Purshottam Jethanand vs The State Of Kutch

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 5 March, 1954

Coram: Jagannadhas, J.

In this matter the Supreme Court recorded an appeal taken on special leave against a judgment that had been passed by the First Class Magistrate in Mandvi, Kutch. The appellant, who was employed as a Police Jamadar in the Local Investigation Branch at Mandvi, was charged with having committed extortion under Section 384 of the Indian Penal Code. According to the prosecution, on 16 April 1950 the appellant travelled to the village of Rampur in Mandvi Taluka to verify the passports of several individuals who had travelled to Africa and subsequently returned. During that verification he is alleged to have taken the passport of a villager named Ananda Ratna and to have demanded a sum of eight hundred rupees for its return, a sum that the villager paid on 18 April 1950. The prosecution’s case originated from a report that the appellant himself had lodged on or about 18 April 1950 at the Mandvi police station, asserting that he had been robbed of eight hundred and seventy rupees by some residents of Rampur and that he had been assaulted and injured in the course of that robbery. This report was entered as Criminal Case No. 51 of 1950. The Sub-Inspector of Mandvi Police Station, identified as P.W. 1, investigated the complaint and, during the inquiry, discovered that the same day a group of Rampur residents produced to the police a receipt for eight hundred and forty rupees, which they claimed to have recovered from the appellant after having been extorted from other villagers. Acting on this information, the Sub-Inspector filed a complaint before the First Class Magistrate, setting out the foregoing facts. The prosecution’s case was supported by the examination of eight witnesses. The appellant’s defence was that the money in question belonged to him, that he had intercepted false passports during his inspection, that he had taken statements from the holders of those passports, and that those individuals, in an attempt to prevent him from recording their statements, assaulted him and stole his own money. The appellant also relied on eight witnesses to sustain his version. All three courts that had considered the matter – the trial magistrate, the Sessions Judge on appeal, and the Judicial Commissioner of Kutch on revision – found the prosecution evidence credible, rejected the defence narrative, convicted the appellant of the offence under Section 384, IPC, and sentenced him to twelve months’ rigorous imprisonment together with a fine of one hundred rupees.

The counsel for the appellant, in addition to summarising the factual background, advanced several legal contentions. The first contention asserted that the trial magistrate had no jurisdiction to take cognisance of the proceedings, rendering the process void. The second contention alleged that the statements of the witnesses taken during the investigation were not produced, thereby making the trial illegal. The third contention contended that the proven facts did not demonstrate that the payment was made under any fear of injury, and consequently that the offence of extortion was not established. The Court noted that, with respect to the factual findings derived from an appreciation of the evidence, it could not permit a re-examination of those findings in the present special leave appeal. Accordingly, the Court confined its consideration to the legal arguments raised, while leaving the factual determinations as recorded by the lower courts.

The Court observed that, with respect to the evidence that had been examined, it could not permit the appellant to reopen those matters in the present appeal filed under special leave. The Court then listed the three specific legal contentions raised by the appellant. The first contention was that the trial Magistrate lacked authority to take cognizance of the proceedings, and consequently the proceedings were void. The second contention asserted that the statements of the witnesses who had been examined during the investigation had not been produced, making the trial illegal. The third contention argued that the facts proved did not demonstrate that the money had been paid under any fear of injury, and therefore the offense of extortion had not been committed. Turning to the first contention, the Court referred to the factual basis set out in the judgment of the Judicial Commissioner. It was noted that Mr. Kansara, who acted as the trial Magistrate, had been appointed as a First Class Magistrate during the period of the Kutch State. The law of the former Kutch State did not contain a provision corresponding to Section 190, clauses (a) and (b), of the Criminal Procedure Code (Act V of 1898). In his capacity as a First Class Magistrate of Kutch State, Mr. Kansara had the power to take cognizance of offences. When the laws of the merged States of Kutch were brought under the Criminal Procedure Code, a notification issued by the Chief Commissioner on 14-11-1949 appointed Taluka Magistrates as Sub-Divisional Magistrates pursuant to Section 13 of the Code. Subsequently, Deputy Collectors were granted the powers of Sub-Divisional Magistrates, and a later notification dated 19-8-1950, published in the local gazette on 1-9-1950, withdrew the powers of Sub-Divisional Magistrates that had previously been conferred on Taluka Magistrates. The Court recalled that the complaint in the present case had been filed on 26-August-1950. Accordingly, the powers of Shri Kansara to take cognizance as a Sub-Divisional Magistrate ceased on 19-August-1950, and no fresh appointment under Section 190(2) of the Criminal Procedure Code was made to him in his capacity as an ordinary First Class Magistrate for any period relevant to this case. Consequently, the Court concluded that Shri Kansara possessed no authority to take cognizance of the case under Section 190(a) and (b). While the Judicial Commissioner had been inclined to hold that, although Shri Kansara might have lost his Sub-Divisional Magistrate powers, he continued to retain the authority he originally possessed as a First Class Magistrate under the pre-merger regime, the Court examined the wording of the notification of 19-August-1950 and found the Judicial Commissioner’s interpretation unconvincing. The Court declared that, without a fresh order under Section 190(2) of the Criminal Procedure Code, Shri Kansara had no power to take cognizance after 19-August-1950. Nevertheless, the Court expressed the view that any defect arising from this lack of authority was cured by the operation of Section 529 of the Criminal Procedure Code.

