http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13

PETITIONER:

RAO SHIV RAHADUR SINGH AND ANOTHER

Vs.

RESPONDENT:

THE STATE OF VINDHYA PRADESH.

DATE OF JUDGMENT:

05/03/1954

BENCH:

BHAGWATI, NATWARLAL H.

BENCH:

BHAGWATI, NATWARLAL H.

JAGANNADHADAS, B.

AIYYAR, T.L. VENKATARAMA

CITATION:

1954 AIR 322 1954 SCR 1038

CITATOR INFO :

R 1955 SC 104 (20)

F 1956 SC 476 (11)

R 1956 SC 643 (37)

R 1958 SC 500 (6,7,9,10,11,12,13,15)

D 1960 SC 961 (5)

R 1961 SC 715 (7)

F 1964 SC 358 (13)

R 1968 SC1323 (7)

E 1973 SC 28 (15)

RF 1974 SC1516 (9)

R 1975 SC 915 (25)

R 1975 SC1320 (5)

R 1979 SC 400 (9)

ACT:

Code of Criminal Procedure (Act V of 1898), s.164-

Magistrate not recording statement of accused as required by

the section-Whether competent to give oral evidence of such

statement-Disapproval of the action of Police in6 entrapping

the accused and providing the bribe-giver the instruments of

offence.

HEADNOTE:

After the investigation into an offence has been started

on the registration of the First Information Report by the

Police, no statement made by the -accused to the Magiarate

can be proved unless the statement has been recorded in

accordance with the provisions of s. 164 of the Code of

Criminal Procedure and therefore, if the non-confessional

statement has not been recorded by the Magistrate in the

manner indicated in s. 164, the Magistrate would not be

competent to give oral evidence of such statement having

been made by the accused.

Nazir Ahmad v. King Emperor (A.I.R. 1936 P. C. 253),

Legal Bomembrancer v. Lalit Mohan Singh Boy (I.L.R. 49 Cal.

167), Abdul Bahim and Others v. Emperor (26 Cr. L. J. 1279)

and Karu Mansukh Gond v. Emperor (A.I.R. 1937 Nag. 254)

referred to.

The conduct of the Police and the Additional District

Magistrate inactively instigating the accused to commit the

off once of which he was charged by furnishing him with the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13

necessary materials (without which he could not have

committed the offence), for the purpose of trapping him, was

strongly disapproved.

It is the duty of the police to prevent the crimes

being committed. It, is no part of their duty to provide

the instruments of the offence.

The observations of Mr. Justice P. B. Mukherji in the

case of M. 0. Mitra v. The State (A.I.R. 1951 Cal. 524 at p.

528) condemning the practice of sending Magistrates as

witnesses of Police trap endorsed because such practice

makes a Magistrate a party or a limb of the Police during

police investigation and undermines seriously the

independence of the Magistrates and perverts their judicial

outlook.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No., 7 of

1951.

Appeal under article 134(1)(c) of the Constitution of India

from the Judgment and Order dated the 10th March,,' 1951, of

the judicial Commissioner Vindhya

1099

Pradesh, Rewa in Criminal Appeal No. 81 of 1950 arising out

of the Judgment and Order dated the 26th July, 1950, of the

Court of the Special Judge, Rewa, in' Criminal Case No. 1 of

1949.

Jai Gopal sethi (K. B. Asthana, with him) for

appellant No.1.

S.C. Isaacs (Murtza Fazl Ali, with him) for appellant No.

2.

Porus A. Mehta for the respondent.

1954. March 5. The Judgment of the Court was delivered

by

BHAGWATI J.-The appellant No. 1 was the Minister *of

Industries and the appellant No. 2 was the Secretary to the

Government of the Commerce and Industries Department of the

State of Vindhya Pradesh. The appellant No. 1 was charged

with having committed offences under sections 120-B, 161,

465 and 466 of the- Indian Penal Code and the appellant No.

2 under sections 120-B and 161 of the Indian Penal Code as

adopted by the Vindhya Pradesh Ordinance No. 48 of 1949.

They were tried in the Court of the Special Judge at Rewa

under the Vindhya Pradesh Criminal Law Amendment (Special

Courts) Ordinance No. LVI of 1949 and the Special Judge

acquitted both of them. The State of Vindhya Pradesh took

an appeal to the Court of the Judicial Commissioner, Rewa.

