# RAO SHIV BAHADUR SINGH AND ANOTHER March5 v. THE STATE OF VINDHYA PRADESH

- **Citation:** [1954] 1 S.C.R. 1098
- **Court:** Supreme Court of India
- **Decided:** 1951-03-10
- **Case number:** Criminal Appeal No. 7 of 1951
- **Bench:** Bhagwati, Jagannadhadas, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rao-shiv-bahadur-singh-and-another-march5-v-the-state-of-vindhya-pradesh-244
- **Pages:** 20

## Headnote

Code of Criminal Proced11re (Act V of 1898), s. 164-Magistrate
not recording statement of accused as required by the section-Whether competent to give oral evidence of such statement--Disapproval
of the action of Police in entrapping the accused and providing the
bribe-giver the instruments of offence.
After the investigation into an offence has been started on the
registration of the
First
Information Report by the Police, no
statement n1ade ~y the accused to the Magistrate can be proved unless
the statement has been recorded in accordance with the provisions
of s. 164 of the
Code of Criminal
Procedure
and therefore, it
the non-confessional state1nent
has not
been recorded
by the.
Magistrate in the
manner
indicated in s.
164,
the
Magistrate would not be competent to give oral evidence of such statement having been made by the accused.
Nazir Ahmad v. King Emperor (A.LR. 1936 P. C. 253), Legal
Remembrancer v. Lalit Mohan Singh Roy (I.L.R. 49 Cal. 167),
Abdul Rahim and Others v. Emperor (26 Cr. L. J. 1279) and Karu
Mansukh Gond v. Emperor (A.LR. 1937 Nag. 254) referred to.
The conduct of the Police and the Additional District Magistrate in actively instigating the accused to commit
the
offence
of which he was
charged by
furnishing him
with the necessary
materials (without which he could not have committed the offence),
for the purpose of trapping him, was strongly disapproved.
It is the duty of the police to prevent the crimes
being
committed.
It is no part of their duty to provide the instruments
of the offence.
The observations of Mr. Justice P. B. Mukherji in the case
of M. C. Mitra v. The State (A.LR. 1951 Cal. 524 at p. 528) condemning the practice of sending Magistrates as witnesses
of Police
trap endorsed because such practice makes a
Magistrate a party
or a limb of the Police during police investigation and undermines
seriously the independence of the Magistrates
and perverts
their
judicial outlook.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 7 of 1951.
Appeal under article 134(1)(c) of the Constitution
of India from the Judgment and Order dated the 10th
March, 1951, of the Judicial Commissioner, Vmdhya
S.C.R.
SUPREME COURT REPORTS
1099
Pradesh,
Rewa
in Criminal
Appeal No. 81 of 1950
arising out of the
Judgment and Order dated the 26th
July, 1950, of the Court of the Special Judge, Rewa,
in
Criminal Case No. 1 of 1949.
Jai Gopal Sethi (K. B. Asthana, with
him) for
appellant No. 1.
S.
C. Isaacs
(Murtza Faz! Ali, with him)
for
appellant No. 2.
Porus A. Mehta for the respondent.
1954. March 5.
The Judgment of the
Court was
delivered by
BHAGWATI J.-The appellant No. I was the Minister
of Industries and the appellant No. 2 was the Secretary to the Government of the
Commerce and Industries
Department of the
State of Vindhya
Pradesh.
The appellant No. 1 was
charged
with having committed offences under sections 120-B, 161, 465
and 466
of the Indian
Penal Code and the appellant
No. 2
under sections 120-B and 161 of the Indian Penal Code
as adopted by the Vindhya Pradesh Ordinance No. 48
of 1949. They were tried in the
Court of the Special
Judge at Rewa under the
Vindhya
Pradesh Criminal
Law Amendment
(Special
Courts) Ordinance No. LVI
of 1949 and the Special Judge acquitted
both
of them.
The State of Vindhya Pradesh took an appeal
to
the
Court of the
Judicial
Commissioner,
Rewa.
The
Judicial Commissioner reversed the
order of acquittal
passed by the
Special Judge and convicted
both
the
appellants
of the several
offences
with
which
they
were charged.
The Judicial
Commissioner awarded to
the
appellant No. 1 a sentence of
3 years
rigorous
imprisonment and a fine of Rs. 2,000 in default rigorous imprisonment of 9 months under
section 120-B
of the
Indian
Penal
Code and a sentence
of three
years' rigorous imprisonment
under
section 161 of the
Indian Penal Code, both the sentences
to run concurrently.
He imposed no sentence upon the
appellant
No. 1 under sections 465 and 466 of · the
Indian Penal
Code.
He awarded to the appel

## Text

_Characters 0–39,477 of 45,217. This is a partial read: ask again with offset=39477 for what follows._

1098
SUPREME COURT REPORTS
[1954]
1954
RAO SHIV BAHADUR SINGH AND ANOTHER
March5.
v.
THE STATE OF VINDHYA PRADESH.
[BHAGWATI, JAGANNADHADAS
and VENKATARAMA
AYYAR JJ.]
Code of Criminal Proced11re (Act V of 1898), s. 164-Magistrate
not recording statement of accused as required by the section-Whether competent to give oral evidence of such statement--Disapproval
of the action of Police in entrapping the accused and providing the
bribe-giver the instruments of offence.
