RAO SHIV BAHADUR SINGH AND ANOTHER versus THE STATE OF VINDHYA PRADESH

1098

SUPREME COURT REPORTS

[1954]

1954

March5.

RAO SHIV BAHADUR SINGH AND ANOTHER v. THE STATE OF VINDHYA PRADESH.

[BHAGWATI, JAGANNADHADAS

and VENKATARAMA

AYYAR JJ.]

Code of Criminal Proced11re (Act V of 1898), s. 164-Magistrate not recording statement of accused as required by the section-Whe ther competent to give oral evidence of such statement--Disapproval of the action of Police in entrapping the accused and providing the bribe-giver the instruments of offence.

First

After the investigation into an offence has been started on

the Information Report by the Police, no registration of the statement n1ade ~y the accused to the Magistrate can be proved unless the statement has been recorded in accordance with the provisions therefore, it of s. 164 of the Code of Criminal Procedure the. by been the non-confessional state1nent has not Magistrate the Magis trate would not be competent to give oral evidence of such state ment having been made by the accused.

indicated in s. 164,

and recorded

the manner

in

Nazir Ahmad v. King Emperor (A.LR. 1936 P. C. 253), Legal Remembrancer v. Lalit Mohan Singh Roy (I.L.R. 49 Cal. 167), Abdul Rahim and Others v. Emperor (26 Cr. L. J. 1279) and Karu Mansukh Gond v. Emperor (A.LR. 1937 Nag. 254) referred to.

The conduct of the Police and the Additional District Magis trate in actively instigating the accused offence 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.

to commit

the

It is committed. of the offence.

the duty of

being It is no part of their duty to provide the instruments

the police to prevent the crimes

The observations of Mr. Justice P. B. Mukherji

the case of M. C. Mitra v. The State (A.LR. 1951 Cal. 524 at p. 528) con demning 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 their judicial outlook.

and perverts

in

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 the Judicial Commissioner, Vmdhya March, 1951, of

S.C.R.

SUPREME COURT REPORTS

1099

Pradesh, Rewa arising out of the July, 1950, of the Court of the Special Judge, Rewa, Criminal Case No. 1 of 1949.

in Criminal Appeal No. 81 of 1950 Judgment and Order dated the 26th in

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

appellant No. 1. S. C. appellant No. 2.

Isaacs

(Murtza Faz! Ali, with him)

for

Porus A. Mehta for the respondent. 1954. March 5. The Judgment of

the Court was

delivered by

1954

Rao Shiv Bahadur Singh and Another v. The Slate of V indhya Pradesh.

Bhagwati].

BHAGWATI J.-The appellant No. I was the Minister of Industries and the appellant No. 2 was the Secre tary to the Government of the Commerce and Indus tries Department of the State of Vindhya Pradesh. charged with having com The appellant No. 1 was and 466 mitted offences under sections 120-B, 161, 465 the appellant No. 2 of the Indian Penal Code and 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 (Special Courts) Ordinance No. LVI Law Amendment of 1949 and the Special Judge acquitted both of them. The State of Vindhya Pradesh took an appeal the Court of The the order of acquittal Judicial Commissioner the passed by the Special Judge and convicted both appellants of the several offences with which they were charged. The Judicial Commissioner awarded to the rigorous imprisonment and a fine of Rs. 2,000 in default rigo section 120-B rous of the of three section 161 of the years' rigorous imprisonment under Indian Penal Code, both the sentences to run concur rently. He imposed no sentence upon appellant the No. 1 under sections 465 and 466 of · the Indian Penal the appellant No. 2 a sentence Code. He awarded to for one year and a fine of of rigorous imprisonment for Rs. 1,000 and in default ngorous

appellant No. 1 a sentence of 3 years

Indian Penal Code and a sentence

imprisonment of 9 months under

Judicial Commissioner, Rewa.

imprisonment

reversed

the

to

llOO

SUPREME COURT REPORTS

[1954}

1954

Rao Shiv Bahadut Singh af'ld Anothlr Vo The State of Vindhya Pradesh.