The Judicial Commissioner reversed the order of acquittal

passed by the Special Judge and convicted both the

appellants of the several offences with which they were

charged. The Judicial Commissioner awarded to the appellant

No. 1 a sentence of 3 years rigorous imprisonment and a fine

of Rs. 2,000 in default rigorous imprisonment of 9 months

under section 120-B of the Indian Penal Code and a sentence

of three years' rigorous imprisonment under section 161 of

the Indian Penal Code, both the sentences to run concur-

rently. He imposed no sentence upon the appellant No. 1

under sections 465 and 466 of the Indian Penal Code. He

awarded to the appellant No. 2 a sentence of rigorous

imprisonment for one year and a fine of Re. 1,000 and in

default rigorous imprisonment for

1100

nine months under section 120-B of the Indian Penal Code. He

did not award any separate sentence to appellant No. 2 under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13

section 161 of the Indian Penal Code. On an application

made to the Judicial 'Commissioner, Rewa, for leave to

appeal to the Supreme Court the Judicial Commissioner

granted the appellants leave to appeal under article

134(1)(c) of the Constitution in regard to the four points

of law raised in the case before him.

The constitutional points involved in the appeal came up

for hearing before the Constitution Bench of this court and

were dealt with by the Judgment of this court delivered on

the 22nd May, 1953. The Constitution Bench held that the

appeal to the Judicial Commissioner from the acquittal by

the Special Judge was competent and that there was no

infringement of the fundamental rights of. the appellants

under articles 14 and 20 of the Constitution (Vide [1953]

S.C.R. 1188). The appeal was accordingly directed to be

posted for consideration whether it was to be heard on the

merits. An application wag thereafter made by the

appellants to this court for leave to urge additional

grounds and this court on the 20th October, 1953, made an

order that the appeal should be heard on merits. The appeal

has accordingly come up for hearing and final disposal

before us.

The case for the prosecution was as follows. By an

agreement executed on the 1st August, 1936, between the

Panna Durbar of the one part and the Panna Diamond Mining

Syndicate represented by Sir Chintubhai Madholal and Hiralal

Motilal Shah of the other part, the Panna Durbar granted to

the syndicate a lease to carry on diamond mining operations

for a period of 15 years. The period of the lease was to

expire on the 30th October, 1951, but there was an option

reserved to the lessee to have a renewal of the lease for a

further period of 15 years from the date of such expiration.

There were disputes between the syndicate on the one hand

and the Panna Durbar on the other and by his order dated the

31st October, 1946, the Political Minister of Panna stopped

the mining operations of the syndicate. The, State of

1101

Panna became integrated in the Unit of Vindhya Pradesh

in July, 1948, and the administration of Panna came under

the control and superintendence of the Government of Vindhya

Pradesh with its seat at Rewa under His Highness the

Maharaja of Rewa as Rajpramukh and the appellant No. I

became the Minister in charge of the Industries Department

in the Cabinet which was formed by the Rajpramukh. The

appellant No. 2 held the post of Secretary, Commerce and

Industries Department, and was working under the appellant

No. 1. On the 1st September, 1948, the syndicate appointed

one Pannalal as Field Manager to get the said order of the

Panna Durbar stopping the working of the mines rescinded.

Pannalal made several applications for procuring the

cancellation of the said order and on the 13th January,

1949, and the 26th January, 1949, Pannalal made two

applications and handed them over personally to the

appellant No. I requesting for the resumption of the mining

operations and was asked to come in February for the

purpose. The appellant No. I consulted the legal advisers

of the State and a questionnaire was framed which was to be

addressed to the syndicate for its answers. When Pannalal

went to Rewa the questionnaire. was handed over to him on

the 9th February, 1949, for being sent to Sir Chinubbai Sir

Chinubhai sent the replies to the said questionnaire along

with a covering letter dated the 18th February, 1949, where-

in he expressed a desire to meet the appellant No. 1 for

personal discussion in regard to the settlement of the

matter of the resumption of the mining operations etc. In

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13

reply to the telegrams sent by Sir Chinubhai on the 19th

February, 1949, the Personal Assistant to appellant No. 1

intimated to Sir Chinubhai that he could go to Rewa and see

the appellant No. 1 on the 7th March, 1949. As Sir

Chinubhai was ill he deputed his Personal Assistant,

Nagindas Mehta to go to Rewa and see the appellant No. 1 on

his behalf Nagindas arrived at Rewa on the evening of the

6th March, 1949. The appellant No. 1 had gone out of Rewa

and Nagindas had to wait. He saw the appellant No. 1 on the

morning. of the 8th March, 1949, but was asked

1102

to see the appellant No. 2. The appellant No.- 2 saw

Nagindas at the Guest House where lie had put up and

informed Nagindas that a third party was offering Rs. 50,000

for the mining rights. Nagindas told the appellant No. 2

that the syndicate was a limited concern and could not

afford to pay so much money . but if the amount was reduced

they would make- an effort to pay the sum. The appellant

No. 2 then told Nagindas that he would talk over the matter

with the appellant No. I and let him know. The same day in

the afternoon the appellant No. 2 saw Nagindas at the Guest

House and informed him that as the syndicate was working for

the last so many years the appellant No. 1 was prepared to

reduce the amount to about Rs. 25,000. Nagindas told the

appellant No. 2 that he would talk over the matter with Sir

Chinubhai in Bombay and would let him know about it.

