In Re: Aiyyakannu 2nd Accused

Janarthanam, J.—The revision Petitioner Aiyyakkannu is accused 2 in S.C. No. 33 of 1985 on the file of the Assistant Sessions Judge,

Pudukottai. He, and two others, namely, accused 1 - Gopal and accused 3 - Chinniah alias Chinnar were tried together, accused 1 and 2 facing

charges for the alleged offences under Sections 489-B and 489-C, IPC and accused 3 for the alleged offence u/s 489-B read with Section 109

IPC.

Learned Assistant Sessions Judge, on consideration of the materials placed before him, found all of them guilty for various charges framed

against them and convicted them thereunder. Each of accused 1 and 2 was sentenced to three years rigorous imprisonment for the offence u/s

489-C, IPC, while accused 1 and 2 were sentenced for the offence u/s 489-B, IPC to rigorous imprisonment for five years and four years

respectively, both the sentences to run concurrently. Accused 3 was sentenced to rigorous imprisonment for three years for the offence u/s 489-B

read with Section 109, IPC.

Aggrieved by the conviction and sentence, accused 1 to 3 preferred Crl. Appeal No. 217 of 1985 before the Court of Session, Pudukottai.

Learned Sessions Judge, on consideration of the materials available on record and after hearing the arguments of the respective learned Counsel

for accused, set aside the conviction and sentence of accused 3 and acquitted him thereof. He confirmed the conviction of accused 1 and 2 for the

offences under Sections 489-B and 489-C. While confirming the sentence u/s 489-C, IPC, he would however reduce the sentence for the offence

u/s 489-B, IPC to three years, giving rise to the present revision by accused 2 alone.

Learned Counsel appearing for the revision Petitioner accused 2 would press for consideration the following two points.

(1) The material evidence, available on record can, by no stretch of imagination, be stated to fall in the groove of the offence under Sections 489-B

and 489-C IPC, in the sense of constituting the ingredients of those offences, warranting for a conviction and sentence and in this view of the

matter, both the courts below committed an error of law on facts calling for interference; and

(2) The dual role of an informant and an investigating officer cannot at all be legitimately performed by one and the same individual and if done so,

it is bound to affect the credibility of the case of the prosecution, in the sense of the same serving as a vitiating factor throwing the case of the

prosecution lock, stock and barrel in acquitting the accused.

Learned Public Prosecutor appearing for the State would however repel those submissions.

The first submission of learned Counsel for the revision Petitioner revolves on the question of the existence or otherwise of the materials, in the

shape of evidence, direct or circumstantial, constituting the offences under Sections 489-B and 489-C, IPC. [After discussing the facts, the

contention was rejected. Discussion of facts omitted-Ed]

x x x

The second submissions hinges upon the performance of the dual role of the first informant as well as the investigating officer by one and the

same individual, which according to learned Counsel for the revision Petitioner, in such an infirmity as is bound to reflect on the credibility of the

prosecution case, as a vitiating factor. In support of such a submission, implicit reliance is sought to be placed on the decision in Singaravelu v.

State 1985 L.W. (Crl.) 336 . In that case, a person was accused of an offence u/s 75 of the Madras City Police Act. The occurrence having

happened in the very presence of the Sub-Inspector of Police, he happened to lay the first information report and investigated the case himself and

filed a final report u/s 173(2), Code of Criminal Procedure. It is in that context, learned Judge observed that the complainant himself could not be

an investigating officer and in any event, it is an infirmity which is bound to reflect on the credibility of the prosecution case, consequence of which

was that the benefit of doubt has to be given to the accused. Learned Additional Public Prosecutor would draw my attention to the very same

learned Judge revising his opinion subsequently in Criminal Appeal No. 403 of 1983 dated 22.10.1986 (unreported), after making reference to the

decision of the Supreme Court in Bhagwan Singh Vs. The State of Rajasthan,

In order to appreciate the dictum laid down by the Supreme Court, it is but necessary to state the foundational facts of the case. The incident

giving rise to the prosecution against the Appellant took place within an area in the State of Rajasthan lying within a 10 mile belt along the border of

that State adjoining the State of Uttar Pradesh. There was at the material time in force, Rajasthan Foodgrains (Restrictions on Border Movements)

Order, 1959 which imposed a ban on transport of foodgrains to any place within the area of this 10 mile belt from any place outside that area

except under and in accordance with a permit issued by the State Government or by any officer authorised by the Government in this behalf. This

order was issued u/s 3 of the Essential Commodities Act, 1955, and any contravention of this provision was punishable u/s 7 of that Act. The

prosecution case was that on the night between 13th and 14th November, 1966, Head Constable Ram Singh, and four other constables, viz,

Kishan Singh, Fateh Singh, Hira Lal and Sunder Singh all attached to Police Station, Sewar were on patrolling duty in the area of the 10 mile belt

with a view to preventing smuggling of grains from Rajasthan to Uttar Pradesh. They were at a place about 5 or 6 furlongs away from the border

on the way leading from Village Bilothi in Rajasthan to Village Nagla Khoobi in Uttar Pradesh when at about 5 a.m. in the morning of 14th

November, 1966 they noticed that a cart driven by two buffaloes was coming from the side of Bilothi and proceeding in the direction of Nagla

Khoobi. The cart was loaded with 6 bags of gram weighing about 14 to 15 maunds. One Ram Raj was driving the cart while the Appellant was

sitting in the cart on the bags of gram. Head Constable Ram Singh and his companions stopped the cart and checked it and on finding that it

carried six bags of gram, Head Constable Ram Singh asked the Appellant to produce the permit for transport but the Appellant could not produce

any such permit. The Appellant entreated Head Constable Ram Singh to let him go and offered to pay him a bribe of Rs. 40 or Rs. 50. Head

Constable Ram Singh refused to accept the bribe whereupon the Appellant took out a bundle of currency notes of Rs. 510/- from the ''Antan'' of

his dhoti and offered them to Head Constable Ram Singh as bribe. Head Constable Ram Singh declined to accept the bribe offered by the

Appellant and seized the currency notes of 510 under a seizure memo ExtP.1 in the presence of the other four police constables. He also seized

the six bags of gram found on the cart under a seizure memo Ex.P.2 and arrested the Appellant as well as Ram Raj who was driving the cart. He

then prepared a report Ex.P.4 and sent it to the Police Station, Sewar with police constable Hira Lal. The six bags of gram which were seized

under a seizure memo, Ex.P.2, were then taking to the Police Station and weighed there and their weight was noted down under a memo Ex.P3.

