Rao Shiv Rahadur Singh And Another vs The State Of Vindhya Pradesh

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

Court: supreme-court

Case Number: Criminal Appeal No. 7 of 1951

Decision Date: 5 March 1954

Coram: Natwarlal H. Bhagwati, B. Jagannadhadas, B. Aiyy ar, T.L. Venkatarama

In the case Rao Shiv Rahadur Singh and Another versus the State of Vindhya Pradesh, the Supreme Court of India delivered its judgment on 5 March 1954. The opinion was authored by Justice Natwarlal H. Bhagwati, who sat with Justices B. Jagannadhadas, B. Aiyyur and T. L. Venkatarama. The petitioners were Rao Shiv Rahadur Singh and another individual, and the respondent was the State of Vindhya Pradesh. The judgment was reported in the 1954 All India Reports at page 322 and in the Supreme Court Reporter at page 1038. Subsequent citations of the decision appear in law reports ranging from 1955 to 1979, including references such as R 1955 SC 104 and R 1979 SC 400.

The Court examined the provisions of the Code of Criminal Procedure (Act V of 1898), specifically section 164, which mandates that a magistrate record any statement made by an accused person. The Court held that a statement made by the accused to a magistrate could not be proved unless it was recorded in compliance with section 164. Consequently, if a non-confessional statement was not recorded as required, the magistrate was not competent to give oral evidence of that statement. The Court referred to earlier authorities, including Nazir Ahmad v. King Emperor (AIR 1936 PC 253), Legal Bomembrancer v. Lalit Mohan Singh Boy (ILR 49 Cal 167), Abdul Bahim and Others v. Emperor (26 Cr L J 1279) and Karu Mansukh Gond v. Emperor (AIR 1937 Nag 254).

The judgment strongly disapproved the conduct of the police and the Additional District Magistrate who, according to the Court, had actively induced the accused to commit the offence by supplying the necessary instruments, thereby entrapping him. The Court emphasized that the police have a duty to prevent crimes, not to furnish the means for their commission. The Court also endorsed the observations of Justice P. B. Mukherji in M. O. Mitra v. The State (AIR 1951 Cal 524 at p. 528), which condemned the practice of using magistrates as witnesses in police traps, because such practice makes a magistrate a party to the investigation and seriously undermines judicial independence.

This case was heard as Criminal Appeal No. 7 of 1951, an appeal under article 134(1)(c) of the Constitution of India against the judgment and order of the lower court.

In this case, the Judicial Commissioner of Vindhya Pradesh, Rewa, dated his order on 10 March 1951 in Criminal Appeal No 81 of 1950, which arose from the judgment and order dated 26 July 1950 of the Special Judge, Rewa, in Criminal Case No 1 of 1949. Counsel for appellant No 1, Jai Gopal Sethi, assisted by K B Asthana, represented the first appellant. Counsel for appellant No 2, S C Isaacs, assisted by Murtza Fazl Ali, represented the second appellant. Counsel for the respondent, Porus A Mehta, appeared for the State. The judgment of the Court was delivered on 5 March 1954 by Justice Bhagwati. The first appellant had been the Minister of Industries and the second appellant the Secretary to the Government of the Commerce and Industries Department of the State of Vindhya Pradesh. The first appellant faced charges under sections 120-B, 161, 465 and 466 of the Indian Penal Code, while the second appellant was charged under sections 120-B and 161, all offences being taken in accordance with the Vindhya Pradesh Ordinance No 48 of 1949. Both were tried before the Special Judge at Rewa under the Vindhya Pradesh Criminal Law Amendment (Special Courts) Ordinance No 56 of 1949, and the Special Judge acquitted them of all charges. The State of Vindhya Pradesh appealed the acquittal to the Judicial Commissioner of Rewa. The Judicial Commissioner set aside the Special Judge’s order of acquittal and convicted both appellants of the offences alleged. He sentenced the first appellant to three years’ rigorous imprisonment and a fine of Rs 2,000, with a default rigorous imprisonment of nine months under section 120-B, and also sentenced him to three years’ rigorous imprisonment under section 161, the two terms to run concurrently, while imposing no separate sentence under sections 465 and 466. The second appellant was sentenced to one year’s rigorous imprisonment and a fine of Rs 1,000, with a default rigorous imprisonment of nine months under section 120-B, and no separate sentence was imposed under section 161. The appellants subsequently sought leave to appeal to the Supreme Court, which the Judicial Commissioner granted under article 134(1)(c) of the Constitution for the four points of law raised before him. The constitutional questions thus raised were heard by the Constitution Bench of this Court, and its judgment dated 22 May 1953 held that the appeal to the Judicial Commissioner from the Special Judge’s acquittal was competent and that the appellants’ fundamental rights under articles 14 and 20 of the Constitution were not infringed.

