Criminal Procedure Code, 1973 – Sections 161 & 162 – Evidence of Witness – Statement obtained during investigation – Previous Statements – Investigation in Anti Corruption Case – Recovery Mahazars signed by witnesses – Distinction with other cases.
Evidence of Witness
1988 (1) KLT 379 : 1988 (1) KLJ 176 : 1988 CriLJ 1144
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Hon’ble Mr. Justice S. Padmanabhan
V.A. Abraham Vs. Superintendent Of Police
Crl.A. No. 453 of 1986
Advocates: For Appellant: V. Radhakrishnan Menon, P. Gopinath; For Respondent: T.R. Raman Pillai, Public Prosecutor.
S. Padmanabhan, J.
1. The Special Judge (SPE/CBI)-I, Ernakulam, convicted and sentenced the appellant under S. 161, IPC and under
S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act
to rigorous imprisonment for two years each with an additional sentence of Rs. 5,000/- fine for the latter with a default sentence of simple imprisonment for 3 months, with permission to suffer the substantive terms concurrently.
2. Appellant was the Administrative Officer in the Head Office of F.A.C.T. in charge of purchase. PW. 1 was the Divisional Manager of a Company by name “Logic Systems Pvt. Limited” with which the F.A.C.T. placed orders for purchase of electric typewriters. The charge is that misusing his official position the appellant demanded and received Rs. 2,000/- as illicit gratification from PW. 1.
3. Defence is that there was no demand or receipt and PW. 1 was only arranging an illegitimate trap to save his employment from which he was facing dismissal and the money was actually thrust into the pant pocket of the appellant without his knowledge or consent.
4. There are certain undisputed facts which throw considerable shadows of doubt in the prosecution story and evidence. Pursuant to tender notification from the F.A.C.T., the Logic Systems submitted tenders on 8-12-1983 for supply of electric typewriters at the rate of Rs. 32,700/- as seen from folio 158 of Ext. P26. There was negotiation by which the amount was reduced to Rs. 27,370/- and made in conformity with the D.G.S. & D rates. This rate was accepted and orders placed by the appellant with the concurrence of the finance for supply of three numbers. Two were supplied in February 1984 and one on 23-8-1984 and payments were made. Transactions were thus finally closed.
5. As per rules repeat orders could be placed without fresh tender notification within six months at the same rates. When fresh supply became necessary the appellant placed orders for supply of two more numbers, one in March and the other in April, 1984. Though the order was placed after the expiry of six months and 5 days it was with the approval of the finance as admitted by P.W. 3. In March, 1985 supply of one number was had and payment was also made. The finance Director then passed orders keeping the supply of April, 1985 in abeyance pending further directions. PW. 3 informed the appellant by Ext. P11 dt. 15-3-1985 and appellant in turn informed PW. 1 by Ext. P12 dt. 18-3-1985. At no point of time till the entire supplies and payments were over and up to 9-5-1985 the appellant made any demand for any illicit gratification or create any difficulties. PW. 1 was aware of these facts and that supply was suspended only by the orders of the Finance Director and the appellant had no hand in it. This was admitted by PWs. 1, 2 and 5 and PW. 3 gave evidence that even if appellant wanted he was not in a position to create any difficulties by himself.
6. The prosecution case as spoken to by PW. 1 and detailed in Ext. P4 first information is that on 9-5-1985 PW. 1 approached the appellant to persuade him to have the purchase, but he wanted illicit gratification of Rs. 4,000/-, out of which Rs. 2,000/- was for the supply made in March, 1985 for which payment was also made without any demand for illicit gratification and Rs. 2,000/- for the purchase to be made in April. Finally the amount reduced from Rs. 4,000/- to Rs. 2,000/- but appellant wanted payment that day (9-5-1985) itself. PW. 1 promised to make the payment, but went and gave Ext. P4 information to PW. 10, Inspector of C.B.I. He arranged the trap. PWs. 2 and 9 are the trap witnesses. PW. 2 alone went with PW. 1 to the appellant and PW. 9 waited outside. PWs. 4 and 7 are employees having seat in the room of the appellant. The initial version was that PWs. 4 and 7 were also in the room and they heard PW. 2 being introduced by PW. 1 to the appellant as a typewriter mechanic though in fact he is an employee of the Export Inspection Agency. But in the box PW. 2 disowned the presence of PWs. 4 and 7 and hence they also fell in line. The further case is that appellant enquired with PW. 1 whether amount was brought and after getting an affirmative answer he took PWs. 1 and 2 to the office of the Finance Director where PW. 2 was introduced as the typewriter mechanic. The appellant further found fault with PW. 5 for keeping the order in abeyance and got a reply from PW. 5 to the hearing of PWs. 1 and 2 also that it was only on account of the orders of the Finance Director in which nobody else could do anything. The prosecution version is that immediately thereafter when PWs. 1 and 2 and the appellant came out to the varanda, PW. 1 gave the amount which was received by the right hand by the appellant and after transferring it to the left hand he put it in the left front pocket of his trousers. Defence version is that the amount was put into his pocket without his knowledge and consent and when he found fault with PW. 1 and attempted to take the notes out he was trapped.
