Kumar Prasad vs King-Emperor

Sen, J.—The petitioner Kumar Prasad, Sub-Inspector of thana Jogpati, in Sub-division Bettiah, has been convicted u/s 347, I.P.C., and sentenced to undergo rigorous imprisonment for six months and to pay a fine of. Rs. 300. The petitioner Basdeo Lal has been convicted u/s 162, I.P.C., and sentenced to undergo rigorous imprisonment for six months, and to pay a fine of Rs. 300. Both the convictions are based upon the same set of facts.

The case for the prosecution may be stated as follows: On the 16th August 1926 one Gulli Mian lodged an information against Kurban and eight others u/s 147, I.P.C. On the 17th August 1926 one of these men, Sayeed, lodged a complaint before the Sub-divisional Officer against Gulli and others u/s 24, Cattle Trespass Act. On the 19th August the Sub-Inspector Kumar Prasad -went to the village Baisia to investigate the case started by Gulli Mian. It is alleged that, after he had heard one or two of Gulli''s witnesses, he was given a bribe on behalf of Gulli by Basdeo, the petitioner in the other case, sail to be the Sub-Inspector''s agent for the collection of bribes; that he then refused to hear evidence of the men accused in the information or to release them on bail. Seven of them who were present were roped together, roughly handled and led by the constables and the chaukidar to the police station, six miles from the village, where they were put into stocks for the whole of the night. It is further alleged that, next morning, they were required to clean the Sub-Inspector''s stables by carting manure and refuse therefrom. They were not released until they had been made to execute two handnotes, one for Rs. 300 signed by all of them, and another for Rs. 43 signed by one of them, namely Kurban. The Sub-Inspector was to get the latter sum, and the other handnota was to be destroyed if and when they withdrew their complaint against Gulli in the rioting case above mentioned. The seven men were released on the 20th August after executing the handnotes (the prosecution say in the evening; the accused say at 9 a.m. in the morning. The point is immaterial). On the 22nd August a charge-sheet against all the accused in the rioting case instituted by Gulli, that is, against Sayeed, Kurban and others, was submitted. On the 23rd a petition of complaint by one Yusuf (one o� the seven men above mentioned) against the Sub-Inspector and Basdeo Lal and two constables and a chaukidar was filed. This is the foundation of the present case. The chaukidar and; the two constables have been acquitted. On the 24th August the charge-sheet was received by the Magistrate and the trial was fixed for the 30th August.

The learned Magistrate framed the following charges against the petitioner Kumar Prasad:

First, that you, on or about the 19th day of August 1926 at Baisia, being a public servant, abetted one Basdeo Lal in taking gratification is order, by corrupt and illegal means, to influence a public servant, servant, being yourself, and thereby committed an offence punishable u/s 164, I.P.C. and within my cognizance.

Secondly, that you, on or about the same day" at Jogapatti thana, wrongfully confined Kurban Yusuf Mian and others for the purpose of extorting property, and thereby committed an offence punishable u/s 347, I.P.C, and within my cognizance.

Thirdly, that you on or about the 20th day of August at Jogapatti thana used criminal force with intent to dishonour Yusuf Mian and others by compelling them to dig and carry manure and noxious master, and thereby committed an offence punishable u/s 355, I.P.C., and within my cognizance.

The learned Magistrate framed the following issues for decision:

Was bail offered and, if so, why was it refused?

Was a bribe offered and taken in the village?

Was a bribe extorted at the thana?

Were the accused buffeted?

Were the accused forced to perform demeaning tasks at the thana?

6.Was the Sub-Inspector''s conduct malicious?

He found the first and third allegations proved; the second and fourth not to have been proved; the fifth he disbelieved; and the sixth issue he held to be redundant. The main questions, therefore, that came up for consideration in appeal before the learned Sessions Judge were those represented by Issues 1 and 3.

It is to be observed that the allegation as to the bribe having been offered and taken in the village being unproved the question must necessarily arise as to what was the object on the part of the Sub-Inspector to refuse bail to the complainant''s party or to detain them at the thana, not to speak of the indignities-alleged to have been inflicted which had been entirely disbelieved. The learned-Sessions Judge deals with the question-of refusal of bail from several points of view.

The first point that he notices is that the complainant''s party "were fairly well-to-do people and therefore prima facie in a position to obtain bailors; that bail was actually offered by a man named Khalil, P.W. No. 4 that the injuries inflicted in the riot were rather slight and the Sub-Inspector need not have been so officious in requiring bail; that personal recognizances would have been sufficient.