Nagindas then left for Bombay but he reached Bombay on the

29th March, 1949, having been detained on the way for some

other business of his. He saw Sir Chinubhai in Bombay and

reported to him what had happened, at Rewa and gave him to

understand that resumption orders would not be passed unless

a bribe of Rs. 25,000 was paid. Sir Chinubhai did not

approve of the idea of giving a bribe and suggested that

Nagindas should lay a trap for catching the appellant No. 1.

Nagindas sent a telegram on the 29th March, 1949, agreeing

to go to Rewa in the week thereafter for completion. On

receipt of that telegram the appellant No. 2 in the absence

of appellant No. 1 who was on tour sent a telegram on the

1st April, 1949, to Sir Chinubhai pressing him to come the

same week as his presence was essential to complete the

matter which had been already delayed. On the 4th April,

1949, Pannalal was informed by the appellant No. 2 that the

appellant No. 1 was leaving for Delhi that day and that he

should go to Bombay and send Sir Chinubhai to Delhi to meet

the appellant No. I in the Constitution House where he would

be staying. He also gave a letter to Pannalal to the same

effect. Appellant No. 1 left for Delhi on the 4th April,,

1949, with the files of the Panna Diamond Mining

1103

Syndicate and reached Delhi on the 5th April, 1949. On the

6th April, 1949, the appellant No. 1 sent a telegram through

his Personal Assistant Mukherji to Sir Chinubhai at Bombay

asking him to meet the appellant No. I on the 7th, 8th or

9th April, 1949, at 31 Constitution House for final talks

regarding the Panna Diamond Mining Syndicate. On receipt of

the said telegram Sir Chinubhai sent a telegram in reply

stating that his Personal Assistant, Nagindas and Pannalal

were reaching Delhi on the 9th April, 1949. Nagindas

reached Delhi on the 8th April, 1949, and put up at the

Maidens Hotel and Pannalal reached Delhi on the 10th April,

1949, and put up at the Regal Hotel. On the 9th April,

1949, Nagindas informed the appellant No. I on the telephone

about his arrival at Delhi and an appointment was fixed for

10-30 am. on the 10th April, 1949 Nagindas contacted

Shri.Bambawala, the inspector General of Police of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13