It is acknowledged that Shri Kansara was unaware of the notification dated 19 August 1950 at the time he entered the case into his docket on 26 August 1950, when the complaint was filed. Consequently, his act of taking cognizance at that moment was deemed to have been performed in good faith and no prejudice to the parties was demonstrated. Nevertheless, the record shows that after Shri Kansara had taken cognizance but before any evidence was recorded, an application was filed specifically raising the defect in his authority. Despite the existence of that objection, Shri Kansara proceeded to conduct the trial, an action that the complainant contended vitiated the proceedings. The contention put forward was that the act of taking cognizance is a continuous process and that, although the initial defect might be remedied by Section 529 of the Code of Criminal Procedure, the continuation of the case after the defect had been highlighted could not be characterized as being undertaken in good faith. Accordingly, it was argued that Section 529 could not be invoked to cure the defect. On the other hand, the record indicates that when the objection was raised, Shri Kansara examined the matter and arrived at a judicial conclusion that he possessed the requisite power to take cognizance. Whether that conclusion was legally correct is deemed immaterial for the present consideration; the issue turns on whether that conclusion itself was arrived at in good faith. The Court is unable to form an opinion on the bona-fide nature of Shri Kansara’s decision because the actual order or reasoning he gave on the objection has not been produced before the Court. In the absence of that material, the Court cannot state that the defect remained uncured; the possibility remains that a bona-fide decision by Shri Kansara affirming his power may have cured the defect, even if the question of whether “taking cognizance” continued thereafter is not decided here.

The second objection raised by the appellant concerns the manner in which the statements of prosecution witnesses, recorded by police during the investigation, were handled. It is alleged that those statements were not supplied to the defence in accordance with Section 162 of the Code of Criminal Procedure, thereby constituting a serious procedural irregularity that allegedly compromised the trial. The factual matrix shows that on 15 April 1951, while the chief prosecution witness was being examined, the defence filed an application requesting a certified copy of the witness’s investigative statement to enable effective cross-examination. The trial court refused this request on the ground that the prosecution pertained to a non-cognizable offence, for which no formal investigation under the Code had been undertaken, and that consequently no witness could have been examined under Section 161 of the Code. The appellant’s counsel countered this position by pointing out that an investigation had indeed been conducted in response to the complaint filed by the appellant himself, which alleged a robbery of his money and was registered as Criminal Case No. 51 of 1950. The counsel argued that the present prosecution arose from the information obtained in that earlier investigation. For this reason, the counsel advanced two arguments: first, that entitlement to investigative statements under Section 162 requires only that the investigation fall within Chapter XIV of the Code and that the witnesses have given statements concerning matters relevant to the offence for which the prosecution is presently instituted, even though that particular offence was not the subject of the earlier investigation; second, that the investigation in Criminal Case No. 51 of 1950 effectively constituted an investigation also concerning the offence now charged against the appellant.

In the present appeal, counsel advanced two separate submissions concerning the application of Section 162 of the Code of Criminal Procedure. The first contention was that it should be sufficient for the investigation to have been conducted under Chapter XIV of the Code and for the witnesses to have given statements relating to matters that were relevant to the offence for which the appellant is presently being tried, even though that particular offence had not been the subject of a formal investigation at the time the statements were recorded. The second contention was that the investigation recorded in Criminal Case No. 51 of 1950, which arose out of the appellant’s own complaint, was in substance also an investigation into the very offence of extortion for which the appellant now faces prosecution; consequently, the appellant should be deemed entitled to the protection afforded by Section 162, Cr. P. C. on the same footing as a person whose case falls directly under that provision.