After the investigation into an offence has been started on the
registration of the
First
Information Report by the Police, no
statement n1ade ~y the accused to the Magistrate can be proved unless
the statement has been recorded in accordance with the provisions
of s. 164 of the
Code of Criminal
Procedure
and therefore, it
the non-confessional state1nent
has not
been recorded
by the.
Magistrate in the
manner
indicated in s.
164,
the
Magistrate would not be competent to give oral evidence of such statement having been made by the accused.
Nazir Ahmad v. King Emperor (A.LR. 1936 P. C. 253), Legal
Remembrancer v. Lalit Mohan Singh Roy (I.L.R. 49 Cal. 167),
Abdul Rahim and Others v. Emperor (26 Cr. L. J. 1279) and Karu
Mansukh Gond v. Emperor (A.LR. 1937 Nag. 254) referred to.
The conduct of the Police and the Additional District Magistrate in actively instigating the accused to commit
the
offence
of which he was
charged by
furnishing him
with the necessary
materials (without which he could not have committed the offence),
for the purpose of trapping him, was strongly disapproved.
It is the duty of the police to prevent the crimes
being
committed.
It is no part of their duty to provide the instruments
of the offence.
The observations of Mr. Justice P. B. Mukherji in the case
of M. C. Mitra v. The State (A.LR. 1951 Cal. 524 at p. 528) condemning the practice of sending Magistrates as witnesses
of Police
trap endorsed because such practice makes a
Magistrate a party
or a limb of the Police during police investigation and undermines
seriously the independence of the Magistrates
and perverts
their
judicial outlook.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 7 of 1951.
Appeal under article 134(1)(c) of the Constitution
of India from the Judgment and Order dated the 10th
March, 1951, of the Judicial Commissioner, Vmdhya
S.C.R.
SUPREME COURT REPORTS
1099
Pradesh,
Rewa
in Criminal
Appeal No. 81 of 1950
arising out of the
Judgment and Order dated the 26th
July, 1950, of the Court of the Special Judge, Rewa,
in
Criminal Case No. 1 of 1949.
Jai Gopal Sethi (K. B. Asthana, with
him) for
appellant No. 1.
S.
C. Isaacs
(Murtza Faz! Ali, with him)
for
appellant No. 2.
Porus A. Mehta for the respondent.
1954. March 5.
The Judgment of the
Court was
delivered by
BHAGWATI J.-The appellant No. I was the Minister
of Industries and the appellant No. 2 was the Secretary to the Government of the
Commerce and Industries
Department of the
State of Vindhya
Pradesh.
The appellant No. 1 was
charged
with having committed offences under sections 120-B, 161, 465
and 466
of the Indian
Penal Code and the appellant
No. 2
under sections 120-B and 161 of the Indian Penal Code
as adopted by the Vindhya Pradesh Ordinance No. 48
of 1949. They were tried in the
Court of the Special
Judge at Rewa under the
Vindhya
Pradesh Criminal
Law Amendment
(Special
Courts) Ordinance No. LVI
of 1949 and the Special Judge acquitted
both
of them.
The State of Vindhya Pradesh took an appeal
to
the
Court of the
Judicial
Commissioner,
Rewa.
The
Judicial Commissioner reversed the
order of acquittal
passed by the
Special Judge and convicted
both
the
appellants
of the several
offences
with
which
they
were charged.
The Judicial
Commissioner awarded to
the
appellant No. 1 a sentence of
3 years
rigorous
imprisonment and a fine of Rs. 2,000 in default rigorous imprisonment of 9 months under
section 120-B
of the
Indian
Penal
Code and a sentence
of three
years' rigorous imprisonment
under
section 161 of the
Indian Penal Code, both the sentences
to run concurrently.
He imposed no sentence upon the
appellant
No. 1 under sections 465 and 466 of · the
Indian Penal
Code.
He awarded to the appellant
No. 2 a sentence
of rigorous imprisonment
for one year and a fine
of
Rs. 1,000 and in default
ngorous
imprisonment
for
1954
Rao Shiv Bahadur
Singh and
Another
v.
The Slate of
V indhya Pradesh.
Bhagwati].
1954
Rao Shiv Bahadut
Singh af'ld
Anothlr
Vo
The State of
Vindhya Pradesh.
Bhagwati],
llOO
SUPREME COURT REPORTS
[1954}
nine months under section 120-B of the Indian Penal
Code.
He did not award
any separate sentence
to
appellant No. 2 under section 161 of the
Indian Penal
Code.
On an application made to the Judicial
Commissioner, Rew a, for leave to appeal to the Supreme
Court the
Judicial
Commissioner granted
the
appellants leave to appeal under article 134( l) ( c) of the
Constitution in regard to the four points of law raised
in the case before him.
The constitutional points involved
in the appeal
came up for hearing before the
Constitution
Bench of
this court and were dealt
with by the
Judgment
of
this court delivered on the 22nd May, 1953. The Constitution Bench held
that the appeal to the
Judicial
Commissioner from the acquittal by the
Special
Judge
was competent and that there was no infringement
of
the fundamental rights of the appellants under articles
14 and 20 of the Constitution (Vide [1953] S.C.R. ll88).
The appeal was accordingly directed
to be posted
for
consideration whether it was to be heard on the merits.
An application was thereafter
made by the
appellants
to this court for leave to urge additional
grounds
and
this court on the 20th
October, 1953, made
an
order
that the appeal should be heard on merits.
The appeal
has accordingly come up for hearing
and final disposal
before us.
The case for the prosecution was as follows.
