T.A Basheeruddin Ahmed, And Another Accused, v. Government Of Mysore

Venkataramaiya, J.:— These appeals are preferred by the 1st and 2nd accused respectively against their convictions in Bangalore Sessions Case No. 6 of 1950-1951. Accused 1 was charged with committing offences under Section 161, I.P.C and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1948, for having received on the night of 13th October 1948 from one Sanjivappa Rs. 400/- as illegal gratification in order to show favour to him in four cases pending before him (1st Accused) as House Rent Controller. The 2nd accused was charged with the abetment of the said offences. The learned Sessions Judge found both the accused guilty and sentenced Accused 1 to rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- for each of the said offences with a direction that the sentences do run concurrently. As regards the 2nd accused he ordered under Section 562 of the Code of Criminal Procedure that he should be released on bail on his executing a bond in a sum of Rs. 1,000/- with one surety for a like sum to appear and receive sentence when called upon within a period of one year and in the meantime to keep the peace and be of good behaviour.

2. Accused 2 is the son of the 1st accused aged about 15 years and a student in the High School. He is living with the 1st accused and said to have been in contract with some of the persons whose cases are pending before the 1st accused. The 1st accused is a Senior Assistant Commissioner in the service of the Government of Mysore and was appointed as House Rent Controller in Bangalore City in about the year 1947. One B.H Sanjivappa who is a contractor and owns some houses in Bangalore City applied to the 1st accused for eviction of his tenants and enhancement of rent payable by the tenants in some cases. One of these cases was filed in 1948. In the month of September 1943 the said Sanjivappa who is examined as P.W 14 complained to the Deputy Commissioner, P.W 15, about the delay on the part of the 1st accused in disposing of his cases and that the 1st accused was said to be in the habit of receiving bribes from parties. P.W 15 sent him away saying that unless a case is made out no action can be taken. Subsequently on one of the dates to which the petition of P.W 14 was posted, he saw the 2nd accused moving about at the office of the 1st accused and on being told by some of the parties in other cases then present that the 2nd accused would be of help to obtain favourable results in the cases spoke to him about his own affair. The meeting between P.W 14 and the 2nd accused was renewed and finally led to an understanding on 12th September 1948 that P.W 14 should pay Rs. 500/- to the 1st accused at his house as consideration for disposal of his cases in the manner favourable to him. P.W 14 communicated this to P.W 15 and the night of 13th October 1948 was fixed by P.W 14 with the 2nd accused for payment of the prescribed amount to the 1st accused. Meanwhile the Director of the Efficiency Audit and Anti Corruption Department was apprised of this arrangement and with the assistance of the police officers and the officers of his Department, Rs. 400/- provided by him in the form of forty ten rupee currency notes were taken to a Magistrate, got marked by him, given to P.W 14, the officers themselves lying in wait near the house of the 1st accused. P.W 14 in pursuance of the engagement went to the house of the 1st accused at 8-30 p.m but returned without paying the money as the 1st accused was absent and said to have gone to attend a picture. At the second visit about an hour later P.W 14 met the 1st accused in his house and paid him Rs. 400/- promising to give the balance of Rs. 100/- later on. The payment was announced by a signal of waving the umbrella after he came out and immediately an Inspector of the Anti-Corruption Department got in and kept the 1st accused engaged in a talk so that the amount may not be removed by the 1st accused before the arrival of the officers. P.W 15 dropped in within a few minutes with others and questioned the 1st accused if he had received from P.W 14 any money. The 1st accused denied the payment at first but on being confronted with P.W 14 admitted it, looked at the 2nd accused who hereupon took out the notes from his shirt pocket and handed them over. A mahazar was prepared for the seizure of the amount, two registers and a note book at the time and after the investigation proceedings were completed and sanction was obtained from the Government, a charge-sheet was presented in the Court of the City Magistrate, Bangalore. This in brief is the case for the prosecution. Though 18 witnesses in all were examined on behalf of the prosecution and none on behalf of the accused in the committing Court and in the Court of Sessions, the evidence of many of the prosecution witnesses is not now material in view of the accused having in their statements admitted some of the facts sought to be proved by it. The accused admit that P.W 14 visited them on the 13th October 1948, that he left Rs. 400/- then in the house of the accused, that of the books then seized two were got prepared by the 1st accused by his clerks and one contains the writing of the 2nd accused. These facts were not disputed during the arguments and so there is no need to discuss the evidence of P.W 1, the Magistrate, who marked the currency notes, P.Ws 3, 5 and 6 three clerks of the 1st accused who copied the registers, Exhibits 17 and 18, P.W 4 the teacher who identified the writing of the 2nd accused in the book, Exhibit P. 22 and P.W 9 the Handwriting Expert who speaks to the writing in Exhibit P. 22 being that of the 2nd accused. P.Ws 2 and 18 are the officers of the Secretariat examined for the purpose of proving the sanction of Government for the prosecution of the accused. P.Ws 12 & 13 are witnesses to the mahazar Exhibit P. 24. P.W 16 is the Director of the Anti-Corruption Department and P.Ws 10 and 11 are the Daffedar and the Assistant Superintendent of Police respectively working under him. P.W 8 is the Police Inspector who kept the 1st accused engaged in conversation in the interval between P.W 14 coming out of the house of the 1st accused and the arrival of the other officers and P.W 17 is the Superintendent of Police who investigated the case. P.W 15 is the Deputy Commissioner who reported the incident to the Government and on whose report sanction was accorded and P.W 14 is the person who has given direct evidence of the payment and matters connected with it. The main plea of the accused is that the money was not accepted by the 1st accused and that P.W 14 left it and went away abruptly, that the 1st accused immediately asked his son to take it out for being returned to P.W 14 and in case he was not found, deliver it to the Police. It is also stated that while the 2nd accused had gone out in quest of P.W 14 with the money, he was detained by the police officers waiting outside and brought back inside the house. The prosecution is alleged to be the outcome of ill-will on the part of P.W 15 on account of differences between him and the 1st accused as regards the authority of the 1st accused to function as the Rent Controller independently of P.W 15. The learned Sessions Judge found that these pleas are not tenable and that the evidence let in by the prosecution is sufficient to establish the guilt.