Bhagwati],

any separate sentence

nine months under section 120-B of the Indian Penal Code. He did not award to appellant No. 2 under section 161 of the Indian Penal Code. On an application made to the Judicial Com the Supreme missioner, Rew a, for leave the appel Court the the lants Constitution in regard to the four points of law raised in the case before him.

Judicial Commissioner granted to appeal under article 134( l) ( c) of

to appeal to

leave

in

involved

that the appeal to the

The constitutional points

the appeal came up for hearing before the Constitution Bench of Judgment of this court and were dealt with by the this court delivered on the 22nd May, 1953. The Cons Judicial titution Bench held 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. ll88). The appeal was accordingly directed for consideration whether it was to be heard on the merits. appellants An application was thereafter made by the 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.

to be posted

the one part and

The case for the prosecution was as follows. By an agreement executed on the 1st August, 1936, between the Panna Durbar of the Panna Diamond Mining Syndicate represented by Sir Chinu bhai Madholal and Hiralal Motilal Shah of the other a part, the Panna Durbar granted to the syndicate for a lease to carry on dian10nd mining operations 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 the date lease for a further period of 15 years of such expiration. There were disputes 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

between

from

1954

Rao Shiv Bahadur Singh and Another v. The Stale qf Vindhya Prad11Jh.

Bhagwati].

S.C.R.

SUPREME COURT REPORTS

1101

for

the

the

and

1948,

integrated

the mines

and the appellant No. 1 became

in the Unit of Vindhya Panna became of Pradesh in July, 1948, administration 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 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. I. On the 1st September, the syndicate appointed one Pannalal as Field Manager to get the said order of the Panna Durbar stopping the rescinded. Pannalal made working of several applications the cancellation of for procuring the said order and on the 13th January, 1949, and the applications 26th January, 1949, Pannalal made two and handed them over personally appellant to the resumption of the mining No. 1 requesting operations and was asked to come in February for the legal purpose. The appellant No. 1 consulted advisers of the State and a questio11naire was framed which was for its answers. When Pannalal went to Rewa the question naire was handed over to him on the 9th February, 1949, for being sent to Sir Chinubhai. Sir Chinubhai sent the replies to the said questionnare along with a covering letter dated the 18th February, 1949, where to meet the appellant No. I in he expressed a desire for personal discussion in regard to of the matter of the resumption of the mining operations In reply to the telegrams sent by Sir Chinubhai etc. to on the 19th February, 1949, the Personal Assistant 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 hls to go to Rewa Personal Assistant, Nagindas Mehta 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 I Nagindas had to wait. He saw the appellant No. on the morning of the 8th March, 1949, but was asked

to be addressed

to the syndicate

the settlement

the

1954

Rao Shiv Bahadur

Singh and Anothtr v. The State of f indhya Pradesh.

BhagwatiJ.

1102

SUPREME COURT REPORTS

[19541

to

for

the

the

but

amount

could if

limited concern and

not afford the

they would make an effort to pay

to see the appellant No. 2. The appellant No. 2 saw Nagindas at the Guest House ~here he had put up ~nd a third party was offenng informed Nagindas that rights. Nagindas mmmg Rs. 50,000 the syndicate was told appellant No. 2 that pav a so much money was reduced the sum. The appellant No. 2 then told Nagindas that he would talk over the matter with the appellant No. 1 and let him know. The same day in the afternoon the appel lant No. 2 saw Nagindas at the Guest House and in formed him that as the syndicate was working for the last so many years the appellant No. 1 was prepared about Rs. 25,000. Nagindas to reduce the amount to 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 Bombav but he reached Bombay on the 29th March, 1949. some other busi having been detained on the way for ness 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 idea of giving a bribe Chinubhai did not approve of the and suggested that Nagindas for lay a trap catching the appellant No. 1. Nagindas sent a telegram to go to Rewa in on the 29th March, 1949, agreeing the week thereafter for completion. On receipt of that telegram the appellant No. 2 in the absence of appel lant 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 complete delayed. On the the matter which had been already 4th April, 1949, Pannalal was informed by the appel lant No. 2 that the appellant · No. 1 was leaving for to Bombay and Delhi that day and that he should go send Sir Chinubhai to Delhi the appellant No. 1 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, files of the Panna Diamond Mining 1949, with

