation to accused 1 and the fact that immediately on payment, accused 1 destroyed the post-card the reasonable conclusion is that the acceptance of the money by accused 2 was on behalf of and at the instance of accused 1. Some evidence has also been led to show that in the night when the Deputy Superintendent Medh along with panchas went to the house of accused 2 it was found that there were traces of anthracene powder on both his hands, right up to the elbows, on the lips, the eyebrows and the hair. We have on that point the evidence of Deputy Superintendent Medh and head constable Chandrapal but as the panch witness Mohmed Hussein who was present at the time when the panchnama of this find was made and has stated that he does not know as to what was done with ultra-violet light at the time of the raid, that evidence cannot be taken into account. Even so, considering the remaining evidence together it must be held that the prosecution has satisfactorily established that Rs. 100 were paid as bribe to accused 1 through the hands of accused 2.
26. Now it is clear that on this finding that a presumption under S. 4 of the Prevention of Corruption Act, 1947, would arise, that unless the contrary is proved the accused accepted or obtained or agreed to accept or attempted to obtain a gratification in the sum of Rs. 100 as a motive or reward such as mentioned in S. 161 of the Indian Penal Code and it would be for the accused to rebut that presumption. The accused have made no attempt to do so and no evidence has been led on behalf of the accused and no explanation has been tendered as to why and what for that money was demanded or accepted. The only explanation tendered is that the money was, if at all, paid not to accused 1 or accused 2, but to police sub-inspector Sisodiya. That explanation cannot rebut the presumption. But even as to the story that the money was paid to police sub inspector Sisodiya there is no material in support of that story. The story is based on the allegation that accused 1 is on bad terms with police sub-inspector Sisodiya. In support of that allegation one witness was examined, viz., Keshavlal (Ex. 34). Keshavlal was at the relevant times working as a constable in Navrangpura police station. He was dismissed before his evidence was recorded. He says that at that time there were four sub-inspectors attached to Navrangpura police-station, out of them one was accused 1 and the other police sub-inspector Sisodiya. He goes on to say that accused 1 and police sub inspector Sisodiya were in cross-terms and they were not speaking with each other when they were in Navrangpura police station and that a quarrel had taken place between them a month before this incident, that is, in the month of January 1963. He does not say what was that quarrel. He has been disbelieved by the learned trial Judge and in our opinion rightly. In his cross-examination he has stated that he did not see accused 2 at the police station on the day in question at the time of the incident, or at any time throughout the day. This statement which obviously was made to favour accused 2 was a false statement for even according to accused 2 he was at the police station till 5 p.m. and as regards the period after 5 p.m. There is abundant evidence led by the prosecution to show that accused 2 was present. Even otherwise the evidence of this witness does not help the defence for there is nothing in his evidence to show that on the day in question police sub-inspector Sisodiya was at the police station. According to him two police officers were at the police station. One was admittedly accused 1. The other he stated was police sub inspector Rana. At attempt was made to prove the presence of police sub inspector Sisodiya at the police station at the relevant time and the Deputy Superintendent Medh was asked about it. Medh denies the presence of police sub-inspector Sisodiya at the time of raid. It would appear that Sisodiya came to the police station thereafter because Ramanlal in his cross-examination has stated that after the raid was over police sub-inspector Sisodiya was present. His presence after the raid, however, cannot help the defence. There is therefore no evidence led by the defence and no material placed before the Court to rebut the presumption arising under S. 4 of the Prevention of Corruption Act, 1947. A mere explanation suggested in the statement of the accused is not sufficient to discharge the burden even if the explanation is reasonable and probable, which in this case it is not. The defence must go a little further and show that the explanation is a true one. [See Dhanvantrai Balwantra Desai v. State of Maharashtra (1963 - II L.L.J. 415).] In the present case not only the defence has made no attempt to rebut the presumption but the explanation offered viz., that the payment must have been made to and accepted buy police sub-inspector Sisodiya, does not appear either reasonable or probable.
