State of U. P. v. Bhagwati Prasad — 1970 DIGILAW 231 (ALL)

JUDGMENT Gyanendra Kumar, J. - This is an appeal by the State against the judgment and order of the learned Special Judge, Kanpur, dated 29-1-1966, acquitting the accused, Bhagwati Prasad, of the charge u/s 165-A, IPC. 2. The facts of the case are that in April 1965 PW 1 Om Prakash Misra Sub Inspector was posted at the Police Outpost, which falls within the jurisdiction of Police Station Colonelganj, Kanpur. Bhagwati Prasad accused is a shop-keeper carrying on the business of selling soap, etc. and lives in Parmat. His wife's brother (sala) Kailash Chandra had lodged a report on 5-4-1965 at the Police Outpost Parmat against one Shyam Lal Chamar, alleging that the latter had robbed him of cash and had inflicted knife blows on him in that process. Thus the report (Ex. Kha 8) was about the alleged commission of an offence u/s 394, IPC. The investigation of this case was being conducted by SI Om Prakash Misra (PW 1). The Sub-Inspector, on investigation, came to the conclusion that it was only a case u/s 324, IPC. It is said that the accused, being a relation of the aforesaid Kailash Chandra, naturally wanted Shyam Lal to be prosecuted for the more serious offence u/s 394, IPC. 3. The prosecution case is that Bhagwati Prasad accused had already approached the Sub-Inspector two or three times in order to prevail upon him to submit a charge sheet u/s 394 rather than 324, IPC. However, SI Misra is said to have expressed his inability in the matter and plainly told the accused on previous occasions that it was not possible for him to challan Shyam Lal under the graver offence of 394, IPC, when he found that only a case u/s 324, IPC had been made out. Nevertheless the accused is said to have persisted in his attempt and wanted to offer illegal gratification to the SI in order to make him change the section of the charge into 394, IPC. The result was that SI Misra brought it to the notice of the Station Officer, Colonelganj, who advised him to make a report to the Circle Officer. Accordingly, on 3-5-1965, SI Misra made the report (Ex. Ka 1) to the Station Officer, who forwarded it to the Circle Officer (City), with his note (Ex. Ka 2). The result was that SI Misra brought it to the notice of the Station Officer, Colonelganj, who advised him to make a report to the Circle Officer. Accordingly, on 3-5-1965, SI Misra made the report (Ex. Ka 1) to the Station Officer, who forwarded it to the Circle Officer (City), with his note (Ex. Ka 2). On the same date, the Circle Officer sent it on to the S.P. (City) with his endorsement (Ex. Ka 3) saying that the DM may be requested to depute a Magistrate "to assist the Police in the trap." Obviously, the Police was laying a trap against the accused and wanted the assistance of a Magistrate therein. The S.P. (City) endorsed it to the DM Kanpur vide Ex. Ka 4. The latter deputed PW 2, Shri Mool Chand Singh, Judicial Officer, Billhaur for the purpose. The order of the DM is Ex. Ka 5 on the record. It is admitted by the prosecution that on the evening of 3-5-1965 the Magistrate sent for SI Misra at his residence and told him that he may be called to do the needful when the occasion arose. 4. The prosecution case further is that on 6-5-1965 at about 9 a.m., Bhagwati Prasad accused came to Police Outpost Parmat with the envelope (Ex. 1). He sat down on a chair by the side of SI Misra and reopened the subject relating to the FIR lodged against Shyam Lal and expressed his desire to offer a gratification to the SI in order to aggravate the offence. The latter is said to have asked the accused to wait far some time so that he may dispose of one Nawab Ali who had come to the Outpost with a complaint. On some pretext, SI Misra went out of the room and sent his Head Constable Mushtaq Husain Naqvi to the Magistrate along with the slip (Ex. Ka 6) requesting him to come to the Outpost at once as Bhagwati Prasad had arrived to offer bribe. 5. It may be mentioned that the Magistrate also lives in Parmat, where the aforesaid slip (Ex. Ka 6) was delivered to him by the Head Constable. Ka 6) requesting him to come to the Outpost at once as Bhagwati Prasad had arrived to offer bribe. 5. It may be mentioned that the Magistrate also lives in Parmat, where the aforesaid slip (Ex. Ka 6) was delivered to him by the Head Constable. The Magistrate returned it with his note saying that he was just arriving and orally instructed the Head Constable that when he reaches the outpost he should not be saluted by the police personnel nor his cycle should be held by any of them. This slip was delivered back by H.C. Naqvi to SI Misra. Two or three minutes later the Magistrate reached the police Outpost, whereupon SI Misra greated him as Bhai Saheb' and asked him to sit down on the adjoining chair, facing the accused. 