BHAGAT PRASAD Vs. STATE
LAWS(RAJ)-1952-7-11
HIGH COURT OF RAJASTHAN
Decided on July 29,1952

BHAGAT PRASAD Appellant
VERSUS
STATE Respondents


Referred Judgements :-

RAO SHIV BAHADUR SINGH VS. STATE OF VINDHYA PRADESH [REFERRED TO]


JUDGEMENT

Sharma, J. - (1.)THIS is an appeal by Bhagwat Prasad against his conviction by the learned Special Judge, Bhartpur and sentence of eight months' rigorous imprisonment.
(2.)THE prosecution case was that some complaint was made by one Dhoop Khan Meo of Palki, against Ramsingh, Amarsingh Behari and Badaru, the four brothers who too are residents of Palki, for unlawfully cutting a number of trees from an evacuee property. When investigation was going on before the Sub-Inspector Police, Sikri, the accused and one other constable approached Behari and his three brothers and told them that Bhoop Khan was offering bribe to the Sub-Inspector and if Behari and his brothers paid the same sum to him, the case would be dropped. In the midst of the negotiations, it was settled that Behari and his brothers would pay Rs. 80/- as bribe for obtaining their release to the Sub-Inspector and Dharamsingh, the brother-in-law of Behari and his three brothers stood as surety. Before the payment of the amount, however, Behari with the assistance of a local congress leader Shri Radhey Sham approached the Sub-Divisional Magistrate, Deeg who was at that time officiating as District Magistrate, Bharatpur and made a complaint Ex. P-2 to him. THE Sub-Divisional Magistrate made an endorsement on that complaint to the Tehsildar, Nagar, directing him to sign the currency notes of the value of Rs. 60/- and arrest the person who might accept them as bribe. THE Tehsildar after signing the currency notes, five of the value of Rs. 10/- and two of the value of Rs. 5/-each went in the company of Radhey Sham and Behari and his three brothers to the village Sikri. Behari and his brothers reached the house of Dharamsingh where the accused Bhagwat Prasad was called and given the aforesaid currency notes of Rs. 60/- which he kept in his pocket. Ramsingh went outside to call the Tehsildar, but in the meanwhile the accused threw the currency notes on the ground. THEy were picked up by Girdhari, the Jamadar of the Tehsildar. A recovery memo was made, the accused was arrested and after the sanction of the Superintendent of Police, Bharatpur District, the accused was challaned under sec. 5 (2)/161 of the Prevention of Corruption Act, 1947.
The accused admitted that the currency notes of Rs. 63/- were picked up by Girdhari, the Jamadar of the Tehsildar, Nagar, but pleaded that he had not been given this money as bribe. He pleaded that he had been to the house of Dharamsingh at that time to take the payas (feet) of a cot when these notes were thrown on the ground by the prosecution party and he was falsely implicated. It was pleaded by the accused that no proper sanction had been obtained as required by sec. 6 of the Prevention of Corruption Act, 1947.

The learned Special Judge found that the sanction was not proper for the purpose of sec. 5 (2) of the Prevention of Corruption Act, but he convicted the accused under sec. 161 holding that the sanction was valid so far as sec. 161 was concerned. The accused has come against his conviction in appeal to this Court.