to meet

should

the

to

1954

Rao Shiv Bahadu1 Singh and Anotf.er V• The State ef V indhya Pradesh.

BhagwatiJ.

S.C.R.

SUPREME COURT REPORTS

1103

the

that

stating

in reply

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 Chinu bhai at Bombay asking him to meet the appellant No. 1 -0n the 7th, 8th or 9th April, 1949, at 31 Constitution regarding the Panna Diamond House for final talks Mining Syndicate. On receipt of the said telegram Sir Chinubhai sent a telegram his Personal Assistant, Nagindas and Pannalal were reach ing 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. 1 on the telephone about his arrival at Delhi and an appoint ment was fixed for 10-30 a.m. on the 10th April, 1949. Inspector Nagindas contacted Shri Bambawala, General of Police of the Special Police Establishment -0n the morning of the 10th April, 1949, before coming to meet the appellant No. 1 and told him how the appellant No. 1 was coercing him to pay a bribe. Shri to Pandit Dhanraj, Bambawala Superintendent, and the whole story of his harassment Nagindas 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 appellant No. 1 afternoon. Nagindas then saw the time and at the Constitution House at the appointed 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 dear than Rs. 25,000. As Nagindas had not received the moneys following day, i.e., the 11th April, from Bombay, the 1949, at 3 p.m. was fixed for the next meeting. Nagin ,das 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 Constitu tion House and saw about 3 p.m. on the 11th April, 1949. Pannalal was already

that he would not accept anything

the appellant No. 1 at

Police Establishment,

referred Nagindas

told him

Special

less

1954

Rao Shiv Bahadur Singh anrl Another v. T lu State oj' Vindhya Pradesh.

BhagwatiJ.

1104

SUPREME COURT REPORTS

[1954J

should

that day,

compensated

that Nagindas

the 1st April, 1949. The appellant No.

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 for the loss that the syndicate might be by the stoppage of the mining operations .. sustained The appellant No. I thereupon asked Nagindas to sub mit 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 R_ewa on the 1st April, 1949, asked Pannalal to put the date on the said appli cation as I made an endorsement at the foot of the said applica tion and dated it as of the 1st April, 1949. It waSc arranged that Nagindas should see the appellant No. I at 9 p.m. pav Rs. 25,000 to the appellant No. I at that time and the appellant No. 1 would deliver the resumption order to Nagindas on payment of the said sum of Rs. 25,000. Nagindas then left the Constitution House and report transpired between ed to Pandit Dhanraj what had told Pandit him and appellant No. Dhanraj that he had not received any moneys upto to that time. Pannalal was asked to the Constitution House in advance and inform the appel lant 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 state ment was recorded on oath and a search of his person was made and he was then given three bundles contain ing 250 Government currency notes of Rs. 100 and a memorandum of the same was also prepared. After through Pandit Dhanraj, these formalities were gone 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 for the raiding party as a signal that this would serve

I. He further

proceed

1954

Rao Shiv Bahadur Singh and Anothtr v. The State of V indhya Pradesh~

BhagwatiJ ..

S.C.R.

