BHANUPRASAD HARIPRASAD DAVE RAJUJI GAMBHIRJI versus THE STATE OF GUJARAT

BHANUPRASAD HARIPRASAp DAVE RAJUJI GAMBHDUI

THE STATE OF Gl)JARAT

April 19, 1968

[G. K MITTER, c. A. VAIDIALINGAM AND K. s. HEGDE, JJ.]

Code of Cri111inal Procedure (5 of 1898) ss. 161 and 162-Firsr invcsrj .. gation by ·a police officer held illegal-Subsequent investigation ordercd-1vhelher first investigation non est.

Indian EVidence Act (1 of 1872)-Evidence of partisan lvitnesses-Corroboration, if necessary . ..

Bombay Police Act (Dom. 22 of 1951) s. 161(1)-Investigation after six nzonths--W~ien can be done.

postcard written by R to lady M requesting her to ask another lady to meet him, was made over to the first appellant-a police Sub-Inspcctor. The first appc1lant asked the second appellant-his writ~r· constable--to fetch R. On his arrival, R was asked to pay money othetWise he would be harassed. R approached the Deputy Superint;ndent of Police, Arlti-Corruption Department, as result of which ·a trap '\\·as luid and the currcf'Jcy notes treated with anthracene given to R for the payment. R and .one went to the first appellant, V(hO directed R to pay it to the second 4 appellant. The first appellant took out the postcard, tore jt and burnt it, \Vhile R paid the money. Another I>oJicc Sub-Inspector and constable, both belonging to the Ant.i-Corruption Department we.re keeping watch from nearby compound. The second appcUant \Vent to L\VO shops and changed some currency notes there.. The Dy. S.P. searched the, first appcJlant but nothing incriminating was found, he seized ithe burnt pjeccs of .postcard, some of the unburnt pieces 'vcre recognised by R. The Dy. S.P. seized the curr;ency notes fron1 the shops and their nun1ber tallied. The second appellant was arrested and considctable anthracene powder was found on his person. The appellanitS were tried under ss. 161 and I65A JP~ and ss. 5(I)(d) and 5(2) of the Prevention of O:>rruption Act by 'SpeciaJ Juc!ge, AhmeQaQad. An objection was taken to the trial that in view of Bombay State Commissioner of Police Act, 1959, the invc>l!igation should have been made by Superintendent of Police as there \Vas Police Commissioner: in that .city, which :w~s upheld nn.d frc.Sh investigation c•rdered by Superintendent of Police. Because u( the fresh investigation~ ·in respect of most witnesses, the police diary' coritained two statements one recorded by the Dy. S.P. and the other by ¢be S.P. While deposing -in the trial Cow;t. M asserted. that she had destroyed the postcard as soon as she reacf it, and She was cross-examined by the prosec.qtion in reference :o her earlier ·statement to the Dy. S.P. to the effect that she had given the ·postcard to the first appellant. The Trial O:>urt accepted the prosecution case and convicted the appellants, which was upheld by the High Court. In appeal before this Court, dhe appellants contended that (i) in view of ·the orde-.r of reinvestigation, the record of the investigation made hy the Dy. S.P. stood wiped. out, and therefore M could not have been cross--examined with reference rtbereof; (ii) tHe conviction could not solely be "hased on the evidence of R and Po1ice 1witnesses, who \Vere all interested 'vitnesses; (iii) no offence. was made out under s. 161 TPC as the prosocu-1ioo had to establish that tbev were public servants and had ob!ainod illegal ·}'.!:ratification for showing or forbearing tq show in exercise of their official itinctions, favour, or disfavour to R; and (iv) the prosecution v:as barred •

by limitation bys. 16l(i) of the Bombay Police Act, 1951 as it was insti-tuted more than six months of the offence.

HELD: Th,e appeal must be dismissed.