Special Police Establishment on the morning of the 10th

April, 1949, before, coming to meet the appellant No. I and

told him how the appellant No. 1 was coercing him to pay a

bribe. Shri Bambawala referred Nagindas to Pandit Dhanraj,

Superintendent,, Special Police Establishment, and Nagindas

told him the whole story of his harassment by the appellant

No. 1 and it was then decided to lay a trap for, appellant

No. 1. Nagindas informed Pandit Dhanraj that he would meet

the appellant No. 1 at about 11 a.m. and then report their

talk to him in the afternoon. Nagindas then saw the

appellant No. 1 at the Constitution House at the appointed

time and at this meeting the appellant No. 1 demanded from

Nagindas a sum of Rs. 25,000 as a bribe for allowing the

resumption of the mining operations and made it quite clear

that he would not accept anything less than' Rs. 25,000. As

Nagindas had not received the moneys from Bombay, the

following day, ie., the 11th April, 1949, at 3 p.m. was

fixed for the next meeting. Nagindas thereafter informed

Pandit Dhanraj as to what had taken place at the aforesaid

meeting between him and the appellant No. 1. Nagindas went

to the Constitution House and saw the appellant No. I at

about 3 p.m. on the 11th April,, 1949. Pannalal was already

143

1104

there. Nagindas and the appellant No. 1 went into the

bedroom where Nagindas requested the appellant No. I to

extend the period of the lease for 10 years so that the

syndicate might be compensated for the loss sustained by the

stoppage of the mining operations. The appellant No. I

thereupon asked Nagindas to submit a written application in

Hindi and as Nagindas did not know it he called Pannalal

into the bedroom and asked him to write out an application

to that effect. The appellant No. I after making sure from

Pannalal that Pannalal was present at Rewa on the 1st April,

1949, asked Pannalal to put the date on the said application

as the 1st April, 1949. The appellant No. 1 made an

endorsement at the foot of the said application and dated it

as of the 1st April, 1949. It was arranged that Nagindas

should see the appellant No. 1 at 9 p.m. that day, that

Nagindas should pay Rs. 25,000 to the appellant No. I at-

that time and the appellant No. I would deliver the

resumption order to Nagindas on payment of the said sum of

Rs. 25,000. Nagindas then left the Constitution House and

reported to Pandit Dhanraj what had transpired between him

and appellant No. 1. He further told Pandit Dhanraj that he

had not received any moneys upto that time. Pannalal was

asked to proceed to the Constitution House in advance and

inform the appellant No. 1 that Nagindas would be coming

along at 9 p.m. that night. Nagindas and Pandit Dhanraj

then proceeded to the house of Shri Shanti Lal Ahuja,

Additional District Magistrate. Pandit Dhanraj made

arrangements for a raiding party. Nagindas's statement was

recorded on oath and a search of his person was made and he

was then given three bundles containing 250 Government

currency notes of Rs. 100 and a memorandum of the same was

also prepared. After these formalities were gone through

Pandit Dhanraj, Nagindas and the Additional District

Magistrate along with the police party left for the

Constitution House. It was arranged that Pannalal should be

sent out by Nagindas after the completion of the

transaction, on some pretext or other to the taxi waiting

outside and that this would serve as a signal for the

raiding party

1105

which would rush into the room No. 31 Constitution House

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13

which was occupied by the appellant No. 1. Nagindas then

went inside the suit of rooms occupied by the appellant No.

1 and the appellant No. 1 took him to his bedroom and closed

the door which connected the bedroom with the sitting room

where Pannalal was already waiting. After this the appel-

lant -No. 1 handed over the resumption order to Nagindas and

on reading the same Nagindas found that the extension given

was only for 4 years and be asked the appellant No. 1 why

this was so when the appellant No. 1 had promised before to

give an extension for 10 years. On this the appellant No. I

told Nagindas that he should put up another application

after a few months and then the appellant No. 1 would extend

the period. Appellant No. 1 then signed the resumption

order and put down the date thereunder as the 2nd April,

1949. As soon as the signed order was handed over to him

Nagindas handed over to the appellant No. I the Government

currency notes of the value of Rs. 25,000 which had been

given to him previously by the Additional District

Magistrate. Nagindas then asked for an extra copy of the

said order and the same was accordingly given to him after

being dated and initialled by the appellant No. 1. The

appellant No. 1 took the Government currency notes and put

them in the upper drawer of the dressing table in the

bedroom. After the transaction was thus completed Nagindas

shouted to Pannalal to go to the taxi and bring his

cigarette case. Pannalal went opt to the taxi and on

receipt of this signal the Additional District Magistrate

and Pandit Dhanraj rushed into the sitting room along with

the other members of the raiding party. The appellant No. 1

met the raiding party at the communicating door between the

two rooms. After the Additional District Magistrate and

Pandit Dhanraj had disclosed their identity appellant No. I

was asked by Pandit Dhanraj whether he had received any

money as a bribe to which the appellant No. 1 replied in the

negative. Pandit Dhanraj then told appellant. No. 1 that

he should produce the money which he had received, otherwise

he would be

1106

forced to search the room. On this appellant No. I went to

the said dressing table, opened the top drawer and brought

out the three bundles of Government currency notes given to

him by Nagindas and handed them over to Pandit Dhanraj. On

inquiry by the Additional District Magistrate as to how he

had come into possession of the said notes, the Appellant

No. 1 stated that he had brought Rs. 40,000 from his home

out of which Rs. 15,000 had been spent by him in the

purchase of a motor car and the remaining sum was with him

which was required by him to purchase some ornaments in

connection with the marriage of his daughter. In the

meanwhile two respectable witnesses, Shri Gadkari, who was a

member of the Central Electricity Authority, Ministry of

Works;, Mines and Power, Government of India, and Shri

Perulakar, who was the Minister for Agriculture and Labour,

Madhya Bharat, were brought to the bedroom of the appellant

No. 1 by the police. The appellant No. 1 repeated the said

statement and gave the same explanation before these two

witnesses which he had given and made before the Additional

District Magistrate and Pandit Dhanraj a little while

before. Nagindas was then searched in the presence of these

two witnesses and the two copies of the order which had been

given to him by appellant No. I were recovered from his

person. Two other copies of the said order and the

application and the file of the Panna Diamond Mining

syndicate were recovered from the. search of the upper

drawer of, the dressing table in the bedroom of appellant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13

No. I Appellant No. 1 also produced a receipt in support of

his story of the purchase of the car. The relevant memos of

the search were prepared and also a list of the numbers of

the Government currency notes of Rs. 25,000 which had been

produced by the appellant No. 1. This list was compared and

checked by the said witnesses Gadkari and Perulgkar with the

numbers of notes and also with those appearing in the list

which was in the possession of the Aditional District Magis-

trate and which, was shown to the said witnesses. They

found that the numbers in the said two lists tallied in all

respects. After the completion of the list the Additional

1107

District Magistrate confronted appellant No. 1 with the

documents which were produced before him by Nagindas and

also the list of notes and asked appellant No. 1 if he had

any explanation to offer. The apppllant No. 1 was confused

and could give no explanation. On further enquiry whether

the appellant No. I had any other money with him, he opened

an iron confidential box a key of which was in his

possession and brought out a sum of Rs. 132 which was not

taken charge of as the same had no concern with the case.

