S.L. Talati, J.
1. The appellant is Junior Engineer working in Sub-Divisional Office (Telephones) in Ellisbridge, Ahmedabad. The learned Special Judge convicted the appellant for the offence punishable under Section 5(2) read with Section 5(l)(d) of the Prevention of Corruption Act, 1947 and also for the offence punishable under Section 161 of the Indian Penal Code and sentenced him to suffer R.I. for two years and to pay a fine of Rs. 500/- in default to suffer further R.I. for one month on each count. The substantive sentences are ordered to run concurrently. The appellant has challenged his conviction and sentence by filing this appeal.
2. The prosecution case shortly stated is as under:
There is Federal Bank Ltd. which is a scheduled bank and it had a branch in National Chambers on Ashram Road at Ahmedabad. They wanted to shift their premises and go on the opposite side on the same road. The premises to which they were going to shift are situated near Ashok Karnavati Hotel. This was to be done some time in the month of May, 1980. Now the bank had a telephone No. 78133 and also the Telex machine which was given No. 343. Now in due course they had applied and it appears that ultimately on 26-7-1980 the telephone was shifted. The bank in fact shifted the premises on 28-7-1980. Further prosecution case is that one Jawahar Abraham (P.W. 8) exh. 63 was working in the Federal Bank Ltd. and the accused demanded Rs. 200/- for shifting the telephone and the telex. Now this Abraham was in fact in charge of Manager also. But the new Manager took over from him as Manager and that person is P.W. 1, George exh. 44. Mr. George took over sometime around 28th July 1980 as Manager Abraham continued to work as Accountant. Now when Mr. George took over as Manager of the bank it is the case of the prosecution that Abraham told George that the accused had demanded Rs. 200/- for shifting the telephone and the telex and that amount he had not given to him. Further prosecution case is that in the new premises the bank also wanted one more telephone and for that purpose also under the 'O.Y.T.' scheme the bank had submitted an application with deposit which is necessary for the purpose, the deposit amount being Rs. 5,000/-. It appears that in the new building Telex was shifted some time in the month of October, 1980. According to the prosecution case when this Telex was shifted the accused demanded Rs. 300/- from Abraham and Abraham told him that the bank cannot pay any bribe and Abraham did not pay any attention to the demand made by the accused. Thereafter it appears from the evidence on record that the Telephone Department demanded a sum of Rs. 115/- for installation charges and that amount was paid on 4-12-1980. The bank received the information on 8-12-1980 that they would be given new telephone connection. Thereafter the prosecution case is that on 15-12-1980 the accused at some time noon went to the Bank and met Abraham and asked him as to where the new telephone was required to be installed. Abraham after consulting Mr. Geroge told him that the new telephone was required to be installed in Manager's cabin. Again on that day a sum of Rs. 300/- was demanded from Abraham for shifting the old telephone and the Telex and installing a new telephone. Abraham again did not pay any heed to this demand but informed George and George told him that he should inform the accused that the bank was agreeable to pay the bribe. Now the prosecution case is that on that day the accused had insisted on payment and asked Abraham to tell him as to whether the bank was willing to pay or whether the bank was not willing to pay and the answer in affirmative or in negative must be given and the prosecution case is that the accused threatened Abraham that unless the bribe amount was given to him new telephone will not be installed. When George was apprised of all this talk he told Abraham that the bank was agreeable to pay the amount and such information should be sent to the accused. Thereafter the prosecution case is that Abraham telephoned to accused but the Telephone Operator told him that he was not available at that particular point of time and Abraham told Telephone Operator that he should tell the accused to ring the Bank. Ultimately at about 4.30 the accused rang up the bank and Abraham picked up the phone and at that time also according to the prosecution the accused demanded the amount and Abraham told him that he could collect the amount on 16-12-1980 from the bank. Thereafter the prosecution case is that