State vs Madan Mohan

Chopra, J.—Madan Mohan, respondent, was tried and convicted for an offence u/s 161 I.P.C. by Additional District Magistrate Barnala and was sentenced to a fine of Rs. 800/-. The conviction was, however, set aside on appeal by the Sessions Judge, Barnala and this is an appeal by the State u/s 417 Code of Criminal Procedure against the order of acquittal.

Briefly stated the prosecution case is that Ganga Ram P.W. 1 was a teacher in the Primary School at Pharwahi (District Barnala), and Madan Mohan respondent was the Head Clerk in the office of the District Inspector of Schools, Barnala. On 26-4-1950, Madan Mohan demanded Rs. 100/- as bribe for getting Ganga Ram promoted to the grade of Rs. 50 80-4-100. Ganga Ram was told that since he was an untrained teacher he had been placed in the grade of 40-2-60 and that he could get the higher grade of trained teachers if he was prepared to meet the respondent''s demand. Ganga Ram expressed his desire to satisfy himself by having a look at the integration list before negotiating with Madan Mohan. FOR this purpose, he went to Patiala in the last days of the month of June and found that he was already placed in the Upper-grade of trained teachers. He, therefore, did not have any further talk on the subject with Madan Mohan. On 14-7-1950 he received the intimation in writing (Ex. PA) from the Head Clerk that he was required to attend the office to yet his service book completed. Santa Singh P.W. 9 is stated to have delivered him this chit and also to have conveyed a verbal message from Madan Mohan that he was required to pay the settled amount, failing which he (Ganga Ram) would be transferred to some far of place. Santa Singh is also stated to have brought the news that Madan Mohan would feel satisfied by accepting Rs. 60/- instead of Rs. 100/-. On 15th July, Ganga Ram appllied for leave and also wrote back to Madan Mohan that he would be meeting him soon and the no action should be taken in the meantime

Ganga Ram thereafter decided to proceed otherwise and bring the matter to the notice of the authorities. On 17th July he met the Superintendent of Police C.I.D. at Patiala and narrated to him the whole story and offered his services to act as a decoy. M. Bishan Singh, Sub-Inspector of Police, Patiala, was deputed to take up the matter and he along with Ganga Ram reached Barnala the same evening. Ganga Ram saw the accused at his house and told him that the amount would be paid on the next day after getting a cheque for Rs. 304/- cashed from the treasury. On 18th July, Ganga Ram accompanied by M. Bishan Singh approached the Deputy Commissioner, Barnala, with an application (Ex. PB) and presented currency notes worth Rs. 60/-. The Deputy Commissioner sent for S. Muni Lal Magistrate 1st Class, Barnala and directed him ''to do the needful and himself initialled the currency notes in pencil. Ganga Bam thereafter went to the District Inspector of Schools''s office and represented to Madan Mohan that the treasury people had refused to encash the cheque without proper attestation and requested him to do it. Ganga Ram was made to prepare a list of persons to whom the amount of the cheque was to be disbursed on a paper supplied by the respondent. The cheque was then attested by Madan Mohan and Ganga Ram left with it saying that he would be soon coming with the money. On his return a little later he was taken to a separate room by Madan Mohan and there he offered four currency notes worth Rs. 40/- to the latter. Three more of Rs. 20/- were handed over when Madan Mohan expressed dissatisfaction and Rs. 4/- were paid as railway fare from Barnala to Nabha. The seven currency notes (five out of which were of Rs. 10/- and two of Rs. 5/- each) were those which had been initialled by the Deputy Commissioner and Rs. 4/- were paid in four currency notes of Re. 1/- each. The favour that was to be done by Madan Mohan in return and the terms thereof were settled and the two went back to the office.

After a few minutes'' casual talk Ganga Ram hurried to S. Muni Lai''s Court room and apprised him and M. Bishan Singh of the payment of Rs. 64/- as illegal gratification to Madan Mohan. They took S. Balwant Singh and Shri Mukand Lal Pleaders with them on their way and reached the office soon after. Madan Mohan on being enquired denied point blank to have received the amount. A thorough search for the currency notes from his person and every thing in the room was made, but without any success. S. Durga Parshad, District Inspector of Schools in the meantime arrived at the office and repeated the enquiry from Madan Mohan, but the latter persisted in his denial. S. Muni Lal is then said to have asked Ganga Ram to explain his position and to have told him that he would otherwise be prosecuted for false implication. At this Ganga Ram informed the raiding party that the payment was made in the adjoining room, mean-wing thereby that a search for the notes should be made from there. The party moved on to the D.I.''s office S. Muni Lal, on finding a locked almirah in a corner of the room demanded its keys from Madan Mohan and on his refusal the lock was broken open. The accused is then alleged to have made a confession and to have produced the currency notes from one of the registers lying in the almirah. Seven of the notes bore the initials of the De-oty Commissioner and their numbers tallied with those given in the application Ex. PB. S. Muni Lal prepared his report Ex. PC at the spot and got it attested by S. Durga Parshad and also by the members of the raiding party. The accused was handed over to M. Hansj Raj for investigation, who after recording the statements of the witnesses sent up the accused for trial.