SUPREME COURT REPORTS

1105

the

the

the

the

resumption same Nagindas

the extension given was only for 4 years

which would rush into the room No. 31 Constitution House which was occupied by the appellant No. 1. the suit of rooms occupied Nagindas then went inside appellant No. 1 and by the appellant No. 1 and closed the door which took him to his bedroom room where connected the bedroom with the sitting appel Pannalal was already waiting. After this order to lant No. 1 handed over found Nagindas and on reading and he that asked the appellant No. 1 why this was so when the appellant No. 1 had promised before to give an exten sion for 10 years. On this the appellant No. 1 told Nagindas that he should put up another application after a few months and then the appellant No. 1 would the extend the period. Appellant No. 1 then signed thereunder resumption order and put down the date as the 2nd April, 1949. As .soon as the signed order was handed over to him Nagindas handed over to the appellant No. 1 the Government currency notes of the value of Rs. 25,000 which had been given to him the Additional District Magistrate. previously the said an extra copy of Nagindas 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 the dressing and put table in the bedroom. After the transaction was thus to the completed Nagindas shouted to Pannalal to go taxi and bring his cigarette case. Pannalal went out the Addition to the taxi and on receipt of this signal al District Magistrate and Pandit Dhanraj rushed the other members of into the sitting room along with the raid the raiding party. The appellant No. 1 met ing party at the communicating door between the two rooms. After the Additional District Magistrate and appellant Pandit Dhanraj had disclosed No. 1 was asked by Pandit Dhanraj whether he had received any money as a bribe to which the appel lant No. 1 rep,lie<l in the negative. Pandit Dhanrai the then told money which he had received, otherwise he would be

appellant No. 1 that he should produce

them in the upper drawer of

by then asked for

their identity

1954

.R.ao Shiv Bahadur Singh and Another v .. The S1ate af V indhya Pradesh.

BhagwatiJ.

1106

SUPREME COURT REPORTS

[1954]

the marriage

and gave the same explanation

forced to search the room. On this appellant No. 1 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 of his ornaments in connection with daughter. In the meanwhile two respectable witnesses, Shri Gadkari, who was a member of the Central Elec tricity 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 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. 1 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. 1. in support of Appellant No. 1 also produced a receipt his story of the purchase of relevant memos of the search were prepared and also a list of notes the numbers of the Government currency 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 Perulakar with the numbers of notes and also with those appearing in the list which was in the possession of the Additional 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

the car. The

S.C.R.

SUPREME COURT REPORTS

1107

list

appellant No. 1 confronted District Magistrate with the documents which were produced before him asked by Naginuas antl also the of notes and offer. appellant No. 1 if he had any explanation to give no The appellant No. 1 was confused and could explanation. On further enquiry whether the appel lant No. 1 had any other money with him, he opened an iron confiuential 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. 1 was put under arrest and was subsequently

released on bail.

1954

Rao Shiv Bahadur Singh and Another v. The State of Vindh)'a Pradesh~

Bhagwati].

*

*

*

to have inveigled

* After these documents were forged the next impor tant 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 Naginuas or that of the police witness es supported as they were by Shanti Lal Ahuja, the evidence Additional District Magistrate. Nagindas's suffering from the infirmity pointed out before could not be enough to carry conviction with the court. He appellant No. 1 and had been was out to trap the the police autho clever enough also for him. rities to procure the wherewithal of the bribe It is patent these that but for their banding Rs. 25,000 by the police authorities and 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 committ<;d. The police authorities also exhibited an excessive zeal in the matter of bringing the appellant No. 1 to book and their enthusiasm the appellant No. 1 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 evi dence of these witnesses therefore was not such as to confidence in the mind of the court. Shanti inspire also Lal Ahuja, the Additional District Magistrate, and became lent himself to the police

in the matter of trapping

the procurement of

authorities

1954

Rao Shiv Bahadur Singh and Another v. The State of Vindhya Pradesh.

Bhagwati].

.