The Court noted that the appeal was directed to be posted for consideration to determine whether it should be heard on its merits. Subsequently, the appellants filed an application before this Court seeking leave to raise additional grounds. On 20 October 1953, this Court ordered that the appeal be heard on its merits. Accordingly, the appeal has now been placed before the Court for final hearing and disposal.

The prosecution case was based on a lease agreement dated 1 August 1936 between the Panna Durbar and the Panna Diamond Mining Syndicate, which was represented by Sir Chintubhai Madholal and Hiralal Motilal Shah. Under that agreement, the Durbar granted the syndicate a lease for diamond-mining operations for a term of fifteen years, expiring on 30 October 1951. The lease contained a provision that allowed the lessee to renew the lease for a further fifteen years upon expiration. Disputes subsequently arose between the syndicate and the Durbar, and by an order dated 31 October 1946, the Political Minister of Panna ordered the cessation of the syndicate’s mining operations. In July 1948, the State of Panna was merged into the newly formed Union of Vindhya Pradesh, bringing its administration under the Government of Vindhya Pradesh, whose seat was at Rewa and whose head was His Highness the Maharaja of Rewa as Rajpramukh. Following the merger, the first appellant was appointed Minister in charge of the Industries Department in the cabinet formed by the Rajpramukh, while the second appellant served as Secretary of the Commerce and Industries Department, working under the first appellant.

On 1 September 1948 the syndicate appointed a man named Pannalal as its Field Manager, tasking him with obtaining rescission of the order issued by the Panna Durbar that had stopped mining activities. Pannalal made a series of applications for cancellation of that order. Specifically, on 13 January 1949 and again on 26 January 1949, he personally delivered two applications to the first appellant, requesting that mining operations be allowed to resume, and the first appellant invited him to appear in February for further discussion. The first appellant then consulted the State’s legal advisers, who prepared a questionnaire to be sent to the syndicate for its responses. When Pannalal travelled to Rewa, the questionnaire was handed to him on 9 February 1949 so that he could forward it to Sir Chintubhai. Sir Chintubhai returned the completed questionnaire together with a covering letter dated 18 February 1949, in which he expressed a desire to meet the first appellant for a personal discussion concerning the settlement of the matter of resuming mining operations. In reply to the telegrams sent by Sir Chintubhai …

In February 1949, on the nineteenth day, the personal assistant of appellant No. 1 informed Sir Chinubhai that a visit to Rewa could be arranged to see appellant No. 1 on the seventh of March. Because Sir Chinubhai was ill, he instructed his own personal assistant, Nagindas Mehta, to travel to Rewa in his place and meet appellant No. 1. Nagindas reached Rewa on the evening of the sixth of March 1949. At that time appellant No. 1 was absent from the town, so Nagindas had to wait. He finally met appellant No. 1 on the morning of the eighth of March, but appellant No. 1 directed him to see appellant No. 2 instead. Appellant No. 2 received Nagindas at the guest house where Nagindas was staying and disclosed that a third party was offering a sum of fifty thousand rupees for the mining rights. Nagindas replied that the syndicate was a limited concern and could not afford that amount, but suggested that a reduced payment might be possible. Appellant No. 2 then said he would discuss the proposal with appellant No. 1 and inform Nagindas of the outcome. Later that afternoon the same appellant returned to the guest house and told Nagindas that, owing to the syndicate’s long-standing operations, appellant No. 1 was prepared to lower the price to approximately twenty-five thousand rupees. Nagindas indicated that he would convey this development to Sir Chinubhai in Bombay. Subsequently Nagindas departed for Bombay, but he did not arrive until the twenty-ninth of March because he was delayed by other business. In Bombay he met Sir Chinubhai and reported the events in Rewa, explaining that the resumption orders would not be issued unless a bribe of twenty-five thousand rupees was paid. Sir Chinubhai rejected the idea of paying a bribe and advised Nagindas to set a trap for appellant No. 1. On the twenty-ninth of March Nagindas telegraphed Sir Chinubhai, confirming his willingness to return to Rewa the following week to complete the matter. After receiving this telegram, appellant No. 2, whose counterpart appellant No. 1 was on tour, sent a telegram on the first of April urging Sir Chinubhai to come that same week because his presence was essential to settle the already delayed negotiations. On the fourth of April, Pannalal was told by appellant No. 2 that appellant No. 1 would leave for Delhi that day and that he should inform Sir Chinubhai in Bombay to travel to Delhi to meet appellant No. 1 at the Constitution House where the latter would be staying; appellant No. 2 also gave Pannalal a letter conveying the same instruction. Consequently appellant No. 1 departed for Delhi on the fourth of April.