The learned Advocate General has taken-us through the entire evidence on record and has discussed in detail every important aspect of the case. The gist of his argument is that the statement of Ganga Ram regarding actual payment of illegal gratification to the respondent was strongly corroborated by recovery of the amount at the instance of the accused: and also by his confession, which stood abundantly established by reliable and independent evidence. It is pointed out that the learned Sessions Judge had totally ignored the evidence of recovery and had wrongly discarded the confessional statement as inadmissible. ,He further contends that in the presence of the corroborative circumstances which led to no other conclusion but that of guilt of the accused, the direct testimony of Ganga Ram regarding the passing of the currency notes to the accused, though discrepant on certain important points, should not have been thrown over-board by the Sessions Judge in appeal. Shri Lachhman Dass, on the other hand, has laid great stress on the contradictions in the statements of Ganga Ram at different stages of the case and urged that if the evidence regarding payment of illegal gratification, which rests solely on his testimony, is discarded no amount of corroboration can be regarded as sufficient to record a conviction. As regards, the evidence of recovery of the currency notes he contends that it could at the most show that the accused somehow or the other knew that they were in the almirah and that this was not a conclusive proof of the accused''s guilt. With respect to the confession he has made an attempt to support the finding of the Sessions Judge that it was the result of undue pressure, threat, or promise and that without having been properly recorded u/s 164, Code of Criminal Procedure, it could not be used as evidence against the accused. We have perused the whole record very carefully and after giving a considered thought to the lengthy arguments adduced by the counsel for the parties are of opinion that this appeal must succeed.

On the question of demand for illegal gratification and its payment to the accused we have got the solitary statement of Ganga Ram and it is also a fact that he has not been quite consistent on some of the points. It may here be mentioned that the office of the District Inspector of Schools, Barnala is located in three rooms on the first floor of the building known as Qila Mubarik Barnala. The District Courts are located on its ground floor and the distance of the room in which S. Muni Lal, Magistrate 1st Class, was holding his Court those days was about 60 yards from the office of the Inspector of Schools. Out of the three rooms on the first floor one was meant for the clerks and its adjoining room connected by a door was used by the District Inspector as his office. The Additional District Inspector of Schools used to sit in the third room which adjoins the second but has no inter-communications. These rooms will hereafter be called; as rooms Nos. 1, 2 and 3 respectively for the sake of brevity. An almirah for keeping the records of the office was placed in room No. 2 and its key, as stated by S. Durga Parshad, District Inspector of Schools, used to remain with the respondent in his capacity of a head-clerk for the office.

On the particular day viz., 18-7-1950 the District Inspector and the Additional District Inspector had not yet arrived when Ganga Ram met Madan Mohan in room No. 1. According to Ganga Ram''s statement at the trial he was taken by the respondent to room No. 3 and it was there that the payment was made. The rest of the witnesses, who formed the raiding party, however, tell us that Ganga Ram pointed out to them room No. 2 as the place where the amount was paid. They therefore, started a search for the currency notes in that room when these could not be recovered from the person of Madan Mohan or from anything in room No. 1. Ganga Ram when enquired about the contradiction stated that he had told those people that he had paid the amount in the adjoining room, by which he meant room No. 3. The explanation offered by the learned Advocate General is also to the same effect. He tried to impress that Ganga Ram might have been wrongly understood to mean room No. 2 as the place of payment instead of room No. 3. But to me the explanation appears to be most unsatisfactory. The raiding party turned, their attention to room No. 2 for the search and closed its doors on being informed that the payment was made in that room. If Ganga Ram had been misunderstood he would have corrected them at once and guided them to the next room. Another inconsistency in the statement of Ganga Ram is with respect to the place where he informed S. Muni Lal about the payment. According to his statement at the trial he did it in the Court room of the Magistrate where M. Bishan Singh was also present. The evidence of S. Muni Lal and M. Bishan Singh is also to the same effect. But during investigation Ganga Ram had stated that he met the Magistrate in the stairs leading to the office of the District Inspector of Schools. Something similar was contained in the statement of S. Muni Lal recorded by the Investigating Officer. S. Muni Lal gave a clear denial to it and deposed that when he was approached by M. Hans Raj, the investigating officer, for a statement he simply told him that his statement was already contained in his report Ex. PC and that he had nothing to add. That may possibly be true, but what surprises me is that S. Muni Lal started prevaricating after his attention was drawn to his alleged prior statement He tried to go back from the definition in his examination-in-chief that he was informed about the payment in his Court room and came down to stating that he did not positively remember where he actually was when he got the information and that by ''court room'' he had meant the ''court premises.''