By an
agreement executed on the 1st
August, 1936,
between
the
Panna Durbar of the one
part and the Panna
Diamond
Mining Syndicate represented by Sir
Chinubhai Madholal and Hiralal Motilal
Shah
of the other
part, the
Panna
Durbar granted to the syndicate
a
lease to
carry on dian10nd
mining operations
for a
period of 15 years. The period of the lease
was to
expire on the 30th October, 1951, but
there was an
option reserved to the lessee to have a renewal
of the
lease for a further period of 15 years
from
the date
of such expiration.
There were disputes
between
the
syndicate on the one hand and the
Panna Durbar on
the other and by
his order dated the 31st
October,
1946, the
Political
Minister
of
Panna stopped
the
mining operations
of the
syndicate.
The
State
of
S.C.R.
SUPREME COURT REPORTS
1101
Panna became integrated
in the
Unit
of
Vindhya
Pradesh in July, 1948,
and the
administration
of
Panna came under the control and superintendence
of
the
Government of
Vindhya
Pradesh with its seat at
Rewa under His Highness the Maharaja of Rewa as
Rajpramukh
and the appellant
No. 1 became
the
Minister in charge of the Industries Department in the
Cabinet which was formed by the
Rajpramukh. The
appellant No. 2 held the post of Secretary, Commerce
and Industries Department, and was working under the
appellant No. I.
On the 1st
September,
1948,
the
syndicate appointed one Pannalal as Field Manager to
get the said order
of the
Panna Durbar stopping the
working
of
the
mines rescinded.
Pannalal
made
several applications
for procuring
the
cancellation
of
the said order and on the 13th January, 1949, and the
26th January, 1949,
Pannalal
made two
applications
and handed them over
personally
to
the
appellant
No. 1 requesting
for the resumption of the
mining
operations and was asked to come in February for the
purpose.
The appellant No. 1 consulted
the
legal
advisers of the
State and a questio11naire
was framed
which was to be addressed
to the syndicate
for its
answers.
When Pannalal went to Rewa the questionnaire
was handed over to him on the
9th February,
1949, for being sent to Sir
Chinubhai.
Sir
Chinubhai
sent the replies to the said questionnare
along with a
covering letter dated the 18th
February, 1949,
wherein he expressed a desire to meet the appellant
No. I
for personal discussion in regard to the settlement
of
the matter of the resumption of the mining operations
etc.
In reply to the telegrams sent
by Sir
Chinubhai
on the 19th February, 1949, the Personal Assistant to
appellant No. 1 intimated to Sir Chinubhai
that
he
could go to Rewa and see the appellant No. 1 on the 7th
March, 1949.
As Sir
Chinubhai was ill he deputed hls
Personal Assistant, Nagindas
Mehta
to go to
Rewa
and see the appellant No. 1 on
his behalf.
Nagindas
arrived at
Rewa on the evening of the 6th March.
1949.
The appellant No. 1 had gone out of Rewa and
Nagindas had to wait.
He saw the appellant
No. I
on the morning of the 8th March, 1949, but was asked
1954
Rao Shiv Bahadur
Singh and
Another
v.
The Stale qf
Vindhya Prad11Jh.
Bhagwati].
1954
Rao Shiv Bahadur
Singh and
Anothtr
v.
The State of
f indhya Pradesh.
BhagwatiJ.
1102
SUPREME COURT REPORTS
[19541
to see the appellant No. 2.
The appellant No. 2 saw
Nagindas at the Guest House ~here he had put up ~nd
informed
Nagindas that
a third
party was offenng
Rs.
50,000
for
the
mmmg
rights.
Nagindas
told
the
appellant
No. 2 that
the syndicate
was
a limited concern and
could
not afford to
pav
so
much
money
but
if
the
amount
was
reduced they would make an effort to pay
the sum.
The appellant No. 2 then told Nagindas that
he would
talk over the matter with the appellant No. 1 and
let
him know.
The same day in the afternoon
the appellant No. 2 saw Nagindas at the Guest House and informed him that as the syndicate was working for the
last so many years the appellant
No. 1 was
prepared
to reduce the amount to
about
Rs. 25,000.
Nagindas
told the appellant No. 2 that he would talk over the
matter with Sir Chinubhai
in
Bombay and would let
him know about it.
Nagindas then left for
Bombav
but he reached
Bombay on the
29th
March,
1949.
having been detained on the way for
some
other business of his. He saw Sir Chinubhai in Bombay and
reported to him what had happened at
Rewa and gave
him to understand that resumption
orders
would not
be passed unless a bribe of Rs. 25,000
was paid.
Sir
Chinubhai did not approve of the idea of giving a bribe
and suggested that Nagindas
should
lay a trap for
catching the appellant No. 1. Nagindas sent a telegram
on the 29th March, 1949, agreeing to go to Rewa in
the week thereafter for completion.
On receipt of that
telegram the appellant No. 2 in the absence
of appellant No. 1 who was on tour sent a telegram on the 1st
April, 1949, to Sir Chinubhai pressing him to come the
same week as his presence was essential
to
complete
the matter which had been already
delayed.
On the
4th April,
1949, Pannalal was informed by the appellant No. 2 that the appellant · No. 1 was leaving
for
Delhi that day and that he should go to Bombay and
send Sir Chinubhai to Delhi to meet
the appellant
No. 1 in the Constitution House where he would be
staying.
He also gave a letter to
Pannalal to the same
effect. Appellant No. 1 left for Delhi on the 4th April,
1949, with the files of the Panna Diamond Mining
S.C.R.