27. It is then urged by Sri Shelat for the defence that even accepting the prosecution evidence there can be no conviction under S. 161 of the Indian Penal Code. His argument is that to attract S. 161 the agreement to accept or the acceptance of a bribe must have reference to the doing by accused 1 or his forbearing to do any official act or his showing or forbearing to show, in the exercise of his official functions, favour or disfavour to Ramanlal. His argument is that accused 1 was not acting officially or exercising any official function when he called Ramanlal to the Navranpura police station in respect of the post card and threatened to proceed against him unless Ramanlal satisfied him by payment because it was not possible for accused 1 to do or forbear to do any such official act or to show favour or disfavour to Ramanlal in exercise of his official functions in so far as the matter of the post-card was concerned. This argument runs counter to his submissions under S. 161(1) of the Bombay Police Act, 1951 which we shall later notice but the argument needs to be examined. Does S. 161, Indian Penal Code require that the officer concerned must in fact be in a position to do or forbear to do the official act which he promised or threatened or to show the promised favour or disfavour The learned Assistant Government Pleader argues that S. 161 Indian Penal Code, does not so require and he has invited our attention to a decision of the Bombay High Court in Indur Dayaldas Advani v. State of Bombay [53 Bom. L.R. 699]. That was a case where one sales tax officer had demanded a bribe from a businessman in order to assess his sales tax returns in such a way as would throw a lesser burden of sales tax on the businessman than the returns would disclose if carefully examined. It appear that the accused, the sales tax officer in that case was not really in charge of the case of the complainant not was he in a position to do any favour to him and it was contended before the High Court that in these circumstances S. 161 of the Indian Penal Code was not attracted. In negativing the contention Bavdekar, J., who spoke for the Court observed as under :
'The section (S. 161) does not say anything about the official act being within the power of the public servant concerned. Nor does it say anything about it being within the power of the public servant concerned to show favour or disfavour to any person in the exercise of his official function. It is true that the section does not penalize the public servant in obtaining any gratification other than legal remuneration in all cases. The section would have application only when gratification is taken as motive or reward for doing the things mentioned above. But even though this would exclude the case in which money is accepted, for example, in a private capacity or for doing something which is entirely unconnected with the official duties of the taker, we do not think that there is anything in the section which requires the State to prove that the act which was committed was within the power of the public servant concerned. The words
'as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official function' may constitute the ingredient which English lawyers call mens rea. But these words in the first instance do not postulate a state of mind in the public servant that he was going to do the promised official act or he was going to show the promised official favour ... It would appear therefore that a state of mind to do anything for the giver of the bribe would not render his act innocuous.'
Therefore all that was necessary was that the bribe-taker was acting in his official capacity and not in a purely private capacity unconnected with his official functions and that he made a representation that he was in a position to do or forbear from doing the alleged official act or that it was within his power or within his official functions to show the alleged favour or disfavour. If these conditions are satisfied, S. 161, Indian Penal Code would be attracted. These conditions are satisfied in this case. Accused 1 was, as we shall later point out, entitled as a police officer in charge of the police station to inquire into the matter of the post-card which had been handed over to him apparently in his capacity as a police officer and he was entitled to take action as a police officer in respect of that post-card is order to prevent the repetition of such acts on behalf of Ramanlal. It may be that his duties and powers as a police officer in respect of that post-card did not in fact go so far as to do the promised favour or to do the threatened harm to Ramanlal but if even on an untrue representation made by him as to what he can and would do, Ramanlal believing it and in order to avoid the consequences that may fall on him promises to pay him the money and pays, the necessary ingredients of the section would be fulfilled. Sri Shelat submitted that the Bombay case was argument he relied on the Privy Council decision in Albert West Meads v. The King . There the question was whether sanction of the Central Government was necessary in respect of certain offences of which an army man was being proceeded against by the Court-martial. It was held that S. 270(1) of the Government of India Act which required sanction in respect of civil or criminal proceeding was not attracted in respect of the proceedings before the court-martial but even on the assumption that it was attracted in so far as that section laid down the requirement of sanction for civil and criminal proceedings instituted against any person 'in respect of any act done or purporting to be done in the execution of his duty,' the requirement so laid down was not satisfied in that case because the act in respect of which the appellant was proceeded against was an act of criminal misappropriation of Government money. The Privy Council relied on an earlier decision of that Court in H. H. B. Gill and another v. The King where the Privy Council and held that -
'A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act in such as to lie within the scope of his official duty. Thus a Judge neither acts not purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act : nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.'
