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Kantilal Damodardas Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 198 of 1967
Judge
Reported inAIR1970Guj218; 1970CriLJ1359; (1970)0GLR868
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 154, 156, 157 and 162; ;Indian Penal Code (IPC), 1860 - Sections 182; Bombay Police Act, 1951 - Sections 64
AppellantKantilal Damodardas
RespondentState of Gujarat
Appellant Advocate B.H. Desai, Adv.
Respondent Advocate K.M. Chhaya, Asstt. Govt. Pleader
Cases ReferredSudarsan Barhambhat v. Emperor
Excerpt:
.....will take these facts into consideration. - 1. a short, yet an interesting question that arises for consideration in this appeal is as to whether the statement ex. chhaya, the learned assistant government pleader for the respondent-state, that the application does not clearly state about the accused having paid rs. rana who had also recorded statements of various persons and ultimately in his view the allegations made by the accused in the statement of 3-1-1963 were found to be false and that the action against him under section 182 of the indian penal code was recommended. - (a) x x x x (b) to the best of his ability to obtain intelligence concerning the commission of cognisable offences or designs to commit such offences, and to lay such information and to take such other steps,..........is as to whether the statement ex. 13 of the accused which came to be recorded by mr. erulkar, the police officer giving out information therein about his having given illegal gratification to the extent of rs. 200/- to mr. desai, superintendent of excise, was a statement falling within the ambit of section 162 of the criminal p.c. and if so, whether the same can be made the basis of a complaint against him for an offence under section 182 of the indian penal code.2. the facts giving rise to this prosecution are quite simple. the accused happened to be the proprietor of rajkamal stores situated in bhadra in the city of ahmedabad. the premises of the stores were raided on 13-10-1962 by mr. ishverlal chotubhai desai, the superintendent prohibition and excise, with the assistance of other.....
Judgment:

1. A short, yet an interesting question that arises for consideration in this appeal is as to whether the statement Ex. 13 of the accused which came to be recorded by Mr. Erulkar, the Police Officer giving out information therein about his having given illegal gratification to the extent of Rs. 200/- to Mr. Desai, Superintendent of Excise, was a statement falling within the ambit of Section 162 of the Criminal P.C. and if so, whether the same can be made the basis of a complaint against him for an offence under Section 182 of the Indian Penal Code.

2. The facts giving rise to this prosecution are quite simple. The accused happened to be the proprietor of Rajkamal Stores situated in Bhadra in the City of Ahmedabad. The premises of the Stores were raided on 13-10-1962 by Mr. Ishverlal Chotubhai Desai, the Superintendent Prohibition and Excise, with the assistance of other officers and on a search carried out, various articles were seized. Some of those articles were in the nature of bottles containing Eau-de-cologne, tincture Hemidesni, Kawath etc. Though they were attached, samples therefrom were not given to the accused. Some time after one Chaturbhuj B. Acharya of Ahmedabad sent an application to Shri Medh. Deputy Superintendent of Police. Anti-Corruption Bureau, Ahmedabad inter alia stating that Mr. Desai had concluded with the accused and had deliberately not given samples to the accused in contravention of the circular issued by the Director of Prohibition and Excise so as to enable the accused to escape from the consequences of his being in unlawful possession of alcoholic preparations. That application was received on 13-12-1962 by Mr. Medh Mr. Medh thereupon directed Mr. Erulkar, the P.S.I. to make an inquiry. While making inquiry Mr. Erulker recorded the statement of the accused on 3-1-1963. That statement is Ex. 13 and it contained some allegations against Mr. Desai. The material allegation in respect of which this action is taken against him is that on 13-10-1962 when his Rajkamal Stores was raided and various articles seized therefrom by Mr. Desai and others, Mr. Desai had put him in fear and demanded some bribe from him. on his giving assurance that in future he will not be harassed, he gave a sum of Rs. 200/- by way of illegal gratification to Mr. Desai. That statement bore the signature of the accused. Finding the allegations of a very serious character against a high official such as Superintendent of Prohibition and Excise Mr. Erulkar told Mr. Medh that he cannot make further inquiry. Consequently Mr. Medh directed one Mr. Rana to make further inquiry in respect thereof. That inquiry was carried out and a report was submitted by Mr. Rana. In his view, the allegations made against Mr. Desai by this accused were false and that he should be prosecuted for an offence under Section 182 of the Indian Penal Code. On the basis of that report, it appears that the complaint against Shri Chaturbhuj as also against this accused was filed. Since there arose some technical defect, the case against this accused was separated and after the trial was over, the accused in that case, namely, Chaturbhuj B. Acharya was acquitted. The judgment thereof is produced in the case. It is dated 20-10-1966.

