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Bakshi Sita Ram Vs. Lachhmi Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 35 of 1952
Judge
Reported inAIR1954HP4
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 439 and 561A
AppellantBakshi Sita Ram
RespondentLachhmi Chand and anr.
Appellant AdvocateParty in person; C.L. Puri, Acting Govt. Adv.
Respondent Advocate K.C. Pandit, Adv.
Cases ReferredState v. Minaketan
Excerpt:
.....acquittal order - a was convicted for offering bribe to b-government advocate - main object of revision is expunction of remarks which judge made for b as he concluded that it was not genuine case of bribe but was instigated by b himself - remarks were based on view that b-petitioner instigated commission of offence - no warrant for such interference - without any solicitation on part of petitioner offer of bribe was made to him at noon in hotel - petitioner says that in afternoon as he was passing by shop of respondent, latter fell in steps with him and again made overtures to him - it was on that petitioner asked respondent to come to him at 8 pm and then laid the trap to catch him offering bribe - only solitary statement of petitioner regarding this second offer by respondent, so..........116, i. p. c., for offering bribe to the government advocate, sri bakshi sita ram. on appeal, the learned sessions judge acquitted him, and, while doing so, he remarked that it was not a genuine case of a bribe offered to a public servant but a case which was virtually instigated by bakshi sita ram himself, and that whatever bakshi sita bam did in the present case was most reprehensible and did not do credit to a person of his position and status. bakshi sita ram moved district magistrate for a government appeal against the acquittal, but the government refused to appeal. thereupon, he filed the present revision, praying that the acquittal be set aside and the aforesaid remarks expunged.2. bakshi sita ram has since been transferred to chamba. he himself argued this revision, which was.....
Judgment:
ORDER

Chowdhry, J.C.

1. One Lachhmi Chand, a shop-keeper of Nahan, was convicted by the learned Additional District Magistrate of that place under Section 161, read with S. 116, I. P. C., for offering bribe to the Government Advocate, Sri Bakshi Sita Ram. On appeal, the learned Sessions Judge acquitted him, and, while doing so, he remarked that it was not a genuine case of a bribe offered to a public servant but a case which was virtually instigated by Bakshi Sita Ram himself, and that whatever Bakshi Sita Bam did in the present case was most reprehensible and did not do credit to a person of his position and status. Bakshi Sita Ram moved District Magistrate for a Government appeal against the acquittal, but the government refused to appeal. Thereupon, he filed the present revision, praying that the acquittal be set aside and the aforesaid remarks expunged.

2. Bakshi Sita Ram has since been transferred to Chamba. He himself argued this revision, which was opposed on behalf of Lachhmi Chand by Sri K. C. Pandit and on behalf of the State by the acting Government Advocate Sri C. L. Puri. Since this Court cannot, in view of the provisions of S. 438(4), Criminal P. C., convert the finding of acquittal into one of conviction, the petitioner contended that after setting aside the acquittal the appeal be ordered to be reheard.

3. It is said that a revision against conviction of a certain relation of Lachhmi Chand was pending in this Court, and that Lachhmi Chand approached the petitioner on the noon of 14-11-1951 and promised to serve him if he showed favour to the said relation by so arguing the revision on behalf of the State that it resulted in his acquittal. The petitioner, who was taking lunch in a hotel, did not only not accede to the request but severely rebuked Lachhmi Chand and the latter fled from the hotel. The petitioner's allegation is that later in the afternoon, as he was passing by the shop of Lachhmi Chand, the latter joined him and again made similar overtures to him, whereupon the petitioner asked him to come to him at 8 p. m. at the dak bungalow where he was staying. Lachhmi Chand came to the petitioner's room at the appointed time. According to a pre-arranged plan, a Magistrate and some police officers were lying in wait in an adjoining room. The prosecution case was that Lachhmi Chand offered a hundred-rupee currency note to the petitioner, and that, as he did so, the Magistrate and the police rushed out at a signal from the petitioner and apprehended Lachhmi Chand after a short chase.

4. The defence was that the petitioner owed the accused price of some ghee, that the former took umbrage on the latter demanding payment in the bazar and asked him to come to the dak bungalow at 8 p. m., and that when the accused went to the dak bungalow at the appointed hour and demanded payment the petitioner raised a false alarm and got him arrested.

5. The prosecution produced six witnesses. Two spoke of the hotel incident 'and three of the incident at the dak bungalow, while the petitioner spoke of both. The three who deposed to the main occurrence at the dak bungalow were a Magistrate and two police officers. The learned Sessions Judge dubbed the petitioner's evidence as evidence of an accomplice which could not be acted upon without corroboration. Of this corroboration the learned Sessions Judge found none because, in his opinion, the police officers neither saw nor heard anything, and the Magistrate's evidence was in conflict with that of the police officers a,nd with a memorandum prepared by him at the spot.