7. Ext. P5 is the trap mahazar and Ext. P6 is the recovery mahazar. Recovery is not disputed. Hands and pocket of the appellant were positive to the tests and the notes recovered were also identical. The question is only whether the payment was as alleged by the prosecution or the defence. The evidence of PWs. 1, 2, 6, 9 and 12 is that the amount was recovered from the pocket whereas the defence version is that the appellant was caught when the amount was in his hand in an attempt to give it back. If PWs. 1, 2, 6, 9 and 12 are believed, the defence version of payment may be improbable. Even if that be the position the demand alleged by the prosecution and the attitude of PW. 1 in having a bargain and making an unwilling payment are improbable in view of the facts stated above.
8. It was argued for the C.B.I. on the strength of the decisions is
State of Assam v. Krishna Rao, AIR 1973 SC 28 : (1973 Cri LJ 169)
Man Singh v. State of Haryana, AIR 1973 SC 910 : (1973 Cri LJ 383)
that when money was recovered from the pocket of the appellant and it is shown to be not his legal remuneration, there is no question of further establishing that the money was consciously received. There cannot be any quarrel with the proposition. But it cannot hold good in all circumstances. Those decisions did not lay down a uniform rule of law that in no case when money which is not the legal remuneration is received from the pocket, no defence explanation, however acceptable it is, could be accepted. Each case must depend upon its facts.
9. The deposition of PW. 1 himself shows that he was facing a critical situation regarding his employment which was at stake for various reasons including want of proper turnover. Though he says he resigned his post, the possibility is he was removed. The management even made publications in papers warning the public not to have any dealings with him in the name of the company. He was interested in offering some acceptable explanation for the poor turnover in order to continue in service, F.A.C.T. was good customer for him and making out corrupt demands by the officers of the F.A.C.T. as an acceptable impediment to his business would have suited his purpose. He might have made an attempt for that purpose and unwittingly the appellant might have received the amount without any previous demand or agreement. From the evidence of PW. 1 such a possibility cannot be ruled out.
10. Anyhow the possibility of the appellant making a demand and PW. 1 agreeing is remote, if not impossible. Probably in an attempt to overcome this contention PW. 1 made three developments in the box. they are (1) Even if finance okays, appellant could have created problems (2) Appellant said that the accepted price is higher than D.G.S. & D rates and orders were placed only to favour him, and (3) Demands were made by the appellant on all occasions when he met him. These are three versions which he never had before and these versions are found improbable in the light of the other evidence. When the rates were negotiated and brought down on a par with D.G.S. & D. rates, I fail to understand the case that appellant said that higher rates were agreed to help PW. 1. Apart from his previous conviction, as seen from the evidence of PW. 5, just before making the alleged payment also PW. 1 heard from PW. 5 that the obstacle is due to reasons beyond control of the appellant. If PWs. 1 and 2 and the appellant alone were in the room of the appellant when PWs. 1 and 2 met him first, it is not known why payment was not made then and there and it was postponed to the veranda after going to the room of the Finance Director. The visit to the room of the Finance Director was evidently to introduce PW. 2. It is clear that PW. 1 was fully aware of the fact that payment to the appellant will not be of any use. If appellant wanted to make demands, he had more effective opportunities before and he would not have postponed it to the time when only one purchase, which was kept suspended, remained.
11. In support of the improbable demand we have got only the evidence of PWs. 1 and 2. It is clear that the investigating agency and the prosecution witnesses were prepared to improve the case at every stage in order to ensure a conviction. PW. 1 who admitted in Ext. P4 and in the box that there was no demand from the appellant prior to 9-5-1985 was prepared to change his version. Though in Ext. P4 his version was that the demand was to make the payment on 9-5-1985 itself, he had a draft with him at the time of Ext. P4 in which the demand was to pay that day or the next day. Ext. P4 is said to be an improvement on it. That means he was coining a case and making improvements to it. Copy of Ext. P4 given to the appellant was different from Ext. P4 and PW. 10 was not able to explain the difference though he was given 9 days. The investigating officer (PW. 13) then came with an explanation. He said that when PW. 1 was questioned again on 29-5-1985 he had a draft with him and PW. 13 took a copy of it and kept in the case diary. It is said that by mistake the police officer who prepared the copy treated that draft as Ext. P4. That is only a lame excuse to explain away the discrepancy. In the first place no sensible investigating officer will adopt such a course. Secondly the case diary is silent regarding such an action. In such a situation, it is difficult to believe the prosecution story and the evidence without doubt.