These observations may have relevance in considering another contention urged on behalf of the appellants, viz., the contention that the prosecution is time-barred under S. 161 of the Bombay Police Act but it is not clear how they are relevant for considering the applicability of S. 161, Indian Penal Code. What the Privy Council was construing in the decision was the language of S. 270(1) of the Act and to some extent the language of S. 197 of the Code of Criminal Procedure. It was not considering the language of S. 161 of the Indian Penal Code. The contention that S. 161, Indian Penal Code, is not attracted in this case, cannot therefore be sustained.
28. That takes us to the last legal contention urged on behalf of the appellants and that contention is that the prosecution in this case is barred under Sub-section (1) of S. 161 of the Bombay Police Act, 1951. That sub section reads as under :
'In any case of alleged offences by the Commissioner, a magistrate, police officer or other person, or of a wrong alleged to have been done by such Commissioner, magistrate, police officer or other person, by any act done under colour or in excess of any duty or authority as aforesaid, or wherein it shall appear to the Court that the offence or wrong it committed or done was of the character aforesaid the prosecution or suit shall not be entertained, or shall be dismissed, if instituted, more than six moths after the date of the act complained of.'
Under this sub section therefore the period of six months is applicable in respect of the prosecution for offence 'by any act done under colour or in excess of any such duty or authority as aforesaid.' The expression 'any such duty or authority as aforesaid' has reference to S. 159 which provides as under :
'No magistrate of police officer shall be liable to penalty or to payment of damages on account of an act done in good faith, in pursuance or intended pursuance of any duty imposed or any authority conferred on him by any provision of this Act or any other law for the time being in force or any rule, order or direction made or given therein.'
Therefore, to attract S. 161(1) the offence must be under colour or in excess of duty imposed or authority conferred on the officer by provisions of this Act meaning the Bombay Police Act or any other law for the time being in force or any rule, order or direction made thereunder. Now the act done which constitutes the offence in the present case is the demand for and acceptance of a bribe from Ramanlal, a member of the public, for agreeing not to pursue the complaint made against him. It is with reference to this act and we have to determine whether it is done under colour or in excess of such duty or authority as is set our in S. 159. The argument is that the act was under colour of duty imposed by the provisions of the Bombay Police Act and also by the provisions of the Indian Penal Code and Criminal Procedure Code. Whether or not a particular act is under colour of duty is a question of fact and this position is conceded by Sri Shelat. It is therefore not necessary to refer to authorities on that point. We have, therefore, to determine as a fact what was the relation of the act to the duty or in what way it was under colour of that duty that the act was committed. But before we do so, it would be better to be clear about the meaning of the expression 'under colour of duty' and about the scope and object of S. 161 which gives protection to an act under colour of the duty.