(i) '[hough the first investjgation \\'as not in accurdance law, but yet it \Vas in no sense. 11011...::st. investigation includes laying of trap. That part of the· investigation \Vas done by the Dy. S.P. The statements recorded ti hy the Dy. S.P. in the Course of his investigation, though the investigation in question \Vas illegal, were still si:atcments recorded by police officer in the course of investigation under Chapter XIV of the Code of Criminal Procedure an.ct consequently they fell within the scope of ss. 161 and 162 of the Code. [27C-F]

S. N. Bose v. State of Bihar, Cr. A. 109 of 1967 decided on March 26, 1968; H. N. Rishbud v. Tile State of Delhi. [1955] 1 S.C.R. 1150; ano The State of Bifwr v. Basawan Singh, [1959] SCR. 195, followe<I.

(ii) While in the case of evidence of an nccon1plioe no conviction can be, based on his evidence unless it is corroborated in material particulars but as regards the evidence of partisan witness it is open to courrt to convict an accused solely on that evidence, if it is satisfied that that evidence is reliable. But it may in appropriate case look for coroboration. In this case, R and the police witnesses could not be said to be aCcomplices, and both the courts bclO\\' have fully accepted their evidence. So, it was open to then1 to convict the appellarn~s on the basis of their evidence. That apart their e.vidence, ¥.'as ~ubstantially corroborated by the evidence of and the shopkeepers. [29B-D]

The State of Bilwr v. Basawan Sill/ih, [1959] S.C.R. 195; followed. Rao Shiv Bahadur Singh v. State of T[7]indhya Pradesh, [1954] S.C.R. 1098, overruled.

Major E.G. Bar.my v. The Swte of Bombay; [1962] 2 S.C.R. 195, distinguished.

(iii) Offence under s. 161 IPC was made out. The question whether there was any offence which the first appellant could have investigated or not was irrc]evant. If he bad used his official position to extract i1legal gratification, the requirement of law was satisfied. [29F]

Mahesh Prasad v. The State of U.P. (1955] 1 S.C.R. 965: Dhaneshwar Narain Saxena v. The Delhi Adn1inistratio11, [1962] 3 S.C.R. 259, followed.

(iv) Section 161(1) of the Bombay Police. Act, 1951 was in.applicable to 1this case. The appellants could not be said to have received bribe under the colour of their duty. There was no connection between the <luties to be performed hy them and the rcceiPt of the bribe in question. All that. could be said was that the first appellant police office!'. taking advant~ of his position as police officer and availing himself of the opportunity afforded by the letter M handed over to him coerced R to pay illegal gratification to him. This could not be said 1to have been done "und.er colour of duty". The charge against the second appellant was that he aided the first appellant in his illegal activity. [30G-3!A]

The State of Andhra Pradesh v. N. Venugopa/, [1964] 3 S.C.R. 742, referred to.

v~·rupaxappa Veerappa Kadan1pur v. The State of Mysore, [1963] Supp. 2 S.C.R. 6, held inapplicable. •

(1969 j J S.C.R.

CRIMINAL APPELLATE JUR!SD!CT!O~ : Criminal Appeal No.

155 of 1965.

Appeal by special leave from the judgment and order dated September 8, 9, 10, 1965 of the Gujarat High Court in Criminal Appeal No. 538 of 1964.

