JUDGMENT 1. The Petitioner was a station master of Bamandanga Station, Bengal and Assam Railway. He has been convicted on a trial by the Calcutta Special Tribunal on a charge under sec. 161 of the Indian Penal Code and sentenced to one year's rigorous imprisonment and to pay a fine of five hundred rupees in default to suffer further three months' rigorous imprisonment. He is alleged to have demanded and accepted a bribe of forty rupees on the 10th of September, 1943, paid to him by one Kunkaran for supply of two wagons. The Rule has been issued on the ground that the Court acted illegally in contravention of the provisions of sec. 162 of the Code of Criminal Procedure in respect of the statement made by the Petitioner at the time he was approached by the Inspector Lahiry and a Magistrate just after they had seen Nunkaran hand over four marked ten-rupee notes. What may be called the usual trap had been laid for the accused. The Special Detective Branch had received information about his demand for bribes and had arranged for Nunkaran to pay over the four marked notes. In their judgment the tribunal, referring to the incident when the Inspector reached the accused just after he moved a few paces from where he had left Nunkaran, said "He told accused who he was and asked him if he had just received any money. The accused made a reply which is not admissible in evidence, but the nature of it is evident from the fact that the Inspector at once proceeded to search him. On this accused said something which caused the Inspector to accompany him to his office. There accused produced from the left breast pocket of his shirt four ten-rupee notes (Ex. I) wrapped in a handkerchief (Ex. II), the same notes that the Inspector had given to Nunkaran. A search list was prepared. Accused then signified that he would like to make a statement. The Inspector left the office and the Magistrate recorded accused's statement in writing under sec. 162, Cr. P. C." (sec. 162 appears to be clerical error for sec. 164). The accused's defence in that, statement was to the effect that he was in the habit of receiving money from merchants and supplying them with change. The Inspector left the office and the Magistrate recorded accused's statement in writing under sec. 162, Cr. P. C." (sec. 162 appears to be clerical error for sec. 164). The accused's defence in that, statement was to the effect that he was in the habit of receiving money from merchants and supplying them with change. His whole defence is that the present case is a false one and that he has been implicated and trapped out of enmity. The offence under sec. 161of the Indian Penal Code is a non-cognisable offence, but the Inspector had obtained an order from the Sub-Divisional Magistrate authorising him, under sec. 155of the Code of Criminal Procedure, to investigate the case. He also had a warrant for search. Accordingly the tribunal is of opinion that the statement made by the accused when he was approached by the Inspector was made during the investigation and was hit by the provisions of sec. 162 of the Code of Criminal Procedure and accordingly they have remarked in the quotation above that the reply made by the accused is not admissible in evidence. 2. The tribunal in their judgment first discussed the prosecution evidence as to the demand for a bribe and the various contentions of the accused to support his defence that the case is a false one. They conclude "The result is that on none of these points has the defence succeeded in throwing doubt upon the evidence of demand. We have already given positive reasons for accepting it, though it is the evidence of only one witness. We find as a fact that the accused "demanded bribes from Jesraj on the 6th and 9th September." It should be noted that although the bribe is said to have been paid by Nunkaran the evidence was that the demand was made from the man Jesraj. 3. The tribunal then proceed: "If after this finding any doubt could remain that the notes were accepted as a bribe, this is set at rest by the behaviour of the accused when he accepted them," and then proceed to discuss the accused's conduct up till the time the Inspector approached. 4. The tribunal then proceed: "Finally, though the statement the accused made when first challenged is not admissible in evidence, and we do not know what it was, we know that it caused the Inspector to begin searching him. 4. The tribunal then proceed: "Finally, though the statement the accused made when first challenged is not admissible in evidence, and we do not know what it was, we know that it caused the Inspector to begin searching him. It could not therefore have contained any admission that he had actually received any notes, and so could not have been that he had accepted the notes for the purpose of giving change. This explanation he put forward sometime later in the elaborate statement which the Magistrate recorded under sec. 164, Cr. P. C., but by that time he knew that he could not deny the receipt of the notes, and he had had time to think of an explanation." In our opinion, the tribunal has here misdirected itself and in substance, although formally excluding direct evidence of the actual statement made by the accused has by a process of deduction arrived at a conclusion on a very important aspect of the statement as to what it did not contain. We do not think that the provisions of sec. 162 of the Code of Criminal Procedure can be in effect circumvented by any such process. 5. The question remains as to how we should deal with the matter. The learned Advocate-General urges that we should take the view that in fact no prejudice has been caused to the accused by the error of the tribunal and in part support of this he points out that the first conclusion of the tribunal that the accused in fact had demanded bribes from Jesraj was not affected by the error. We doubt if it is possible to, support the different conclusions of the tribunal in this way and in any case we have pointed out the tribunal in their judgment had already made the error in the first quotation made above before it noted its conclusion that the accused had demanded the bribes from Jesraj. We doubt if it is possible to, support the different conclusions of the tribunal in this way and in any case we have pointed out the tribunal in their judgment had already made the error in the first quotation made above before it noted its conclusion that the accused had demanded the bribes from Jesraj. In cases of this nature, where a substantial question before the Court is whether the person purporting to pay the bribe is in fact so doing or whether he is in fact laying a trick on the officials who had previously taken up positions so as to be able to see the act of payment, though unable to hear what is said, the first re-actions of the accused when tackled after the passing of the money are of considerable importance and in cases where his statement can be proved it must have considerable weight. As the tribunal itself points out here, though assuming it to be proved that the accused had made a substantially different statement when first approached the accused had managed to invent very shortly afterwards a fairly plausible, not to say an ingenious, explanation of how the money came to be passed to him. The tribunal has arrived at its conclusion that the accused is guilty by making clear use of the assumption that the accused's first statement was not so ingenious. The decision in the case must in view of the provisions of sec. 162 of the Code of Criminal Procedure go on the basis that nothing is known as to what statement was first made by the accused whether it favours him or otherwise. We think that the proper way in which to deal with this matter is, after pointing out the error of the tribunal on this point, to remand the case to them for a decision based on the evidence legally available in the case. 6. We, therefore, make the Rule absolute, set aside the conviction and the sentence and remand the case to the tribunal for disposal after hearing the accused and the prosecution, if so desired, in arguments. The accused will remain on the same bail pending his appearance before the tribunal.