29. There are three sections dealing with the protection of police officer against civil and criminal proceedings. Section 159 which we have earlier quoted protects him from the liability to penalty or to payment of damages on account of an act done in good faith in pursuance of or intended pursuance of any duty imposed by or under the law mentioned therein. Section 160 protects him from the liability or payment of any damages for giving effect in good faith to any such order or direction issued with apparent authority by the State Government or by other competent authority. Sub-section (1) or S. 161 has been read. It protects him from prosecution after the time-limit specified therein and the protection is with respect to prosecution in respect of the offences falling within the terms of that section. Sub-section (2) gives a similar protection in respect of civil proceedings arising out of such acts as have been mentioned in Sun-section (1). Reading these sections together, it would appear that the protection given to the public servant concerned, here the police officer, has reference to the discharge of his functions as a public servant. The functions of which these sections speak are functions arising out of
'any duty imposed by or any authority conferred upon him by the provisions of this Act and any other law, rule or direction made in that regard, '
that is to say, legal functions of an obligatory nature. This is the broad scope and the object underlying the protection to the public servant under these section. Now, in the light of this position, we may turn to the precise content of the protection given by Sub-section (1) of S. 161 of the Bombay Police Act, in so far as that protection relates to an act done under colour of duty that being the protection sought on behalf of the appellants in this case. Now an act can be said to be under colour of duty if there is some reasonable connexion between the act and the duty. This is plain, for it is difficult to see how an act can be under the colour of duty if it is altogether unconnected with the duty. Some connexion must be there if the expression is to have any meaning and that connexion must be reasonable if the legislative intent as disclosed by the scope and the object of the section is borne in mind whether in a particular case this minimum requirement is sufficient to invite the protection afforded by Sub-section (1) of S. 161 will depend upon the facts of that case but at least the existence of such a connexion is implied in the expression 'under colour of.'
10 September, 1965
30. It was argued by Sri Shelat that for an act to be under colour of duty no such reasonable connexion is necessary and till that is necessary is that the officer must be holding one of the offices set out in that sub-section, in the present case the office of a police officer and while holding that office and purporting to act as such officer if he does any other act that act will, according to him, get the protection of S. 161(1). In support of that argument, he relied on the definition of the expression 'colour of office' in Wharton's Law Lexicon, Fourteenth Edition. There the expression 'colour of office' has been defined as under :
'When an act is unjustly done by the countenance of an office, being grounded upon corruption, to which the office is as a shadow and colour.'
Under this definition if an act is to be under colour of office, then that act though unjustly done has to be by the countenance of the office. Sri Shelat accepts the position so lay and states that in this case such an act was the tearing of the post-card which destroyed the evidence of the complainant's alleged criminal behaviour in making an imputation in respect of Madhukanta in that post-card. His argument, however, is that the definition also covers the further act of demand and acceptance of a bribe because, he argues, that act would fall under the expression 'being grounded on corruption' and would under the definition be an act to which the office is shadow and colour. We are unable to accept Sri Shelat's reading of the definition and particularly of the expression 'being grounded on corruption.' That expression has reference to the motivation force behind the unjust act. It is the unjust act done by the countenance of office which must be one to which the office is as shadow or colour. The definition in Stroud's Judicial Dictionary, Third Edition, may in this connexion be referred to. That definition reads as under :
'Colour of office' is always taken in the worst part and signifies an act evil done by the countenance of an office and it bears a dissembling face of the right of the office, whereas the office is but a veil to the falsehood, and the thing is grounded upon vice, and the office is as a shadow to it,'
Therefore, to be colour of office, the act must be by the countenance of office, that is to say, must seek the cover of the duties and rights of the office though the cover may be a false one. In short, even according to these definitions, to claim an act to be under colour of duty there must be a reasonable connexion between the act and the duty.