3. The contentions raised against the convictions during the arguments addressed at first by Sri Jayarama Iyer and followed by Sri S.K Venkataranga Iyengar relate mainly to the propriety of relying on the evidence of persons who set a trap to catch another and the kind of corroboration necessary if at all it has to be acted upon. The sanction of Government for the initiation of the proceedings was commented upon as not being in accordance with law and may be first examined. Ex. P. 5, the order of sanction, is as follows:

4. Proceedings of the Government of His Highness the Maharaja of Mysore. Read:

“The report of the District Magistrate, Bangalore District (Urban), that Janab T.A Bashruddin Ahmad, Assistant Commissioner doing duty as House Rent Controller, Bangalore City, received illegal gratification on 13-10-1948 from Sri B.H Sanjeevappa, Contractor, Anchapet, Bangalore City, promising to do him official favours.

Order No. 4696-4701.Cts. 64-48-2, dated Bangalore the 11-12-1948.

1. Under Sub-section (1) of S. 197 of the Code of Criminal Procedure 1904, and Section 12 of the Prevention of Corruption Act 1948, sanction is accorded for the prosecution of Janab T.A Bashiruddin Ahmad Assistant Commissioner, doing duty as House Rent Controller, Bangalore City, for offences under Section 161 of the Indian Penal Code and Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act 1949(1948?) or such other offences as may be made……..

Under Sub-section (2) of Section 197 of the same Code, Government are pleased to direct that the trial of Janab Bashiruddin Ahmad be held in the Court of the City Magistrate, Bangalore.

Secretary to Govt.,

Law Department.

5. The report of the District Magistrate referred to is Exhibit P-25, dated 14-10-1948, which is next to the date of the occurrence. Relying on ‘Gokulchand Dwarkadas v. The King’, A.I.R (35) 1948 P.C 82 which states “that the facts constituting the offence charged should be shown on the face of the sanction or the prosecution must prove by extraneous evidence that these facts were placed before the sanctioning authority” it was urged that the facts are not set forth in Exhibit P. 5 and if Exhibit P. 25 is deemed to have furnished the facts required, the sanction is not valid as Exhibit P. 25 contains admission of guilt by accused which is inadmissible. I do not think that the mention of I the alleged admission will invalidate the sanction as its purpose was to inform the Government of what accused said at the time along with, other facts for determining whether a prosecution is called for. The rules governing reception of evidence or those for recording confessions cannot apply as the statements are not sought to be used as either. It may be mentioned that Exhibit P. 25 was called for by the accused and the sanction is not based on the alleged admission of accused.