He further observes that, although the story of the various indignities cast upon the members of the complainant''s party has not been substantiated, yet the fact remains that they were put in stocks at the thana and that, although there was no lock-up in the police station, stocks could not have been intended for persons of that class. The Sub-Inspector''s conduct, therefore, in his opinion, would not inspire confidence in his good faith. He concludes:

That the Sub-Inspector may have thought that he could extort money from them more easily by subjecting them to indignities. Consideration for their dignity was lively to influence them more than the success of their complaint against Gulli or his case against them.

All these considerations fall into two distinct classes. The first relates to the refusal of bail by the Sub-Inspector and the second to the use of stocks in the absence of a look-up at the police station. With regard to the former, one cannot help coming to the conclusion, from all that appears on the evidence as summed up in the judgment, that the utmost that can be said against the Sub-Inspector is that he exercised his discretion rather harshly. It would not lead in any case to an inference of mala fides, unless there were some other ulterior motive disclosed in the evidence, for instance the prospect of a bribe to be received, in which event, and in which event only, he had made up his mind to release the prisoners.

As to that I shall have to consider the facts of the case later on. Suffice it to say for the present that the reasons given by the learned Sessions Judge for holding that there was an absence of good faith on the part of the Sub-Inspector in refusing bail are based upon surmises and conjectures. With reference to the use of stocks there can be no doubt that it is a remnant of the barbarous practice of olden days, but we have nothing to do with that in the present case. It is the system that is at fault. It is clear upon the evidence, and on the statement in the judgment of the learned Sessions Judge, that, there being no lock-up at the police station, the prisoners were required to be put in stocks, and the Sub-Inspector was only carrying out orders in doing so.

The next, and in my opinion, the important, point for consideration is whether the Sub-Inspector''s conduct in refusing bail, and in detaining the prisoners at the thana, was influenced by the object of receiving illegal gratification in the shape of Rs. 43, for which a promissory note is alleged to have been taken on the 20th August. Curiously enough, there is no discussion in the judgment of the learned Magistrate regarding the payment of Rs. 43 to the Sub-Inspector. The learned Sessions Judge, while referring to this fact, does not choose to deal with it himself. I have heard nothing in the argument advanced by the learned Counsel appearing for the Grown with regard to this alleged payment of the sum of Rs. 43 to the Sub-Inspector. What then could have been the reason on the part of the Sub-Inspector to refuse bail and to detain the prisoners in custody? Failing to substantiate the case relating to the payment of Rs. 43, the prosecution falls back upon the case as to an alleged handnote for Rs. 350 having been taken from the prisoners. It is to be observed that in the charge u/s 347, I.P.C, all that is stated is that the Sub-Inspector wrongfully con fined the prisoners for the purpose of extorting property, without mentioning anything about either of the two handnotes.

In the course of the trial the handnote for Rs. 43 disappeared, but there is an alleged handnote for Rs. 350, which is said to have been taken on the understanding that no charge sheet wag to be submitted in Gulli''s case by the Sub-Inspector and the complaint against Gulli regarding the cattle trespass case was to be withdrawn, and that in the event of these two objects being attained the promissory note would be destroyed. The ease of the defence, on the other hand, was that the handnote was taken by Basdeo, who stood bail, as a security in case the bail was forfeited, and that actually on the date fixed for the appearance of the complainant''s party, they were absent, and Basdeo prayed for cancellation of the bail bonds.

The learned Sessions Judge, on the evidence disclosed, comes to the conclusion that the seven men could not have admitted their liability to pay Rs. 350 on an otherwise blank piece of paper except under great pressure. It could have been filled up and used against them by anyone obtaining possession of it, and there was no guarantee that it would not be so used by Basdeo and the Sub-Inspector. He has, in my opinion, been influenced to take this view, as he thinks that Basdeo''s plea regarding the hand-note, if it had been genuine, would have been taken before the Sub-Deputy Magistrate who made a preliminary enquiry. There is no justification for drawing this inference against the petitioner on the ground above mentioned. There is no duty cast upon an accused person to disclose his defence in the course of a preliminary enquiry, and no inference can be drawn against the accused for non-disclosure of his defence at that stage.

However that may be, the learned Sessions Judge ultimately comes to the following finding:

That the Sub-Inspector wrongfully confined the seven men for the purpose of extorting a valuable security from them, and that Basudeo Lal obtained the valuable security either for himself, or partly for himself and partly for the Sub-Inspector, in order to induce the Sub-Inspector by corrupt means to release them and not to submit a charge-sheet against them in Guili''s case.

A conviction based upon a finding such as this is, in my opinion, utterly unsustainable. There was no case made by the prosecution that the Sub-Inspector was to take the so called valuable security, namely the handnote for Rs. 350, or to take a share therein, I think the accused have been seriously prejudiced by the course which the trial has taken and the manner in which the case of the prosecution has been entirely transformed. Moreover, an alternative finding, such as the above, lands the Court in inextricable difficulties. If it be the fact that Basdeo Lal obtained a valuable security for himself it follows necessarily that the Sub-Inspector Kumar Prasad must go free.