George (P.W. 1) exh. 44 went to the office of the C.B.I. on 16-12-1980 in the morning and filed complaint exh. 40. The result was that after recording the complaint the officers of the C.B.I, decided to arrange for a trap. Currency notes of Rs. 300/- were treated with phenolphthalein powder and numbers of the currency notes were noted. After showing the effect of phenolphthalein powder to the complainant, the panchas and the members of the raiding party a preliminary panchanama was prepared. All arrangements for laying down the trap were completed and ultimately on 16-12-1980 C.B.I. officers went to the Federal Bank premises with two panchas. However, they had to wait there up to 4.00 p.m. and the accused did not turn up. Nil panchanama was prepared and the C.B.1. officers with panchas returned back. Further prosecution case is that on 17-12-1980 the accused went to the bank for getting the amount. The Manager of the Bank told him that he had come late and he should come on the next day at about 12.0 noon. The accused left. Again George informed the C.B.I, officers who prepared another panchanama on 18-12-1980, new panchas were called. Other currency notes were taken and phenolphthalein powder was applied. The effect of the same was shown to the complainant, the panchas and the members of the raiding party and the preliminary panchnama was prepared. All arrangements for laying down the trap were completed and the members of the raiding party, the two panchas went to the bank at about 11.00 a.m. on 18-12-1980. Panch No. 1 was made to sit in the cabin just opposite the Manager. Panch No. 2 and other members of the raiding party were in the bank premises and one Thomas who was also an officer of the C.B.I, and who was one of the members of the raiding party moved to and fro, sometimes went in the cabin, sometimes outside the cabin and he was just' waiting for the accused to come. It is the prosecution case that before the accused came Thomas also had gone to the cabin and he was also sitting in the cabin. Ultimately at about 12.30 noon the accused went to the Federal Bank. He met Abraham. Ultimately went to the cabin of the Manager and thereafter to the next adjoining room where Telex machine was installed and from that place he made a telephone call to one Makwana but as Makwana was not present he had a talk with P.W. 6, Kantilal Patel and thereafter according to the prosecution case he came back from the place where Telex machine was installed. Again he had a talk with Abraham and went to Manager's cabin. He sat just opposite the Manager in one chair and after sitting in the chair he demanded the amount by making gesture without speaking any Word. The Manager who had three currency notes of Rs. 100/- each already treated by the A.C.B. office with phenolphthalein powder and which were placed in his pocket by the C.B.I, officer took out those notes and handed over the same to the accused who accepted the same in his right hand and placed them on the papers which he had in his left hand. At that time Thomas stood up and he went out. As soon as he went out the C.B.I. officers and the members of the raiding party along with panch No. 2 rushed in the cabin and they caught both the hands of the accused; but according to the prosecution the accused threw away the amount which fell in one of the drawers which was open and which was on the right side from where George was sitting. The solution of sodium carbonate was prepared and the hands of the two panchas, the members of the raiding party and others except the complainant-George and the accused were dipped in that solution and the colour did not change. That water was thrown away. The glass was cleaned and thereafter it was again filled with solution of sodium carbonate and the two hands of the accused were dipped in that solution and the colour became pink. That pink colour solution was sealed in a bottle which ultimately the prosecution sent to the Forensic laboratory for examination, and report. Ultimately the currency notes also were seized, their numbers were tallied with the preliminary panchanama and finally after completing all necessary requisite formalities the panchanama was completed. Investigation was completed by Shivkumar Thacker (P.W. 9) exh. 64 and after obtaining the sanction as required under Section 6 of the Prevention of Corruption Act, 1947 charge-sheet, was submitted against the accused-person in the Court of Special Judge in City of Ahmedabad. At the trial 9 witnesses were examined. The accused denied the guilt.