6. The legality of the trial in the Court of Sessions when there is a direction in Exhibit P. 25 that the accused should be tried in the Court of the City Magistrate, Bangalore, was a point of some discussion. The question whether a trial by a Court different from the one specified in the order of sanction is legal arose in ‘Menon v. The King, A.I.R (37) 1950 P.C 19. After pointing out that no sanction is necessary for the institution of proceedings against a public servant for an offence under Section 120 B read with Section 161, Indian P.C, their Lordships stated:

“A Governor cannot specify a Court under sections 197(2) Criminal Procedure Code unless he has given a sanction under Section 197(1). He has no power to specify a Court in any other case…………. A Governor cannot acquire bower to specify a Court in a case to which Section 197(1) does not apply by combining the specification with an unnecessary sanction. As the sanction in the case was unnecessary the specification of Court could not have the effect which the Appellant seeks to attribute to it and therefore the argument must fail.”

7. These observations may be well applied to the present case as we are of opinion that a sanction under Section 197 was not necessary notwithstanding the view of a single judge to the contrary in “37 Mys H.C.R 514. As expressed in ‘H.T Huntley v. Emperor’, A.I.R (31) 1944 FC 66:

“The act of receiving illegal gratification by a public servant cannot be regarded as an act done or purporting to be done in execution of duty.”

8. This was affirmed in ‘H.H.B Gill v. Emperor’ AIR 1947 FC 9 and upheld by the Privy Council in HHB Gill v. The King’, A.I.R (35) 1948 P.C 128. This is not sufficient to dispense with the need for sanction altogether as there is Section 12 of the Prevention of Corruption Act which though different from Section 197 Criminal P.C states:

“No Court shall take cognizance of an offence punishable under Section 161, Section 164 or Section 165 of the Indian Penal Code or other Section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction of:

(a) the Government in the case of a public servant removable from his office by or with the sanction of Government;

(b) the officer or officers specially empowered in this behalf by Government in the case of all other Public Servants”.

9. There is no provision in this section as in S. 197(2) Cr. P.C for the Government specifying the Court by which the accused is to be tried.

10. Exhibit P-5 states that sanction is accorded, under S. 197 Criminal P.C as well as S. 12 Prevention of Corruption Act. If as held in ‘B.G Lerotholi v. The King’, A.I.R (37) 1950 P.C 10, S. 197 does not apply, the order made thereunder does not affect the ordinary jurisdiction of the City-Magistrate to commit the accused and this is obligatory as regards the offence under S. 5 of Prevention of Corruption Act which, being punishable with, imprisonment of seven years, is triable exclusively by the Court of Session under Sch. II of the Code of Criminal Procedure. Even otherwise the words in S. 347 of the Code enable him to exercise his powers to commit, at any stage of the proceedings, the accused to the Court of Session. In A.I.R (34) 1947 FC 9 it was observed that after the institution of proceedings is sanctioned the subsequent course of the same is governed by the relevant provisions of the Code. There is no reason to hold that the sanction of Government for the initiation of the proceedings was defective or that the trial of the accused in the Court of Session was invalid.

11. As regards the merits of the case the contention was two-fold; that the entire evidence is to be discarded as it consists of persons who engineered a plan to foist a case on the accused and in any case it is untrustworthy for want of necessary corroboration. Sri Jayarama Iyer cited ‘1947-2 KB 372 in which dealing with a case under the Betting Act Lord Guddard C.J remarked.

“The Court observes with concern and disapproval, the fact that the police authority at Derby thought it right to send a police officer into a public house to commit an offence. It cannot be too strongly emphasised that unless an Act of Parliament provides for such a course of conduct and I do not think any Act of Parliament does so provide it is wholly wrong for a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected. It is not right that police authorities should instruct, allow or permit detective officers or plain clothes constables to commit an offence so that they can prove that another person has committed an offence. It would have been just as much an offence for the police constable in the present case to make the bet in the public house as it would have been for the bookmaker to take the bet if in doing so he had committed an offence. I hope the day is far distant when it will become a common practice in this country for police officers to be told to commit an offence themselves for the purpose of getting evidence against some one; if they do commit offences they ought also to be convicted and punished for the order of their superior would afford no defence.”