SUPREME COURT REPORTS
1103
Syndicate and reached Delhi on the 5th April, 1949. On
the 6th April, 1949, the appellant No. 1 sent a telegram
through his Personal Assistant Mukherji to Sir Chinubhai at Bombay asking him to meet the appellant No. 1
-0n the 7th, 8th or 9th April, 1949, at 31
Constitution
House for final talks
regarding the
Panna
Diamond
Mining Syndicate.
On receipt
of the said telegram Sir
Chinubhai sent a telegram
in reply
stating
that
his
Personal
Assistant, Nagindas and Pannalal were reaching Delhi on the 9th
April, 1949.
Nagindas
reached
Delhi on the 8th April, 1949, and put up at the Maidens
Hotel and
Pannalal reached Delhi on the
10th April,
1949, and put up at the Regal Hotel. On the 9th April,
1949, Nagindas informed the appellant No. 1 on the
telephone
about his arrival at Delhi and an
appointment was fixed for 10-30 a.m. on the 10th April, 1949.
Nagindas contacted
Shri Bambawala,
the
InspectorGeneral of Police of the Special
Police
Establishment
-0n the morning of the
10th April, 1949, before coming
to meet the appellant No. 1 and told
him how
the
appellant No. 1 was coercing him to pay a bribe. Shri
Bambawala
referred
Nagindas
to
Pandit
Dhanraj,
Superintendent,
Special
Police
Establishment,
and
Nagindas
told him the whole story of his harassment
by the appellant No. 1 and it was then decided to lay
a trap for appellant No. 1.
Nagindas informed Pandit
Dhanraj that he would meet the
appellant
No. 1 at
about 11 a.m. and then report their talk to him in the
afternoon.
Nagindas then saw the
appellant
No. 1
at the
Constitution House at the appointed
time and
at this meeting the appellant
No. 1 demanded
from
Nagindas a sum of Rs. 25,000 as a bribe for allowing the
resumption of the mining operations and made it quite
dear that he would not accept anything less
than
Rs. 25,000. As Nagindas had not received the moneys
from Bombay, the
following day, i.e., the 11th
April,
1949, at 3 p.m. was fixed for the next meeting. Nagin-
,das thereafter informed Pandit Dhanraj as to what had
taken place at the aforesaid meeting between
him and
the appellant No. 1.
Nagindas went to the
Constitution House and saw the appellant
No. 1
at
about
3 p.m. on the 11th April, 1949. Pannalal was already
1954
Rao Shiv Bahadu1
Singh and
Anotf.er
V•
The State ef
V indhya Pradesh.
BhagwatiJ.
1954
Rao Shiv Bahadur
Singh anrl
Another
v.
T lu State oj'
Vindhya Pradesh.
BhagwatiJ.
1104
SUPREME COURT REPORTS
[1954J
there.
Nagindas and the appellant No. 1 went into
the bedroom where Nagindas requested
the appellant
No. I to extend the period of the lease for
10 years so
that the syndicate might be
compensated
for the loss
sustained
by the stoppage of the
mining
operations ..
The appellant No. I thereupon asked Nagindas to submit a written application in
Hindi
and as
Nagindas
did not know it he called Pannalal into the
bedroom
and asked him to write out an application to that effect.
The appellant No. I after making sure
from
Pannalal
that Pannalal was present at
R_ewa
on the
1st
April,
1949, asked Pannalal to put the date on the said application as the 1st
April, 1949.
The appellant
No. I
made an endorsement at the foot of the said
application and dated it as of the
1st
April, 1949.
It waSc
arranged that
Nagindas should see the appellant No. I
at
9 p.m.
that
day,
that
Nagindas
should
pav
Rs. 25,000 to the appellant No. I at that
time and the
appellant No. 1 would deliver the
resumption
order
to Nagindas on payment of the said sum of Rs. 25,000.
Nagindas then left the Constitution House and reported to Pandit
Dhanraj
what had
transpired
between
him and appellant No. I.
He further
told
Pandit
Dhanraj that he had not received any
moneys
upto
that time.
Pannalal was asked to
proceed
to
the
Constitution
House in advance and inform
the
appellant No. 1 that Nagindas would be coming along at
9 p.m. that night.
Nagindas and Pandit Dhanraj then
proceeded to the house of
Shri
Shanti
Lal
Ahuja,
Additional District Magistrate. Pandit Dhanraj made
arrangements for a raiding
party.
Nagindas's
statement was recorded on oath and a search of his person
was made and he was then given three bundles containing 250 Government currency notes of Rs. 100 and a
memorandum of the same was also prepared.
After
these formalities
were gone
through Pandit Dhanraj,
Nagindas and the Additional District
Magistrate along
with the police party left for the
Constitution
House.
It was arranged that Pannalal should be sent
out
by
Nagindas after the completion of the transaction, on
some pretext
or other to the taxi
waiting outside
and
that this would serve
as a signal
for the raiding party
S.C.R.
SUPREME COURT REPORTS
1105
which would rush into the room
No. 31
Constitution
House which was occupied by the appellant
No.
1.
Nagindas then went inside the suit of rooms occupied
by the appellant
No. 1
and the
appellant No. 1
took him to his bedroom
and closed the door
which
connected the bedroom with the sitting
room
where
Pannalal was already waiting.
After this
the
appellant No.