3. Thereafter Mr. Medh filed a complaint against this accused in the Court of the City Magistrate, 5th Court, Ahmedabad, for the same offence under Section 182 of the Indian Penal Code in respect of the same allegations made by him in his statement of 3-1-1963 before the P.S.I. Erulkar of the Anti-Corruption Bureau, against Mr. Desai since they were found to be false. To that charge levelled against him, the accused denied to have committed any offence. He, however, admitted about his having given a statement on 3-1-1963 before P.S.I. Erulkar wherein those allegations against Mr. Desai were made. But, according to him, the statement was not read over to him and that he had recorded in any manner as he chose. He has led no evidence in defence. The learned Magistrate after considering the effect of the evidence adduced in the case found that the allegations made by the accused were false and that he must be presumed to have had knowledge that the officers of the Anti-Corruption Bureau would be induced to make inquiries into the matter and that it would land Mr. Desai in serious trouble. He, therefore, found the accused guilty for an offence under Section 182 of the Indian Penal Code and sentenced him to suffer simple imprisonment for a period of three months and to pay a fine of Rs. 500/- or in default, to suffer simple imprisonment of 1 1/2 months. Feeling dissatisfied with that order passed on 28-3-1967 by Mr. N. R. Tatia, City Magistrate, 5th Court Ahmedabad, the accused has come in appeal.

4. The fact about Mr. Erulkar having recorded a statement of the accused on 3-1-1963 as also about the same containing serious allegations against Mr. Desai about his having been paid Rs. 200/- by way of illegal gratification is not in dispute. The falsity thereof or the purpose with which the same is said to have been made is also not challenged before this Court. The contention, however, raised by Mr. Batubhai desai, the learned advocate for the appellant-accused, is that this statement falls within the ambit of the provisions contained in Section 162 of the Criminal P.C. and when that is so, it cannot be used for any purpose other than contemplated therein so as to make the same as a basis for the prosecution of the accused under Section 182 of the Indian Penal Code. According to him, the statement could have been either recorded while making an inquiry or investigation in respect of any complaint relating to either a cognizable offence or a non-cognizable offence. Since the offence in respect of which the inquiry was put in action was in the nature of a cognizable offence, namely, the offence falling under Section 161 of the India Penal Code or so, the statement of the accused recorded during the course of that inquiry falls within Section 162 of the Criminal P.C. if it related to any non-cognizable offence, the permission of the Magistrate was essential to be obtained before investigating into the same and since no such permission was obtained, the P.S.I. had no authority to record any statement of the accused under Section 155(2) of the Code. In any view of the case therefore, it was contended, that this was not a complaint or information as such under Section 14 of the Criminal P.C. so as to be the basis of an action under Section 182 of the Indian Penal Code if it is found to be false. But if it was in pursuance of any further inquiry or investigation in relation thereto, the recording of the statement of such person would be under Section 160 and 161, of the Criminal P.C. and that would fall under Section 162(1) of the Criminal P.C. On the other hand, it was urged by Mr. Chhaya that it was in the nature of a preliminary inquiry that Mr. Erulkar was directed to make on receipt of some application from one Shei Chaturbhuj and that a direction given to him was to make a preliminary inquiry before registering an offence and if any statement was recorded in relation to any such inquiry it would not fall under Section 154 of the Criminal P.C. According to him, it will be falling under Section 64(b) of the Bombay Police Act 1951 as applied to the State of Gujarat.