1108

SUPREME COURT REPORTS

[1954]

to carry

themselves.

rested merely upon

almost a limb of the police. His position as the Addi tional District Magistrate was submerged and he reduc ed himself to the position of an ordinary witness tak ing part in the affair as a member of the raiding party and his evidence could be no better or no worse than If therefore that of the police witnesses the matter had their evidence it would have been difficult 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. 1 and also in regard to the handing over of that sum by the appellant No. 1 to Shanti Lal Ahuja, the Addi tional 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. 1 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. 1 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 the offence had evidence that the investigation into thus started before the raid actually took place. The statement made by the appellant No. 1 to Shanti Lal 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 therefore was not a confessional statement not hit by section 164 and Shanti Lal Ahuja, the Addi tional District Magistrate, could therefore to such statement even though the same was not record ed as required by the provisions of section 164 of the Criminal Procedure Code. There is authority however that once the investigation had for statement made by the started any non-confessional accused also required in the manner in that section and if no such record had indicated

the propos1t10n

to be recorded

and was

depose

S.C.R.

SUPREME COURT REPORTS

1109

the Magistrate would been made by the Magistrate, not be competent to give oral evidence of such state ment having been made by the accused. (See A.LR. 1936 Privy Council 253 and Indian Law Reports 49 Calcutta 167 followed in 26 Criminal Law Journal 1279 and A.LR. 1937 Nagpur 254). The statement made by the appellant No. 1 therefore to Shanti Lal Ahuja, not having been the Additional District Magistrate, the provisions of recorded by him in accordance with could section 164 was inadmissible not be proved orally by him. state ment was nothing eliminated thus remained so far as the witnesses Nagindas and Panna lal on the one hand and the police witnesses as well a.s Shanti Lal Ahuja, the Additional District Magis trate, on the other hand were concerned which could bring the guilt home to the appellant No. 1.

in evidence and If therefore the from evidence

1954

Rao Shiv Bahadur Singh and Another v. T1" Stateof Vindhya Pradesh.

Bhagwati].

that

Reliance was

the evidence of

therefore placed by the . prosecution on the evidence of Gadkari and Perulakar. They occupied responsible positions in life and were absolute ly independent witnesses. Two criticisms were level led against their evidence by the Special Judge. The one criticism was that contrary to Pandit Dhanraj they asserted their statements were not recorded on the night of the 11th April, 1949. Pandit their statements after they had Dhanraj had re.corded the the appellant No. 1 at left the bedroom of Constitution House relying upon his memory of the that night. These statements events that had happened 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 their signatures to the Panchanama of the numbers of the currency notes recovered at that time which Panchnama contained the statement that on being asked the appel lant No. 1 had produced the bundles of currency notes from the top drawer of the dressing table. This state ment was not factually correct as both these witnesses were brought into the bedroom of the appellant No. 1 after the recovery of the Government currency notes from the appellant No. 1. It was cer- by the police tainly indiscreet on their part not to have scrutinised

they had appended

}\ • >

1954

Rao Shiv Bahadur Singh and Another v. The State of Vindhya Pradesh.

BhagwatiJ.

1110

SUPREME COURT REPORTS

[1954]

the

recorded m

statement made by

these events and particularly

currency notes were the

they appended the contents of the Panchnama before thereto. That is however a far cry their signatures they acted m a from coming to the conclusion that testimony was highly irresponsible manner and their unreliable. The circumstances under which the num bers of the the Panchnama, the appellant No. 1 to them and the confusion into which the app<"l lant No. 1 fell when he was questioned by the police tallying of the numbers contained authorities on the raid was organised in the memo prepared when found with the numbers of the currency notes actually 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 examin ed in the Court of the Special Judge about 10 months the after the occurrence, fact that the appellant No. 1 claimed these moneys which were thus recovered as his own would certainly them. not be in any manner whatever The only suggestion which was made against the credi bility of these witnesses they must not have exactly remembered what transpired on that night in the bedroom of the appellant No. 1 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 these witnesses No. 1 and which were deposed to by them and were not such as to be easily forgotten by the that when these witnesses deposed to the fact appellant No. 1 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 these Government the currency notes, it is not easy they that were suffering from any lapse of memory.

on this point was

the numbers of

forgotten by

tallying of

to surmise

th::it

The evidence of these witnesses

the statement made by the appellant No. 1 before them that Shanti Lal was also attacked on

the ground

in regard

to

1954

Rao Shiv Bahatl"' Singh and Another v. The Stak of VindfiJa Praduh.