In April 1949 appellant No. 1 travelled to Delhi carrying the files of the Panna Diamond Mining Syndicate and arrived on the 5th of that month. The following day, on 6 April, he transmitted a telegram through his personal assistant, Mukherji, to Sir Chinubhai in Bombay requesting a meeting at 31 Constitution House on either the 7th, 8th or 9th of April for final discussions concerning the syndicate. Sir Chinubhai replied by telegram that his personal assistant Nagindas and Mr Pannalal would be reaching Delhi on 9 April. Nagindas actually arrived in Delhi on 8 April and lodged at the Maidens Hotel, while Mr Pannalal arrived on 10 April and took accommodation at the Regal Hotel. On 9 April Nagindas called appellant No. 1 on the telephone to inform him of his arrival and an appointment was scheduled for 10 April at half past ten in the morning.

On the morning of 10 April, before meeting the appellant, Nagindas contacted Shri Bambawala, the Inspector General of Police of the Special Police Establishment, and reported that appellant No. 1 was attempting to coerce him into paying a bribe. Shri Bambawala directed Nagindas to Pandit Dhanraj, the Superintendent of the Special Police Establishment. Nagindas related the whole episode of harassment to Pandit Dhanraj, and the police officials agreed to lay a trap for appellant No. 1. Nagindas told Pandit Dhanraj that he would meet the appellant at about 11 a.m. and would inform him of the conversation later that afternoon. Accordingly, Nagindas met appellant No. 1 at Constitution House at the appointed time. During that meeting the appellant demanded a sum of Rs 25,000 as a bribe to allow the resumption of mining operations and made it clear that he would accept no lesser amount. Because Nagindas had not received any money from Bombay, the parties fixed a second meeting for the next day, 11 April, at 3 p.m.

After the first encounter, Nagindas reported the details of the discussion to Pandit Dhanraj. On 11 April, Nagindas went again to Constitution House and found appellant No. 1 there at about three o’clock in the afternoon; Mr Pannalal was already present. Nagindas and the appellant entered a bedroom where Nagindas requested that the lease be extended for ten years so that the syndicate could be compensated for losses caused by the stoppage of mining. The appellant then asked Nagindas to prepare a written application in Hindi. Since Nagindas could not write in Hindi, he called Mr Pannalal into the bedroom and instructed him to draft the application. The appellant verified Pannalal’s presence and proceeded with the requested documentation.

On the first day of April 1949 the appellant instructed Pannalal to write the date on the application as the first of April 1949. The appellant then placed his endorsement at the foot of the application and also dated it the first of April 1949. It was agreed that Nagindas would meet the appellant later that evening at nine o’clock, that Nagindas would pay the sum of twenty-five thousand rupees to the appellant at that time, and that the appellant would hand over the resumption order to Nagindas on receipt of the payment. After leaving the Constitution House, Nagindas reported the whole episode to Pandit Dhanraj, adding that he had not yet received any money. Pannalal was directed to go to the Constitution House ahead of time and to inform the appellant that Nagindas would arrive at nine p.m. that night. Subsequently, Nagindas and Pandit Dhanraj proceeded to the residence of Shri Shanti Lal Ahuja, the Additional District Magistrate, where Pandit Dhanraj organised a raiding party. Nagindas gave a statement on oath, his person was searched, and he was handed three bundles containing two hundred and fifty government notes of one hundred rupees each, together with a memorandum recording the same. After completing these formalities, Pandit Dhanraj, Nagindas, the Additional District Magistrate and the police party traveled to the Constitution House. It was arranged that, after the transaction was finished, Nagindas would send Pannalal out on some pretext to the taxi waiting outside; this departure would serve as a signal for the raiding party to rush into room number thirty-one of the Constitution House, which was occupied by the appellant.

