JUDGMENT 1. This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal, on behalf of the Province of Bengal against an order of acquittal of the accused, K. Zahiruddin by Mr. A. Hossain, Police Magistrate, Sealdah. The accused was tried before him on a charge of having accepted a bribe of Rs. 800 from a contractor Mr. Gopi Mohan Bhattacherjee (P. W. 7) on 24th August 1944. The accused was at the relevant time Grain Depot Officer of the East Indian Railway at Howrah and as such used to approve and accept commodities from the contractors with whom orders were placed by the Head Office. Mr. Bhattacherjee is proprietor of the firm of Messrs. G. Bhattacherjee & Co. and Messrs. Union Laboratory who had contract business with the railway. In the course of dealings a quantity of mustard oil of the Howrah Grain Depot was found to be bad and was sold off, Mr. Bhattacherjee's tender at Rs. 33 a maund being accepted. When he came to take delivery there was a trouble as to whether the drums were to be supplied by the railway or not and eventually on a reference to the Head Office railway drums were allowed to be used. According to the contractor in the course of the discussion about this the accused proposed that he should be paid Rs. 5 a maund as a bribe. There was another transaction regarding Haldi and black pepper. The goods were refused as being of bad quality and again in this connection it is alleged that he made a further suggestion about being bribed. The contractor wrote to the Deputy General Manager, Food, the superior officer of the accused, complaining about the accused's objection to the quality of the supply. There was another transaction with regard to Mug Dal and in the course of negotiations about that he again alleges that the accused was demanding bribe. The contractor went to the Head Office and Major Deb Dutt (P. W. 4). He was then referred first to Mr. Jones, the security officer, and also to Mr. K. N. Mukherjee, Superintendent of Police, Special Police Establishment. 2. In consequence of this an arrangement was made to try and trap the accused at the time when a bribe was paid. The first attempt was made on 23rd August at the East Indian Railway Office at Howrah. Jones, the security officer, and also to Mr. K. N. Mukherjee, Superintendent of Police, Special Police Establishment. 2. In consequence of this an arrangement was made to try and trap the accused at the time when a bribe was paid. The first attempt was made on 23rd August at the East Indian Railway Office at Howrah. The party consisted of Mr. B. C. Dutt, Deputy Superintendent of Police, Inspector Lahiry, Mr. Ghose, Magistrate, the contractor and apparently one other police officer. Nothing was done as according to the contractor although Rs. 400 had been taken by him to pay as the bribe in regard to the mustard oil matter the accused wanted Rs. 800 and proposed that it should be paid the next day at his house. According to the contractor this conversation took place outside the office of the accused on the verandah and the party came away and arrangements were made for another attempt the following day. 3. On this day an order for investigation was obtained by the police from the Additional District Magistrate, 24 Parganas at Alipur and another Magistrate of the First Class Mr. B. K. Roy was deputed to go with the party. Mr. Dutt, Inspector Lahiry, the Magistrate and the contractor went in taxi to the house of the accused at 31 Circus Avenue. It was during the time of the black out. The taxi remained outside in the street facing east. Between the taxi and the entrance to the accused's house there was a broken lorry facing opposite direction of the foot path, part of which was paved and part of which was unpaved. Word was sent through the durwan of the premises to call the accused. Mr. Dutt had told the contractor that he was to feign an injured leg as the reason for not going into the premises and that the Magistrate was to be introduced as the contractor's uncle. Mr. Dutt took his stand on the foot path just to the west of the lorry and Inspector Lahiri at the back of the lorry also on the foot path. The accused came down, got into the taxi, was paid Rs. 800 and had some conversation with the contractor about rates. He then got out of the taxi. A signal by a torch was given by the contractor and the police officers closed on him, called out to him. The accused came down, got into the taxi, was paid Rs. 800 and had some conversation with the contractor about rates. He then got out of the taxi. A signal by a torch was given by the contractor and the police officers closed on him, called out to him. He ran but was caught at the entrance to his house. He threw notes down and these were after some search discovered on the mudguard of the lorry. A search list was prepared. A copy was given to the accused and he signed in acknowledgment of the receipt. The Magistrate made an endorsement on the same day on the paper Ex. 3 which was the application by Mr. Dutt to the Additional District Magistrate, Alipur, for the order for investigation. The numbers of the notes had been taken and the numbers of the notes found on the lorry were found to tally. 4. A formal complaint in the case was lodged by Mr. Dutt on 28th February 1945. The case was sent to Rai Saheb M. B. Roy, Police Magistrate, for disposal, but on an application by the accused, raising the question of jurisdiction it was transferred to Mr. A. Hossain who finally tried and acquitted the accused. 