3. In his statement to several questions which were asked to him for explanation, in answer to question No. 74, the accused admitted that his two hands were dipped in the solution which was prepared. However he was not in a position to say as to what they did of that solution. Ultimately in a question which was generally asked as to what he wanted to say, he stated that because of monsoon in Paldi area 1000 telephones were out of order and there were several faults and the instructions from the head office were that new connection should not be given in monsoon and only faults should be attended to. According to him when he was asked by the head office to instal the Telex line he installed it on 30th September, 1980. Thereafter according to him he learnt on 8-12-1980 that new telephone connection was also to be given to the bank and, therefore, laying down the line work was completed by 18-12-1980 and as soon as all the arrangements were made he went to the bank on 18-12-1980 and inquired as to where the hew telephone was required to be placed and he was informed that new telephone was to be placed in the cabin of the Manager. In those circumstances according to him he met the Manager and the Manager told him to place the telephone on his table. At that time according to the accused the Manager took out the money and showed it to him for giving and he told him 'what are you doing'. So saying according to the accused he refused to take the amount and that refusal was done by pushing the money with his hand and the amount fell down and he did not know as to where that amount fell and at that particular point of time several persons rushed in and he was informed that the persons belonged to C.B.I, and they prepared one solution and asked him to dip his fingers in that solution and, therefore, he did so. According to him, therefore, he neither demanded the amount nor accepted the amount and, therefore, did not commit any offence.
4. The learned Special Judge after appreciating the evidence of 9 witnesses and considering the statements of the accused came to the conclusion that the accused accepted the amount of Rs. 300/- and, therefore, held him guilty and convicted and sentenced him as above. That conviction and sentence is now being challenged in this appeal.
5. We have heard the learned advocate Shri Desai for the appellant. He took us through the etire evidence. His first submission is that P.W. 5 Ahuja who gave sanction to prosecute the appellant did so without any application of mind and, therefore, sanction which is accorded is not legal and, therefore, the prosecution is void ab initio. His second submission is that there was no reason for the accused to demand any money. According to him neither the Telephone Department nor the accused made any delay in shifting the old telephone and the telex machine to the new premises and no delay was done in even installing the new telephone. It was submitted that Thomas in fact was not present in the cabin and the prosecution did not examine him. It was submitted that as there was no reason or cause to demand money no demand was ever made and there is an improvement in the story so far as the prosecution is concerned and it is submitted that though the prosecution witnesses stated that the accused after putting his hand on the table made the gesture by moving his fingers that fact does not appear in the panchnama and also it does not appear in the police statement. Thus according to the appellant there is improvement on a vital point. Further submission is that if the colour of the solution changed to pink the reason was that the accused had pushed the currency notes and, therefore, his right hand had come in contact with the notes which were treated with phenolphthalein powder and that was the reason that the colour changed. In fact the currency notes were not taken in the left hand at all and, therefore, if the prosecution wanted to establish that the accused took the currency notes in his left hand fingers of both the hands should not have been dipped in the solution at a time but it should have been done one by one and if that was done it is suggested that the colour would not have changed to pink when the left hand fingers would have been alone dipped in the solution. It is also submitted that there were papers in the left hand of the accused and if the currency notes were placed on the papers as suggested by the prosecution it was necessary for the prosecution to dip papers also in the solution and if that would have been done according to the defence colour would not have changed. All these arguments are required to be considered in detail. We have gone through the entire evidence on record firstly because the question is of great importance because the decision one way or the other would affect the whole career of a public servant. It is tried to be suggested that it is very easy for one complainant or one panch or both together to say that the public servant demanded the amount, accepted the amount and the solution became pink when the fingers were dipped and if such things are falsely stated it ruins the career of a public servant and it is necessary to be remembered as suggested by the defence that the complainant is an accomplice; members of the raiding party are interested and unless there is corroboration with material particulars and the evidence is such which inspires confidence then alone the conviction could be based and it is for the prosecution to establish the whole case beyond reasonable doubt and that when the amount is not found on the person of the accused and if it is found somewhere lying in the cabin the explanation of the accused if found to be probable he is entitled to the benefit of reasonable doubt. We have, therefore, to examine the case bearing in mind the suggestions which are made by the defence. Before we do so we might say that the two positions are admitted. One is that the appellant-accused is a public servant. The second position which is admitted is that P.W. 5, Ahuja had authority to give sanction. That position was proved before the learned Special Judge and it was not challenged there. It is not challenged here also. What is challenged is that P.W. 5 Ahuja did not apply his mind at all, while giving sanction and, therefore, it is not a valid sanction. Our attention is drawn to a case of Mohmed Iqbal Ahmed v. State of Andhra Pradesh reported in : 1979CriLJ633 . Our attention was drawn to paragraph 3 of that judgment wherein the Supreme Court observed as under:
This argument is wholly untenable because what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecution and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
Now what happened in that particular case was that a note was placed by the Municipal Corporation and the Standing Committee unanimously accorded the sanction for prosecution of the accused. The resolution which was perused by the Court merely mentioned that the sanction was given on the basis of a note of the Commissioner, Municipal Corporation. The prosecution in that case did not establish the facts constituting the offence which were placed before the sanctioning authority by producing the note at the trial. What the Supreme Court, therefore, stated was as under:
It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficult (sic-defect) in the prosecution, the entire proceedings are rendered void ab initio.