5. From the evidence of Mr. Erulkar it appears that Shri Medh had forwarded an application which he had received from one Chaturbhuj Acharya by his letter NO. 4065 of 27-12-1962 for making an inquiry. That application is not proved by examining him, and consequently is not exhibited in the case, It cannot, therefore, be taken as a part of record in the case. Now Mr. Erulkar has averred that in that application which was sent to him for inquiry, the main allegation against Mr. Desai, the Superintendent of Excise was that the accused Kantilal, the proprietor of Rajkamal Provision Stores had given a sum of Rs. 200/- by way of bribe to Mr. Desai and that he had accepted the same at the time when his Stores was raided by Mr. Desai on 13-10-1962. Thus, he was required to make an inquiry with regard to the accusation of this character against Mr. Desai made by a third party in his application dated 11-12-1962. These allegations obviously relate to an offence falling under Section 11 of the Indian Penal Code and such an offence is a cognizable one. It was pointed out by Mr. Chhaya, the learned Assistant Government Pleader for the respondent-State, that the application does not clearly state about the accused having paid Rs. 200/- by way of bribe to Mr. Desai and all that it refers to is that while carrying out the raid of the Rajkamal Provision Stores belonging to the accused, he had colluded with him and while seizing those goods, he had not given the samples thereof and thereby keeping deliberately a loophole the advantage whereof can be obtained by the accused in the event of any prosecution that may be launched against him in respect thereof. In other words, it refers to Mr. Desai having not acted according to law in the search carried out by him in that he had acted in collusion with the accused in respect thereof. In face of the evidence of Mr. Erulkar, it is not proper to look at any such complaint which has not been proved and consequently not exhibited in the case. At any rate on 27-12-1962 when he was asked to make an inquiry he had in his possession the information about Mr. Desai, the Superintendent of Excise, having committed an offence under Section 161 of the Indian Penal Code and that it was in that connection that the inquiry was directed to be made. It was that way that he went to the place of the accused and recorded his statement marked Ex. 13 on 3-1-1962 wherein those allegations have been made by him against Mr. Desai. This statement covers about 5 or 6 pages and it bears the signature of the accused. The further inquiry in this regard was carried out by Mr. Rana who had also recorded statements of various persons and ultimately in his view the allegations made by the accused in the statement of 3-1-1963 were found to be false and that the action against him under Section 182 of the Indian Penal Code was recommended.

6. The question, therefore, is as to under what provision of law Mr. Erulkar, the P.S.I. had recorded the statement of the accused in this case. Mr. Erulkar was asked as to under what provision of law he had made the inquiry in which he recorded the statement of this accused, and to that his reply is that he cannot say. The inquiry in respect of any offence can be made by a police officer in case it relates to either a cognisable or a non-cognizable offence as contemplated in Chapter XIV of the Criminal P.C. Now Mr. Erulkar has, however, admitted that no order of the Magistrate was taken before initiating this inquiry. If the inquiry, was in respect of any non-cognizable offence, the permission of the Magistrate was necessary to be obtained by him under Section 155(2) of the Criminal P.C. As provided therein, no police-officer can investigate a non-cognizable case without the order of a Magistrate of the first or second class having power to try such case or commit the same for trial or of a Presidency Magistrate. No such permission was at all obtained.