S. Balwant Singh and Shri Mukand Lal Pleaders were sitting at a few paces from the court room and were near the stairs leading to the District Inspector of Schools'' office. It was from there that they were required to accompany the Magistrate after he had got the information. The information must therefore, have been conveyed to him in the Court room or somewhere near it and surely before be ascended the stairs. Taking into consideration the short distance between the court room and the office, and the natural anxiety of the persons concerned to reach the place with the least possible delay I am not inclined to attach much importance to this inconsistency, Excepting the two contradictions Ganga Ram has been throughout consistent in his version which has been reproduced above. That he had no axe to grind, against the respondent has not been denied, He had no personal grudge against him and had no purpose to be served by creating all this evidence and implicating him in false case. The commendable impulse which prompted him to decide to bring to book the Head Clerk who was out to fleece a part of the ''meagre salary of the poor teacher and to coerce him'' to grease his palm for one reason or the other, is not a matter that should have created a partisan spirit and-form a ground for looking at'' his testimony with suspicion. I cannot believe that he had gone to Patiala and approached the authorities there and at Barnala under the expectation that he would be able to plant the currency notes in the almirah or at some other place and thereby succeed in fastening the guilt on the respondent. The question that crops up, for consideration is whether he should be disbelieved for all that he has stated merely because of the contradiction in his two statements. It is correct that the inconsistency is not on a minor point and that no plausible explanation for the same is forthcoming. If there-had been nothing more than his solitary statement on the point and the case had rested merely on his testimony, I would surely have been hesitant to rely on it and to hold that the prosecution had succeeded in proving payment of the illegal gratification to the respondent. But as will be presently seen his deposition Stands corroborated by a number of other facts and circumstances which speak for themselves and strongly lead to the inference that the money had passed on to the respondent.

What has impressed me the most is the manner in which the currency notes were recovered. After an unsuccessful attempt to get at the currency notes from the person of the respondent or any other place near him, S. Muni Lal thought of searching for them in the-almirah that stood locked in the D.I.''s office. On a demand for the key the respondent expressed his inability to produce it by saying that it had been misplaced. A constable with a hammer was sent for and an attempt to break the lock started. This made the respondent feel helpless and convinced that the matter was about to take a serious turn. He then blurted out the admission that he had received the money and placed it, in the almirah, and offered to produce it. He also begged to be excused and prayed for mercy on the ground that he had a big family to support. In the meantime the lock gave way and the almirah was opened. The respondent all at once put his hand. on a register, lying amongst a number of others, at the uppermost rack and produced the currency notes worth. Rs. 64/- from It Seven out of them bore the (initials of the Deputy Commissioner and their numbers tallied with those given in Ex. PB. The other found were of the denomination of one rupee each These are facts which stand abundantly established by the consistent and convincing evidence of S. Muni Lal, Magistrate, S. Balwant Singh and Shri Mukand Lal Pleaders and Mt. Bishan Singh Sub-Inspector. They are all uninterested witnesses andthere is no reason why they should not be fully relied-upon. Report Ex. PC was prepared by S. Muni Lal on the spot and it was got attested by the members of the raiding party and also by S. Durga Dass, District Inspector. S. Durga Dass, while deposing to the above facts, expressed his ignorance with respect to the admission alleged to have been made by the accused. He got out of its recital in Ex. PC by stating that he had signed the report without reading its contents. He further averred that the accused had taken sometime to take out the particular register, but he could not say how much. S. Durga Dass was the immediate officer of the respondent and I cannot help observing that his evidence smacks of favouritism. In any case, I am not inclined to discard the unanimous testimony of so many other respectable witnesses simply because they are not fully supported by S. Durga Dass. I cannot agree with the learned Sessions Judge that M. Bishan Singh should not be believed because he is a police officer. To discard witnesses merely because they are police-men is impossible. As regards S. Muni Lal it has been urged that he denied to have threatened Ganga Ram that he was liable to be prosecuted u/s 182, I.P.C., if the currency notes were not recovered. This fact was unanimously deposed to by all other prosecution witnesses. There appears to be some force in the argument of the learned defence counsel that such an important fact should not have slipped out of the memory of this witness and that the denial was intentional. All the same, I am not prepared to discard his testimony and disbelieve him on facts which are deposed to by a number of other witnesses as well.