M. R. Barot and R. Gopalakrislman, fo~ the appellants.

P. K. Chatterjee, R. Ii. Dhebar and S. P. Nayyar, for the respondent.

The Judgment of the Court was delivered by

Hegde, J. The appellants in this appeal arc two police officers. The first appellant Bhanu prasad Hariprasad Dave was the police Sub-Inspector and the second appellant, Rajuji Gambhirji, was his writer constable in February 1963. At that time both of them were attached to the Navrangpura police station, Ahmeda-bad. They were tried and convicted by the Special Judge, Ahrnedabad, for offences wider s. 161 read with s. 165-A of the Indian Penal Code ands. 5(i)(d) read with s. 5(2) of the Prevention of Corruption Act, (No. 2 of 1947), and for those offences each of them was sentenced to suffer rigorous imprison-ment for two and half ye.1rs and ftnc of Rs. 1,000, in default to suffer further rigorous imprisonment for year. The judg-ment of the learned Special Judge was at!im1ed by the High Court of Gujarat. It is against that judgment. this appeal has been filed, after obtaining special leave from this Court. To state briefly, the prosecution case is as follows : Ramanlal. the complainant in this case, wrote postcard on February 11, 1963 to one Madhukanta, lady teacher, requesting her to ask Chandrakanta, another lady teacher wurkin!\ with her, to meet him in connection with certain work. Therein he also wrote that he would be glad ii Madhukanta could accompany Chandrakanta. The headmaster of the school where Madhukanta and Chandra-kanta were working, happened to read that postcard. She took Madhukanta to task for allowing strangers to write to her in that manner. Piqued by the oonduct of RamanlaJ, Madhukanta made over the postcard in question to the first appellant, probably with request that Ramanlal might be pulled up for his conduct. On February 16, 1963, the first appellant sent the second appellant to fetch Ramanlal to the police station. On his arrival at the police station. Ran1anlal was abused and slapped by the first appellant. He threatened to take action against him and aft.er some time he told him that unless he paid him sum of Rs. I 00 he would be harassed. With view to get out of the situatiun. Ramanlal agreed to pay the sum demanded. But when he went to draw the required amount from his hank. as that day was •

\ ..'\ . I

Saturday the bank had been closed by the time he went there. He the ref ore asked ·the first appellant time for payment till ~e 18th. The first appellant agreed to the same. On the. mormn,g of 18th, Ramanlal met the Deputy Superintend~nt of Police, ~n~, Corruption Department, and complam~d to ~ about the. m~1-dent in question. He was asked to give wntten complamt m that regard which he did. Thereafter he produced before the Dy. S.P. ten currency-notes of Rs. 10 each. The numbers .of those notes were noted and then those notes were treated with anthracene powder. Ramanlal was asked to give those not~ to the first appellant if he made any further demand for bnbe. Thereafter he was sent to the police station with the pa~ch witness, Dahyabhai. But when they went to the police station they found that the first appellant was not there. They were told that he had gone to attend court. Hei;ice Ram'.111-lal and Dahyabhai returned to the office of the Ant1-Corrupllon Department and reported to the Dy. S.P. about the same. Under instructions from the Dy. S.P. he again went to the office of the Anti-Corruption Department on the evening of that day with currency-notes. Those notes were again treated with anthracene powder and their numbers noted. Ramanlal was again senCto the police station with Dahyabhai on that evening at about 5-3e p.m. When they went there, the first appellant was not there, but the second appellant was there. He told them that the fii:St appellant was expected in the station at any moment. Thereafter the second appellant, Ramanlal and Dahyabhai went to nearby tea-shop and took tea. By the time they returned to the µolice station the first appellant was there. Rarnanlal told the first appel-lant that he had brought the money. Then B.e asked hint to pay the same to the second appellant who was in one of the rooms of the police station. When Ramanlal went to pay the money to thl'. second appellant, the first appellant took out the µostcard wntten by Ramanlal to Madhukanta, showed it to Dahyabhai and thereafter tore it to pieces and burnt it. Meanwhile Rarnan-lal went and paid the currency-notes in question to the second appellant. While Ramanlal and Dahyabhai were in the police . station, police Sub-Inspector Erulker and constable Santramji, ?"th belonging to the Anti-Corruption Department, were observ-G mg from nearby compound the happenings in the police station. The second appellant immediately on receiving the notes in ques-tion left the 1'blice station. But he was followed by constable Santramji. From the police station the second appellant first went to the shop of one Sanghvi and changed one of the currency-notes. From there he went to the pan shop of Sendhalal and there changed three more currency-notes. Thereafter constable Santramji was not able to keep track of him. Meanwhile when things did not go according to plan, Ralll'1nlal was somewhat confused. He after paying the amount to the second appellant UOSup.CJ/68-3