When Nagindas entered the suite of rooms occupied by the appellant, the appellant escorted him to his bedroom and closed the door that connected the bedroom with the sitting-room where Pannalal was already waiting. The appellant then handed over the resumption order to Nagindas. Upon reading the order, Nagindas observed that the extension granted was only for four years, whereas the appellant had previously promised an extension of ten years. Nagindas questioned the appellant about this discrepancy. The appellant replied that Nagindas should submit another application after a few months, after which the appellant would grant the longer extension. The appellant signed the resumption order and dated it the second of April 1949. Immediately after receiving the signed order, Nagindas gave the appellant the government currency notes amounting to twenty-five thousand rupees that had been supplied earlier by the Additional District Magistrate. Nagindas then requested an additional copy of the order, which was duly provided.

After the resumption order had been dated and initialed by appellant No. 1, an additional copy of that order was supplied to Nagindas. Appellant No. 1 then took the Government currency notes he had received from Nagindas and placed them in the upper drawer of the dressing-table located in his bedroom. When the transaction was completed, Nagindas shouted to Pannalal, instructing him to go to the taxi and retrieve his cigarette case. Acting on this signal, Pannalal moved toward the taxi. Simultaneously, the Additional District Magistrate together with Pandit Dhanraj entered the sitting room accompanied by the other members of the raiding party. Appellant No. 1 met the raiding party at the doorway that connected the bedroom and the sitting room. After announcing their official positions, the Additional District Magistrate and Pandit Dhanraj questioned appellant No. 1, asking whether he had received any money as a bribe. Appellant No. 1 replied that he had not. Pandit Dhanraj then ordered appellant No. 1 to produce any money he might have received, warning that refusal would compel a search of the room. In response, appellant No. 1 opened the top drawer of the dressing-table, removed three bundles of Government currency notes that had been given to him by Nagindas, and handed them over to Pandit Dhanraj. When the Additional District Magistrate inquired how he had come into possession of those notes, appellant No. 1 explained that he had brought Rs 40,000 from his home, of which Rs 15,000 had been spent on purchasing a motor car and the remaining amount was retained for the purpose of buying ornaments for his daughter’s marriage.

During the same raid, two respectable witnesses—Shri Gadkari, a member of the Central Electricity Authority, Ministry of Works, Mines and Power, Government of India, and Shri Perulakar, the Minister for Agriculture and Labour, Madhya Bharat—were escorted by the police to appellant No. 1’s bedroom. In front of these witnesses, appellant No. 1 reiterated the same explanation he had given earlier to the Additional District Magistrate and Pandit Dhanraj. Subsequently, Nagindas was searched in the presence of the two witnesses, and two copies of the order that had been handed to him by appellant No. 1 were recovered from his person. A further search of the upper drawer of the dressing-table in appellant No. 1’s bedroom yielded two additional copies of the order, the application, and the file of the Panna Diamond Mining syndicate. Appellant No. 1 also produced a receipt to substantiate his claim of having purchased the motor car. The officials prepared the relevant search memos and compiled a list of the numbers of the Government currency notes totaling Rs 25,000 that appellant No. 1 had produced. This list was compared and verified by Shri Gadkari and Shri Perulakar against the numbers recorded in the list kept by the Additional District Magistrate, and the witnesses confirmed that the numbers matched in every respect. After the verification was completed, the Additional District Magistrate confronted appellant No. 1 with the documents recovered from Nagindas and the list of notes, asking him for an explanation. Appellant No. 1 appeared confused and offered none. Upon further questioning about any additional money he might possess, he opened an iron confidential box for which he held the key and produced Rs 132, which the officials did not seize as it bore no relevance to the case. Thereafter, appellant No. 1 was placed under arrest and later released on bail.

