RAMPAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The appellant Rampal along with one Kanti Prasad, since acquitted by the High Court, was charged with being a party to a criminal conspiracy (120B IPC) to get one Vikram (PW7) (involved in Crime No. 41 of Hastinapur Police Station under S. 379 IPC) released illegally from the lawful custody of the police on June 7, 1968 and was further charged with having actually got the said Vikram released unlawfully from the lawful custody on that day in the Court of the Judicial Magistrate, Mowana at Meerut in furtherance of the conspiracy and thereby having committed an offence punishable under S. 221 of the Indian Penal Code. The Sessions Judge convicted the appellant as also Kanti Prasad under both the counts and sentenced each one to suffer rigorous imprisonment for 4 years under each count respectively. Kanti Prasad was also found guilty of an offence punishable under S. 466 I.P.C. and was sentenced to rigorous imprisonment for two years. In appeals that were preferred by both, Kanti Prasad was acquitted outright by the High Court while the appellant's conviction and sentence under S. 120B I.P.C. was quashed but his conviction under S. 221 I.P.C. was confirmed but the sentence was reduced to two years' rigorous imprisonment. The appellant is challenging this conviction and sentence under S. 221 in this appeal by special leave granted on November 5, 1974.

(2.) The facts giving rise to the prosecution of the appellant may briefly be stated thus:One Vikram (PW7) on being arrested by the Hastinapur Police Station for an alleged offence under Section 379 I.P.C. was produced by constable Mohd. Shabbir (PW 6) before Shri A. N. Kapoor, Judicial Magistrate, Mowana (PW 3) on June 7, 1968 for obtaining a remand for 14 days. The appellant Rampal (a member of the Constabulary Police) was the Court Moharrir of that Court. He prepared remand warrant (EX. 11) and Shri Kapoor (PW 3) remanded Vikram to police custody for 14 days i.e. from June 7, 1968 to June 20, 1968, both days inclusive. One Lachhman (PW 8), the brother of Vikram, who had accompanied Vikram from the Police Station to the Court, approached Advocate Sharma (PW 2) to move an application for bail for Vikram but since Advocate Sharma was in a hurry to go to Muzaffarnagar for some other case, he advised Lachhman to engage another counsel. Lachhman (PW 8) then approached Advocate Pahwa (PW 5) who prepared the bail application in duplicate (Exs. Ka-20 and Ka-21) and presented the original application Ex. Ka-20 to Shri Kapoor, who passed the following order (Ex. Ka-16):"Information A.P.P. who is to argue and report. Put up for orders on 8-6-1968". In other words, bail was not granted and the remand order remained in operation with the result that Vikram should have been sent to custody. Lachhman (PW 8) approached Pahwa, (PW 5), and asked him whether he would have any objection if bail was obtained for Vikram that very day through another counsel and Pahwa told him that the bail order would be passed on the next day but he (Lachhman) was at liberty to engage another counsel if his purpose would be achieved that very day. Lachhman then approached Advocate Mahesh Kumar Tyagi (PW 10), who wrote out a fresh bail application for Vikram and also prepared two surety bonds (Exs. Ka-12 and Exh. Ka-13) and two affidavits (Exs. Ka-14 and Ka-15) on behalf of two sureties Dal Singh and Satya Pal Singh:the surety bonds Exs. Ka-12 and Ka-13 were prepared by filling in printed forms on which the signatures of the sureties were obtained and the two affidavits were also sworn by the two sureties; thereupon he made his endorsements on these papers (Exs. Ka-12 to Ka-15) that those two persons were known to him personally and that they were reliable up to the amount specified in the documents. Armed with these papers and the bail application he went to the Court room of Shri Kapoor (PW 3) and handed over Exs. Ka-12 to Ka-15 to Kanti Prasad (the acquitted accused) who was working as the Criminal Ahalmad of the Court and asked him to keep the papers ready as he was going to move the bail application. Kanti Prasad in anticipation verified the documents given to him and fixed the seal of the Court after making the endorsement "provisionally accepted. Verify from Tahsil" and also scribed the particulars pertaining to the names of the persons identifying him as also the endorsement of acceptance on behalf of the Magistrate and after keeping some space blank for the Magistrate's signature he put the date "7-6-68" on these papers. Advocate Tyagi (PW 10) moved the bail application before the Magistrate who returned the application to him