Bhapati]•

S.C.R.

SUPREME COURT REPORTS

1111

as

that

same

statement

the police

resorted to

these the very

tactics of having

and was represented

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 the appellant No. 1 repeat to the bar of section 164. these witnesses so as to avoid this behalf on A.LR. 1940 Reliance was placed in Lahore 129 (Full Bench) where it was held that if on the facts of any case it was found a statement made to a third person was in reality intended to be made t-0 having been made to a third person merely as a colourablc pretence in order to avoid the provisions of section 162 the section. The the court would hold it excluded by san1e ratio it was submitted applied to the statements made to these two witnesses because they were a colour able pretence to avoid the provisions of section 164 of the Criminal Procedure Code which had certainly not been complied with by Shanti Lal Ahuja, the Addi It has however to be ob tional District Magistrate. every statement made to a person assisting served that investigation cannot be treated the police during an 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 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 that tht appellant No. 1 to them we are of the opinion the appellant No. 1 was asked by Shanti Lal Ahuja, Additional, District Magistrate, to make the statements the bar to these two witnesses not with a view to avoid of section 164 of the Criminal Procedure Code or by way of colourable pretence but by way of greater cau the tion particularly having appellant No. 1 occupied the position of a Minister of 6-98 S.C. India/59

regard to the fact

having

regard

that

1954

Rao Shiv Bahadur Singh and Another v. TM State of Vindhya Prarksh.

BhagwatiJ.

1112

SUPREME COURT REPORTS

[19541

in

Industries statements made by the appellant No. 1 witnesses therefore did not suffer from this and were admissible in evidence.

the State of Vindhya Pradesh. The to these disability

to

these moneys

The evidence of these witnesses being

thus worthy of credit and the statements made by the appellarit No. 1 to them being admissible in evidence there is no doubt these moneys, viz:, the appellant No. 1 claimed that 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 establish the falsity of the allegation made by the appellant No. 1 that he had brought from his home. These moneys .were proved to have been pro vided 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 grati fication by the appellant No. 1. If the numbers of the notes these notes tallied with the numbers which were thus handed over by the police authorities to Nagindas they could not have belonged the · ap there by pellant No. 1 and were certainly brought Nagindas and handed over by him to the appellant No. l as alleged by the prosecution. A suggestion was made that there was opportunity for Nagindas to plant these moneys into the top drawer of the dres~ing table when the back of the appellant No .. 1 was turned that possi upon him. Even assuming that there· was bility it is sufficiently negatived by the fact that "".hei;i top drawer the these moneys were recovered from either at the instance of 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 If the version of the appellant No. 1 thus found there.

of

to

1954

Rao Shiv Bahadur Singh and Another v. The State of Vindll)1a Pradesh.

BhagwatiJ.

S.C.R.

SUPREME COURT REPORTS

1113

llis

and

that

that

sum

table.

failed

would

currency

have been

of money

the balance

was correct he had only brought about Rs. 25,000 from his house. Rs. 15,000 has been already spent by in the purchase of the car. About Rs. 10,000 him the purchase of the ornaments were spent by him in and only a sum of Rs. 100 odd was left with him. According to that version there was _not the sum of Rs. 25,000 being the slightest possibility of found in the top drawer of the dressing flar from expressing a surprise in this manner the appellant No. 1 claimed these moneys as his own. The appel lant No. 1 could not have by any mischance to appreciate notes these Government which were thus recovered from the top drawer of the dressing table exceeded by far the amount which ac cording to him he had left with him by way of balance of this and the most natural reaction to the recovery that large he would have certainly denied these moneys were surprised he would have at finding that such a large sum of money was thus there. No such reaction was registered on his found face. On the contrary two to be believed and witnesses Gadkari and Perulakar is we see no 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 these moneys which ear that to lier had been handed over by the police authorities 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 l?eing asked for by the police authorities the appellant No. 1 was confused and could furnish no explanation in regard thereto also supports con clusion and there is no doubt left that the appellant No. 1 was guilty of the offence under section Indian Penal Code with which he was 161 of the charged.