Witnesses Gadkari and Perulgkar were shown the numbers of the currency notes that appeared in the list which was in the possession of the Additional District Magistrate. They examined the numbers printed on the notes and compared them with the numbers recorded in the list held by the magistrate. Their examination concluded that the numbers in the two lists matched exactly in every respect. Following the completion of this verification, the Additional District Magistrate turned to appellant No. 1 and presented him with the documents that had been produced before the magistrate by Nagindas, together with the list of the notes. The magistrate asked appellant No. 1 whether he could offer any explanation for the presence of those documents and the listed notes. Appellant No. 1 appeared confused and was unable to provide any satisfactory explanation. The magistrate then inquired further whether appellant No. 1 possessed any other money. In response, appellant No. 1 opened an iron confidential box for which he held the key, and he produced a sum of rupees 132. This small amount was not taken into custody because it was deemed unrelated to the matters under investigation. After this inquiry, appellant No. 1 was placed under arrest, and subsequently he was released on bail.

Subsequent to the forging of the aforementioned documents, a further significant episode occurred: Nagindas handed over a sum of rupees 25,000 to appellant No. 1 as a bribe or illegal gratification. The prosecution would have found it difficult to establish the guilt of appellant No. 1 if the case had rested solely on the testimony of Nagindas or on the police witnesses whose statements were supported by Shanti Lal Ahuja, the Additional District Magistrate. Earlier observations had highlighted the infirmities in Nagindas’s evidence, indicating that such testimony alone could not sustain a conviction. It was evident that Nagindas intended to trap appellant No. 1 and had successfully induced the police authorities to procure the bribe money for him. It is clear that, but for the police authorities’ procurement of the rupees 25,000 and their subsequent delivery of that sum to Nagindas, Nagindas would not have possessed the requisite amount, and the offence punishable under section 161 would never have been committed.

The police authorities also displayed excessive zeal in bringing appellant No. 1 before the law and in their enthusiasm for entrapping him. Their enthusiasm was equal to that of Nagindas, making both parties equally culpable for the entrapping of appellant No. 1. Consequently, the evidence offered by these witnesses did not inspire confidence in the court. Moreover, Shanti Lal Ahuja, the Additional District Magistrate, aligned himself closely with the police, effectively becoming an extension of the police force. His role as an administrative magistrate was compromised; he reduced himself to the position of an ordinary witness participating in the raid as a member of the raiding party. His testimony could therefore be considered no better, and no worse, than that of the police witnesses. If therefore the matter had

If the case had relied solely on the testimony of the police witnesses, it would have been difficult to prove the guilt of appellant No. 1. The evidence concerning the recovery of the sum of rupees 25,000 from the top drawer of the dressing table in appellant No. 1’s bedroom, as well as the evidence that appellant No. 1 handed that sum to Shanti Lal Ahuja, the Additional District Magistrate, was also found to be compromised; standing alone, such evidence could not safely support a conviction. The statement that appellant No. 1 made to Shanti Lal Ahuja, the Additional District Magistrate, was held to be inadmissible. Section 162 of the Criminal Procedure Code renders a statement made by an accused to police officers inadmissible, and the same principle applied to the statement made to the magistrate. The investigation into the offence had commenced immediately after the First Information Report was lodged, and Pandit Dhanraj, who testified, admitted that the investigation began before the raid was carried out. Consequently, the statement given by appellant No. 1 to Shanti Lai Ahuja, the Additional District Magistrate, was made after the investigation had started and during its course, bringing it within the ambit of Section 164 of the Criminal Procedure Code. The respondent argued that the statement was not a confession and therefore should not be subject to Section 164, contending that the magistrate could nevertheless testify to the statement even though it had not been recorded as required by that provision. Established authority, however, holds that once an investigation is underway, any non-confessional statement made by the accused must also be recorded in the manner prescribed by Section 164; if the magistrate fails to make such a record, he is not competent to give oral evidence of the accused’s statement. This position is supported by case law reported in A.I.R. 1936 Privy Council 253, Indian Law Reports 49 Calcutta 167, the Criminal Law Journal 1279, and A.I.R. 1937 Nagpur 254. Because the statement of appellant No. 1 to Shanti Lal Ahuja was not recorded in accordance with Section 164, it was deemed inadmissible and could not be proved by oral testimony. With that statement excluded, no remaining testimony from witnesses Nagindas and Pannalal, the police witnesses, or from Shanti Lal Ahuja, the Additional District Magistrate, was sufficient to establish the guilt of appellant No. 1. The prosecution therefore relied on the evidence of Gadkari and Perulakar, who occupied responsible positions in society and were regarded as absolutely independent witnesses. Their testimony, however, was subjected to two criticisms by the Special Judge.