straight rused back to ~e Dy. S.P. and told hi.Jn what had hap-pened ~t the police sta!Ion. Immediately, the Dy. S.P. rushed to the police stallon and there he searched the person of the first appe!l~t, but nothing incriminating was found. He seized the burnt pieces of the postcard. Some of the unburnt pieces were recognised by Ramanlal as portions of the postcard written by hi.Jn to Madhuk.anta. From there the Dy. S.P. proceeded to the shop of Sangh".1 and Sendhalal and seized the currency-nole6 changed m the1r shops by the second appellanL Their numbers tallied with the numbers of the notes earlier handed over to Ramanlal after being treated with anthracene powder. Those notes were full of anthracene powder. The same night the second appellant was arrested and at that time it was found there was considerable anthracene powder on his person. After in-vestigation the appellants were prosecuted for the offences men-tioned earlier. Both the trial court and the High Court have accepted the prosecution case. This Court being court of special jurisdic-tiQJ\ does not examine the evidence afresh except under excep-tional circwnstances. No good reasons were shown to us for departing from the ordinary rule. Hence we proceed on the basis that the findings of fact reached by the High Court are .correct.

Before proceeding to examine the various contentions ad-"Vanced on behalf of the appellants it is necessary to mention that in this case there were two investigations. As seen earlier the trap in this case was laid by the Dy. S.P., Anti-Corruption Depart-ment. He was the person who investigated the case and laid the charge-sheet. But when the case came up for trial before the learned Special Judge objection was taken to the trial of the case on the ground that in view of the provisions of the Bombay State Commissioner of Police Act, 1959, the investigation in this case should have been made by Superintendent of Police as there was Police Commissioner for the city of Ahmedabad. The learned Special Judge accepted that contention and directed fresh investigation to the extent possible by one of the Superin-tendents of Police. fresh investigation was accordingly made; but naturally nothing afresh could be done so far as the trap was concerned. Because of the fresh investigation, in respect of most of the prosecution witnesses, the police diary contained, two state-ments one recorded by the Dy. S.P. and the other by the S.P.

Jn the course of the trial of the case, several prosecu~on witnesses were alleged to have gone back on th_e ~tatements given by them during investigation. .With ~he perrmss1on of t~e court some of them were c~ss-e_xam1J?Cd .with refe.rence to. thc!r state-ments recorded during the mves!Iga!Jon. Whtie deposing m court

Madhukanta asserted that she had destroyed the postcard written by Ramanlal as soon as she read the same whereas both Ramanlal · as well as the panch witness Dahyabhai had deposed that the first appellant had shown them the postcard in question. With the permission of the court the learned Public Prosecutor cross-examined Madhukanta with reference to her statement given before the Dy. S.P. wherein she appears to have stated that she had given the postcard in question to the first appellant. Mr. Barot, learned counsel for the appellants, strenuously contended that in view of the order of the Special Judge, directing re-investi-gation, in law, the record of the investigation made by the Dy. S.P. stood wiped out, and therefore Madhukanta should not have been cross-examined with reference to the statement alleged to have been made by her during the first investigation. We are unable to accept this contention as correct. It is true that the first in-vestigation was not in accordance with law, but it is no sense non-est. Investigation, as held by this Court in S. N. Bose v. State of Bihar('), includes the laying of trap. That part of the investigation was admittedly done by the Dy. S.P. The statements recorded by the Dy. S.P. in the course of his investigation; though the investigation in question was illegal, (see, H. N. Rishbud v. the State of Delhi ([2]), are still statements recorded by police officer in the course of investigation under Chapter XN of the Code of Criminal Procedure and consequently they fall within the scope of ss. 161 and 162 of the said Code. Neither in Rish-bud's case(') nor in S. N. Bose's case('), where investigations had been carried on in contravention of s. 5-A of the Prevention Corruption Act, this Court considered those investigations as non-est. Both the trial court and the High Court have accepted the evidence of Ramanlal and Dahyabhai in preference to that of Madhukanta that the first appellant was in possession of the post-card in question on February 18, 1963. This is essentially finding of fact. In our judgment in coming to that conclusion those courts did not ignore any legal principle.