5. The accused when examined under S. 342, Criminal P. C. stated that he did not accept any bribe and that he would written statement. In his written statement he denied that he ever received any illegal gratification from Gopi Mohan Bhattacherjee or that he ever accepted any. The whole prosecution story with regard to that was false. He denied that he came on the verandah with Bhattacherjee on any of the dates mentioned by him when the alleged conversation about bribes took place. On 24th August the durwan of his house about 8-30 or 9 P. M. came while he was sitting with his brother in his flat and said that a man was waiting to see him in a taxi and as he could not come up because of a bad leg he told the durwan that he would come down and the durwan left followed by the accused's brother. The accused changed his clothes and went down. The accused changed his clothes and went down. As he was about to get down the steps to the main entrance two police officers stopped him, rushed inside, caught hold of him and dragged him out and accused him of having accepted the money inside the taxi. The accused protested and said in the presence of the Magistrate that he had neither gone to the taxi nor had taken any money from anybody. A search list was prepared and he acknowledged receipt of a copy. He alleged that Bhattacherjee had engineered the false case against him because in the discharge of his duties he had to reject many of the articles supplied by him and that in fact on 22nd August he had threatened him to drag him into Court. 6. The prosecution case is given mainly by Mr. Bhattacherjee. There is some corroboration of his general story with regard to his transactions with the accused, his visit to his office, but there is no direct corroboration of his story as to the demand for bribes. In fact T. C. Puni (P. W. 5), head depot store-keeper called as a prosecution witness and R. N. Chatterjee (C. W. 3) called as a court witness contradict Mr. Bhattacherjee in his statement that the accused went outside on the verandah for conversation; in particular that be went out on 23rd August when the contractor says arrangement was made for payment at the accused's house the following day. Mr. J. K. Ghose (P. W. 3), Magistrate, deposes as to the incident of 23rd August and Mr. B. C. Dutt (P. W. 1), Inspector Lahiri (P. W. 6) depose as to the incidents of 23rd and 24th and the Magistrate Mr. Roy (P. W. 2) deposes as to the incident on the latter date. Major Deb Dutt (P. W. 4) gave some evidence with regard to the complaint made to him and the reference to the Head Office in regard to some of the transactions. 7. If the evidence of the Magistrate, Mr. B. K. Roy, is believed and relied on this proves conclusively that the accused was paid Rs. 800, purporting to be a bribe in the taxi by the contractor and that almost immediately afterwards the accused was caught by the police officers seen to throw down the money and the money was found on the lorry. B. K. Roy, is believed and relied on this proves conclusively that the accused was paid Rs. 800, purporting to be a bribe in the taxi by the contractor and that almost immediately afterwards the accused was caught by the police officers seen to throw down the money and the money was found on the lorry. We can see no reason whatever for disbelieving that story. The defence have tried to suggest that in some way or other the man in the taxi was not the accused. When the Magistrate was deposing apparently the accused was sitting in the body of the Court and asked to identify the accused, he actually pointed out to the accused's brother. The Magistrate explicitly stated in his evidence that the man caught was the man in the taxi and even the accused does not dispute that he was in fact the man caught, or that he acknowledged receipt of the search list. The accused's story in his written statement suggesting that in some way his brother had got into the taxi was evidently a mere opportunist endeavour on his part to make use of the fact that the Magistrate when he deposed about nine months after the occurrence mistook in Court the accused's brother for the accused. There was no cross-examination of this witness to endeavour to shake his evidence or suggest that the man caught, the man who signed the search list, was not the man to whom the money was paid. The accused has merely endeavoured now to suggest that they were different, that the man paid was the brother and the man caught was the accused. Further advantage evidently was taken of the way in which the case was brought to Court and the absence of any elaborate examination of the witnesses so that the durwan and the taxi driver have clearly been suborned and now give a story which is only too patently some attempt to make up something to fit in with this slip made by the Magistrate in identifying the brother. The durwan tells a story that he saw the brother going down and he saw a man run away through the entrance of the house when the accused was caught He himself disappeared out of fear and took no part in the proceedings. The durwan tells a story that he saw the brother going down and he saw a man run away through the entrance of the house when the accused was caught He himself disappeared out of fear and took no part in the proceedings. The taxi driver comes and identifies the brother as the man who got into the taxi. Incidentally his evidence on this point creates other difficulty for the accused when he