1 handed
over the
resumption
order to
Nagindas and on reading
the
same
Nagindas found
that
the extension given was only for 4 years
and he
asked the appellant No. 1 why this was so
when the
appellant No. 1 had promised
before to give an extension for 10 years.
On this the appellant No. 1 told
Nagindas that he should put up another
application
after a few months and then the appellant No. 1 would
extend the period.
Appellant
No. 1 then signed
the
resumption order and put down the date
thereunder
as the 2nd
April, 1949.
As .soon as the signed
order
was handed over to him
Nagindas
handed
over to
the appellant No. 1 the Government currency notes of
the value of Rs. 25,000 which had been given to him
previously
by
the
Additional
District
Magistrate.
Nagindas
then asked for
an extra
copy of the said
order and the same was accordingly given to him after
being dated and initialled by the appellant No.
1. The
appellant No. 1 took the Government currency notes
and put them in the upper drawer
of the dressing
table in the bedroom.
After the transaction
was thus
completed Nagindas shouted to Pannalal to go to the
taxi and bring his cigarette case.
Pannalal
went
out
to the taxi and on receipt of this signal the Additional
District
Magistrate
and Pandit
Dhanraj
rushed
into the sitting room along with the other members of
the raiding party. The appellant
No. 1 met the raiding party at the communicating door between
the two
rooms.
After the Additional District Magistrate and
Pandit
Dhanraj had disclosed their identity
appellant
No. 1 was asked by Pandit Dhanraj whether he had
received any money as a bribe to
which the
appellant No. 1 rep,lie<l in the negative.
Pandit
Dhanrai
then told
appellant No. 1 that he should produce
the
money which he had received, otherwise he would
be
1954
Rao Shiv Bahadur
Singh and
Anothtr
v.
The State of
V indhya Pradesh~
BhagwatiJ ..
1954
.R.ao Shiv Bahadur
Singh and
Another
v ..
The S1ate af
V indhya Pradesh.
BhagwatiJ.
1106
SUPREME COURT REPORTS
[1954]
forced to search the room.
On this appellant
No. 1
went to the said dressing table, opened
the top drawer
and brought
out the three
bundles
of
Government
currency notes given to him by
Nagindas and handed
them over to Pandit
Dhanraj.
On inquiry
by
the
Additional District Magistrate as to how he had come
into possession of the said notes, the
appellant
No. 1
stated that he had brought Rs. 40,000 from his
home
out of which Rs. 15,000 had been spent by him in the
purchase of a motor car and the remaining sum was
with him which was required by him to purchase some
ornaments in connection
with
the marriage
of his
daughter.
In the meanwhile two respectable witnesses,
Shri Gadkari, who was a member of the
Central
Electricity Authority,
Ministry of Works, Mines and Power,
Government of India, and Shri
Perulakar,
who was
the
Minister for
Agriculture and
Labour,
Madhya
Bharat, were brought to the bedroom of the appellant
No. 1 by the police.
The appellant No. 1 repeated the
said statement
and gave the same explanation
before
these two witnesses which he
had
given
and made
before the
Additional District
Magistrate
and Pandit
Dhanraj a little
while before.
Nagindas
was
then
searched in the presence of these two witnesses
and
the two copies
of the order
which had
been given to
him by appellant No. 1 were recovered from his person.
Two other copies of the said order and the application
and the file of the Panna Diamond Mining Syndicate
were recovered from the search of the upper
drawer
of the dressing table in the bedroom of appellant No. 1.
Appellant No. 1 also produced a receipt in support of
his story of the
purchase
of
the car.
The
relevant
memos of the search were prepared and also a list of
the numbers of the
Government currency
notes
of
Rs. 25,000 which had been produced by the appellant
No. 1. This list was compared and checked
by the said
witnesses
Gadkari and Perulakar with the numbers of
notes and also with those appearing in the list which
was in the possession of the Additional District Magistrate and which was shown to the said witnesses. They
found that the numbers in the said two lists tallied in all
respects. After the completion of the list the Additional
S.C.R.
SUPREME COURT REPORTS
1107
District
Magistrate
confronted
appellant
No.
1
with the documents which were
produced
before him
by
Naginuas antl also the list
of notes and
asked
appellant No. 1 if he had any explanation to
offer.
The appellant No. 1 was confused and could
give
no
explanation.
On further enquiry whether
the appellant No. 1 had any other money with
him, he
opened
an iron confiuential box a key of which was
in his
possession and brought out a sum of
Rs. 132
which
was not taken charge of as the same had no concern
with the case. Thereafter appellant No. 1 was put under
arrest and was subsequently
released on bail.
*
*
*
*
After these documents were forged the next important event was the passing of the sum of
Rs. 25,000 as
and by way of bribe or illegal gratification by Nagindas
to the appellant No. 1.
Here also it would have
been
difficult for the prosecution to establish the guilt of the
appellant No.
1 if the matter had rested
merely on
the evidence of Naginuas or that of the police witnesses supported as they were
by
Shanti Lal Ahuja, the
Additional
District
Magistrate.
Nagindas's
evidence
suffering from the infirmity
pointed out
before
could
not be enough to carry conviction with the court. He
was out to trap the
appellant
No. 1 and had
been
clever enough also to have inveigled the police authorities to procure the wherewithal of the bribe
for him.
It is patent
that but for the
procurement
of
these
Rs. 25,000 by the police authorities and their banding
over the sum to Nagindas, Nagindas would not have had
the requisite amount with him and the offence under
section 161 would never have
been committ<;d.