31. Now turning to the authorities in which the expression 'colour of duty' has been construed, we may first refer to the decision of the Full Bench of the Bombay High Court in Narayan Hari Tarkhande v. Yeshwant Raoji Naik, Dattatraya Ramchandra v. Annappa Pandurang Kokatnur [30 Bom. L.R. 1018]. To which attention has been invited by Sri Nanavati for the State. There were two references this case made to the High court one a criminal reference and the other a civil reference. The section that the High Court was construing was S. 80 of the Bombay District Police Act, 1890. Sub-section (1) of that section was substantially in terms similar to S. 159 of the Bombay Police Act, 1951. Sub-section (2) of that section corresponds to S. 160 of the Bombay Police Act and Sub-secs. (3) and (4) of that section correspond to Sub-secs. (1) and (2) of S. 161 of the Bombay Police Act. In the criminal reference, the accused, a police sub-inspector, deliberately recorded incorrect statements of two witnesses during the course of investigation and on the basis of those statements filed a summary in respect of the case. He was prosecuted under Ss. 167 and 218 of the Indian Penal Code. The prosecution was launched more than six months after the date of the complaint. The period provided under S. 80 of the Bombay District Police Act, 1890, had thus passed and the contention urged on behalf of the accused was that the prosecution was barred under S. 80 of the Bombay District Police Act. In the civil reference the police officer concerned, viz., an inspector of police, had called a person for questioning in the course of investigating a cognizable offence. The person so questioned did not disclose any information. The police officer then pulled his mustaches and beat him. In respect of this assault, that person filed a suit for damages, and the question again was whether the suit having been filed beyond the period laid down under Sub-section (4) of S. 80 of the Bombay District Police Act, 1890, was barred by limitation. The Full Bench answered the criminal reference in favour of the police officer and the civil reference against him. Madgavkar, J., in his judgment stated :
'Clearly not every act because it is done by a magistrate or police officer is thereby necessarily an act having any relation to his duty or authority; and whether prima facie the act alleged was so done is a question of the facts in each case which ordinarily should not be difficult of answer.'
Therefore, the test laid down was that there must be some relation between the act and the duty or authority under which an act is alleged to be done. On that basis it was held that in recording false statements while performing the duty of taking down statements, the police officer was doing an act under colour of duty and was entitled to the protection of S. 80(3) of the Bombay District Police Act, 1890. But when the police officer went beyond even the dereliction of that duty and did an act wholly unconnected with it and assaulted the person who was being questioned, he was not entitled to such protection. Madgavkar, J., said :
'In the second case, however, while the acts of the sub-inspector from the summoning of the plaintiff and questioning him also fell under colour of his duty or authority, by no process of reasoning can the alleged acts of battery and assault be said to fall under such colour or in excess of such duty or authority.'
Mirza, J., who was one of the other Judges, adopted a similar test. He stated :
'For a thing to be the 'colour' of another there must be some likeness or semblance between the two. There is no likeness or semblance between committing assault and battery on the one hand and obtaining intelligence on the other.'
His lordship has also observed :
'The police officers may have believed that if they beat the plaintiff, he would be induced to give them the information they wanted with reference to the cognizable offence they were investigating. That in itself would not make the dealing of blows by them to the plaintiff a part of their duty or authority under the act or something akin to but in excess of such duty or authority.'
The next case that may be referred to is the Supreme Court decision in Virupaxappa Veerappa Kadampur v. State of Mysore : AIR1963SC849 on which Sri Shelat has placed reliance. In that a head constable actually caught one offender carrying a bundle containing 15 packets of ganja. These 15 packets were seized by him and a seizure panchnama was prepared. In that panchnama which was prepared on 23 February, 1954, the number of packets seized was mentioned as 9. On the next day the head constable prepared another panchnama in substitution of the one already prepared and in that panchnama again the number of packets seized was shown as 9; but as regards the offender it was stated that he threw the bundle and ran away. The head constable was prosecuted for an offence under S. 218 of the Indian Penal Code. The prosecution being more than six months after the date of the offence, a bar of limitation under S. 161(1) of the Bombay Police Act was pleaded. Their lordships of the Supreme Court upheld the contention that the head constable was entitled to the benefit of that sub-section. After referring to the definitions in Wharton's Lexicon, 14th Edn, and in Stroud's Judicial Dictionary, 3rd Edn., to which we have already referred, their lordships went on to say :
'It appears to us that the words 'under colour of duty' have been used in S. 161(1) to include acts done under the cloak of duty, even though not by virtue of the duty. When he (the police officer) prepares a false panchnama or a false report he is clearly using the existence of his legal duty as cloak for his corrupt action or to use the words in Stroud's Dictionary 'as a veil to his falsehood.' The acts thus done in dereliction of his duty must be held to have been done 'under colour of the duty.'