reason why it should not be believed,

if the evidence of

in our minds

been

this

the

1954

Rao Shiv Baharlur Singh and Another v. The State of VindJrya Pradesh.

BhagwatiJ.

1114

SUPREME COURT REPORTS

[1954]

to

provide

111 a not Rs. 25,000

position for payment of

to the adventitious aid which he got

We cannot however leave this case without express ing our strong disapproval of the part which the police authorities and Shanti Lal Ahuja, the Additional Dis observ trict Magistrate, took in this affair. As already ed this offence would never have been committed by the appellant No. 1 but for the fact that the police authorities provided Nagindas with the wherewithal of the commission of the offence. Sir Chinubhai as it appears from the evidence was not in a pos1t1on 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 to him. Nagindas was other expenses of Nagindas, this therefore of sum the bribe the appellant No. I. or the illegal gratification But for from the matter would not have the police authorities and Nagindas would have progressed any further, authorities left Delhi empty handed. The police however once they got intention of Nagindas thought that it was too good an opportunity to miss for entrapping the appellant No. 1 who occu the Industries pied the position of the Minister of therefore provided State of Vindhya Pradesh. They the sum of Rs. 25,000 on their own and handed it this step over to Nagindas. The police authorities showed greater than took which they in the matter of Nagindas himself the trapping the detection of It may be that appellant No. 1. corruption may sometimes call for the laying of traps, authorities but there is no justification for the police the to bring about the taking of a bribe by supplying bribe money to the giver where he has neither got it nor has the capacity It is the to prevent crimes being duty of the police authorities to provide committed. the too strongly disapprove of the police authorities took in this case in the matter of providing the sum of Rs. 25,000 to Nagindas who but for the

the offence. We cannot step which

It is no part of their business

to find it for himself.

in enthusiasm

instruments of

scent of

the

the

in

1954

Rao Shiv Bahadur Singh and Anoth11 v. The State of Vindh;'a PradtJli.

BhagwatiJ.

S.C.R.

SUPREME COURT REPORTS

1115

thus coming to his aid ~ould nc;ver police authorities have been able to bring the whole affair to its culroma tion.

the

Not only did the police

thus become authorities appellant active parties in the matter of trapping No. 1 they also provided a handy and an ostensibly independent witness in the person of Shanti Lal Ahuja, though he the Additional District Magistrate. Even services to was a member of the judiciary he lent his 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 can too strongly condemned. We can only repeat not be in the Privy this Council in A.LR. 1936 Privy Council 253 at page 258 in regard in the they would have to step positions where witness box and depose as ordinary citizens :-

to the Magistrates placing

themselves into

observations of

connection

the

rather as police officers under

"In their Lordships' view it would be particularly unfortunate if Magistrates were asked at all generally section 162 of to act the Code; and to be at not freed, the same any withstanding their position as Magistrates, from In obligation to make records under section 164. the the position to result they would indeed be relegated of ordinary citizens as witnesses then would be and transacted by them in required to depose their official capacity unregulated statutory rules of procedure or conduct whatever .......... "

to matters

time

any

by

The position was

by Mr. Justice P. B. Mukharji 524 at page 528 where the learned Judge observed :-

laid down with greater emphasis in A.LR. 1951 Calcutta

"Before

sending Magistrates

I conclude I wish to express

this court's to have great disapprobation of the practice that seems as become very frequent of is made witnesses of police traps. The Magistrate to go under disguise laid by the In this case it was Presidency Magistrate and police. there in other cases which have come to our notice have been other Magistrates who became such witnesses. To make the Magistrate a party or a limb seriously of the police during the police

investigation

to witness

the trap

1954

Rao Shiv Bahad111 Singh atcd Anotl1er v. Tht Stat1 of Vindhya Pradesh.