Now, therefore, when we go to this particular case and particularly the evidence of P.W. 5, Ahuja exh. 55, Ahuja stated that he had issued the sanction exh. 56. According to him he placed his signatures on all pages of the sanction order. He clearly stated as under:
From the facts placed before me I was satisfied that the accused Mr. Tandel should be prosecuted for the offences alleged to have been committed by him and, therefore, I had issued the sanction order.
He further slated that all the material facts of the case have been narrated in the Sanction Order. In cross-examination the witness was asked as to whether every word of the Sanction Order is drafted by him and the witness stated in reply that he will say the same thing that he had seen the sanction order and thereafter signed it. To a question whether he placed the signatures on the draft sanction order which was prepared by the C.B.I, he stated that he does not remember it. The sanction order is exh. 56. Now in that sanction order in paragraph 1 it is stated that the allegation was that the accused on or about 18-12-1980 demanded and accepted illegal gratification of Rs. 300/- from George, Branch Manager Federal Bank Ltd., Ashram Road, Ahmedabad. In paragraph 2 all the facts regarding the prosecution case are stated. It is stated as to how the bank wanted to shift the premises, how the application for shifting the old telephone and the Telex to the new building was given, how the application for installing the new telephone was submitted with necessary deposit, on what dates the Telephone and the Telex were shifted and in what circumstances the amount was demanded by the accused on 15-12-1980, how he was asked to come on 16th and he did not come, how again he came on 17th and demanded money and how ultimately he accepted the amount on 18th. Now that, therefore in the Sanction Order practically all facts which are necessary are stated and Ahuja states in his evidence clearly that from the facts which were placed before him he was satisfied that the accused should be prosecuted for the offence alleged to have been committed by him and under those circumstances he had issued sanction order. Now that, therefore, if one looks at the ruling reported in : 1979CriLJ633 (supra) the Supreme Court has stated that the prosecution can prove the sanction in either of the two ways such as by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction. Now that, therefore, in this case the original Sanction Order is produced which contains the facts constituting the offence and the grounds of satisfaction. In fact no further evidence was necessary. However, Ahuja is examined. He himself is the Sanctioning Authority and he himself stated that he was satisfied and, therefore, he gave the sanction order. In cross-examination what he admitted at the highest was that he had not drafted the sanction order and when repeatedly asked he stated that 'I need not say once again but I was satisfied. Now, therefore, there is no law which requires the Sanctioning Authority to draft the sanction himself. It is for him to decide whether a public servant who is appointed by him and who is liable to be dismsised by him is required to be prosecuted and the sanction is required to be given or not. At that time he has to apply his mind to the facts which are brought to him. It may be by precise concise statement, it may be that all prosecution papers, statements, panchnamas, complaint etc. may be placed before him and he may go through the same and if he is satisfied that the sanction is required to be given that sanction order could be drafted by any one in the office, even by a Law Officer kept for that purpose. The Sanctioning Authority thereafter is only required to go through that order, fully satisfy himself that what has been stated is according to what he wanted and if he finds it all right he could sign it and that would be a perfect legal sanction.