It was next contended by the learned counsel tor the appellants that the appellants were convicted solely on the basis of the testimony of Ramanlal, the Dy. S.P. Erulker and Santramji, who, according to him, are all interested witnesses and their evidence not having been corroborated by any independent evi-dence, the same was insufficient to base the conviction of the appellants. Before examining this contell,_tion it !J1ay be mention-ed that so far as Dahyabhai was concerned, he appeared to have turned hostile to the prosecution at the trial. He supported the evidence of Ramanlal in some respects; but in most important respects he did not support the prosecution' case. He admittee

(!) Cr. A.109/1967, decided on March 26, l9<0'l. (2) [1955) 1 S.C.R. ll50.

to have accompanied Ramanlal both in che morning and on the evening of the 18th. He also admitted that he and Ramanlal met police Sub-Inspector in the police station who showed them the postcard written by Ramanlal to Madhukanta. He also corroborated Ramanla! about the talk that Ramanlal had with that Sub-Inspector, in connection with the payment of bribe. But when it came to the question of identifying that Sub-Inspector, he denied that it was the first appellant. He also did not identify the second appellant. It was obvious that the had been gained over. So far as Sanghvi is concerned, he admitted that police constable in unilwm came to his shop on the evening of the 18th and changed ten-rupee corrency-note. But he stated that he was not able to say whether that constable was th~ second appellant. Sendhalal deposed that person came to him on the evening of the I 8th and changed three ten-rupee currency notes. He also stated that he was unable to say whether it was the second appellant who changed those notes; he went step fur-ther and stated that the person who came to his shop was not in uniform. But the fact remains !hat the currency-notes seized from the shops of Sanghvi and Sendhalal are the very notes whose numbers had been earlier noted by the Dy. S.P. and further treated with anthraccne. There is the evidence of constable Santramji to establish that !he notes in question were changed at the shops of Sanghvi and Sendhalal by. the second appellant. The trial court as well as the High Court accepted the evidence of Dahyabbai, Sanghvi and Sendhalal to the extent it supported the prosecution case and rejected the rest. It was open for those courts to do so. Now coming back to the contention that the appellants could not have been convicted solely on the basis of the evidence of Ramanlal and the police witnesses, we are of opinion that it is an untenable contention. The utmost that can be said against Ramanlal, the Dy. S.P., Erulker and Santramji is that they are partisan witnesses as they were interested in !he success of the trap laid by them. It cannot be said-and it was not said-that they were accomplices. Therefore, the law docs not require that their evidence 'hould be corroborated before being accepted as sufficient tu found conviction. This position is placed beyond controversy by the decision of this Court in the State of Rihar v. Basawan Singh('), wherein this Court laid down, overruling the decision in Rao Shiv Bahadur Singh v. State of Vindhya Pra-desh(2) that where the witnesses are not accomplices but are merely partisan or interested witnesses. who are concerned in the success of the trap, their evidence must be tested in the same way as any other interested evidence is tested. and in proper case, the court may look for independent corroboration before ___.._ cOnvict-

(I) [1959) S.C.R. 195.

CCI [1954) S.C.R. iO<>i .

ing the accused person. We are unable to agree that any different rule was laid down in Major E. G. Barsay v. The State of Bombay (1). It must be remembered that the decision in Basa-wan Singh's case(2) was given by Bench of Five Judges and trat decision was binding on the Bench that decided Major Barsay's case('). Some of the observations in Major Barasay's case([1]) no doubt support the contention of the appellants. But those obser-vations must be confined to the peculiar facts of that case. It is now well settled by series of decisions of this Court that while in the case of evidence of an accomplice, no conviction can be based on his evidence unless it is corroborated in material parti-culars but as regards the evidence of partisan witness rt is open to court to convict an accused person solely on the basis of that evidence, if it is satisfied that that evidence is reliable. But it may in appropriate case look for corroboration. In the instant case, the trial court and the High Court have fully accepted the evidence of Rarnanlal, the Dy. S.P., Erulker and Santramji. That being so, it was open to them to convict the appellants solely on the basis of their evidence. That apart, their evidence is substantially corroborated by the evidence of Dahyabhai, Sanghvi and Sendha-lal. In the case of partisan witnesses, the corroboration that may be looked for is corroboration in general way and not material corroboration as in the case of the evidence of accomplices.