The
police
authorities also exhibited an excessive zeal in
the matter of bringing the appellant
No. 1 to
book
and their enthusiasm
in the matter of trapping
the
appellant No. 1 was on a par with
that of
Nagindas
and both the parties were thus equally to blame in the
matter of entrapping the appellant
No. 1.
The evidence of these witnesses therefore was not such as to
inspire
confidence in the mind of the court.
Shanti
Lal Ahuja, the
Additional
District
Magistrate,
also
lent himself to the
police
authorities
and became
1954
Rao Shiv Bahadur
Singh and
Another
v.
The State of
Vindh)'a Pradesh~
Bhagwati].
1954
Rao Shiv Bahadur
Singh and
Another
v.
The State of
Vindhya Pradesh.
Bhagwati].
1108
SUPREME COURT REPORTS
[1954]
almost a limb of the police.
His position as the
Additional
District Magistrate was submerged and he reduced himself to the position of an
ordinary witness taking part in the affair as a member of the raiding party
and his evidence could be no better or no worse
than
that
of the police
witnesses
themselves.
If therefore
the matter had rested
merely
upon their evidence it
would have been difficult to carry the guilt home to
the appellant No. 1.
The evidence as to the recovery
of this sum of Rs. 25,000 from the top
drawer
of the
dressing table in the bedroom of the appellant No. 1
and also in regard to the handing over of that sum by
the appellant
No. 1 to
Shanti
Lal Ahuja, the Additional District Magistrate, was equally tainted and
if
that evidence stood
by itself no court would have
been
safe in acting upon the same.
The statement
which
was made by the appellant No. 1 to Shanti Lal Ahuja,
the Additional District Magistrate, was inadmissible in
evidence.
Section 162 of the
Criminal Procedure Code
rendered the statement made by the appellant No. 1
to the police officers inadmissible. The investigation into
the offence
had already started
immediately
on the
First Information
Report being registered by the police
authorities and Pandit
Dhanraj himself admitted in his
evidence that the investigation into
the
offence had
thus started before the raid actually
took place.
The
statement made by the appellant No. 1 to Shanti Lal
Ahuja, the Additional District Magistrate was
therefore
made after the investigation had started and during the
investigation of the offence and
was therefore hit by
section 164 of the Criminal Procedure Code.
It was
urged on behalf of the respondent that this statement
was not a confessional statement
and was therefore
not hit by section 164 and Shanti Lal Ahuja, the Additional District Magistrate, could therefore
depose
to
such statement even though the same was not recorded as required by the provisions of section 164 of the
Criminal
Procedure Code.
There is authority however
for the
propos1t10n
that once the investigation
had
started any
non-confessional statement made by the
accused also required
to
be recorded
in the manner
indicated
in that section
and if no such record had
.
S.C.R.
SUPREME COURT REPORTS
1109
been made by the Magistrate,
the
Magistrate
would
not be competent to give oral evidence of such statement having been
made by the accused.
(See A.LR.
1936 Privy Council 253
and Indian Law Reports 49
Calcutta 167 followed in 26 Criminal Law Journal 1279
and A.LR. 1937 Nagpur 254).
The
statement
made
by the appellant No. 1 therefore to Shanti Lal Ahuja,
the Additional
District Magistrate,
not having been
recorded by him in accordance with
the
provisions of
section 164 was
inadmissible
in evidence
and
could
not be proved orally by him.
If therefore
the
statement was
thus
eliminated
from evidence
nothing
remained so far as the witnesses
Nagindas and Pannalal on the one hand and the police
witnesses
as well
a.s Shanti Lal Ahuja, the Additional District Magistrate, on the other hand were concerned which could
bring the guilt home to the appellant No. 1.
Reliance was therefore placed by the . prosecution
on the evidence of
Gadkari
and
Perulakar.
They
occupied responsible positions in life and were absolutely independent witnesses.
Two criticisms
were levelled against their evidence by the Special Judge. The one
criticism was that contrary to the evidence of
Pandit
Dhanraj they asserted
that
their statements
were not
recorded on the night of the 11th April, 1949. Pandit
Dhanraj had re.corded
their statements after they had
left the bedroom
of
the appellant
No. 1
at the
Constitution House relying upon his
memory
of the
events that had happened that night. These statements
however were not read over to them and therefore could
not have the value which otherwise they would have had.
The other criticism was that
they had appended
their
signatures to the
Panchanama of the numbers
of the
currency notes recovered at that time which Panchnama
contained the statement that on being asked the appellant No. 1 had produced the bundles of currency notes
from the top drawer of the dressing table.
This statement was not factually correct as both
these
witnesses
were brought into the bedroom of the appellant
No. 1
after the recovery of the
Government currency notes
by the police
from the appellant No. 1.
It was cer-
}\
tainly indiscreet
on their part not to have scrutinised
• >
1954
Rao Shiv Bahadur
Singh and
Another
v.
T1" Stateof
Vindhya Pradesh.
Bhagwati].
1954
Rao Shiv Bahadur
Singh and
Another
v.
The State of
Vindhya Pradesh.
BhagwatiJ.
1110
SUPREME COURT REPORTS
[1954]
the contents of the
Panchnama before
they appended
their signatures thereto. That is however a far cry
from coming to the conclusion that they acted m a
highly irresponsible
manner and their
testimony
was
unreliable.