According to S. Durga Dass, the almirah was under the charge of and its key used to remain with the respondent. This was rot define even by the respondent and the defence in a way admitted it. He refused to produce the key to S. Muni Lal by saying that he had misplaced it. The currency notes were thus recovered from the almirah which bore his lock and was not accessable to others without his permission. Not only that, he straightway laid his hand on the particular register which contained the currency notes and produced them himself. This leaves no doubt in my mind that it was he who placed them there or that he at least knew that they were there. If they had not been placed by him it lay on him to explain how they came to be there, and in this he has hopelessly failed.

The defence taken by the respondent need not detain me long as it is apparently an improbable story set up for the first time at a late stage of the case. It is stated that Ganga Ram wanted a piece of paper to jot down the names of a few Stipendariers to whom the amount of the cheque was to be paid. The respondent handed him over the key of the almirah to take out a blank sheet from there, The suggestion is that it was in this way that Ganga Ram got an approach to the almirah and opportunity to place the currency notes in one of the registers and that he kept the key himself. In the first instance, if this had, been a fact the respondent would have at once come out with it when the search for the currency notes was made and the key of the almirah was demanded. He was told that he was accused of having received Rs. 64/- from Ganga Ram as illegal gratification. It is not conceivable, that if Ganga Ram had in fact got the key and opened the almirah the accused would have kept it to himself and not disclosed it to the raiding party. He would not have then said that the key had been misplaced. All the witnesses, including S. Durga Dass, have. unequivocally stated, that no such plea was taken by the respondent at the time. If the-currency notes were planted by Ganga Ram in the manner suggested by the defence, it would not have been possible for the accused to straightway lay his hand on the particular register in which they were placed. It is a common ground between the parties that the almirah was full of records and registers pertaining to the District Inspector''s office. Moreover, the story itself appears to be rather improbable. Office work was going on and the-whole staff was on duty, yet a blank piece of paper to jot down a few names was not avail able. The key of the almirah containing the-entire office record was entrusted to Ganga Ram to get a paper out of it. A number of persons-are stated to be present in the office and without being noticed by anyone of them Ganga Ram succeeded in planting the notes in one of the registers. None of them thought it necessary to open his lips and disclose actual facts to the-raiding party at the time. I am not the least impressed by the defence and have no hesitation to discard it.

Lastly comes the confession. As already observed four of the prosecution witnesses including S. Muni Lal, have deposed that the accused admitted in their presence that he had received the amount from Ganga Ram and that he had placed it in the almirah. There is no eyidence or even an indication that the confession was the result of any inducement, threat or promise. As regards its admissibility, it is urged that since it was not recorded by the-Magistrate, to whom it was made, in accordance with the provisions of Section 164 and Section 364, Code of Criminal Procedure, it could not be used against the accused The well known decision of their Lordships of the Privy Council in - AIR 1936 253 (Privy Council) is relied upon in support of the argument. The facts of that case were, however, quite different. There, a dacoity case u/s 396, I.P.C. had been registered and was under investigation of the police. On an application by the police the District Magistrate deputed one of his Magistrates to accompany the investigating officer to the spot and witness the accused pointing out places material to the events connected with the dacoity. The Magistrate appeared as a witness at the trial and deposed that one of the accused had made a full confession as to his participation in the dacoity and firing a revolver. Since the confession to the Magistrate had been made in the course of investigation of a case registered with the police their Lordships observed and held that he should have proceeded to record the confession as provided by Sections 164 and 364, Code of Criminal Procedure, and that the oral evidence of the Magistrate was not admissible Section 164 falls under Chapter 14 of the Criminal Procedure Code, which relates to information to police and their powers to investigate and its Sub-section (1) reads as follows:

Any Presidency Magistrate, any Magistrate of the first class and; any Magistrate of. the Second class specially empowered in this behalf by the Provincial Government may, if he is not a police officer record any statement or confession made to him in the course of an investigation under this Chapter or-at any time afterwards before the commencement of the inquiry or trial.

''The section expressly limits it''s application to confession made to a Magistrate in the course of investigation under this chapter or at any time afterwards before the commencement of the enquiry or trial.'' Here, no case had been registered with the police nor was one under investigation. Even the offence had not yet been committed and the Magistrate was only required to trap the respondent while committing the offence. ''Chhutkannoo Singh v. Rex'', AIR 1949 Oudh 84 (B) is an authority on all fours and in that a similar view was taken.

For all these reasons I am of opinion that the charge against the respondent is proved to the hilt. The State appeal against him is consequently accepted and he is convicted u/s 161, I.P.C. Offences of this kind appear to be on the increase. They are rarely detected and more difficult than their detection is to prove them. Corrupt employees of the Government, like the respondent, are abominable menace to society and bring disgrace to their departments in particular and the administration generally. No compassion in a case like the present is merited or called for. I would, therefore, impose a. sentence of six months'' R.I. and Rs. 200/- fine, upon Madan Mohan respondent. In the event of non-payment of fine he will further suffer R.I. for three months.

Passey, J.

I agree.