In this case, the Special Judge had levelled two specific criticisms against the testimony of the witnesses Gadkari and Perulakar. The first criticism alleged that, contrary to the evidence presented by Pandit Dhanraj, the witnesses asserted that their statements had not been recorded on the night of 11 April 1949. According to the record, Pandit Dhanraj had taken down their statements after they had left the appellant No 1’s bedroom in the Constitution House, relying solely on his memory of the events of that night. Because those statements had never been read back to the witnesses, the Judge concluded that they could not possess the evidential value that a properly recorded statement would ordinarily have. The second criticism concerned the witnesses’ signatures on the Panchnama that listed the numbers of the currency notes recovered at that time. The Panchnama contained a statement that, when questioned, the appellant No 1 had produced bundles of currency notes from the top drawer of his dressing table. The Judge observed that this statement was factually inaccurate, since both witnesses had been brought into the appellant’s bedroom only after the police had already recovered the government currency notes from him. It was noted that the witnesses had failed to examine the contents of the Panchnama before affixing their signatures, an omission described as indiscreet but not so serious as to render their testimony wholly unreliable. The Judge further explained that the circumstances surrounding the recording of the currency note numbers in the Panchnama, the appellant’s statement to the witnesses, and the confusion he displayed when the police questioned him about reconciling the numbers in the memo prepared for the raid with the actual notes found in his bedroom, were events that would have left a lasting impression on the witnesses. Although the examination by the Special Judge occurred roughly ten months after the incident, the Judge held that such memorable events—especially the appellant’s claim that the recovered sum of Rs 25,000 was his own and his evident bewilderment when asked for an explanation—were unlikely to be forgotten. The only suggestion raised against the credibility of the witnesses on this point was that they might not have recalled the night’s events precisely and could have made an honest mistake in narrating them. While the Judge acknowledged that an honest lapse of memory was theoretically possible, he expressed the opinion that, given the particular circumstances of the case, the events that transpired in the appellant’s bedroom and were recounted by the witnesses were not of a nature that could be easily forgotten. Consequently, the testimony that the appellant No 1 claimed the sum of Rs 25,000 as his own and was confused when questioned was deemed reliable, and the notion that the witnesses suffered a significant memory lapse was rejected.

The Court observed that the police had asked the appellant No 1 to explain the counting of the government currency notes, and it was not reasonable to conclude that the witnesses were suffering any lapse of memory in relation to that enquiry. The testimony of the two witnesses concerning the statement made by the appellant No 1 was challenged on the ground that the Additional District Magistrate, Shanti Lal Ahuja, had asked the appellant to repeat to them the same statement he had previously given to the magistrate, and that this was a mere camouflage. The Court noted that the magistrate was fully aware that the statement made by the appellant No 1 to him had not been recorded under section 164 of the Criminal Procedure Code and therefore was inadmissible as evidence. Consequently, the magistrate was said to have resorted to the device of having the appellant repeat the identical statement to the two witnesses so as to avoid the bar created by section 164.

The defence relied on the decision reported in A.I.R. 1940 Lahore 129 (Full Bench), where it was held that if, on the facts of a case, a statement made to a third person was in reality intended to be made to the police and was represented as having been made to a third person merely as a colourable pretence to evade the provisions of section 162, the court would exclude it under that section. The same ratio was argued to apply to the statements made to the two witnesses, on the basis that they were a colourable pretence designed to avoid compliance with section 164 of the Criminal Procedure Code, which the magistrate had evidently not observed.

The Court, however, remarked that every statement made to a person assisting the police during an investigation cannot automatically be treated as a statement made to the police or to the magistrate and consequently excluded under sections 162 or 164 of the Code. The question, the Court said, was one of fact and had to be determined by examining the circumstances of each case. After a careful scrutiny of the evidence of the two witnesses and the circumstances under which the appellant No 1 made the statements to them, the Court was of the opinion that the magistrate had asked the appellant to make the statements to the witnesses not with a view to circumvent the bar of section 164 or as a colourable pretence, but rather out of greater caution, particularly because the appellant occupied the position of Minister of Industries in the State of Vindhya Pradesh. Accordingly, the Court concluded that the statements made by the appellant No 1 to the two witnesses did not suffer the disability complained of and were admissible in evidence. The Court further held that the testimony of the witnesses was therefore worthy of credit.