It was argued by Mr. R. C. Sharma on behalf of the appellant that no case was made out against the accused under sec. 161 of the Indian Penal Code. It was argued that Behari, Dharamsingh and Ramsingh were close relations and were interested parties, and, therefore, their evidence was not worth believing. It was further argued that there were discrepancies in the statements of these witnesses before the trial court and the police. Dharam Singh had admitted before the police that the accused was not called to the house of Dharamsingh but he had himself gone there to take his payas. He had also deposed before the police that the money was put into the bag of the accused by Ramsingh, but at the trial he deposed that he had never made the above statement, but that the accused was called in the house of Dharmsingh and he was given the money in the palm of his hand. It was further argued that so far as the evidence of recovery was concerned, it is altogether worthless as there are very serious discrepancies on that point. Tehsildar Somnath has said in the first information report Ex. P-l that only one currency note of the value of Re. 1 /- was recovered from the pocket of the accused whereas in the recovery list Ex. P-3 he has recorded that all the seven notes were gathered from the ground on which the accused had thrown them after taking them out of his pocket in the presence of the witnesses. Girdhari has not stated that the notes were taken out of the pocket of the accused, but that all that he saw was that he found them on the ground. Radhey Shyam another witness also stated that the notes were found on the ground when he went there. He also stated that he did not see the accused taking out the money from his pocket. It was further argued that the evidence of the Tehsildar should not be considered at all in the light of the observations of their Lordships of the Supreme Court in the case of Rao Shiv Bahadur Singh vs. The State of Vindya-P. (1 ). It was further argued that no proper sanction was given even for an offence under sec. 161 as such sanction could be given only by the authority who had appointed or could dismiss the accused. The Superintendent of Police had neither appointed the accused as constable nor was he entitled to dismiss him. Therefore, the sanction by him was invalid. It was also argued that the facts constituting the offence were not mentioned in that sanction and on that account also the sanction was invalid.

On behalf of the prosecution, it has been argued by Mr. R. A. Gupta that the evidence of Dharamsingh, Ramsingh and Behari was perfectly clear that the accused had negotiated for the bribe of Rs 80/- and that their evidence shows that an amount of Rs. 60/- was paid to the accused. It was argued that there was no reason to disbelieve the evidence of these witnesses. Further, it was argued that the evidence of the Tehsildar Somnath showed that the accused had thrown the currency notes on the ground from his pocket in his presence. There was, therefore, sufficient evidence to prove that the accused received illegal gratification of Rs. 60/ -. As regards sanction it was argued that the Superintendent of Police had the power to dismiss or appoint a lance constable and the facts constituting the offence appear on the face of the section and the sanction so far as sec. 161 is concerned, was valid.

I do not want to go into the question whether the sanction in question was valid or invalid because in my mind no case under sec. 161 was made out against the accused. Behari and Ramsingh are own brothers and they are the real complainants in the case. Dharam Singh is their own brother-in-law and is therefore closely related to them. Moreover,behari and Ramsingh are the payers of the bribe although they did not willingly pay it and their act was with a view only to entrap the taking of the bribe. It was held by their Lordships of the Supreme Court in the case of Rao Shiv Bahadur Singh vs. State of Vindhya Pradesh (8), that witnesses not willing party to giving of bribe to accused but only actuated with the motive of trapping the accused cannot be said to be accomplices. Their evidence is nevertheless the evidence of partisan witnesses who are out to entrap the accused. Their Lordships were not prepared to accept the evidence of such witnesses in that case without independent corroboration. In this case, too, I do not think it was advisable for the lower court to act upon the statements of Behari, Ramsingh and Dharamsingh so far as they were not corroborated by independent evidence. There is no doubt that these three witnesses deposed that there was some talk between them on the one side and the accused on the other to pay a sum of Rs 80/- as bribe to the Sub-Inspector. When, however, a report was made about the matter to the Sub-Divisional Magistrate, the accused was not at all named. It was vaguely suggested that the police authorities were demanding the bribe. It is difficult to believe that a mere lance constable could do anything in bringing about the dropping of the proceedings. If they could be dropped in an illegal manner, they could not be done so without the assistance of the Sub-Inspector concerned. However, I am not concerned with the fact whether the Sub-Inspector demanded any illegal gratification for dropping the proceedings because the Sub-Inspector has not been prosecuted in this case. Suffice it to say that the fact that the accused was not named in the first information report Ex. P.-2,to the Sub-Divisional Magistrate,creates a serious doubt as to whether any demand was made by the accused. The evidence of Ram Singh, and Behari besides being interested has not been altogether consistent. The evidence of Dharamsingh who is a close relative of theirs is full of contradictions. On some important points, he made one statement before the police and quite a contradictory statement at the trial The question whether the accused went to the house of Dharamsingh of his own accord to fetch the payas or he was called there, is of very great importance. . On this question, Dharamsingh deposed at the trial that the accused was called there, but before the police he made a statement that he had gone to the house of the witnesses to take his payas. At the trial he deposed that the accused took the money in the palm of his hand while before the police, he stated that it was dropped by Behari in the bag of the accused and the accused threw it on the ground. The other third witnesses have deposed that the money was kept by the accused in his pocket but these witnesses have been unable to show how the money fell on the ground from where it was recovered. The first information report which was made by Shri Somnath Tehsildar showed that only one currency note of the value of Re. l/- was recovered from the pocket of the accused while the recovery list showed that the accused had all the currency notes in his pocket when the Tehsildar went there and that in his presence all the currency notes were dropped on the ground from where they were picked up by Girdhari. Shri Radhey Sham who is said to be a local leader of the Congress and was chiefly instrumental in the laying of the trap and securing orders from the officiating District Magistrate for the Tehsildar to sign the notes and arrest the accused, stated in his evidence before the trial court that he did not see the currency notes in question in the pocket of the accused and that all that he saw was that he found them on the ground. The evidence of Girdhari is only to this effect that he found the notes on the ground from where he picked them up. There is, therefore, no convincing evidence to show that the money was accepted by the accused or was kept in his pocket. If the earlier statements of Dharmsingh which he made before the police are to be believed, Behari thrust those notes into the bag of the accused and the accused atonce threw them on the ground and the accused was not called to Dharamsingh's place by anybody but he had been there to take his payas. The lower court has mainly relied upon the evidence of Shri Somnath Tehsildar who is also a Second Class Magistrate at Nagar. Their Lordships of the Supreme Court in the case of Rao Shiv Bahadur Singh cited above deprecated the practice of employing Magistrates by the police as witnesses of police traps. It was observed that the independence of the judiciary is a priceless treasure to be cherished and safeguarded at all costs against predatory activities of this character and it is of the essence that public confidence in the judiciary should not be undermined by any such tactics adopted by the authorities. With these observations their Lordships eliminated from consideration the whole of the evidence given by the Additional District Magistrate who had participated in the trap.