12. I have already mentioned how PW. 2 was prepared to improve his case by denying presence of PWs. 4 and 7 and how PWs. 4 and 7 were prepared to fall in line ignoring their case diary statements. PW. 2 is from the Export Promotion Agency which has regular liaison with the C.B.I. which had occasion to register cases against 8 or 9 officers senior to PW. 2. PW. 9 is from the Water Pollution Control Board which has also liaison with the C.B.I. and having its office in the next door. At the time of recovery these witnesses and PW. 6 alone were allowed to be present and all other disinterested persons were cleared out. PW. 6 who is the Chief Vigilance Officer of F.A.C.T. is having his parentage in the C.B.I and he was prepared to attest Ext. P6 which contains many things not known to him. He was even prepared to say that after recovery the appellant was in a state of shock. This is an improvement on his C.D. PW. 12 is the Deputy Superintendent of Police who supervised the trap. He said that the appellant was found perplexed and he made a frantic plea for help but PW. 12 pleaded helplessness. Though his C.D. is silent on this vital aspect PW. 13 was prepared to oblige him by saying that PW. 12 said so but he did not record. These aspects show to what extent the investigating officer and the prosecution witnesses were prepared to go in an attempt to book the appellant somehow or other. In the light of these facts and circumstances, in spite of the alleged recovery, I have my own doubts whether the evidence regarding demand, payment and acceptance could be swallowed without doubt. In this connection it has to be remembered that even without the infirmities the evidence of PW. 1 could be equated only to that of an accomplice especially after the introduction of S. 165A in the I.P.C. making abetment of offences under S. 161 and 165 also punishable. Especially in view of the evidence of PWs. 1 and 2 that in the position in which PW. 1 and the appellant were standing at the time of the alleged payment, it was possible for PW. 1 to put the amount into the pocket of the appellant, and in the background of the other facts and circumstances mentioned above improbabilising a demand and payment, the appellant is at least entitled to the benefit of a reasonable doubt in the matter. This doubt becomes stronger in the light of Exts. D2(a) and D2(b) proved by DW. 1 Personal manager of F.A.C.T. as to how the appellant was held in the estimation of the management. He was described by the Secretary as an outstanding dedicated officer. Possibility of PW. 1 putting the amount into the pocket without the knowledge and consent of the appellant or at least making the payment without demand in order to achieve his personal ends cannot be ruled out. Anyhow it appears to be unsafe to accept the prosecution evidence.
13. Lastly it was contended on behalf of the appellant that the prosecution evidence cannot be accepted for the reason that PWs. 1, 2 and 9 who are the main witnesses who participated in the trap were tied down by their signatures in Ext. P6 recovery mahazar which contained their statements under S. 161(3), Cr.P.C. in violation of the prohibition contained in S. 162. But I do not think that there is any merit in that contention. It is true that S. 162, Cr.P.C. contains a prohibition against obtaining the signature of witness whose statement is recorded during investigation. The policy underlying the rule is that at the trial the witnesses should be free to make statements which they wish to make even if they are in favour of the accused, unhampered by anything which they might have been made to say to the police. The signature may tie them to the statement or at least give them an impression that they are not free to make a different statement. But S. 162 does not provide that evidence of a witness given in court becomes inadmissible for the mere reason that his statement obtained during investigation was signed by him. The signature does not render the evidence inadmissible. It merely puts the court on caution and may necessitate in depth scrutiny of the evidence, that is all. On that account the evidence cannot be rejected outright. (See
State of U.P. v. M. K. Anthony, AIR 1985 SC 48.
14. But the real question is whether the contents of Ext. P6 could amount to statements recorded under S. 161(3) attracting the prohibition against signature in S. 162. In this connection there is a distinction between anti-corruption cases and other cases and also between statements recorded under S. 161(3) and those contained in Mahazars. An investigation by the police does not always start immediately after registration of a case by it. Investigation commences only by the first step taken by the police towards ascertainment of the offence and the culprits thereof. In some cases the first information may not be a complete document and before starting investigation supplemental information may be received. Such informations need not in all cases be statements made during the course of investigation attracting Ss. 161 and 162. If information regarding theft is obtained without list of the stolen articles a list of stolen property subsequently given by the complainant need not necessarily be covered by S. 161 or 162. But statements otherwise falling under S. 162, Cr.P.C. will not cease to be so merely because they could be brought under Ss. 158 and 159 of the Evidence Act also.