endeavours to suggest that the Magistrate could not see who was the man who got into the taxi. It is suggested that the conversation deposed to by the contractor and the Magistrate as to what was said by the man who came to the taxi shows that it was not Zahiruddin. It was admittedly dark and raining and some sort of remark would have to be made by Zahiruddin coming to the taxi, and we can see nothing unusual in the remarks as deposed to, nothing in them inconsistent with the fact that it was Zahiruddin himself who was speaking. The Magistrate's evidence as to the conversation in the taxi if believed is completely fatal, quite apart from any other evidence, to any suggestion that the man in the taxi was not Zahiruddin. It is the defence case that Mr. Bhattacherjee is villain of the deepest dye and extremely cunning a man who undertook in the presence of a Magistrate, a Deputy Superintendent of Police and an Inspector of Police of some experience to pass a bribe of Rs. 800, or to appear to pass a bribe of Rs. 800 to a man who according to the defence was practically unbribable. We cannot imagine what use would have been to him to pass the money over to the brother of the accused with the police officers waiting outside to catch the man. Mr. N. K. Basu appeared in the course of the argument rather to give up this theory that it was the brother of the accused who got into the taxi but although pressed he was unable to furnish us with any theory which could really explain the facts. In support of his contention that Mr. Mr. N. K. Basu appeared in the course of the argument rather to give up this theory that it was the brother of the accused who got into the taxi but although pressed he was unable to furnish us with any theory which could really explain the facts. In support of his contention that Mr. Bhattacherjee is a man of the worst character he referred to the fact that the police were not going to trust him to go upstairs and give the money so that they might have to rely on his bona fides but had insisted that he should tell the story of a damaged leg so that the money should be passed in the presence of the Magistrate. This theory rather precludes any theory that the police themselves were in any way parties to a trap or rather to a nefarious plan to trap an innocent party. It suggests that they were as one would expect, treating the matter as a test and they had at that stage before the bribe passed, asmuch interest to see that an innocent person was not being caught out by a wicked contractor, as seeing that an honest contractor was being saved from the dishonest demands of a bad officer. We can find no conceivable reason for not accepting the evidence as given. The facts here go further. We can think of no theory making the most unfavourable assumptions about the witnesses, which will (sic) the facts other than the plain view that the case happened as stated by the witnesses. The accused was in fact caught in the act, seen in the act by a Magistrate committing the offence of accepting bribe. 8. On the facts only two points appear to be urged by Mr. N. K. Basu in favour of the accused. The first was to contend that he could show that Mr. Bhattacherjee's story of the accused coming out on the verandah on 23rd August was totally false. We think that this argument probably originated in a slight error in the recording of the evidence. If the evidence is read as a whole it is quite clear that Mr. Dutt and the Magistrate Mr. Ghose, waited at some distance about 100 cubits from the accused's office while Mr. Bhattacherjee and the Inspector and another went on ahead towards the office. The contractor alone entered the office and Mr. If the evidence is read as a whole it is quite clear that Mr. Dutt and the Magistrate Mr. Ghose, waited at some distance about 100 cubits from the accused's office while Mr. Bhattacherjee and the Inspector and another went on ahead towards the office. The contractor alone entered the office and Mr. Lahiri deposed that he saw him come out with the accused. We have no hesitation in preferring the evidence of Mr. Lahiri on this point to that of the subordinates of the accused. The fact that Mr Lahiri saw him come out of course does not carry the matter very far but at any rate the defence contention fails namely that they could show that on this point Mr. Bhattacherjee was deliberately telling a falsehood. 9. The other contention argued is really in our opinion of the nature of a quibble on words. After the occurrence a sketch map was drawn by Mr. Dutt. The point D is shown as where the Deputy Superintendent of Police and the Inspector stopped the accused from entering his house. His evidence is that "I found that accused was about to enter his house. Then both I and Lahiri rushed towards him and asked him to wait." It appears that there was in fact at the time a baffle wall in front of what may be called strictly the entrance of the house. This was one of the major discoveries of the learned Magistrate who held a local investigation at the spot before he came to the astonishing conclusion that the accused was not guilty in this case. The sketch map does not show any baffle wall. Mr. Dutt stated in cross-examination that he did not remember if there was a baffle wall. On this slender material an elaborate theory was built that the man from the taxi had in fact gone behind the baffle wall and was caught behind the baffle wall and that there was Borne opportunity for change of persons and that therefore the police did not actually arrest the man who got out of the taxi. The cross-examination of the witnesses in regard to this matter is very interesting. It does not exist at all. It is quite obvious that the defence did not dare to bring out this point but saved it for argument and the local inspection of the Magistrate. 