Thereafter appellant No. I was put under arrest and was

subsequently released on bail.

* * * *

After these documents were forged the next important

event was the passing, of the sum of Rs. 25,000 as and by

way of bribe or illegal gratification by Nagindas to the

appellant No. 1. Here also it would have been difficult for

the prosecution to establish the guilt of the appellant No.

1 if the matter had rested merely on the evidence of

Nagindas or that of the police witnesses supported a,% they

were by Shanti Lal Ahuja, the Additional District

Magistrate. Nagindas's evidence suffering from the

infirmity pointed out before could not be enough to carry

conviction with the court. He was out to trap the appellant

No. 1 and had been clever enough also to have inveigled the

police authorities to procure the wherewithal of the bribe

for him. It is patent that but for the procurement of these

Rs. 25,000 by the police authorities and their handing over

the sum to Nagindas, Nagindas would not have had the

requisite amount with him and the offence under section 161

would never have been committed. The police authorities

also exhibited an excessive zeal in the matter of bringing

the appellant No. 1 to book and their enthusiasm in the

matter of trapping the' appellant No. I was on a par. with

that of Nagindas and both the parties were thus equally to

blame in the matter of entrapping the appellant No. 1. The

evidence of these witnesses therefore was not such as to

inspire confidence in the mind of the court. Shanti Lal

Ahuja, the Additional District Magistrate, also lent himself

to the. police authorities and became

1108

almost a limb of the police. His position as the Additional

District Magistrate was submerged and he reduced himself to

the position of an ordinary witness taking part in the

affair as a member of the raiding. party and his evidence

could be no better or no worse than that of the police

witnesses themselves. If therefore the matter had rested

merely upon their evidence it would have been difficult to

carry the guilt home to the appellant No. 1. The evidence as

to the recovery of this sum of Rs. 25,000 from the top

drawer of the dressing table in the bedroom of the appellant

No. I and also in regard to the handing over of that sum by

the appellant No. I to Shanti Lal Ahuja, the Additional

District Magistrate, was equally tainted and if that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13

evidence stood by itself no court would have been safe in

acting upon the same. The statement which was made by the

appellant No. I to Shanti Lal Ahuja, the Additional District

Magistrate, was inadmissible in evidence. Section 162 of

the Criminal Procedure Code rendered the statement made by

the appellant No. I to the police officers inadmissible.

The investigation into the offence had already started

immediately on the First Information Report being registered

by the police authorities and Pandit Dhanraj himself

admitted in his evidence that the investigation into the

offence had thus started before the raid actually took

place. The statement made by the appellant No. 1 to Shanti

Lai Ahuja, the Additional District Magistrate was therefore

made after the investigation had started and during the

investigation of the offence and was therefore hit by

section 164 of the Criminal Procedure Code. It was urged on

behalf of the respondent that this statement was not a

confessional statement and was therefore not hit by section

164 and Shanti Lai Ahuja, the Additional District

Magistrate, could therefore depose to such statement even

though the same was not recorded as required by the

provisions of section 164 of the Criminal Procedure Code.

There is authority however for the proposition that once the

investigation had started any non-confessional statement

made by the accused also required to be recorded in the

manner -indicated in that section and if no such record had

1109

been made by the Magistrate, the Magistrate would not be

competent to give oral evidence of such statement having

been made by the accused. (See A.I.R. 1936 Privy Council 253

and Indian Law Reports 49 Calcutta 167 followed in 26

Criminal Law Journal 1279 and A.I.R. 1937 Nagpur 254). The

statement made by the appellant No. 1 therefore to Shanti

Lal Ahuja, the Additional District Magistrate, not having

been recorded by him in accordance with the- provisions of

section 164 was inadmissible in evidence and could not be

proved orally by him., If therefore the statement was thus

eliminated from evidence nothing remained so far as the

witnesses Nagindas and Pannalal on the one hand and the

police witnesses as well as Shanti Lal Ahuja, the Additional

District Magistrate, on the other hand were concerned which

could bring the guilt home to the appellant No. 1.