7. [XXX] Now we are conscious of the fact that in a case under the Prevention of Corruption Act the complainant is a person who in technical and legal sense of the term is a person who gives bribe and, therefore, he is an accomplice and his evidence requires corroboration. We might here mention that in every trap case whenever the complaint is filed there is always a person who has to give money to the accused which in fact is a bribe money. We have used the word accomplice in the strict sense. But without giving the bribe bribe cannot be accepted and, therefore, in order that the trap succeeds a person has to give bribe if the bribe is demanded otherwise no case can be made out. Therefore, though corroboration is necessary in law it is always to be decided having regard to the facts of each case as to how much corroboration is necessary. For that one has to examine every complainant in the manner in which he works. There could be a person who would be unwilling to give any bribe to any person at any point of time. If such a person is approached by a public servant and the money is demanded from him and that person is unwilling to give money and in order to set an example in order to do public good he approaches the authorities and lodges complaint and in order that the trap succeeds he gives money when demanded he is a person who is not in fact willing to give money to get his work done but he is giving money for public good. That is one type of accomplice. There could be another type of accomplice who is always willing to give money in order that his work is done. He gives money to get his work done and after the work is done he sends complaint or writes to the authorities. Now that is the worst accomplice. In between these two types of persons there are various grades of accomplices. There are persons from whom large amount is demanded and there are persons who are willing to give money but they settle at smaller amount. Ultimately they are the persons who are willing to give bribe. They are not against giving bribe but they feel that unreasonably a larger amount is demanded and, therefore, the complaint is required to be filed. Thus there are grades and grades of accomplices and, therefore, in order to appreciate the entire evidence it is necessary that one has to understand what type of complainant is to be dealt with in a particular case. Here is the Manager of a Bank which is a scheduled bank. The Accountant Abraham was not willing to give anything though he was approached on many occasions. George when he took over the charge of the bank knew that this amount is being demanded of and on and ultimately threat was given that unless the amount was paid new telephone was not to be installed. This is where the Manager of a scheduled bank gets upset. He decides to file the complaint. He tells Abraham that all right tell him that the bank is willing to give money. In fact what he meant and what he understood was that 'call him, that in order to trap him we may have to pass money'. Therefore, the amount was debited in 'Account Receivable Account'. That amount was to come back as he very well knew. This man who was transferred from Rajkot and came to Ahmedabad hardly a month before never knew the accused. He had no grievance against the accused. He is not a person who would know the technical aspect or maintaining of wires etc. by the Telephone Department. He was concerned with his bank and the working of the bank. He wanted that his Telex machine should function in order that the bank may not have to suffer. He only wanted that a new telephone must be installed. If he had a feeling that his Telex machine is not being attended to and it remains out of order it was a genuine feeling against the department. Now in such a situation if Abraham informs him that the accused states that he would not instal a new telephone till Rs. 300/- were paid to him and ultimately when the Manager tells him that he had written to the Telex Department to repair the machine and he is told that nothing will happen by merely writing the letter, is the grievance not genunine? and having believed that it was the accused who was creating trouble and putting the bank to a loss, in such a situation of this nature the Bank Manager had no other alternative but to approach the C.B.I. It was hardly necessary for him to take permission of his head or to approach the higher officials of the Telephones Department, because if a trap is required to be laid down it is always to be seen that the matter does not leak out. In fact he did not tell Abraham that he was going to file the complaint. He only told him that inform the accused that the bank was willing to pay and as soon as the accused agreed to come to the bank for the purpose of accepting the amount, before doing anything further he went to C.B.I, office in the morning and filed a complaint. Now this type of person who for the good of the bank, for the good of the people at large in order that the corruption is rooted out, files a complaint and does not oblige the accused by paying money we do' not think that he has done factually anything wrong though in technical term he may be an accomplice and his evidence requires corroboration. That corroboration would be a slight corroboration and slight corroboration would be sufficient.