Having held that the statements made by appellant No 1 to the two witnesses were admissible, the Court observed that there was no doubt that appellant No 1 asserted that the sum of Rs 25,000 recovered from the top drawer of the dressing-table in his bedroom was his own, constituting the balance of Rs 40,000 which he claimed to have brought from his home when he arrived in Delhi. The Court noted that the serial numbers of those government currency notes of Rs 25,000 exactly matched the serial numbers of the notes that had earlier been handed over to Nagindas during the organised raid, numbers that were also recorded in the memorandum prepared at that time. This coincidence of numbers was sufficient to disprove appellant No 1’s allegation that the money had come from his house. The Court further found that the money had been supplied by the police authorities and given to Nagindas as part of the raid, and that the notes served as the instrument of the alleged bribe or illegal gratification by appellant No 1. Because the serial numbers of the notes recovered corresponded with those that had been transferred by the police to Nagindas, the Court concluded that the notes could not have belonged to appellant No 1 and must have been brought to his residence by Nagindas, who then handed them to appellant No 1 as the prosecution alleged. A suggestion was raised that Nagindas might have had an opportunity to plant the money in the top drawer while appellant No 1’s back was turned. Even assuming such a possibility, the Court held that it was effectively negated by the fact that when the money was recovered from the drawer—whether at the instance of Nagindas, as claimed by appellant No 1, or at the instance of appellant No 1, as alleged by the prosecution—appellant No 1 did not display any surprise at the discovery. If appellant No 1’s version were correct, he had brought only about Rs 25,000 from his house; he had already spent Rs 15,000 on a car, approximately Rs 10,600 on ornaments, and was left with a balance of only about Rs 100. Under that version there was no conceivable way that a sum of Rs 25,000 could be found in the top drawer. Instead of expressing surprise, appellant No 1 claimed the money as his own. The Court observed that appellant No 1 could not, by any chance, have failed to recognise that the recovered government notes far exceeded the balance he said he had left, and that the most natural reaction would have been to deny ownership and express astonishment.

In this case the Court observed that a person who discovered such a large amount of money would normally deny ownership of the cash and would show surprise at its presence. The appellant did not display any sign of surprise. Rather, the Court accepted the testimony of the two witnesses, Gadkari and Perulakar, as believable. According to those witnesses the appellant identified the sum of twenty-five thousand rupees as his own, stating that it represented the balance of the money he had brought from his home when he arrived in Delhi. The Court found that this admission was sufficient to prove that the cash, which had earlier been handed over by the police authorities to Nagindas, had ended up in the top drawer of the appellant’s bedroom dressing table. The Court held that the cash constituted the primary evidence of an offence under section 161 of the Indian Penal Code committed by the appellant. When the police authorities asked the appellant to account for the number of notes, he appeared confused and could not provide any satisfactory explanation. That inability, together with the other circumstances, reinforced the Court’s conclusion that the appellant was guilty of the offence punishable under section 161, for which he had been charged.

The Court also expressed strong disapproval of the role played by the police authorities and by Shanti Lal Ahuja, the Additional District Magistrate, in the matter. The Court noted that, as previously observed, the offence would not have occurred but for the assistance that the police gave to Nagindas. The evidence showed that Sir Chinubhai was not in a position to supply Nagindas with the sum of twenty-five thousand rupees; even after Nagindas made telephone calls to him, Sir Chinubhai had provided only three thousand rupees, intended for other expenses. Consequently, Nagindas lacked the means to furnish the amount required for a bribe or illegal gratification to the appellant. Without the unexpected help of the police, the matter would have stopped and Nagindas would have left Delhi empty-handed. When the police became aware of Nagindas’s intention, they considered it an opportunity to trap the appellant, who held the portfolio of Minister of Industries in the State of Vindhya Pradesh. The police therefore supplied the full sum of twenty-five thousand rupees themselves and handed it to Nagindas, demonstrating a level of enthusiasm that exceeded that of Nagindas himself.

