LABHSHANKER KESHAVJI Vs. STATE

JUDGEMENT

(1.) THE petitioners were convicted by the First Class Magistrate on a charge Under Section 384, I. P. C-read with Section 34, IPC and were sentenced to six months' rigorous imprisonment and a fine of Rs. 700/- and three months' rigorous imprisonment in default of payment of fine. They preferred separate appeals to the Sessions Judge, Halar Division, we confirmed their conviction but reduced the sentence of Labhshanker to three months rigorous imprisonment and set aside the sentence of fine. They have approached this Court in revision. As both the revisions arise out of a common judgment, they were heard together and are disposed of by this judgment.

(2.) THE facts which give rise to these revisions are briefly as under. The complainant is the manage of the Digvijay Weaving and Spinning Mills Ltd. of Jamnagar. The petitioner Bhanushanker was at the material time the editor of the paper 'insaf which was published from Rajkot and the petitioner Labhshanker was employed by him as a salaried reporter in Jamnagar. Four articles libelling the complainant were published In the Insaf between 29-3-50 and 9-4-50. Labhshanker approached the complainant on three or four occasions, after 29-3-50 and asked him whether he preferred to settle with Bhanushanker by paying him a good sum or to allow the publication of the libels to be continued. The complainant replied that he would give a definite reply after considering the position. On 14-4-50 Shri Pravinsinhji Jethva, Inspector of the Police Special Branch at Rajkot, was in Jamnagar on some court business. The complainant met him and told him about the blackmail which was being attempted on him. Shri Jethva asked the complainant to call him if any further attempt was made. On 18-4-50 Labhshanker again saw the complainant at his bungalow at about 9 a. m. and informed him that Bhanushanker was in Jamnagar. The complainant asked him to bring Bhanushanker at about 4 p. m. and sent his car to Rajkot to bring Shri Jethva. At 4 p. m, Bhanushanker, Labhshanker and one Rasiklal, who has been acquitted by the Magistrate, saw the complainant at his bungalow at 4 p. m. and the complainant agreed to pay Rupees 1500/as consideration for Bhanushanker stopping the publication of defamatory articles but asked them to call again at 9 p. m. for the money as he had no cash at the time. At about 5 p. m. Shri Jethva arrived from Rajkot in the complainant's car and took down his complaint, Ex. 6. As the offence Under Section 384, IPC is a non-cognizable offence, shri Jethva applied to the First Class Magistrate for an order permitting him to investigate the offence and permission was endorsed by the Magistrate below the application. He then came back with three panchas Mulji, Manubhai and Chhabildas and they were all stationed in a lobby outside the complainant's drawing room within hearing distance. At about 9 p. m. Bhanushanker, Labhshanker and Rasiklal again came. Bhanushanker is alleged to have asked the complainant whether the money was ready. The complainant replied that he had the money and would pay him but Bhanushanker should leave him alone. To this-request Bhanushanker is alleged to have replied that they were gentlemen and he, the complainant,, should trust him not to publish any more libel. The complainant thereupon paid him Rs. 1500/-in currency notes, which were previously initialled by the Panchas, and on his giving the agreed signal, Shri Jethva and others came and recovered the notes from Bhanushanker. Shri Jethva then instructed the Sub-Inspector, B Division, to register the offence in the crime register and a charge-sheet was duly submitted to the Magistrate against them. Bhanushanker admitted the receipt of the money but his case was that he was invited to the bungalow to settle certain outstanding bills and the money wag paid to him in settlement of his bills and not as blackmail. Labhshanker's defence was that he had merely accompanied his employer Bhanushanker and denied having conveyed threats to the complainant as alleged by him. He alleged that he was involved in this prosecution by the complainant because he had attempted to expose certain scandals in the mill, in which the complainant was concerned, and the complainant had dismissed him on that account and bore illwill against him. The defence of both the petitioners was rejected by the Courts below, who accepted the prosecution story. We are satisfied that Bhanushanker has not made out his defence for reasons which have been fully recorded by the Courts below and which it is unnecessary to recapitulate. These revisions thus turn on concurrent findings of facts by the Courts below and normally they should be accepted in revision. But the case presents some peculiar features, the significance of which does riot appear to have been appreciated by the Courts below, and in our opinion our interference is called for.

(3.) THE publication of the defamatory articles is proved and within a few days thereafter Bhanushanker admittedly received the money from the complainant and he has not given a satisfactory explanation of why such a large sum should have been given to him. His defence has completely failed. But it is not for him to give any explanation. The prosecution alleges that the money was extorted by him by threats and the prosecution has to prove beyond doubt that it was extorted under those threats. The circumstances enumerated above are therefore not alone sufficient to bring the offence home to him though they may create deep suspicion against him. He can only be convicted if the alleged conversation between him and the complainant at the time of the delivery of the money is proved. Similarly Labhshanker cannot be convicted, unless it is held proved that lie had previously given threats to the complainant and demanded money on Bhanushanker's behalf. These facts are sought to be proved by the oral testimony of the complainant, Shri Jethva and the two panchas Mulji and Chhabildas and the conviction depends entirely upon the credibility attaching to them. The complainant is unquestionably on bad terms with the petitioners and Shri Jethva on his own admission is a friend of the complainant. Shri Jethva was at this time posted in Rajkot. He was specially called by the complainant and it appears from his deposition (Ex. 12 para 82) that he came down from Rajkot, although his superior officer was not in the station. He admits that the offence could be dealt with by the ordinary police machinery in Jamnagar and it is curious that he should have undertaken to investigate it himself. His explanation is that the Special Police Branch also deals with the offences of blackmail. But he had to admit that the offence could be investigated by the Sub-Inspector in charge of the local Special Branch Office in Jamnagar. We do not doubt that Shri Jethva's department deals with cases of blackmail, but what leaves us wondering is what were the special features of this ease which called for his personal intervention and induced him to leave Rajkot in th- absence of his superior officer. We doubt very much whether he would have taken the same trouble and left his station for any ordinary citizen and we are led to believe that the special circumstance, which weighed with Shri Jethva, was his friendship with the complainant, and the special interest which he has shown in the complaint puts him in the position of a partisan witness. The panch Chhabildas is admittedly connected with the mill and is its agent. The learned Sessions Judge however considered the second panch witness Mulji to be an independent witness and special emphasis was laid on his evidence on behalf of the prosecution during the arguments before us. Bhanushanker has not been able to show that Mulji had any previous connection with the complainant or the mill, but Mulji admits that after he served as a panch at the complainant's bungalow he and the panch Manubhai developed friendly relations with the complainant and on the date, when he was deposing in Court, he was indisputably thick with the complainant. He cannot therefore be regarded as an independent witness. The learned Magistrate thought, that Mulji was supported by the Panchnarna of the search, Ex. 8, made after the delivery of the money, which records this conversation, but this record of the conversation was deleted from the panshnama by his predecessor, who had examined Mulji, The learned Magistrate was therefore not entitled to rely on that record. Neitner Shri Jethva nor the complainant apparently trusted the normal police machinery to bring the positioners to book and the one witness Mulji, who could have claimed to be an independent witness, was allowed to be friendly with the complainant with the result that the entire evidence against the petitioners consists of the complainant and his friends and in the peculiar circumstances of this case we consider that it is risky to accept their testimony and convict the petitioners.