7. The police officer Mr. Erulkar, therefore, could only have the authority to inquire or investigate into the commission of a cognizable offence under the provisions contained in Chapter XIV of the Criminal P.C. Section 154 of the Code provides that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and he read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be reduced by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. Any information given, therefore, which relates to the commission of a cognisable offence puts the law in motion, and that entitles the police officer to exercise his authority and powers if he proceeds to inquire or investigates into the same. It makes no difference whether that information was reduced to writing or not at that particular stage. That may be an irregularity committed, but the fact remains that the authority and power to inquire or investigate into any such allegations amounting to a cognizable offence, begins. His action in so doing commence the inquiry or investigation as the case may be. Then comes Section 155 and sub-section (1) thereof relates to information into non-cognizable cases and the investigation in respect thereof. In that event, the police officer may have to enter the information in a book kept for the said purpose and refer the informant to the Magistrate. Sub-section (2) is already referred to and need not be repeated. Sub-section (3) thereof then says that any police-officer receiving such order from a Magistrate any exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police-station may exercise in a cognizable case. Section 156 relates to investigation into cognizable cases and as provided in sub-section (1) thereof, any officer in charge of a police-station may, without the order of a Magistrate, investigate any cognisable cases which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial, and sub-section (2) thereof says that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Then Section 157 of the Criminal Procedure Code provides for procedure where cognizable offence is suspected. If, from information received or otherwise, an officer in charge of a police-station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police-report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf to proceed, to the spot, to investigate the facts and circumstances of the case, and if necessary to take measures for the discovery and arrest of the offender. Then there is a proviso thereto with which we are not much concerned. In other words, this section also empowers the police officer in charge of a police station to investigate any information received from which he has reason to suspect the commission of an offence which he is empowered to investigate. It may be stated here that if the application of Mr. Chatubhuj Acharya did not actually disclose the material allegation about Mr. Desai having received illegal gratification of Rs. 200/- from the complainant for a particular purpose, the allegation did amount to his having acted unlawfully in carrying out the search of his premises by colluding with the accused. That would certainly give reason to suspect that there has been a commission of an offence of that character either by the accused or by Mr. Desai or by both of them and that, therefore, they had the authority to investigate into the same. Thereafter leaving Sections 158 and 159 which have reference more or less to the proviso to Section 157 and sub-section (2) thereof we go to Section 160 whereby the police officer making an investigation under his Chapter has been given a power to require attendance of witnesses. As provided therein, he can require the attendance before himself of any person being within the limits of his own or any adjoining station, who from the information given or otherwise, appears to be acquainted with the circumstances of the case and such person shall attend as so required. Then after securing the presence a police officer making an investigation under this Chapter may examine orally any person supposed to be acquainted with the facts and circumstances of the case, a provided in sub-section (1) of S. 161. Sub-section (2) thereof then says that such person is bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to express him to a criminal charge or to a penalty or forfeiture. Sub-section (3) then says that the police officer may reduce into writing any statement made to him in the course of an examination under this section and if he does so he shall make a separate record of the statement of each such person whose statement he records. It would appear therefrom that he can examine orally any person suppose to be acquainted with the facts and the circumstances of the case and any such person will be bound to answer the same, but the police officer may at the same time reduce into writing any statement made to him in the course of an examination under this section. Then comes the material Section 162 which runs thus:-

'162. (1) No statement made by any person to a police-officer in the course of an investigation under this Chapter shall, if reduced into writing be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872, and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Section 32, Cl (1) of the Indian Evidence Act, 1872 or in affect the provisions of Section 27 of that Act.'

It would appear therefrom that such a statement if reduced to writing shall not be signed by the person making it and then it says that any such statement or any part of such statement shall not be used for any purpose save as hereinafter provided at any inquiry or trial in respect of any offence under investigation at the time when such statement was made, and the proviso thereto says that such a statement may be used by the accused with the permission of the Court under Section 145 of the Indian Evidence Act. It makes abundantly clear that such a statement if reduced to writing or any part thereof recorded by a police officer in the course of an investigation under this Chapter shall not be used for any purpose other than for contradicting the witness as contemplated in the proviso thereto. It follows therefrom that if the statement in question before the Court is found to be one recorded under Section 162 of the Criminal P.C. it cannot be used for any purpose other than the one contemplated under Section 162 and that being so, it cannot be made the basis of the complaint under section 182 of the Indian Penal Code.

8. Now Section 182 of the Indian Penal Code refers to giving of false information with intention to cause public servant to use his lawful power to the injury of another person. It provides as under:-

'182. Whoever gives to any public servant any information which he knows or believes to be false intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant-

(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

(b) to use the lawful power of such public servant to the injury or annoyance of any person,

shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.'