saying that a bail application for Vikram had been moved earlier before him which had been adjourned to the next day and that he (Tyagi) could approach him on June 8, 1968 to argue the matter and that the bail order would be passed on that day. Advocate Tyagi (PW 10) then went to Kanti Prasad and demanded the returns of Exs. Ka-12 and Ka-15 but Kanti Prasad refused to return those papers on the ground that he had verified those papers and made endorsements and affixed Court seals thereon but stated that he would use these very papers the next day when the bail order would be passed. Notwithstanding all this admittedly Vikram was not sent to jail custody but was actually released on that day itself at the direction of the appellant - a fact vouched by Mohd. Shabbir (PW 6), Vikram (PW 7) and Lachhman (PW 8). However, as scheduled, Advocate Tyagi (PW 10) appeared in the Court again on June 8, 1968 and on that day after hearing the parties Shri Kapoor (PW 3) passed an order (Ex. Ka-27) granting bail to Vikram, whereafter the bail papers Exs. Ka-12 to Ka-15 were put up by Kanti Prasad before Shri Kapoor and his signatures were obtained regarding provisional acceptance of the surety bonds and the sworn affidavits. Non-sending of Vikram to jail custody and his actual release on June 7, 1968, however, came to light three days later when bail for some other co-accused in crime No. 41 was sought by Advocate Sharma (PW 2) on June 11, 1968 and the Magistrate directed the matter to be heard on the following day and Advocate Sharma complained to the Magistrate that bail had been granted to Vikram on the very day on which the application had been moved, whereupon Shri Kapoor (P. W. 3) asked Shri Sharma to approach him after lunch interval and when Shri Sharma did so entreating the Magistrate to grant bail on the same day Shri Kapoor granted bail at about 4.00 p.m. on June 11, 1968. The President of the District Bar Association made an oral complaint to the District Judge on June 21, 1968 about all these facts whereupon an inquiry was ordered and on receipt of the report of Shri Mahey, the A.D.M. (PW 1) the necessary investigation was undertaken and the appellant along with Kanti Prasad was charge-sheeted and later on committed to the Sessions Court for trial of offences as stated above.

(3.) The defence of Kanti Prasad was that it was his duty to keep the papers and records with him but it was not his responsibility to prepare the remand papers nor to issue the release directions to the police escorts qua the suspects produced in Court, which were the duties of the Court Moharrir. He admitted that in anticipation and at the instance of Advocate Tyagi, he verified the surety bonds and affidavits (Exs. Ka-12 to Ka-15) but refused to part with those papers and retained them with him when bail was refused and produced those very papers before the Magistrate on June 8, 1968 after the bail order had been passed and after correcting the date June 7 to June 8, he obtained the Magistrate's signatures thereon. He specifically denied that he had any hand in the actual release of Vikram on June 7 as that was not part of his official duty. The appellant admitted that Vikram was produced in custody on June 7 that the Court gave remand to him till June 20, that he entered the remand order on the order-sheet but did not enter that order in the remand register but he claimed that the jail warrant was given by him to the police escort Mohd. Shabbir. As regards the actual release of Vikram on June 7, his statement during the course of the earlier inquiry conducted by Shri Mahey, A. D. M. (Judicial) was that Kanti Prasad told him at about 3.30 p.m. on June 7 that the Court had granted bail to Vikram and Vikram should be released and on this information he asked the constable to obtain a personal bond from Vikram and to release him and that after Kanti Prasad had obtained the signature of Vikram on the personal bond he directed Vikram's release. Before the Committing Magistrate his case was that the Court itself ordered the release on June 7 and Vikram was released in obedience to that order in the Court itself. In the Sessions Court he improved his version and stated that the order of release passed by the Court on June 7 was an oral order and not a written order and he further contended that his statements in the earlier inquiry were the result of the pressure exerted by Shri Kapoor. As stated earlier, though the Sessions Court convicted both Kanti Prasad and the appellant, the High Court in appeals preferred by them acquitted Kanti Prasad outright and convicted the appellant only under S. 221 I.P.C. and sentenced him to two years R. I.