We do not see how the fact that the seizure was made on 23 instant and the false report was prepared on 24 instant affects this position. Whether the false report was prepared on 23 or 24 instant the fact still remains that he prepared this under cover of his duty to prepare a correct panchnama, and a correct report and there is no escape from the conclusion that the acts by which the offence under S. 218 of the Indian Penal Code was alleged to have been committed by the appellant were done by him under colour of in duty laid down on him by the Bombay Police Act.'
Therefore, according to this decision there must exist some legal duty and the act complained of should be such as would felt of could be claimed to fall under the cover of that duty. If the officer is clearly using the existence of a legal duty as a cloak for his corrupt action, the act though in dereliction of duty would be under the colour of duty, There must, however, exist a legal duty to do an act and the act which was done must be referable to such duty though it may be in violation of it. In the Supreme Court case there was a duty to make a panchnama and a report and with reference to that duty a false panchnama and a false report were made. The Supreme Court decision, therefor does not support the contention urged by Sri Shelat that a reasonable connexion between the act which constitute the offence and the duty is not necessary. This becomes further clear from a later decision of the Supreme Court in State of Andhra Pradesh v. Venugopal : 3SCR742 ]. There a person alleged to be a thief was brought to the police station and three police officers are alleged to have assaulted him and caused him injuries and thereafter he died. The officers were prosecuted for offences under Ss. 348, 331 and 201 read with S. 109 of the Indian Penal Code. It was contended by the defence that the prosecution not having been launched within the period provided for by S. 53 of the Madras District Police Act, 1859, was barred by limitations. That section provided as under :
'All acts and prosecutions against any person, which may be lawfully brought for anything done or intended to be done under the provisions of this Act or under the provisions of any other law for the time being in force conferring powers on the police shall be commenced within three months after the act complained of shall have been committed and not otherwise.'
The Madras High Court took the view that the accused were to the benefit of that section and they were accordingly acquitted. The Supreme Court said that the High Court was in error. The Court was called upon to construe the expression
'anything done or intended to be done under the provisions of this Act or under the provisions of any other law for the time being in force conferring powers on the police'
and the Court said :
'An act is not 'under' a provision of law merely because the point of time at which it is done coincides with the point of time when some act is done in the exercise of the powers granted by the exercise of the powers granted by the provision or in performance of the duty imposed by it. To be able to say that an act is done 'under' provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation the act cannot be said to be done 'under' the particular provision of law.'
Sri Shelat argues that the language of S. 53 of the Madras District Police Act, 1859, is different from the language of S. 161(1) of the Bombay Police Act. That is true, but it will be apparent from the further observations of the Supreme Court to which we shall refer presently that even in respect of the provisions of S. 161(1) of the Bombay Police Act, their lordships considered that their earlier decision in Virupaxappa Veerappa Kadampur v. State of Mysore : AIR1963SC849 (vide supra) had laid down the test of reasonable relationship between the duty and the act, for they go on to say in Venugopal case [A.I.R. 1964 S.C. 93] that -
'This aspect of the matter was emphasized by this Court recently in Virupaxappa Veerappa v. State of Mysore : AIR1963SC849 (vide supra) [Criminal Appeal No. 144 of 1961, dated 9 November, 1962], when examining the language of a similar provision in the Bombay Police Act.
These principles apply equally to the decision of the question whether the act complained of was 'intended to be done' under the provisions of the Police Act or some other law conferring powers on the police. When we apply these principles to the facts of the present case we lock in vain for any provision of low - whether under the Police Act or under some other law - under which the acts complained of, viz., beating a person suspected of a crime or confining him or sending him away in an injured condition, can be said to have any relation.'