10. The cross-examination of the witnesses in regard to this matter is very interesting. It does not exist at all. It is quite obvious that the defence did not dare to bring out this point but saved it for argument and the local inspection of the Magistrate. 10. After the accused left the taxi and Mr. Roy got down Mr. Bhattacherjee had the taxi moved on to a distance. His explanation is that he did not wish to get mixed up in the rather unpleasant business of the arrest. Mr. Basu contended that this act indicated some mala fide intention on the part of Mr. Bhattacherjee. We think the explanation is a true one. The way in which it has been sought to blacken the character of Mr. Bhattacherjee on behalf of the accused in this case shows how unpleasant it can be for a public spirited person who refuses to be a victim of a corrupt official and tries to see that he shall be brought to justice. 11. There remain two points of law to be considered. On 5th November 1914, Mr. B. K. Roy wrote out his version of what had occurred at his house and made it over there to the Deputy Superintendent Mr. B. C. Dutta. When he came to depose he had this paper in his hand and evidently refreshed his memory from it. The learned Magistrate comments on the fact in his record of the evidence and in some extraordinary way in his judgment of acquittal finds this one of the reasons why the accused should be acquitted. Clearly the trial Magistrate ought not to have allowed this paper to be used for the purpose of the witness refreshing his memory in view of the provisions of S. 162, Criminal P. C. Mr. A. K. Basu on behalf of the Crown has sought to urge that such a use is not a use for any purpose at the trial as referred to in S. 162, Criminal P. C. but we are unable to accept this contention. For their own convenience in this type of cases the system is for the police to move the District or the Additional District Magistrate as was done here for an order for investigation. The order is really given in anticipation of the commission of the offence. For their own convenience in this type of cases the system is for the police to move the District or the Additional District Magistrate as was done here for an order for investigation. The order is really given in anticipation of the commission of the offence. So far in all the cases of this type which had been heard here it has been accepted that such an order is valid, and it follows as a conclusion that once the crime is committed, anything done by way of investigation is done as an investigation under chap. 14, Criminal P. C. Therefore the statement made by Mr. B. K. Roy to Mr. Dutt who was the investigating officer in the case, although he also eventually became the formal complainant in the following February, must be held to be a statement made to him under S. 162, Criminal P. C. and therefore his use of it in the witness-box to refresh his memory is contrary to the provisions of S. 162, Criminal P. C. Similarly the endorsement by Mr. B. K. Roy on Ex. 3 must amount also to a statement to the police in investigation and was inadmissible for similar reasons. In the same way the evidence that was given at the trial as to what the accused said when challenged namely the evidence that he denied that he was Zahiruddin was also inadmissible. 12. It is well established that breaches of the provisions of S. 162, Criminal P. C. are not in themselves necessarily fatal to the proceedings and may in appropriate circumstances be cured, as the expression is, under the terms of S. 537, Criminal P. C. In the present case it will be seen that the accused took some advantage of the use of the statement of 5th November by Mr. B. K. Roy, to cross-examine him with regard to it that is to say to make legitimate use of that statement under the terms of S. 162. B. K. Roy, to cross-examine him with regard to it that is to say to make legitimate use of that statement under the terms of S. 162. Again although the Magistrate was wrongly allowed, (no doubt from his own point of view in the best interests of the case asmuch as any one else) to refer to his earlier record of his recollection of what occurred, there seems to us to be no substantial reason whatever to doubt that his evidence without the use of the paper to refresh his memory would not have been in any material particular different from the evidence he actually gave. In our opinion, no real prejudice was caused to the accused by the use of the statement. As regards the admission of the accused's statement denying his identity and Mr. Roy's endorsement as our discussion of the evidence shows these are quite immaterial. There is ample evidence apart from them to establish the guilt of the accused. 13. The result is that we allow this appeal and set aside the order of acquittal by Mr. Hossain which, we may add, in our opinion, is one of the most extraordinary orders we have ever seen in our experience. The accused is convicted on the charge under S. 161, Penal Code and sentenced to one year's rigorous imprisonment. The accused must surrender to his bail forthwith and serve out the sentence now imposed upon him.