The Court found that the first argument could not be sustained when the language of Section 162, Cr. P. C. was examined. The statutory entitlement of an accused to be furnished with copies of statements is expressly confined to a trial of the offence that was actually investigated, and it does not extend to a trial for a non-cognizable offence for which no investigation had in fact been carried out. The proviso to Section 162(1) clarifies that the right to obtain copies relates to “such” inquiry or trial, meaning the enquiry or trial of any offence that was under investigation under the chapter at the time the statement was made. Counsel had relied upon a Full Bench decision of the Allahabad High Court in Shyamlal Sharma v. Emperor, wherein an investigation had proceeded without the magistrate’s authority. In that case, the judges observed that the procedural illegality of the investigator acting without authority could not be allowed to deprive the accused of a statutory right. However, that precedent was distinguishable because an actual investigation, albeit irregular, had taken place. Regarding the second contention, counsel argued that the investigation prompted by the appellant’s own complaint was, in fact, an investigation into the extortion offence, and therefore the appellant should enjoy the protection of Section 162, analogously to the principle recognized in Shyamlal Sharma v. Emperor. The Court acknowledged that the right to obtain statements is a valuable safeguard and that an indiscriminate refusal to grant it would constitute a serious irregularity capable of invalidating the entire trial, as the Privy Council observed in Kotayya v. Emperor, AIR 1947 PC 67 at page 69. Nevertheless, the Court concluded that it was unnecessary to pursue the legal proposition that the earlier investigation could be treated as an investigation “also” for the current offence, because the factual basis required to sustain that view was absent in the present case. The foundation of fact upon which counsel relied—namely, that the police had simultaneous information concerning both the robbery complaint and an alleged extortion by the appellant—was not sufficiently established, and thus the Court could not extend the protection of Section 162 to the appellant.

The appellant’s argument was based on the claim that, by the time the robbery complaint filed by the appellant on or about 18 April 1950 was being investigated, the police already possessed information concerning an alleged extortion offence committed by the appellant himself. This alleged information was said to be reflected in two Panchanamas, exhibits B and A, dated 18 April 1950 and 19 April 1950 respectively, which recorded that villagers of Rampur had recovered a sum of Rs. 840 from the appellant and had handed the amount over to the police together with a report. It was urged that, taken together with the accompanying report, these documents amounted to information to the police within the meaning of Section 155 of the Criminal Procedure Code, and that consequently the investigation that commenced on that date should be regarded as covering both the robbery and the extortion offences. The Court found difficulty in accepting this view on the facts of the present case. Firstly, the evidence showed that the report referred to in exhibits A and B was forwarded to the Gadhsisa police station, whereas the report and investigation relating to the robbery complaint lodged by the appellant were assigned to the Mandvi police station. No evidence demonstrated that the information lodged with the Gadhsisa police station was placed before the officer who was investigating the robbery case. Moreover, a more substantial difficulty arose because exhibit B did not specify an extortion offence against particular individuals, and the report itself did not appear to contain a formal complaint of extortion, as indicated by the statements of the parties recorded in PW 1 and PW 2. Neither exhibit A nor exhibit B suggested that the information had been furnished with the purpose of bringing the alleged offender to book. In view of these points, the evidence did not establish a foundation for the larger question raised, namely whether the statutory right under Section 162 of the Criminal Procedure Code could be said to apply where, in substance, an investigation also concerned a non-cognisable offence despite the investigation being ostensibly limited to a cognisable offence. The counsel for the appellant also cited Section 145 of the Indian Evidence Act, but the Court noted that this provision does not entitle a party to obtain copies of statements; it merely permits the use of statements if the party already possesses them. Finally, the appellant’s counsel argued that, on the evidence, no fear of injury had been shown to support a conviction for extortion under Section 384 of the Indian Penal Code. The Court observed that the counsel highlighted an apparent inconsistency in the factual findings of the Judicial Commissioner and the Sessions Judge regarding the nature of the alleged injury, but the Court did not elaborate further on that point in this passage.

In this case the Court examined the factual statements that had formed the basis of the conclusions reached by the learned Judicial Commissioner and by the learned Sessions Judge, both of which had rejected the argument raised by the appellant. The Court noted that the learned Judicial Commissioner had characterized the alleged injury as the threat of a criminal accusation that the passport was fabricated, whereas the learned Sessions Judge appeared to have based his view of the injury on the alleged wrongful withholding of an emergency certificate and on the refusal to return it. Upon a careful examination of the material placed before the Courts, the Court found no inconsistency in the fundamental facts on which the two tribunals had relied. The evidence indicated that, during his examination of the passports, the appellant had become suspicious that some of the passports might not be genuine. Consequently, as the Judicial Commissioner suggested, it could be inferred that there was an implied threat of prosecution related to those suspected forgeries, which resulted in the passport being retained and subsequently released only after a payment was made. Whether the passport that was retained and later released was one suspected of being forged or a genuine passport that had been wrongfully held, the Court held that the appellant would have experienced an equivalent fear of injury in either circumstance. The appellant’s counsel attempted to distinguish between a passport and an emergency certificate, contending that the detention of an emergency certificate could not give rise to a fear of injury. The Court found that this distinction was not clearly supported by the evidence and therefore refused to consider it at this stage. In view of the foregoing analysis, the Court concluded that all of the appellant’s contentions failed, and it saw no reason to disturb either the conviction or the sentence imposed. Accordingly, the appeal was dismissed.