The circumstances
under which the numbers of the
currency notes
were
recorded
m
the
Panchnama,
the
statement
made
by
the
appellant
No. 1 to them and the confusion into which the app<"llant No. 1 fell when he was questioned by the police
authorities
on the tallying of the numbers contained
in the memo prepared
when
the raid was organised
with the numbers of the currency notes actually
found
in the bedroom of the appellant No. 1 were
events
which would indelibly print themselves in the memory
of these witnesses and even though they were examined in the
Court of the Special Judge about 10 months
after the occurrence, these events and particularly
the
fact that the appellant No. 1 claimed
these
moneys
which were thus recovered as his own would certainly
not be in any manner whatever forgotten
by
them.
The only suggestion which was made against the credibility of these witnesses
on this point was th::it
they
must not have exactly remembered what transpired
on
that night in the bedroom of the appellant No. 1 and
that they
might have committed an honest
mistake
when narrating the events that had happened
on that
night.
An honest lapse
of memory would no doubt
be a possibility but having regard to the circumstances
of the case we are of the opinion that the events
that
happened that night in the bedroom of the appellant
No. 1 and which were deposed to by these
witnesses
were not such as to be easily forgotten
by them and
when these witnesses
deposed to the fact
that
the
appellant No. 1 claimed this sum of Rs. 25,000 as his
own and was utterly confused
when explanation
was
sought from him by the police authorities
in regard to
the tallying of
the numbers of
these
Government
currency notes, it is not easy
to surmise
that
they
were suffering from any lapse of memory.
The evidence of these witnesses
in regard
to
the
statement made
by the appellant
No. 1 before them
was also attacked on
the
ground
that Shanti
Lal
S.C.R.
SUPREME COURT REPORTS
1111
Ahuja, the
Additional District
Magistrate's asking the
appellant No. 1 to repeat the statement
which he had
earlier made before him to these
witnesses
was a mere
camouflage. Shanti Lal Ahuja, the
Additional District
Magistrate, knew very well that the statement
made
by the appellant No. 1 to him was not recorded
under
the provisions of section 164 of the Criminal Procedure
Code and was therefore inadmissible in evidence
and
he therefore
resorted to
these
tactics
of having
the
appellant No. 1 repeat
the very
same
statement
to
these witnesses so as to avoid
the bar of section 164.
Reliance
was
placed in
this
behalf on A.LR. 1940
Lahore 129 (Full Bench) where it was held that if on
the facts of any case it
was found that
a statement
made to a third person was in reality intended to
be
made t-0
the police
and was represented
as
having
been made to a third
person
merely as a colourablc
pretence in order to avoid the provisions of section 162
the court would hold it excluded by the section.
The
san1e ratio it was submitted applied to the
statements
made to these two witnesses because they were a colourable pretence to avoid the provisions of section 164 of
the
Criminal Procedure Code which had certainly not
been complied with by Shanti Lal Ahuja, the Additional District
Magistrate.
It has however to
be observed that
every statement made to a person assisting
the police during an
investigation cannot
be treated
as a statement made to the police or to the
Magistrate
and as such excluded by section 162 or section 164 of
the Criminal Procedure Code. The question is one
of
fact and has got to be determined
having
regard to
the circumstances of each case.
On a scrutiny
of the
evidence of these two witnesses and the circumstances.
under which the statements came to be
made by the
appellant No. 1 to them we are of the opinion that tht
appellant No. 1 was asked by Shanti Lal Ahuja, the
Additional, District Magistrate, to make the statements
to these two witnesses not with a view to avoid the bar
of section 164 of the Criminal Procedure Code or by
way of colourable pretence but by way of greater
caution particularly having regard to the fact
that the
appellant No. 1 occupied the position of a Minister of
6-98 S.C. India/59
1954
Rao Shiv Bahatl"'
Singh and
Another
v.
The Stak of
VindfiJa Praduh.
Bhapati]•
1954
Rao Shiv Bahadur
Singh and
Another
v.
TM State of
Vindhya Prarksh.
BhagwatiJ.
1112
SUPREME COURT REPORTS
[19541
Industries
in
the
State of Vindhya
Pradesh.
The
statements
made by the appellant No. 1 to
these
witnesses therefore did not suffer from this
disability
and were admissible in evidence.
The evidence of these witnesses being thus worthy
of credit and the statements made by the appellarit No.
1 to them being admissible in evidence there is no doubt
that the appellant No. 1 claimed
these moneys, viz:,
Rs. 25,000, which were recovered
from the top drawer
of the dressing table in the bedroom of the appellant
No. 1 as his own being the balance of
Rs. 40,000 which
he had brought from his home when he came to Delhi.
If this was so the very fact that the
numbers of these
Government currency notes
of the value
of Rs. 25,000
tallied with the numbers of the notes
which had been
handed over to Nagindas earlier when the raid was
organised and which numbers were also specified in the
memo prepared at that time was enough
to
establish
the falsity of the allegation
made by the
appellant
No. 1 that he had brought
these
moneys
from his
home. These moneys .were proved to have been provided by the police authorities and given to Nagindas
when the raid was organised and were the instruments
of the offence of the taking of the bribe or illegal gratification by the appellant No. 1.
If the
numbers of
these notes tallied
with the numbers
of the notes
which were thus handed
over by the police authorities
to Nagindas they could not have belonged
to
the · appellant No. 1 and were certainly brought
there
by
Nagindas and handed over by him to the
appellant
No. l as alleged by
the
prosecution.