Reliance was therefore placed by the prosecution on the

evidence of Gadkari and Perulakar. They occupied

responsible positions in life and were absolutely

independent witnesses. Two criticisms were levelled against

their evidence by the Special Judge. The one criticism was

that contrary to the evidence of Pandit Dhanraj they

asserted that their, statements were not recorded on the

night of the 11th April, 1949. Pandit Dbanraj had recorded

their statements after they had left the bedroom of the

appellant No. I at the Constitution House relying upon his

memory of the events that had happened that night. These

statements however were not read over to them and therefore

could not have the value which otherwise they would have

had. The other criticism was that they had appended their

signatures to the Panchnama of the numbers of the

currency,notes recovered at that time which Panchnama

contained the statement that on being asked the appellant

No. I had produced the bundles of currency notes from the

top drawer of the dressing table. This statement was not

factually correct as both these witnesses were brought into

the bedroom of the appellant No. I after the recovery of the

Government currency notes by the police from the appellant

No., 1. It was certainly indiscreet on their part not to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13

have scrutinised

1110

the contents of the Panchnama before they appended their

signatures thereto. That is however a far cry from coming

to the conclusion that they acted in a highly irresponsible

manner and their testimony was unreliable. The

circumstances under which the numbers of the currency notes

were recorded in the Panchnama, the statement made by the

appellant No. 1 to them and the confusion into which the

appellant No. 1 fell when he was questioned by the police

authorities on the tallying of the numbers contained in the

memo prepared when the raid was organised with the numbers

of the currency notes actually found in the bedroom of the

appellant No. 1 were events which would indelibly print

themselves in the memory of these witnesses and even though

they were examined in the Court of the Special Judge about

10 months after the occurrence, these events and

particularly the fact that the appellant No. I claimed these

moneys which were thus recovered as his own would certainly

not be in any manner whatever forgotten by them. The only

suggestion which was made against the credibility of these

witnesses on this point was that they must not have exactly

remembered what transpired on that night in the bedroom of

the appellant No. I and that they might have committed an

honest mistake when narrating the events that had happened

on that night. An honest lapse of memory would no doubt be

a possibility but having regard to the circumstances of the

case we are of the opinion that the events that happened

that night in the bedroom of the appellant No. I and which

were deposed to, by these witnesses were not such as to be

easily forgotten by them and when these witnesses deposed to

the fact that the appellant No. I claimed this sum of Rs.

25,000 as his own and was utterly confused when explanation

was sought from him by the police authorities in regard to

the tallying of the numbers of these Government currency

notes, it is not easy 'to surmise that they were suffering

from any lapse of memory.

The evidence of these witnesses in regard to the

statement made by the appellant No. 1 before them was also

attacked on the ground that Shanti Lal

1111

Ahuja, the Additional District Magistrate's asking the

appellant No. 1 to repeat the statement which he had earlier

made before him to these witnesses was a mere camouflage.

Shanti Lal Ahuja, the Additional District Magistrate, knew

very well that the statement made by the appellant No. 1 to

him was not recorded under the provisions of section 164 of

the Criminal Procedure, Code and was therefore inadmissible

in evidence and he therefore resorted to these tactics of

having the appellant No. 1 repeat the very same statement to

these witnesses so as to avoid the bar of section 164.

Reliance was placed in this behalf on A.I.R. 1940 Lahore 129

(Full Bench) where it wag held that if on the facts of any

case it was found that a statement made to a third person

was in reality intended to be made to the police and was

represented as having been made to a third person merely as

a colourable pretence in order to avoid the provisions of

section 162 the court would hold it excluded by the section.

The same ratio it was submitted applied to the statements

made to these two witnesses because they were a colourable

pretence to avoid the provisions of section 164 of the

Criminal Procedure Code which had certainly not bee n

complied with by Shanti Lal Ahuja, the Additional District

Magistrate. It has however to be observed that every

statement made to a person assisting the police durirng an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13

investigation cannot be treated as a statement made to the

police or to the Magistrate and as such excluded by section

162 or section 164 of the Criminal Procedure Code. The

question is one of fact and has got to be determined having

regard to the circumstances of each case. On a scrutiny- of

the evidence of these two witnesses and the circumstances

under which the statements came to be made by the appellant

No. 1 to them we are of the opinion that the appellant No. I

was asked by Shanti Lal Ahuja, the Additional, District

Magistrate, to make the statements to these two witnesses

not with a view to avoid the bar of section 164 of the

Criminal Procedure Code or by way of colourable pretence but

by way of greater caution particularly having regard to the

fact that the appellant No. 1 occupied the position .of a

Minister of

144

1112

industries in the State of Vindhya Pradesh. The

statements .made by the appellant No. 1 to these witnesses

therefore did not suffer' from this disability

and were admissible in evidence.