Thus, giving of any information for any such purpose mentioned in Section 182 can only be one falling under Section 154, for, it is that information which leads the police to make an inquiry or investigation in relation to the allegations made therein and that can be done by the police station officer under the provisions contained in Chapter XIV of the Code having regard to the fact that it relates to a cognizable offence or a non-cognizble offence or some offence that he has reason to suspect as contemplated under Section 157 of the Code. Any subsequent statement in the further inquiry or investigation of any such information already received, in my view, cannot be the basis of any offence falling under Section 182 of the Indian Penal Code. In this regard, I was referred to a decision in the case of Sudarsan Barhambhat v. Emperor, reported in (1947) 48 Cri LJ 264 = (AIR 1947 Pat 64). The relevant observations in respect of which the reliance was placed run thus:-

'Under Section 182, the information which is penalised is an information which is intended to cause or known to be likely to cause the public servant concerned to take action in one of the way specified in the section. Here, information within this meaning had already been given and the law had already been set in motion. Further statements made in the course of the investigation would not, to my mind, be further information in this sense.'

In other words, any further information in any of such statements recorded after the information was received which set the criminal law in motion cannot be said to be such information which is sought to be penalised under Section 182 of the Indian Penal Code. The machinery was already set in motion and inquiry was set against him. It made no difference whether the offence was registered or not for the simple reason that even such inquiry or investigation may not make much of a difference. The term 'inquiry' has been defined in Section 4(k) of the Criminal P.C. as including every enquiry other than a trial conducted under this Code by a Magistrate or Court and the term 'investigation' has been defined in S. 4(1) as including all the proceedings for the collection of evidence conducted by a police-officer or by any person other than a Magistrate who is authorised by a Magistrate in this behalf. In any view of the matter, where in the nature of an inquiry or an investigation in pursuance of an application received by Mr. Medh, recording of any statement by Mr. Erulkar of the accused was one under the powers derived by him under Chapter XIV of the Criminal P.C., and the statement recorded would, thus, in my view, fall within the ambit of Section 162 of the Criminal P.C.

9. Mr. Chhaya, the learned Assistant Government Pleader, invited a reference to Section 64 of the Bombay Police Act, 1951 and sought support for such a statement falling within the ambit of Clause (b) thereof. Section 64 provides as under:

'64. It shall be the duty of every police officer:-

(a) x x x x

(b) to the best of his ability to obtain intelligence concerning the commission of cognisable offences or designs to commit such offences, and to lay such information and to take such other steps, consistent with law and with the orders of his superiors as shall be best calculated to bring offenders to justice or to prevent the commission of cognizable and within his view of non-cognizable offences:

x x x x'

This provision sets out the duties of a police officer. Now his duty is to obtain intelligence concerning the commission of cognizable offences or designs to commit such offences and to lay such information before the superior officers for preventing any commission of such offences. This section does not reer to any authority or power given to a police officer to obtain or record statements of person in respect of any such cognisable offences. There is hardly any doubt in the present case that Mr. Erulkar was exercising his power and authority under the provisions of Chapter XIV of the Code. It was for the purpose of making an inquiry or investigation as it were in respect of information already received from Mr. Chaturbhuj Acharya against Mr. Desai in respect of a cognizable offence that he had recorded the statement of the accused. The recording of such a statement of the accused on 3-1-1963 cannot, therefore, be made the subject-matter of a charge against the maker thereof under Section 182 of the Indian Penal Code. The term 'information' contemplated therein is the first information which leads the police to take action against any such person and the subsequent recording or collecting of evidence or any such statement cannot come within the ambit of Section 182 of the Indian Penal Code for in that event the purpose or intention behind the giving of such information cannot be attributed to him.

10. In the result, therefore, the order of conviction and sentence passed against the accused-appellant is set aside and the accused is acquitted. The fine, if paid, is directed to be refunded to him.

11. Accused acquitted.


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