If, however, the other alternative be true, namely that Basdeo Lal obtained it partly for himself and partly for the Sub-Inspector, it is incumbent upon the prosecution to make that case from the start and to prove it. In that event the Court would not have been obliged to come to a finding which is of the nature of a theory only and can scarcely justify the conviction. I have given the matter my most anxious consideration and I am constrained to think that the only course left to me in the circumstances that have happened is to set aside the conviction and sentence passed against Kumar Prasad and to order that he be released from bail.

As regards the case of Basdeo Lal it rests on the fasts arising out of the same two occurrences, namely at the village on the 19th and at the thana up to the moment of release on the 20th August. The learned Magistrate framed the following charge against him:

That you, on or about the 19th day of August 1926 at Baisia, took gratification in order, by corrupt and illegal means, to influence a public servant, Sub-Inspector of Police Kumar Prasad Singh, and thereby committed an offence punishable u/s 162. I.P.C., and within my cognizance.

The same issues as in the case of Kumar Prasad were framed by the learned Magistrate and the same conclusions come to, namely that the case relating to the bribe taken in the village on the 19th had failed; the case relating to the harsh treatment accorded to the seven men and casting indignities upon them had also failed; in regard to the occurrence on the 20th at the thana the charge, as to the offering of a bribe of a sum of Rs. 43 by means of a handnote to the Sub-Inspector, had, as mentioned above, also failed. What remained was the story as to extorting a valuable security, in the shape of a handnote for Rs. 350, from the seven men detained at the thana. The document in question, it may be noted, contained only the words "handnote for Rs. 350" with the signature of the seven men by the pen of Kurban Mian. The ''case for the defence was that, as no one was willing to furnish bail, Basdeo stood bail, and the handnote was taken as a sort of safeguard or security in case the bail was forfeited. Thus Rs. 50 each for the seven men would amount to a total of Rs. 350. As a matter of fact, on the date fixed for the appearance of the complainant''s party, they were actually absent and Basdeo prayed for cancellation of the bail bonds. This fact shows that Basdeo''s apprehension was not utterly unfounded.

The learned Sessions Judge, in dealing with this matter, seems to have been greatly influenced by the fast that Basdeo had not taken this plea before the Sub-Deputy Magistrate who made a preliminary enquiry. He observes:

If Basdeo''s plea had, regarding the handnote, been genuine, I think he would have taken it before the Sub-Deputy Magistrate who made a preliminary enquiry. The learned advocate objected that the Magistrate ought not to have taken evidence for the defence in an enquiry u/s 202, Criminal P.C. He may have committed an error in doing so, but the fact remains that Basdeo and the Sub-Inspector put in written statements, but neither of them mentioned the handnote. It is argued that it was not necessary for Bisdeo to produce it at all, but it he had not done so there would have been no explanation of the charge made by the complainant against him which he might have found more embarrassing thin the handnote. Even now that is no satisfactory explanation of it if the defense is true for one would not expect the complainant to make a false accusation against the mm who had enabled him and his friends to obtain their release from police custody.

As already stated above, I do not think that the omission to put in such a plea in defence before the Magistrate conducting the enquiry should lead to any inference as to the falsity of the defence case. The matter must be decided upon independent evidence in the case and not upon inferences drawn upon such a slender basis. It is suggested by the prosecution that the object for taking the so called handnote for Rs. 350 was to pat pressure upon the parties in the two cases than pending so as, on thana hand, to effect the withdrawal of the cattle trespass case and, of the other hand, somehow to stop the Sub-Inspector submitting a charge-sheet in the riot case of Gulli Mian.

Assuming this to be true, the defence argues that, even so, it would not constitute an offence u/s 162, I.P.C. In order that it may satisfy the requirements of the section it must further be shown that Basdeo Lal was acting in league with the Sub-Inspector, and, with his connivance, wanted to bring about the non-submission of the charge-sheet by offering illegal gratification to the Sub-Inspector. There is no charge of conspiracy with the Sub-Inspector in this regard and no evidence of his intention to compass the termination of the riot case by giving illegal gratification to the Sub-Inspector. Where the essentials of the case for the prosecution fail, and the Court has to rest the case for conviction, not upon evidence, direct or circumstantial, but upon one or two alternative theories, and, where one of the said theories is consistent with innocence and the other inconsistent, there is no justification for accepting the theory which is inconsistent with such innocence. Such a course is contrary to the fundamental principles of British justice.

The fact that there is no evidence upon which the Court can act is shown by the vague and alternative finding which the Court has been constrained to come to in fixing the guild upon the accused.

The conviction and sentence pawed against Basdeo Lal are set aside and he must be released from bail.