05 March 1954
Supreme Court


Case number: Appeal (crl.) 7 of 1951






DATE OF JUDGMENT: 05/03/1954


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



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



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



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



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



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



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



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



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



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



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



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



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.