A suggestion
was made that there was opportunity for Nagindas to
plant these moneys into the top drawer of the dres~ing
table when the back of the appellant No .. 1 was turned
upon him. Even assuming that there· was
that possibility it is sufficiently negatived by
the fact
that "".hei;i
these moneys were recovered from
the
top
drawer
either at the instance of
Nagindas as alleged
by the
appellant No. 1 or at the . instance of the
appellant
No. 1 as alleged by the prosecution the
appellant No.
1 did. not .express any surprise
at these
moneys being
thus found there. If the version of the appellant No. 1
S.C.R.
SUPREME COURT REPORTS
1113
was correct he had only
brought
about
Rs. 25,000
from his house.
Rs. 15,000 has been already spent
by
him in the purchase
of the
car.
About
Rs. 10,000
were spent by him in the purchase of the ornaments
and only a sum of Rs. 100 odd was
the
balance
left
with him.
According to that version
there was _not
the slightest possibility of the sum of
Rs. 25,000 being
found in the top drawer of the dressing table.
flar
from expressing a surprise in this manner the appellant
No. 1 claimed these moneys as his own.
The appellant No. 1 could not have by any mischance failed
to
appreciate
that
these
Government
currency
notes
which were thus recovered from the top drawer of the
dressing table exceeded by far the amount
which
according to him he had left with him by way of balance
and the most natural reaction to the recovery
of this
large
sum
of
money
would
have
been
that
he would have certainly denied that
these moneys
were
llis
and
he
would
have
been
surprised
at finding that such a large sum of money
was thus
found there.
No such reaction was registered on his
face.
On the contrary
if the evidence
of the
two
witnesses Gadkari and Perulakar is to be believed and
we see no reason why it should not be believed,
the
appellant No. 1 claimed this sum of Rs. 25,000 as his
own being the balance out of the money which he had
brought from his home when he came to Delhi. This
is sufficient to establish
that
these moneys
which earlier had been handed over by the police authorities
to
Nagindas found their
way into the top drawer of the
dressing table in the bedroom of the appellant
No. 1
and were the primary evidence of the offence under
section 161 having been
committed
by the appellant
No. 1.
The further
circumstance that on the numbers of these notes
being
tallied and his explanation
in that behalf l?eing asked for by the police authorities
the appellant No. 1 was confused and could furnish
no
explanation in regard thereto
also supports
this
conclusion and there is no doubt left in our minds that the
appellant No. 1 was guilty of the offence under section
161 of the Indian Penal Code with which he was
charged.
1954
Rao Shiv Bahadur
Singh and
Another
v.
The State of
Vindll)1a Pradesh.
BhagwatiJ.
1954
Rao Shiv Baharlur
Singh and
Another
v.
The State of
VindJrya Pradesh.
BhagwatiJ.
1114
SUPREME COURT REPORTS
[1954]
We cannot however leave this case without expressing our strong disapproval of the part which the police
authorities and Shanti Lal Ahuja, the Additional District Magistrate, took in this affair. As already
observed this offence would
never have been committed by
the appellant No. 1 but for the fact that the police
authorities provided
Nagindas
with
the wherewithal
of the commission of the offence.
Sir
Chinubhai as it
appears from the evidence was
not in a pos1t1on
to
provide
Nagindas with this sum of
Rs. 25,000 or any
large sum and in fact in spite
of the telephone
calls
made by Nagindas upon
him had
not provided
any
amount beyond Rs. 3,000
which was
meant for the
other expenses of
Nagindas,
to him.
Nagindas
was
therefore
not
111 a
position
to
provide
this
sum
of
Rs.
25,000
for payment of
the
bribe
or the illegal gratification
to
the appellant
No. I.
But for
the adventitious aid
which
he
got
from
the police
authorities
the matter
would
not
have
progressed any further,
and
Nagindas
would
have
left Delhi
empty
handed.
The
police
authorities
however once they got
scent
of
the
intention
of
Nagindas thought
that it was too good
an opportunity
to miss for entrapping the appellant No.
1 who occupied the position of the Minister of
Industries
in the
State of Vindhya
Pradesh.
They
therefore
provided
the sum of
Rs. 25,000 on their
own and handed
it
over to Nagindas. The police authorities in this step
which they
took
showed
greater
enthusiasm
than
Nagindas
himself
in the
matter
of
trapping
the
appellant
No. 1.
It may be that
the
detection
of
corruption may sometimes
call for the laying
of traps,
but there is no justification for the
police
authorities
to bring about the taking of a bribe by supplying the
bribe money to the giver where he has neither
got
it
nor has the capacity
to find it for himself.
It is the
duty of the police authorities
to prevent
crimes
being
committed.
It is no part of their business
to
provide
the
instruments
of
the
offence.
We
cannot
too
strongly disapprove of
the
step
which
the
police
authorities took in this case in the matter of providing
the sum of Rs. 25,000 to Nagindas who but for the
S.C.R.
SUPREME COURT REPORTS
1115
police authorities
thus coming to his aid
~ould nc;ver
have been able to bring the whole affair to its culromation.
Not only did the police
authorities
thus become
active parties in the matter of trapping the
appellant
No. 1 they also provided a handy
and
an ostensibly
independent witness in the person of Shanti Lal Ahuja,
the Additional District Magistrate. Even though he
was a member of the judiciary he lent his
services to
the police authorities and became a limb of the police
as it were.
The part which
Shanti
Lal Ahuja,
the
Additional
District Magistrate, took in this affair cannot be too strongly condemned.
We can only repeat
in this
connection
the
observations
of the
Privy
Council in A.LR.