6. On arrival of the Magistrate, SI Misra is said to have asked the accused to disclose the purpose of his visit. The accused allegedly re-iterated his desire for submission of charge sheet against Shyam Lal u/s 394, IPC. Simultaneously the accused is said to have handed over the envelope (Ex. I) to SI Misra saying that it contained Rs. 50/- for his pocket expenses. The Magistrate instantly took the envelope in his custody and disclosed his identity. The envelope contained currency notes of the value of Rs. 50/- and three cakes of soap, known as Rexona, Hamam and Lux. The Magistrate also took the accused into custody as he was allegedly offering a bribe to SI Misra. According to the prosecution, the accused became nervous and touching the feet of the Magistrate, begged his pardon. But the Magistrate said that he could not be pardoned as he had committed a criminal offence. 7. The Magistrate prepared the recovery memo (Ex. Ka 8) and sealed the con teats of the envelope. Thereafter the same and the accused were handed over to SI Misra to be taken to Police Station Colonelganj. Accordingly the SI took them to the thana and there lodged a report (Ex. Ks. 9) at 10-30 a.m. u/s 165A, IPC. This site plan of the Police Chowki where the bribe was allegedly offered is Ex. Ka 12. 8. The accused denied the charge and attributed his false implication due to enmity with the police. He stated that he did not offer Rs. 50/- and the three cakes of soap as bribe to the SI. This site plan of the Police Chowki where the bribe was allegedly offered is Ex. Ka 12. 8. The accused denied the charge and attributed his false implication due to enmity with the police. He stated that he did not offer Rs. 50/- and the three cakes of soap as bribe to the SI. He filed a written statement in support of his defence. In short, the case of the accused was that he used to supply soap etc. to SI Misra and H.C. Naqvi posted at Police Outpost Parmat. But the SI considered the bill of the accused to be somewhat excessive. He admitted that his brother-in-law Kailash Chandra had lodged a report against Shyam Lal u/s 394, IPC but the SI threatened to prosecute him (Kailash Chandra) u/s 182, IPC, for having lodged a false report. Kailash Chandra, accordingly solicited the advice of the accused and asked him to speak to the SI for not harassing him. The accused accordingly went to SI Misra for the purpose, but the latter and his H.C. Naqvi turned him out. Apprehending that the accused might make a complaint against the SI and Head Constable, they got him implicated in the crime on filse allegations. 9. Regarding the alleged giving of the bribe on 6-5-1965 the case of the accused is that on the morning Head Constable Naqvi came to his house and asked him to meet SI Misra with three cakes of Lux soap and receive his pending dues. So the accused went to the Police Outpost with only one cake of Lux soap and two other soaps, which alone were available at his house-his shop having not opened by that time. He delivered these three cakes of soap to SI Misra, who placed them in an envelope and engaged him in talk for about half an hour. In the meantime, the Magistrate, Shri Mool Chand Singh, arrived there, whom the accused knew from before. SI Misra then gave the envelope to the Magistrate saying that the accused had offered Rs. 50/- and three cakes of soap to him as bribe. The accused was instantly put under arrest and locked up. The case of the accused further is that Shri J.N. Misra, elder brother of SI Misra, was a Dy. SI Misra then gave the envelope to the Magistrate saying that the accused had offered Rs. 50/- and three cakes of soap to him as bribe. The accused was instantly put under arrest and locked up. The case of the accused further is that Shri J.N. Misra, elder brother of SI Misra, was a Dy. Collector and was a contemporary of the Magistrate when he was posted at Mainpuri and it was on that account that the Magistrate had soft corner for SI Misra and visited his house off and on. The suggestion is that at the instance of SI Misra, the Magistrate wrongly arrested the accused on false pretext, of having given a bribe to the SI. 10. In support of its case the prosecution examined four witnesses, viz. PW 1 SI Om Prakash Misra, PW 2 Shri Mool Chand Singh Magistrate, who are said to be eye witnesses of the crime and PW 3 Mohd. Muin Husain and PW 4 Mahesh Chandra Rawat, who are formal witnesses. The accused also examined two witnesses in defence, viz. DW 1 Gopal Keshav Thakrey and DW 2 Daya Shanker Srivastava. 