In this case the Court observed that the police had taken an active role in trapping the appellant No. 1. While it is sometimes necessary to lay traps in order to detect corruption, the Court emphasized that the police have no justification for inducing the giving of a bribe by supplying the bribe money to the person who is supposed to pay it, especially when that person neither possesses the money nor has the means to obtain it on his own. The Court reiterated that the primary duty of the police is to prevent offences, not to supply the instruments of the offence. Accordingly, the Court could not approve of the step taken by the police in providing the sum of Rs. 25,000 to Nagindas; without that assistance Nagindas would never have been able to bring the entire scheme to its conclusion.

The Court further noted that the police did more than merely assist Nagindas. By handing over the money they became active participants in the entrapment of appellant No. 1 and also furnished what appeared to be an independent witness in the person of Shanti Lal Ahuja, the Additional District Magistrate. Although he belonged to the judiciary, the magistrate allowed his services to be used by the police and effectively became an extension of the police force. The Court said that the role played by Shanti Lal Ahuja in this matter could not be condemned strongly enough.

To support this view, the Court quoted the observations of the Privy Council in A.I.R. 1936 Privy Council 253 at page 258, which warned against magistrates placing themselves in situations where they must appear as ordinary citizens in the witness box. The Privy Council observed: “In their Lordships’ view it would be particularly unfortunate if magistrates were asked at all generally to act rather as police officers under section 162 of the Code; and to be at the same time freed, notwithstanding their position as magistrates, from any obligation to make records under section 164. In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever.”

The Court also cited the judgment of Mr. Justice P. B. Mukharji in A.I.R. 1951 Calcutta 524 at page 528, where the learned judge expressed strong disapproval of the growing practice of sending magistrates to act as witnesses to police traps. Justice Mukharji said: “Before I conclude I wish to express this Court’s great disapprobation of the practice that seems to have become very frequent of sending magistrates as witnesses of police traps. The magistrate is made to go under disguise to witness the trap laid by the police. In this case it was the Presidency Magistrate and in other cases which have come to our notice there have been other magistrates who became such witnesses. To make the magistrate a party or a limb of the police during the police investigation seriously undermines the independence of the magistrates and perverts their judicial outlook. The magistrates are the …”

The Court observed that magistrates are the ordinary custodians of the general administration of criminal justice and that they ordinarily decide and pass judgments on the acts and conduct of the police. The Court held that it is insufficient to argue that a magistrate who acts as a witness in a particular case does not himself try that case. The practice of employing magistrates as witnesses is especially indefensible where there is no clear separation between the executive and the judiciary. According to the Court, the fundamental merit of the criminal-justice system in the State rests on the principle that a person arrested by the police must appear before an independent and impartial magistrate who is expected to deal with the case without becoming a partisan or a witness to police activities. The Court warned that magistrates placed in the embarrassing position of first giving evidence as witnesses and then being required to evaluate that same evidence risk being disbelieved, a situation that does not secure respect for the magistracy entrusted with the administration of justice. The Court described the practice as unfair to the accused, unfair to the magistrates themselves, and also unfair to the police, because the police, charged with a vital public service, cannot bear the risk of even unfounded opprobrium that they have enlisted a magistrate in their cause. The Court characterized that risk as too great, stating that it would forfeit public respect and confidence. The Court fully endorsed the observations made by Justice P. B. Mukharji, expressing hope that magistrates will not be employed by police authorities in the manner adopted by the Special Police Establishment in the present case. The Court stressed that the independence of the judiciary is a priceless treasure that must be cherished and safeguarded against predatory activities of this character, and that public confidence in judicial independence must not be undermined by any such tactics adopted by the executive authorities.

Consequently, the Court eliminated from consideration the entire testimony of Shanti Lal Ahuja, the Additional District Magistrate, and based its determination on the testimony of the two independent witnesses, Gadkari and Perulakar. Relying solely on that evidence, the Court concluded that the guilt of appellant No. 1 was established. Accordingly, the appeal of appellant No. 1 was dismissed, except with respect to his conviction and sentence under section 120-B of the Indian Penal Code, and the convictions and sentences imposed by the Judicial Commissioner under sections 465, 466 and also section 161 of the Indian Penal Code were confirmed. By contrast, the appeal of appellant No. 2 was allowed; the Court ordered that he be acquitted, discharged of all charges, and released immediately. The bail bond of appellant No. 2 was cancelled.