12. The decision in the case was not based on the view that such evidence cannot be acted upon as was made clear by the statement

“I decide this case entirely on the ground that a public house is not a public place within the meaning of the strict Betting Act”.

13. The decision of a single Judge abstract of which is given in ‘In re. Chandrasekhara Iyer’, (1951) 1 Mad L.J (Notes) 45 merely states that where officials laid a trap and incited bribery such officials and bribe-givers would be in the position of accomplices and their evidence requires corroboration in material particulars to establish the crime of bribe taking. ‘In re, Jesudas Appadurai Pillai’, 1945 Mad W.N 114 is also the decision of a single Judge concerning an offence under S. 161 I.P.C in which testimony of the person giving the bribe is subjected to the test of corroboration. ‘In re, Lakshmi Narayana Aiyar’, 1917 Mad N. 831 was also cited for the appellants to show that the person offering the bribe would be guilty though the offer was made as a pretence and not accepted by the person to whom it is offered. This case has not much bearing on the appellant's contention as the question now is not whether P.W 14 who paid the amount to the 1st accused is guilty and as the decision in that case was based on other grounds. ‘Pandita Gangaram v. The Crown’, A.I.R (37) 1950 Nag 1 and ‘Province of Orissa v. Venkata Rangamma’, 1950 DLR (Cut) 26 relied upon do not lay down in effect anything more than the need of corroboration. In none of the cases was the evidence excluded as being that of decoys or spies and the judgment in the last case quotes with approval the observations of Lord Alverstone in ‘The King v. Mortimer’, (1911) 1 KB 70.

“The particular transaction of which evidence given is the result of police trap and though I do not like police traps any more than any one else still it is only fair to remember that it is almost impossible to detect this class of offences in any other way”.

14. In Russell's book on Crimes and Misdemeanors Vol. 2 page 2136 (1923 Edn.) it is stated

“Government are justified in employing spies and a person so employed does not deserve to be blamed if he instigates offences no further than by pretending to concur with the perpetrators. Under such circumstances they are entirely distinguished in fact and in principle from accomplices”.

15. In Halsbury's Laws of England, Vol. 9, page 222 there is the statement

“A Police spy, for example a woman who visits a suspected abortionist and pretends that she wishes him to procure her abortion is not an accomplice.”

16. Taylor also in his book on evidence at page 970, Vol. I, (1920) Edn. says

“To one class of persons apparently accomplices the rule requiring corroborative evidence does not apply namely persons who have entered into communications with conspirators but who in consequence of either a subsequent repentance or an original determination to further the enterprise have disclosed the conspiracy to the public authorities under whose direction they continue to act with their guilty confederates till the matter can be so far matured as to ensure their conviction. The early disclosure is considered as binding the party to his duty and though a great degree of disfavour may affect him for the part he has acted as an informer yet his case is not treated as that of an accomplice”.

17. In Vol. XVI Corpus Juris, page 673 it is stated that

“A detective who is engaged in attempts to discover violations of the law is not an accomplice of one charged with such a violation.”

18. The question as to what is the test of a person being an accomplice is considered in ‘Emperor v. Chatur Bhuj Sahu…Accused.’, 38 Cal 96 at p 105 in detail and answered thus:

“It may sometimes be difficult to draw the line of discrimination between an accomplice and a pretended confederate such as a detective, spy or decoy, but we think the line may be drawn this way. If the witness has made himself an agent for the prosecution before associating with the wrong doers or before the actual perpetration of the offence he is not an accomplice; but he may be an accomplice if he extends no aid to the prosecution until after the offence has been committed”.