Bhagwati].

1116

SUPREME COURT REPORTS

[1954]

say,

of that

as a witness

of the general

that the person

It is not enough to

case. This practice

administration of criminal

therefore, in a particular

indefensible here specially when

and undermines the independence of the Magistrates are their judicial outlook. The Magistrates perverts administration the normal custodians is they who normally decide of criminal justice and it and pass judgments on the acts and conduct the the police. case Magistrate acting is all does not himself try that there is no the more judiciary. The separation of the executive from the justice basic merit of the in the State lies in the fact arrested by th~ police is entitled to come before an independent to deal with and impartial Magistrate who is expected 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 the unenviable and embarrassing position of having in dis to give evidence as a witness and then being for believed. That is not the way to secure respect of tl1e administration charged with the Magistracy justice. is a practice which judgment the Magis is unfair Because trates. and duty of charged with service of performing a great risk this State the police cannot afford to run of opprobrium, even have that in their cause. That risk is enlisted the Magistrate too great and and involves confidence ............ "

In my to It is also unfair

responsibility and essential public

forfeiting public respect

to the police.

the accused and unfair

if unfounded,

the they

the high

this

to

and hope

We perfectly endorse the above observations made and trust by Mr. Justice P. B. Mukharji that Magistrates will not be employed by the police authorities in the manner it was done by the Special this case before us. The Police Establishment treasure independence of to be cherished 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 authorities. We

the judiciary is a priceless and safeguarded at

executive

adopted

the

by

in

•

S.C.R.

SUPREME COURT REPORTS

1117

therefore eliminated from our consideration have whole of the evidence given by Shanti Lal Ahuja, the Additional District Magistrate, and come to our con clusion in regard to the gilt of the appellant No. 1 independ- . relying solely on the testimony of the two ent witnesses Gadkari and Perulakar.

the ·

1954

Rao Shiv Bahadt11 Si'flgh and Another v. The Stale of Vindhya Pradesh.

Bhagwati].

is

The result therefore

the appeal of the that except with regard appellant No. 1 will be dismissed section 120-B to his conviction and sentence under of the Indian Penal Code and the convictions and sen tences passed upon him by the Judicial Commissioner section under section 465 Indian Penal Code will be confirmed. The 161 of the appeal of the appellant No. 2 will be allowed and he be acquitted Md discharged of the offences with set at liberty. which he was charged and immediately The bail bond of appellant No. 2 will be cancelled.

and section 466 as

also

the

1954

March111 ..

V. M. SYED MOHAMMAD AND COMPANY v. THE ST A TE OF ANDHRA. (With Connected Appeal) [MEHR CHAND MAHAJAN C. J., MuKHERJEA, S. R. DAS, V1v1AN BosE and GHULAM HASAN JJ.J India, art. 14-Government of India Act, 1935, "'"Y 48 in List I/ of the Seventh Schedule-Madras .General Sales Tax Act (IX of 1939)-Whether ultra vires the Constitution under the or Government of India Act, 1935-Rule 16(5) framed Act-Whether ultra vires s. 5 (vi) of the Act.

Constitution

of

Held, that the Madras General Sales Tax Act (IX of 1939) is not ultra vires the Government of India Act, 1935 as entry 48 to the Government of India in List II of the Seventh Schedule Act, 1935 was wide enough to cover a law imposing a tax on the purchaser of goods as well as on the seller.

Held, also

that

that the purchasers of other commodities were as the purchasers of hides and skins in the present case,

inasmuch as there was nothing to suggest similarly situated the Act