Even without altogether eliminating the evidence of Sri Somnath I find that the really incriminating circumstance of the accused accepting the money and putting it in his pocket and throwing in on the ground does not find support from the evidence of Sri Radhey Sham and Girdhari Jamadar who accompanied the witness when entering into Dharam Singh's house. (It cannot be believed that Radhey Sham who was at the root of the trap would exculpate the accused if he really acted in the way as Shri Somnath has deposed. The officiating District Magistrate did not act properly in involving one of his subordinate Magistrates in the laying of a trap at the instance of Shri Radhey Sham. The matter might have been well left in the hands of higher police authorities. I regret I have to disbelieve the evidence of a Magistrate, but it could not be helped when it happens to be against other prosecution evidence and is inconsistent with the first version made in public report by this very witness. It is unfortunate that the evidence of a Magistrate who himself is entrusted with the task of administering justice should not be believed and it is to save the judiciary from such unenviable and embarrassing situations that their Lordships of Supreme Court expressed their strong sense of disapproval of the practice of employing the Magistrates in laying traps and expressed a hope that in future Magistrates will not be so employed. In order to bring an offence under sec. 161 of the Indian Penal Code home to the accused, it has got to be proved that he accepted or obtained or agreed to accept or attempted to obtain illegal gratification for himself or for somebody else as a motive or reward for doing or forbearing to do official act. . . . . . . . . . . . In this case the evidence about the acceptance or obtaining of the illegal gratification or agreeing to accept or attempting to obtain it is most flimsy and upon that evidence it is difficult for a court of law to found conviction under sec. 161 of the Indian Penal Code. It may be that there might have been some foul attempt on the part of the police authorities to take illegal gratification in the case relating to the trees but either because the zeal of those who were responsible for setting the ball in motion subsequently abated for the reasons best known to them or because in fact the person at whose door this charge is being laid is not really a culprit, no satisfactory evidence could be produced to justify a conviction. The case is not free from reasonable doubt and the only order which a court of law can in the circumstances make in this case is that of acquittal.

The appeal is allowed, the conviction and sentence of the appellant are set aside. He is on bail and need not surrender. .



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