19. It is evident from a consideration of these that the evidence of persons concerned in laying the trap cannot be regarded as that of accomplices in the sense that they are participants in the commission of the offence, though the detection of crimes by means of such a practice as a rule is not deemed commendable and justified by the peculiar difficulties in getting proper proof of the commission of offences in particular cases. Opinions may vary about methods to be employed for exposing wrongful acts by holding out temptations or baits to persons suspected of abusing their official position for selfish gains. It was said that such practices, if allowed, may lead to cases being trumped up against innocent men. The mere possibility of an improper use of the device cannot be a ground for its rejection out-right. Experience shows that this is not usually or frequently resorted to in cases coming before Court for decision. The secrecy and subtlety with which certain offences are ingeniously committed, the novelty of tactics and manouvers indulged in call for a course different from that adopted in other cases to apprehend wrong doers. So long as there is no prohibition under the law, the Courts cannot shut out such evidence and have accepted such evidence to support convictions under S. 161 I.P.C but required corroboration in some instances to be satisfied about the truth of the version and not because of any necessity for it under the law. (See ‘K.H Bhattacharjee v. Emperor’, A.I.R (31) 1944 Cal 374, ‘Mahabir Prasad v. State’, 52 Cri. L.J 944 (Punj). The Prevention of Corruption Act contains special provisions by which the burden of proof ordinarily imposed on the prosecution in a criminal case is placed on the accused and the accused are allowed to give evidence if they choose. When as in this case the prosecution evidence is that of persons who provided and paid the bribe after arranging for the time and place therefor on a previous consultation, all that the accused may ask for is that the evidence should be scrutinised with care and accepted with caution. Learned counsel for appellants after refering to the remarks in A.I.R (31) 1944 P.C 66 at p. 68 that a charge under S. 161 IPC is often lightly made and however strong the suspicion, the accused is entitled to an acquittal unless every reasonable possibility of innocence is exhausted, argued that in this case the receipt of the amount by the 1st accused which is an essential requisite of the offence is not established as the only evidence about it is that of P.W 14 who has been regarded as unreliable in certain other cases. Criticism of a person or comments made on his conduct in one case cannot afford a proper basis for estimating his evidence in another case as the opinion to be formed depends on the particular facts and materials placed before the Court for consideration (See ‘Chandreshwar Prasad v. Bisheshwar Pratab’, A.I.R (14) 1927 Pat 61. The veracity of the witness has to be judged from the facts elicited during his examination and the support these receive by the other evidence and probabilities. The witness cannot be disbelieved because he set up in a suit for partition pleas which were characterised as or because he compounded a case of defamation by tendering an apology. He was a contractor and while carrying on some works had to make payments to some officers. This is not a detracting factor as he may have been a victim to compelling circumstances and not an accomplice. The lengthy cross-examination to which the witness was subjected has not elicited anything to show that he had any motive to incriminate the accused falsely or that he had expectations of a gain from his fall. Apparently he is well to do, possessed of a number of houses fetching substantial rents in the City. Receipt of a bribe by an officer being in act in accordance with a highly personal and confidential arrangement with the giver in the house of the officer himself where the utmost precaution for secrecy is naturally taken, the absence of evidence of any other in support of P.W 14's statement about the payment to accused 1 is no ground to disbelieve him. Even if corroboration as in the case of an accomplice is necessary, it is enough if there is independent evidence in support of his version in certain material particulars and such evidence on every point of detail spoken to by the witness is not required. As already mentioned many of the facts about which evidence is let in are admitted. (His Lordship reviewed the evidence and continued) Though there are a few minor discrepancies in the evidence of the witnesses, in the main it is reliable and satisfactory. We would therefore uphold the convictions.

20. The question of sentence needs a little consideration. So far as accused 1 is concerned, the sentences awarded according to the judgment are two years rigorous imprisonment and fine of Rs. 1000/- for the offence under S. 161 I.P.C and a similar sentence for the offence under S. 5(1)(d) of Prevention of Corruption Act. The direction that these are to run concurrently cannot relieve the 1st accused of the liability for payment of the fine in each case. When, the act constituting the offence and facts relating to it are the same for the purpose of conviction under both the sections, we do not think a double sentence of fine is proper. As regards the sentence of imprisonment though in view of the consideration that corruption is a grave and growing evil to be nipped in the bud and when a case is made out against a person such as the 1st accused holding a responsible position in service, the sentence should be deterrent, the consequences of the conviction on his career at this stage of his life cannot be overlooked. It is sufficient we think to limit the period of rigorous imprisonment, for each offence to six months and direct the sentences to run concurrently. The sentence of fine with respect to the offence under S. 5(1)(d) read with S. 5(2) of Prevention of Corruption Act is set aside but with respect to the offence under S. 161 I.P.C is confirmed as also the sentence to be undergone in default of payment. The case of 2nd accused does not call for any interference. His appeal is dismissed. The appeal of accused 1 is dismissed with the above modification in the sentences. The 1st accused must surrender to the bail and undergo this sentences.

R.G.D

Appeal dismissed but sentences modified.