Therefore, judicial decisions are consistent with the conclusion earlier reached from a consideration of the scope and object underlying the catena of sections of the Bombay Police Act and of the definition of the expression 'under colour of duty.' The conclusion is that for an act to be under colour of the duty there must be some reasonable connexion between the act and the duty.
32. Now applying these principles to the facts of the present case, the first point to consider is what was the duty of appellant 1, Dave, in this case. Sri Shelat has argued that having regard to the imputations with reference to Madhukanta contained in the post-card written by Ramanlal to Madhukanta, Dave, as a police officer in charge of the police station, had two duties to perform - one under S. 155, Criminal Procedure Code, and the other under S. 64(b) of the Bombay Police Act, 1951. Information relating to this offence which was not a cognizable offence was received by Dave as an officer in charge of the police station and it was his duty under S. 155 of the Criminal Procedure Code to enter the substance of the information in a book kept for the purpose. Under S. 64(b) of the Bombay Police Act, it was his duty as a police officer to prevent the commission of cognizable and within his view of non-cognizable offences. Sri Shelat states that in calling Ramanlal to the police station with a view to prevent commission of similar offences by Ramanlal the accused Dave was discharging his duty under this provision also. We may accept that submission. His next argument is that the dereliction of that duty lay in the fact that he did not carry out what he was required to carry out under S. 155 of the Criminal Procedure Code and did not do anything which was expected of him under S. 64(b) of the Bombay Police Act but instead he decided not to do anything further in the matter and to destroy the very evidence on the basis of which he was required to take further action under S. 155 of the Criminal Procedure Code or S. 64(b) of the Bombay Police Act. This dereliction of duty, he argues, was a wrongful act. Up to this stage it is not necessary to find any fault with this argument, for it is not that act which is an offence in this case. The offence here is the demand and acceptance of money to induce him to do that wrongful act. The demand and acceptance of money may be a reason for doing the wrongful act which wrongful act was under colour of the duty but this demand and acceptance cannot be said to be under colour of the duty. The question to be asked is - to use the language of the Supreme Court in Virupaxappa case [A.I.R. 1963 S.C. 849] (vide supra) : Was he clearly using the existence of his legal duty as a cloak for his further corrupt act, namely, the demand and acceptance of a bribe The answer must be in the negative.
33. Sri Shelat argues that the case of demand and acceptance of a bribe was not specifically considered in either of these cases and if it had been considered such an act would have been held covered by the principles enunciated by the Supreme Court in Virupaxappa case : AIR1963SC849 (vide supra). In support of this argument he relies on the decision of a single Judge of the Bombay High court in Atmaram Laxman v. State of Maharashtra [67 Bom. L.R. 25]. There the accused were police officers and were carrying on investigation in connexion with a suspected murder case and during the course of performing their duties in the investigation they questioned the suspects for that purpose and in order to elicit information they wrongfully detained these persons and assaulted them for the purpose of extorting statements of a confessional nature in the course of that investigation. They were prosecuted for offences under Ss. 330, 342, 343 and 348 read with S. 34, Indian Penal Code. The prosecution having been filed more than six months after the commission of offence, it was urged before the High Court in appeal against their conviction that they could not be proceeded against in view of the provision of S. 161(1) of the Bombay Police Act. His lordship Justice Paranjpe upheld that contention holding that the act constituting the offence was under colour of duty. In support of that view he relied on two earlier unreported decisions of his, viz., Shriram v. State and Narhari v. State in which on a construction of the Supreme Court decision in Virupaxappa case : AIR1963SC849 (vide supra), he had taken the view that the acceptance of a bribe by a public servant to induce him not to do his duty was an act done under colour of duty. The reasoning underlying that view appears in the following passage at p. 36 extracted from the Court's unreported decision in Narhari v. State :
'The result that was to be achieved is the Supreme Court case was also to lesson the gravity of the offence and the object of the police officer in the instant case was also a similar one, giving either complete relief to the accused or at least a partial relief. The facts of this case, therefore, would certainly bring it within the ratio of the decision of the Supreme Court in Virupaxappa v. State of Mysore' : AIR1963SC849 .'