6. The petitioner argued that the learned Ses-sions Judge was wrong in holding him an accomplice, and in finding conflict between the Magistrate's statement in Court and his memorandum because, firstly, the writing could not be used as substantive evidence, and, secondly, it could not be used even for contradicting the Magistrate as his attention was not called to those parts of the writing which were used for contradicting him. The petitioner also argued that the oral evidence on record, specially that of the police officers, had been misconstrued by the Sessions Judge, that certain other evidence, e.g., that relating to the incident at the hotel and to the accused's behaviour at the time of apprehension, has not been considered, and that the judgment contains a number of mis-statements of facts.

7. Now, it is manifest that the petitioner wants this Court to set aside the lower appellate Court's order of acquittal and to order a rehearing of the appeal not only on the ground that that Court had committed errors of law in holding him an accomplice and in admitting the memorandum in evidence, but also on the ground that on a correct appraisal of evidence the findings of fact arrived at by the said Court were unsustainable. Even if the legal points raised were well-founded, so that the statements of the petitioner and the Magistrate should not have been discarded on the grounds of the former being evidence of an accomplice and the latter being in conflict with the memorandum, there remains the further ground that both these statements were in conflict with the statements of the police officers. That being so, even if I were to hold that the Sessions Judge has committed certain errors of law, a rehearing of the appeal cannot be ordered unless I were to re-appraise the evidence, and thereby hold that the findings of fact arrived at by the learned Sessions Judge were wrong. To do so would be, as held in -- 'Longendranath Jha v. Polai Lal', AIR 1951 S. C. 316 (A), a ruling referred to by the petitioner himself, to exceed the powers of revision vested in this Court under Section 439, Criminal P. C. for an order to the lower appellate Court to rehear would in such circumstances amount in effect to an order to that Court to convict the respondent. In fact, even the commission of an error of law would not by itself justify interference in revision against acquittal at the instance of a private party unless interference is clearly called for to prevent a gross miscarriage of justice, as held in -- 'D. Stephens v. Nosiballa', AIR 1951 S. C. 198 (B), another ruling referred to by the petitioner himself. I would not therefore order a rehearing of the appeal.

8. The main object of the present revision is however the expunction of the aforesaid remarks, as stated at the end of the petitioner. The remarks were based on the view that the petitioner instigated the commission of the offence. There seems to be no warrant for such an inference. The learned Sessions Judge has said nothing about the hotel incident. Nor do I see any reason to doubt the statement of the petitioner with regard to it, supported as it is by the testimony of the hotel boy Darshanlal and P. R. Sood, specially the latter, an independent witness. That being so, it is clear that without any solicitation on the part of the petitioner an offer of bribe was made to him at noon in the hotel. The petitioner says that in the afternoon as he was passing by the shop of the respondent, the latter fell in steps with him and again made overtures to him. It was on that that the petitioner asked the respondent to come to him at 8 p. m. at the dak bungalow and then laid the trap to catch him offering bribe. True, there is only the solitary statementof the petitioner regarding this second offer by the respondent, so that a Court might hesitate to act on it in determining the guilt of the accused, but, for passing a sentence on the conduct of the petitioner, the Court was not justified, in the absence of any evidence to the contrary, to ignore that statement. In the circumstance, the ruling in -- 'State v. Minaketan', AIR 1952 Orissa 267 (C), relied upon by the learned Sessions Judge, which characterizes as reprehensible only the conduct of one who induces or instigates the commission of an offence, does not apply to the petitioner. On the contrary, this was a case of what has been called a 'legitimate trap' in -- 'In re Mohiddin', AIR 1952 Mad 561 (D), where it is laid to bring to book an offence which has already been born. Such a trap has been described in this case as laudable and admirable. It may be that the petitioner went a little out of the way in laying the trap, for when the respondent made him a second offer he could have spurned it as he did the first. But considering the alarming proportions corruption has assumed, his zeal was in the right direction. I hold therefore that the remarks in question were uncalled-for, and that, under the inherent power vested in this Court under Section 561A, Criminal P. C., the remarks ought to be ordered to be expunged.

9. The revision is allowed to this extent only that the following passages occurring in the judgment of the learned Sessions Judge shall be expunged, to wit, the clause 'but a case which was virtually instigated by Bakshi Sita Bam himself' in the sentence 'It is to be remembered that it was not a genuine case of a bribe offered to a public servant, but a case which was virtually instigated by Bakshi Sita Ram himself', and the clause 'that whatever Bakshi Sita Ram did in the present case was most reprehensible and did not do any credit to a person of his position and status,' in the sentence ending with this clause and having for its fore-runner the following clause, 'Para. 7 of that judgment at p. 272 may be quoted in extenso to show.' For the rest, the revision is rejected. I make no order as to the costs of this revision.


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