The evidence of these witnesses being thus worthy of

credit and the statements made by the appellant No. 1 to

them being admissible in evidence there is no doubt that the

appellant No. 1 claimed these moneys, viz., Rs. 25,000,

-which were recovered from the top drawer of the dressing

table in the bedroom of the appellant No. 1 as his own being

the balance of Rs. 40,000 which he had brought from his home

when he came to Delhi. If this was' so the very fact that

the numbers of these Government currency notes of the value

of Rs. 25,000 tallied with the numbers of the notes which

had been handed over to Nagindas earlier when the raid was

organised and which numbers were also specified in the memo

prepared at that time was enough to establish the falsity of

the allegation made by the appellant No. 1 that he had

brought these moneys from his home These moneys were proved

to have been provided by the police authorities and given to

Nagindas when the raid was organised and were the

instruments of the offence of the taking of the bribe or

illegal gratification by the appellant No. 1. If the numbers

of these notes tallied with the numbers of the notes which

were thus handed over by the police authorities to Nagindas

they could not have belonged to the appellant No. 1 and were

certainly brought there by Nagindas and handed over by him

to the appellant No. 1 as alleged, by the prosecution. A

suggestion was made that there was oportunity for Nagindas

to plant these moneys into the top drawer of the dressing

table when the back of the appellant No. 1 was turned upon

him. Even assuming that there was that possibility it is

sufficiently negatived by the fact that when these moneys

were recovered from the top drawer either at the instance

Nagindas as alleged by the appellant No. 1 or at, the

instance of the appellant No. 1 as alleged by the

prosecution the appellant No. 1 did not express any surprise

at these moneys being thus found there. If the version of

the appellant No. 1

1113

was correct he had only brought about Rs. 25,000 from his

house. Rs. 15,000 has been already spent by him in the

purchase of the car., About Rs. 10,600 were spent by him in

the purchase of the ornaments and only a sum of Rs. 100 odd

was the, balance left with him. According to that version

there was not the slightest possibility of the sum of Rs.

25,000 being found in the top drawer of the dressing table.

Far from expressing a surprise in this manner the appellant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13

No. 1 claimed these moneys as his own. The appellant No. 1

could -not have by any mischance failed to appreciate that

these Government currency notes which were thus recovered

from the to p drawer of the dressing table exceeded by far

the amount which according to him he had left with him by

way of balance and the most natural reaction to the recovery

of this large sum of money would . have been that he would

have certainly denied that these moneys were his and he

would have been surprised at finding that such a large sum

of money was thus found there. No such reaction was

registered on his face. On the contrary if the evidence of

the two witnesses Gadkari and Perulakar is to be believed

and we see no reason why it should not be believed, the

appellant No. 1 claimed this sum of Rs. 25,000 as his own

being the balance out of the money which he had brought from

his home when he came to Delhi. This is sufficient to

establish that these moneys which earlier bad been handed

over by the police authorities to Nagindas found their way

into the top drawer of the dressing table in the bedroom of

the appellant No. 1 and were the primary evidence of the

offence under section 161 having been committed by the

appellant No. 1. The further circumstance that on the num-

bers of these notes being tallied and his explanation in

that behalf being asked for by the 'Police authorities the

appellant No. 1 was confused and could furnish no

explanation in regard thereto also -supports this conclusion

and there is no doubt left in our minds that the appellant

No. 1 was guilty of the offence. under section 161 of the

Indian Penal Code with ;Which he was charged

1114

We cannot however leave this case without expressing our

strong disapproval of the part which the -police authorities

and Shanti Lal Ahuja, the Additional District Magistrate,

took in this affair. As already observed this offence would

never have been committed by the appellant No. I but for the

fact that the Notice authorities provided Nagindas with the

wherewithal of the commission of the offence. Sir Chinubhai

as it appears from the evidence was not in a position to

provide Nagindas with this sum of Rs. 25,000 or any large

sum and in fact in spite of the telephone calls made by

Nagindas upon him had not provided any amount beyond Rs.

