PURSHOTTAM JETHANAND Vs. STATE OF KUTCH

JUDGEMENT

(1.) This is an appeal by special leave. The appellant was a Police Jamadar working in the Local Investigation Branch, Mandvi, in the State of Kutch. The prosecution case against him is that he visited a place called Rampur within the Mandvi Taluka on the 16th April, 1950, and checked the passports of a number of persons who had gone to Africa and returned. It is alleged that in the course of the check which he carried out, he collected the passport of one Ananda Ratna of the village and demanded a sum of Rs. 800/- for its return which was accordingly paid on the 18th April, 1950, and that thereby he committed an offence of extortion under Section 384, I.P.C. The prosecution against the appellant appears to have been the result of information filed by this very appellant on or about 18th April, 1950, at the police station Mandvi that he was robbed of a sum of Rs. 870/- by some of the inhabitants of the village Rampur and that in course of the robbery he was assaulted and received injuries. That information was registered as Cr. Case No. 51 of 1950 and P.W. 1, Sub-Inspector of Mandvi Police Station investigated the same. It is said that in the course of that investigation P.W. 1 came to know of the extortion committed by the appellant from the fact that some of the residents of Rampur on that very day produced before the police a sum of Rs. 840/- as having been taken back from the appellant when it was found that it had been collected from the other villagers by means of extortion. The Sub-Inspector accordingly filed a complaint in the Court of the First Class Magistrate, Mandvi, against the appellant setting out these facts. Eight witnesses were examined to substantiate the prosecution case. The defence of the appellant was that the money was his own and that when he found, during his check, that a number of persons had false passports he took the statements from them and that they, in order to snatch away their statements, beat him and robbed him of his own money which was with him. In support of his case he has examined eight witnesses. All the three courts below have accepted the evidence for the prosecution and disbelieved the defence version. The appellant was accordingly convicted of an offence under Section 384, I.P.C. and sentenced to R.I. for 12 months and a fine of Rs. 100/-. This was confirmed by the Sessions Judge on appeal and upheld on revision by the Judicial Commissioner, Kutch.

(2.) Learned counsel in addition to making an attempt to canvass the facts found, raised certain legal arguments. So far as the findings of fact based on an appreciation of the evidence were concerned we could not allow him to reopen them in this appeal on special leave. The legal arguments are as follows:(1) The trial Magistrate had no power to take cognizance of the proceedings and the proceedings are, therefore, void. (2) The statements of the witnesses examined during the course of investigation were not furnished and hence the trial is illegal. (3) The facts proved do not make out that the money was paid under any fear of injury and therefore, the offence of extortion was not committed. So far as the first point is concerned, the facts on which the contention is based are set out in the judgment of the Judicial Commissioner as follows:

(3.) The second legal objection advanced is that the statements of the prosecution witnesses recorded by the police during investigation were not furnished under Section 162, Cr. P. C. and that, therefore, there was a serious illegality which vitiated the trial. It would appear that on the 15th April, 1951, when the principal prosecution witness was under examination, the defence applied to the trial court to be supplied with a certified copy of his statement during investigation to enable the defence to cross-examine the witness but that it was refused. This was on the ground that the prosecution was in respect of a non-cognisable offence for which there was no investigation and that no witness was examined in respect of this offence under Section 161, Cr. P. C. The learned counsel for the appellant relies upon the fact that admittedly there was investigation of the complaint filed by this very appellant relating to the alleged robbery of his money which was registered as Cr. Case N. 51 of 1950 and that it is, as a result of the information obtained during that investigation, that the present prosecution has been launched. He accordingly puts his argument in two ways.(1) In order to be entitled to the statements under Section 162, Cr. P.C. it is enough if the investigation is under Chapter XIV of the Code and the witnesses gave statements in respect of the matters relevant to the offence under prosecution, though in fact this particular offence was not being then investigated. (2) The investigation in Cr. Case No. 51 of 1950 was in fact and in substance an investigation 'also' for the offence for which the appellant has been prosecuted.