9. Now that, therefore, the evidence of Manager George exh. 44 when gets full corroboration from panch No. 1 Ghanshyam Trivedi exh. 45 the learned Special Judge if comes to the conclusion that the prosecution established the case beyond reasonable doubt, we do not think that the appreciation done by the learned Special Judge is in any way faulty or that the appreciation is not proper. The view which the learned Special Judge took after seeing the witnesses who were examined before him after a long cross-examination when it was found that they were telling only truth, they were required to be believed and the learned Special Judge believed them. Under these circumstances after rereading the evidence it is not possible for us to reach to any different conclusion than the one which is reached by the learned Special Judge. Merely because the currency notes are found from a drawer meaning thereby not found from the person of the accused, it cannot be believed that the amount remained in the Table throughout. The evidence of George and Ghansyam Trivedi clearly shows that the amount was in the pocket of George. He took out the currency notes and when demanded by the accused by making a gesture the amount was handed over to the accused which he accepted and he threw away only when the members of the raiding party entered the cabin. When this evidence is accepted it would mean that the prosecution proved the 6 ase. The suggestion of the accused that the amount was offered to him without being demanded and that he was not willing to accept and therefore, he had pushed back the amount which fell in the drawer, is the story which cannot be accepted in view of the overwhelming evidence on record.
10. Before we part with this case we would like to observe that the learned Special Judge allowed certain questions in cross-examination regarding contradictions with police statements. In fact what we have found throughout is that at all crucial points in cross-examination loose ends which could never unite were kept so that the arguments could be advanced. But on those arguments no conclusions could ever be reached. The contradiction was put in such a way that in fact the real contradiction was never known, whether it amounted to contradiction or not that also was never seen. It is required to be stated that the contradiction is to be proved in the manner laid down by Section 162 of the Criminal P.C. Every omission does not amount to contradiction unless that omission vitally touches the very factum which is required to be proved by the prosecution. Say in a murder trial in the complaint the name of the accused is not stated at all and it is stated for the first time in Court. It is a real contradiction though an omission. But if the witness states that he saw a particular gentleman at 3.30 in the evening, to ask him in cross-examination that he did not state that he saw a particular person at 3.30 p.m. and in the police statement if he states that he saw him in the afternoon what is not mentioned is only 3.30 p.m. It is an omission of non-consequential nature. If the contradiction is taken down verbatim in the manner in which the question is asked an impression might be created that he did not even say that he saw him in the evening or in the afternoon. But in fact he had stated that he had seen the person in the evening or in the afternoon. What was not stated was only 3.30 p.m. Now that, therefore, even such an omission is required to be brought on record. It is to be brought in such a way that it becomes clear as to what exactly the contradiction is otherwise it would appear that nothing was stated in the police statement. It is also necessary, therefore, that if by bringing out a contradiction that the first statement which is given in the Court is totally absurd having regard to the police statement, a person is required to be given a chance of explaning as to what he wanted to say or what was his explanation in regard to the contradiction. Now that, therefore, another thing which is required to be noted is that Section 162 of the Criminal P.C. requires that the contradiction is to be asked in the manner laid down by Section 145 of the Indian Evidence Act which reads as under:
145. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
This is the manner in which the contradiction is required to be asked and as there were difficulties in regard to what would be the effect of omissions, Explanation is added to Section 162 which reads as under:
An omission to state a fact or circumstance in the statement referred to in Sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
This Explanation was required to be added because of a case of Tahsildar Singh v. State of U.P. reported in : 1959CriLJ1231 wherein it is observed as under:
The intention of the legislature in framing Section 162 in the manner it did in 1923, was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the section and the proviso intended to serve primarily the same purpose i.e., the interest of the accused.
The section was conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police-officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of Contradicting a witness in the manner provided by Section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar.
The procedure is also indicated by the Supreme Court and the procedure is stated in paragraph 13 and it reads as under:
Per Majority (Sinha, Kapur, Sarkar and Subba Rao JJ.) The procedure prescribed for contradicting a witness by his previous statement made during investigation, is that, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to Section 162 only enables the accused to make use of such statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of Section 145 of the Evidence Act. The argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof cannot be accepted. The second part of Section 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witnessbox that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witnessbox. If he admits his previous statement, no further proof is necessary if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, if the witness is asked 'did you say before the policeofficer that you saw a gas light?' and he answers 'yes', and then the statement which does not contain such recital is put to him as contradiction, the procedure involves two fallacies: one is, it enables the accused to elicit by a process of cross-examination what the witness stated before the policeofficer. If a policeofficer did not make a record of a witness's statement, his entire statement could be brought on record. The procedure, therefore, contravenes the express provision of Section 162 of the Code. The second fallacy is that there is no self-contradiction of the primary statement made in the witness-box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police-officer and what he actually made before him. In such a case the question could not be put at all: only questions to contradict can be put and the question here posed does not contradict, it leads to an answer which is contradicted by the police statement.