Bhandu v. Rex, AIR 1949 All 364 : (1949 (50) Cri LJ 561
15. In an anti-corruption case when the first information is given for arranging a trap and a case is registered after recording the information, the offence does not take place and hence investigation cannot start because investigation involves ascertainment of the offence and the offender. Without an offence and the offender there is no investigation at all. At that stage there will only be demand or agreement to accept the bribe and the information and registration of the case cannot relate to the offence for which the accused is tried. Steps taken on the basis of such information and before actual commission of the offence cannot be steps in investigation. There may be only steps preliminary to investigation. Without an offence there cannot be an offender and without an offence there cannot be investigation also.
Shyamlal Sharma v. King Emperor, AIR 1949 All 483 : (1949 (50) Cri LJ 719) (FB)).
In a case coming under S. 161 I.P.C. or S. 5(1)(d) of the Prevention of Corruption Act an offence is complete only when the illegal gratification is accepted by the accused person.
16. Previous statements contained in a pre-trap or post-trap mahazar in a corruption case do not come within the ambit of “statement made to the police officer” as contemplated in S. 162, Cr.P.C. attracting the prohibition against signature. They are only previous statements which could be legitimately used for corroboration under S. 157 of the Evidence Act. The purpose of such statement is to record things which occur in the presence of the witnesses and which are seen and heard by them and is never intended to convey or impart knowledge to the police officer. The secondary purpose of the recording is to serve as aid memoir to the witnesses when they enter the box as a contemporary record of what they saw and heard. The purpose is not to aid the investigating officer in detecting the offence and offender in order to place him for trial. Such mahazars cannot take the place of substantive evidence, but they merely corroborate the substantive evidence given before court as a previous statement under S. 157 of the Evidence Act. A plan prepared during investigation and signed by the maker is not done to evade the provisions of S. 162, Cr.P.C. and it can be used for corroborating his evidence in the box as a contemporaneous record from which he could refresh his memory.
17. In order that a previous statement under S. 157 of the Evidence Act should also fall under S. 162, Cr.P.C. it must be a statement made to a police officer and must have been made in the course of investigation. When the primary and essential purposes of mahazars are taken into account it is not possible to say that the mahazar witnesses intended an element of communication to the police officer. They are asked to witness certain things and what is done is only making a contemporaneous record of what they saw and heard. There is a distinction between narration made to a police officer with a view to communicate or impart knowledge and a mere record of what the witnesses saw and heard which is intended as a contemporaneous record. The mere fact that the record was made by the police officer on hearing from the witnesses will not make any difference. But if the mahazar contains statements intended as a narration to the police officer during investigation it will be hit by S. 162.
18. The two provisions of the Code of Criminal Procedure dealing with the making of such contemporaneous records during investigation are Ss. 103 and 174, the first dealing with search and seizure and the second dealing with inquest. These records will have to be prepared in the presence of respectable witnesses. These provisions cannot be exhaustive. Mahazars are contemplated in cases of test identification, specimen handwriting or fingerprints, S. 27 recovery etc. These records are never intended to convey any information by the witnesses to the investigating officer and they are intended only to make a record of things that transpired in their presence or to their hearing. The pre-trap or post-trap mahazar in an anti-corruption case only records what transpired in the presence of the witnesses either before or after the police officer arrives at the scene. These are not intended to impart knowledge to the police officer. Of course when a mahazar is tendered in evidence it is the duty of the court to ascertain whether any part of it falls within the mischief of S. 162, Cr.P.C. and if it so falls the court should refuse to admit that portion in evidence. (See
Valibhai Omarji v. State, AIR 1963 Guj 145 : 1963 (2) Cri LJ 14
Miyabhai v. State, AIR 1963 Guj 188 : 1963 (2) Cri LJ 141
Santa Singh v. State of Punjab, AIR 1956 SC 526 : 1955 Cri LJ 930
V. K. Belurkar v. State of Maharashtra, 1975 Cri LJ 517 (Bom).
19. There is one other aspect which makes the prosecution story mere suspicious. Payment of Rs. 2,000/- is said to be on behalf of the Company. PW. 1 has no case that he was competent to expend Rs. 2,000/- as bribe on behalf of the Company or that he obtained sanction from any competent superior. To overcome this difficulty he said that at first the expenditure was met from his personal fund. That itself is improbable. Then he said that it was subsequently adjusted in the office fund for which he had to undertake a journey to the headquarters at Delhi. Except the word of his mouth there is no record or other evidence to substantiate this version. The fact remains that in spite of all these, he was removed from service followed by paper publication. Inference is evident.
20. It follows that the statements of PWs. 1, 2, 6 and 9 recorded in Ext. P6 do not offend S. 162, Cr.P.C. because they are not statements coming under S. 161(3). But for other reasons already discussed, I feel it unsafe to enter conviction with the available evidence and the appellant is entitled to acquittal giving him the benefit of reasonable doubts entertained by me in the body of the judgment.
The appeal is allowed and the convictions and sentences are set aside and the appellant is acquitted giving him the benefit of doubt. He is set at liberty after cancellation of his bail bonds.