Head Constable Ram Singh also lodged a First Information Report Ex.P.5 at the Police Station in which he showed himself as the informant or

complainant and the Appellant and Ram Raj were shown to have committed an offence u/s 161 of the I.P.C. for offering Rs. 510/ as bribe to him

Head Constable Ram Singh thereafter investigated the case, but it appears that sometime in the beginning of April, 1967, it came to his notice that

he was not authorised to do so and he thereupon forwarded the papers to the Deputy Superintendent of Police on 4th April, 1967. The Deputy

Superintendent of Police then re-investigated the case and ultimately filed the charge-sheet against the Appellant and Ram Raj u/s 165-A of the

Indian Penal Code in the Court of the Special Judge, Bharatpur. The prosecution examined in proof of its case the Head Constable and other

police constables who deposed substantially in favour of the prosecution. Believing the testimony of the prosecution witnesses, learned Special

Judge, who tried the case, convicted the accused u/s 165-A IPC and sentenced him to suffer rigorous imprisonment for four months and to pay a

fine of Rs. 100/- or in default of payment of fine to suffer further imprisonment for 15 days. The accused further agitated the matter by preference

of an appeal before the High Court of Rajasthan. The High Court however agreed with the view taken by the Special Judge and dismissed the

appeal. He further agitated the matter before the Supreme Court with the Special Leave of that Court. Their Lordships of the Supreme Court while

considering the appeal with Special Leave obtained expressed their views in Paragraph 5 (at pages 715 and 716), which are as follows:

Now, ordinarily this Court does not interfere with concurrent findings of fact reached by the trial Court and the High Court on an appreciation of

the evidence. But this is one of those rare and exceptional cases where we find that several important circumstances have not been taken into

account by the trial Court and the High Court and that has resulted in serious miscarriage of justice calling for interference from the Court. we may

first refer to a rather disturbing feature of this case. It is indeed such an unusual feature that it is quite surprising that it should have escaped the

notice of the trial Court and the High Court. Head Constable Ram Singh was the person to whom the offer of bribe was alleged to have been

made by the Appellant and he was the informant or complainant who lodged the first information report for taking action against the Appellant. It is

difficult to understand how in these circumstances Head Constable Ram Singh could undertake investigation? In fact, Head Constable Ram Singh,

being an officer below the rank of Deputy Superintendent of Police, was not authorised to investigate the case but we do not attach any

importance to that fact, as that may not affect the validity of the conviction. The infirmity which we are pointing out is not an infirmity arising from

investigation by an officer not authorised to do so, but an infirmity arising from investigation by a Head Constable who was himself the person to

whom the bribe was alleged to have been offered and who lodged the first Information Report as informant or Complainant. This is an infirmity

which is bound to reflect on the credibility of the prosecution case.

From the facts in the Supreme Curt, it is rather crystal clear that the Head Constable was himself the person to whom the bribe was alleged to

have been offered and who lodged the first information report as an informant or complainant and in such a context, Their Lordships observed that

is an infirmity, which is bound to reflect on the credibility of the prosecution case. The Head Constable, first informant, in the context of the

situation of the case, is rather a person aggrieved and the fact that such an aggrieved person registered the case and further investigated the matter

cannot be stated to be free from suffering the taint of any bias or prejudice against the person proceeded against by him. It is only in such a

context, such an observation had been made by Their Lordships of the Supreme Court.

Pertinent it is to note at this juncture that an information relating to the Commission of a cognizable offence may be given by a person aggrieved

or by anyone inclusive of a Station House Officer acquainted with the facts and circumstances of the case. If a cognizable offence is committed on

the very face of a Station House Officer, there is no legal prohibition for him to act as the first informant and lay the information setting the wheels

of law in motion and himself take up the further investigation of the case.

As such, there is no prohibition for a police officer like P.W.7 to lay first information and investigating the case himself and file a final report u/s

173(2), Code of Criminal Procedure P.W.7, on the facts of this case, cannot at all be construed to be a person really aggrieved as the Head

Constable of the Supreme Court case, to whom offer of bribe had been made. He, being a public servant, acted in accordance with law in

arresting the revision Petitioner, recording his confessional statement leading to the recovery of the counterfeit currency notes from his house,

registering the case and filing a final report. In such state of affairs, it cannot be stated that the investigation of this case by P.W.7, who happens to

be first informant, is bound to affect the credibility of the prosecution case. As such, this submission also bristles next to nothing.

In view of my finding on the above two submissions, raised by learned Counsel for the revision Petitioner, it goes without saying that there is no

mis-or-mal-appreciation of the evidence on record by both the Courts below.

Regarding the sentence, having regard to the gravity of the offences, having tremendous influence in tilting the economic structure of this

country, I do not think that the sentence, as had been imposed by the appellate Court on the revision Petitioner, is excessive or harsh calling for

interference.

As such, the revision deserves to be dismissed and is accordingly dismissed.