This High Court also in the case of Ismail Bijalbhai v. State of Gujarat reported in (1967) 8 Guj LR 25, following the ruling reported in : 1959CriLJ1231 (supra) held as under:
After considering the scope of Section 162 of the Criminal Procedure Code that (1) a statement made by a witness before a police officer in the course of investigation and reduced to writing can be used only to contradict his statement in the witness-box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement, and (4) such a fiction is permissible by construction only in the following three cases - (i) when a recital is necessarily implied from the recital or recitals found in the statement; (ii) when it is a negative aspect of a positive recital in a statement, (iii) when the statement before the police and that before the Court cannot stand together.
It is for the trial Judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness box to give a ruling, having regard to the aforesaid principles, whether the recital intended to be used for contradiction satisfies the requirements of law. It is the duty of the trial Judge to see that only such evidence as is admissible according to law comes on record and by permitting all questions relating to omissions from the statement before the police and by allowing all such omissions to be brought on the record, the trial Judge sometimes permits inadmissible evidence to come on the record of the case and to that extent fails in his duty. When an omission from a statement before the police is brought on record in the cross-examination of a particular witness, it becomes obligatory on the public prosecutor, and if the public prosecutor fails to carry out that duty, it becomes obligatory to the Court to put questions to the witness and to bring on record under the powers under Section 162, Cr. P. C. as to what the witness actually stated to the police.
Now that, therefore, if the principles enunciated in these two cases were borne in mind by the learned Special Judge so many questions which are asked in cross-examination could not have been asked or some of them could have been asked in a different way. It is, therefore, necessary that in every case where the witness is to be contradicted the Judge should bear in mind the provisions contained in Section 145 of the Indian Evidence Act and Section 162 of the Criminal P.C. and the interpretation made of those sections in the two rulings which we have referred above. This would avoid unnecessary questions and it will bring about the result which would be both in the interest of the prosecution and the defence and, therefore, in the interest of justice. The learned Special Judge in paragraph 7 of the evidence of Ghanshyam Trivedi Exh. 45 allowed the question which brought out the following answer:
[Vernacular Matter Omitted - Ed.]
Now that, therefore, the question would have been as to whether on the important points the panchnama and the police statement tally and the answer was in negative. We do not understand as to how the panchnama and the police statement could be compared in this way. What is to be done is that the contradiction in the manner provided by Section 145 of the Evidence Act read with Section 162 of the Criminal Procedure Code is only required to be asked and that is the only question which is required to be permitted. At the end of this paragraph the following reply is elicited:
[Vernacular Matter Omitted - Ed.
We do not know as to how such a question and answer could go at all in evidence. This is clear violation of provisions of law. However, we are fully satisfied with the evidence of P. W. 1 George Exh. 44 and P. W. 2 Ghanshyam Trivedi Exh. 45 and it is more than clear that in this particular case the complainant had moved with a good motive and he is corroborated in his complaint, by subsequent conduct by panch No. 1, by the panchnama, by Abraham Exh. 63 and other evidence on record. Now that, therefore, there is ample corroboration on all material particulars and we are fully satisfied on reappreciating the evidence that the accused in order to satisfy his lust for money demanded and accepted a sum of Rs. 300/- to which amount he was not entitled to as a public servant and thus misused his position or authority and, therefore, he is rightly convicted for the offence for which he was charged.
11. Coming to the question of sentence considering over-all circumstances we do not think that we should interfere with the sentence imposed by the learned Special Judge after exercising proper discretion in the matter.
12. The result is that the appeal fails and is dismissed.
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