With respect, there is, in our view, a fallacy in this reasoning. Section 161(1) of the Bombay Police Act is concerned with an act and not with an object or motive underlying it. The object or motive may be the reason or motivating force behind a just or an unjust act but it must be the act itself which has to be connected with the duty and it is that act that has to be considered and not the motive behind it. It may be that on the facts of the case in Atmaram Laxman v. State of Maharashtra [67 Bom. L.R. 25] (vide supra) the decision in that case was not incorrect though it is doubtful how it can be reconciled with the decision of the Fall Bench ruling in civil reference in Narayan Hari case [30 Bom. L.R. 1018]. However, the point does not need to be pursued, for the earlier decision of Paranjpe, J., holding that acceptance of bribe by a police officer would be under colour of the duty, have not been approved by a Division Bench decision of the Bombay High Court in Gorakh Tulji Mahale v. State of Maharashtra [1965 - II L.L.J. 205]. In that case the accused, a police constable, was prosecuted under S. 161 of the Indian Penal Code, S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act on a charge of accepting illegal gratification as a motive for releasing a person whom he had arrested on suspicion. The prosecution was instituted more than six months after the bribe was alleged to have been taken and the question that arose for consideration before their lordships was whether the act was under colour of duty and the accused was entitled to the benefit of the period of limitation provided for by S. 161 of the Bombay Police Act. The matter came before a single Judge whose attention was drawn to two previous decisions of Paranjpe, J., and in particular the decision in Narhari v. State. The learned single Judge found some difficulty in following that decision and therefore the matter was placed before the Division Bench. The Division Bench disapproved of the decision in Narharrao Madhavrao Patil v. state (vide supra). Mr. Justice Chandrachud who spoke for the Bench examined the language of the section and having considered various rulings on the point set out what that Court considered to be the correct position of law as under at pp. 207-208 :
'.... In order that an act could be said to be done under colour of office or colour of duty, it would at least be necessary that there should be some relationship between the act complained of and the duties appertaining to the office. The existence of such a nexus is indispensable for proof that the act is done under colour of office though in a conceivable class of cases, even such a nexus may not be adequate, in the light other facts, for proving that the act was done under colour of office ....
Acceptance of bribe cannot, in our opinion, be described as an act done under colour of office or under colour of duty because it is wholly unconnected with the rights and duties attaching to the office. It is an act which is entirely extraneous to the nature of duties which the office imposes on the incumbents. The only connexion, if at all, between the office and the acceptance of bribe by the officer is that the office affords an opportunity to the officer to demand and accept the bribe. That, however, is not a relevant consideration, because what law requires is not that the act must be done by virtue of office but that it must be done under colour of office ...'
Later on his lordship has made the following observations at p. 208 :
'A public servant who accepts an illegal gratification, cannot, either in justification or in explanation, point to the rights and duties of his office if he is challenged in the act of taking the bribe, that is to say, he cannot ever use the office 'as a veil to his falsehood, ' though of course he exploits his office to extort the bribe.'
With respect, we agree with these observations. In our opinion, therefore, the contention that the prosecution is barred by S. 161(1) of the Bombay Police Act cannot be sustained.
34. In the result, therefore, the appeal is dismissed. Sri Shelat pleaded for a reduction of the sentences on the ground that these sentences are excessive. We are unable to agree with this submission. If police officers who are expected to enforce the laws of the land, themselves commit breaches of those laws and in addition take bribes for commission of those breaches, they must be adequately punished. In our opinion, the sentences are adequate and cannot be said to be harsh. The convictions and sentences are confirmed. The accused to surrender to their bail.