3,000 which was meant for the other expenses of Nagindas, to

him. Nagindas was therefore not in a position to provide

this sum of Rs. 25,000 for payment of the bribe or the

illegal gratification to the appellant No. 1. But for the

adventitious aid which he got from, the police authorities

the matter would not have progressed any further, and

Nagindas -would I have left Delhi empty handed. The police

authorities however once they got scent of the intention of

Nagindas thought that it was too good an opportunity to miss

for entrapping the appellant No. 1 who occupied the position

of the Minister of Industries in the State of Vindhya

Pradesh. They therefore provided the sum of Rs. 25,000 on

their own and handed it over to Nagindas. The police

authorities in this step which they took showed greater

enthusiasm than Nagindas himself in the matter of trapping

the .appellant No. 1. It may be that the detection of

corruption may sometimes call for the laying of traps, but

there is no justification for the police authorities to

bring about the taking of a bribe by supplying the bribe

money to the giver where he has neither got it nor has the

capacity to find it for himself. It is the duty of the

police authorities to prevent crimes being committed. It is

no part of their business to provide the instruments of the

offence. We cannot too strongly disapprove of the step

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13

which the police authorities took in this case in the matter

of providing the sum of Rs. 25,000 to Nagindas who but for

the

1115

police authorities thus coming to his aid would never have

been able to bring the whole Affair to its culmination.

Not only did the police authorities thus become active

parties in the matter of trapping the appellant No. I they

also provided a handy and an ostensibly independent witness

in the person of Shanti La] Ahuja, the Additional District

Magistrate. Even though he was a member of the judiciary be

lent his services to the police authorities and became a

limb of the police as it were. The part which Shanti Lal

Ahuja, the Additional District Magistrate, took in this

affair cannot be too strongly condemned. We can only repeat

in this connection the observations of the Privy Council in

A.I.R. 1936 Privy Council 253 at page 258 in regard to the

Magistrates placing themselves in positions where they would

have to step into the witness box and depose as ordinary

citizens.:-

"In their Lordships view it would be particularly

unfortunate if Magistrates were asked at all generally to

act,rather as police officers under section 162 of the Code;

and to be at the same time freed, notwithstanding their

position as Magistrates, from any obligation to make records

under section 164. In the result they would indeed be

relegated to the position of ordinary citizens as witnesses

and then would be required to depose to matters transacted

by them in their official capacity unregulated by any

statutory rules of procedure or conduct whatever......... "

The position was laid down with greater emphasis by Mr.

Justice P. B. Mukharji in A.I.R. 1951 Calcutta 524 at page

528 where the learned Judge observed:

"Before I conclude I wish to express this court's great

disapprobation of the practice that seems to have become

very -frequent of sending Magistrates as witnesses of police

traps. The Magistrate is made to go under disguise to

witness the trap laid by the police. 'In this case it was

Presidency Magistrate and in other cases which have come to

our notice there have been other Magistrates who became such

witnesses. To make -the Magistrate a party or a limb of the

police during the police investigation seriously

1116

undermines the independence of the Magistrates and ,perverts

their judicial outlook. The Magistrates are the normal

custodians of the general administration of criminal justice

and it is they who normally decide and pass judgments on the

acts and conduct of the police. It is not enough to say,

therefore, that the Magistrate acting as a witness in a

particular case does not himself try that case. This

practice is all the more indefensible here specially when

there is no separation of the executive from the

judiciary. . The basic merit of the administration of

criminal justice in the State lies in the fact that the

person arrested by the police is entitled to come before an

independent and impartial Magistrate who is expected to deal

with the case without the Magistrate himself being in any

way a partisan or a witness to police activities. There is

another danger and that is the Magistrates are put in the

unenviable and embarrassing position of having to give

evidence as a witness and then being disbelieved. That is

not the Way to secure respect for the Magistracy charged

with the administration of justice. In my judgment this is

a practice which is unfair to the accused and unfair to, the

Magistrates. It is also unfair to the police. Because

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13

charged with the high responsibility and duty of performing

a great and essential public service of this State the

police cannot afford to -run the risk of opprobrium' even if

unfounded, that they have enlisted the Magistrate in their

cause. That risk -is too great and involves forfeiting

public respect and confidence.................."

We perfectly endorse the above observations made 'by Mr.

Justice P. B. Mukharji and hope and trust that Magistrates

will not be employed by the police authorities in the manner

it was done by the Special Police Establishment in this case

before us. 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 independence of

,the judiciary should not be undermined by any such tactics

adopted. by the executive authorities We have therefore

eliminated from our consideration the whole of the evidence

given by Shanti Lal Ahuja, the Additional District

Magistrate, and come to our conclusion in regard to the

guilt of the appellant No. I relying solely on the testimony

of the two independent witnesses Gadkari and Perulakar.

The result therefore is that the appeal of the appellant

No. 1 will be dismissed except with regard to his conviction

and sentence, under section 120-B of the Indian Penal Code

and the convictions and sentences passed upon him by the

Judicial Commissioner under section 465 and section 466 as

also section 161 of the Indian Penal Code will be confirmed.

The appeal of the appellant No. 2 will be allowed and he be

acquitted -and discharged of the offences with which he was

charged and immediately set at liberty. The bail bond of

the appellant No. 2 will be cancelled.