11. It has been strenuously argued by the learned State counsel that even though SI Om Prakash Misra may be considered to be an interested witness, yet there is no reason to disbelieve the sworn testimony of Sri Mool Chand Singh who is both a Magistrate First Glass and a respectable person. The argument appears plausible but it has no real substance, particularly when it has not been challenged by the learned State counsel that it was a case of trap. We have noticed that SI Misra and the Circle Officer wanted some Magistrate "to assist the police in the trap". It is thus clear that SI Misra wanted to get the accused arrested somehow. He was obviously an interested witness. But we find that even the Magistrate was interested in the success^ of the trap. In the first place he sent for SI Misra and expressed his readiness to reach the spot without delay as soon as he heard from him regarding the presence of the accused to offer bribe. He was obviously an interested witness. But we find that even the Magistrate was interested in the success^ of the trap. In the first place he sent for SI Misra and expressed his readiness to reach the spot without delay as soon as he heard from him regarding the presence of the accused to offer bribe. Secondly he not only reached the spot within a few minutes, when informed by the SI about the presence of the accused at the police outpost, but had also instructed the Head Constable to instruct all police-men not to salute him or take his cycle when he reached the chowki. Thus it is clear that even the Magistrate was quite interested in successful execution of the trap. 12. Regarding the value of the testimony of such a Magistrate, who is interested in the trap, the Supreme Court in Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, AIR 1954 SC 322 held that the Magistrate should not be employed by the Police as a witness of police traps and observed- To make the Magistrate a party or a limb of the Police during the Police investigation seriously undermines the independence of the Magistrate and perverts their judicial outlook.... 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 the 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 the Addl. District Magistrate. Likewise in The State of Bihar Vs. Basawan Singh, AIR 1958 SC 500 speaking of trap witnesses their lordships observed that if they "are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested....and in a proper case, the court may even look for independent corroboration before convicting the accused person. If a Magistrate puts himself in the position of a partisan or interested witness, he cannot claim any higher status and must be treated as any other interested witness." 13. If a Magistrate puts himself in the position of a partisan or interested witness, he cannot claim any higher status and must be treated as any other interested witness." 13. It is note-worthy that according to the prosecution case itself, there were other persons also present at the time of the alleged tender of bribe but for reasons best known to it, none of them has been examined by the prosecution to corroborate the testimony of the SI and the Magistrate. This necessarily leads to a presumption against the prosecution. 14. Moreover the probabilites of the case are also against the prosecution. PW 1, SI Om Prakash Misra has deposed that the accused had as many as six meetings with him in connection with the investigation of Shyam Lal's case. In the 3rd and 4th meetings, when the accused allegedly reiterated his request for altering the section against Shyam Lal, the SI is said to have replied that it was impossible for him to do so and threatened that he would prosecute the accused for this criminal act. No prudent man, after such warnings, would have dared approach the SI again with the same illegal request and offer bribe. 15. Secondly the accused is said to have repeated the very same words of entreaty every time he met the SI between the 2nd and. 6th of May. This appears highly improbable. 16. Thirdly, it is impossible to believe that the accused will tender the bribe in the presence of several unknown persons, particularly of Shri Mool Chand Singh on whose arrival the SI greeted him as 'bhai saheb' and gave him a chair to sit close by. 17. Lastly we find that there are numerous contradictions in the statements of the SI and the Magistrate, on material points, as noted by the learned trial Judge. This makes their testimony unreliable. The learned Sessions Judge was therefore right in disbelieving these eye witnesses and acquitting the accused. 18. The State appeal against acquittal has no force and is accordingly dismissed. Appeal dismissed.