It was next contended that even if we accept the prosecution case in full, no offence can be said to have bee.n made out under s. 161 of the Indian Penal Code. We are unable to accept that contention. To establish the offence under s. 161 of the Indian Penal Code all that prosecution had to establish was that the appellants were public servants and that they had obtained illegal gratification for showing or forbearing to show, in the exercise of their official functions, favour or disfavour to Ramanlal. The question whether there was any offence which the first appellant could have investigated or not is irrelevant for that purpose. If he had used his official p'OSition to extract illegal gratification the requirements of the law is satisfied. This position is made clear by the decision of this Court in Mahesh Prasad v. The State of U.P.([3 ]) and Dhaneshwar Narain Saxena v. The Delhi Administra-tion(4).

Lastly we come to the question whether the prosecution was barred bys. 161(1) of the Bombay Police Act, 1951 (Bombay Act 22 of 1951), which, to the extent material for our present purpose, says that in any case of alleged offences by police officer or of wrong alleged to have been done by such officer by any

(I) [1962] 2 S.C.R. 195. • (2) [1959] S.C.R. 195. (3) [1955] I S.C.R. 965. (4) [1962] 3 S.C.R. 259 .

acL done under colour or in excess of any such duty or authority as mentioned in that Act, the prosecution shall not be entertained or shall be dismissed if instituted, more than six months of the act complained of. Admittedly, the prosecution in this case was instituted more than six months af1cr February 18, 1963, the day on which illegal gratification was obtained. !n support of the contention that the prosecution is barred by limitation, reliance was placed on the decision of this Court in Virupaxappa Veerappa Kadampur v. The State of Mysore('). Therein head constable was charged under s. 218 of the Indian Penal Code. The prose-cution case was that on February 23, 1954 on reccipl of some information that some persons were smuggling ganja, the head-constable arrested person with bundle containing 13 packets of ganja and seized them. and in the panchnama he incorrectly showed the seizure of nine packets of i:anja, and that on the next day he however prepared new report in which it was falsely recited that the person with the bundle ran away on seeing the police after throwing away the bundle containing nine packets of ganja. 111e allegation against the head-amstable was that the pre-pared false report with the dishonest intention of saving the person concerned from whom the ganja was seized and who had been actually caught with ganja, from legal punishment. This Court held that under s. 161 of the Bombay Police Act, 1951, the words "under colour of duty" have been used to include acts, done under the cloak of duty, even though not by virtue of the duty; that when the head-constable prepared false report he was using the existence of his legal duty as cloak for his corrupt action and that, therefore. the act thus done in derelictinn of his duty must be held to have been done "under colour of duty''. The rule laid down in that decision is inapplicable to the facts of the present case. In Virupaxappa Veerappa Kadampur's(') case, the head-constable in que1Jion had duty to prepare the panch-nama and the report. He by taking advantage of..that duty pre-pared false panchnama and false repcrt and therefore it wa' held that what he did was under the colour of duty. In the present case the appellants cannot be said to have received the bribe under the colour of their duty. There was no connection between the duties to be performed by them and the receipt of the bribe in question. The facts of the present case bear some similarity to the facts in the State of Andhra Pradcs/1 v. N. Vcnugapol(') and the rule laid down therein bears on the question under discussion. All that can he said in the present case is that the first appellant police officer, taking advantage of his pmition as police offir.cr and availing himself of the opportunity afforded by the letter Madhukanta handed over to him, coerced Ramanlal to pay illegal gratification to him. ThJs cannot be said to have been done under

(2) p 964] J S.C. H. 742.

(I) [I 963] St1pp. 2 S.C.R. 6 .

BHANUPRASAD v. GUJARAT (Hegde, J.)

colour of duty. The charge against the second appellant is that he aided the first appellant in his illegal activity.

For the reasons mentioned above, this appeal fails and the same is dismissed. The appellants who are on bail shall surrender forthwith to serve the remaining portion of the sentences imposed on them.

Appeal dismissed.