KANTILAL DAMODARDAS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) A short, yet an interesting question that arises for consideration in this appeal is as to whether the statement Ex. 13 of the accused which came to be recorded by Mr. Erulkar, the Police Officer giving out information therein about his having given illegal gratification to the extent of Rs. 200/- to Mr. Desai, Superintendent of Excise, was a statement falling within the ambit of Section 162 of the Criminal P.C. and if so, whether the same can be made the basis of a complaint against him for an offence under Section 182 of the Indian Penal Code.

(2.) The facts giving rise to this prosecution are quite simple. The accused happened to be the proprietor of Rajkamal Stores situated in Bhadra in the City of Ahmedabad. The premises of the Stores were raided on 13-10-1962 by Mr. Ishverlal Chotubhai Desai, the Superintendent Prohibition and Excise, with the assistance of other officers and on a search carried out, various articles were seized. Some of those articles were in the nature of bottles containing Eau-decologne, tincture Hemidesni, Kawath etc. Though they were attached, samples therefrom were not given to the accused. Some time after one Chaturbhuj B. Acharya of Ahmedabad sent an application to Shri Medh. Deputy Superintendent of Police. Anti-Corruption Bureau, Ahmedabad inter alia stating that Mr. Desai had concluded with the accused and had deliberately not given samples to the accused in contravention of the circular issued by the Director of Prohibition and Excise so as to enable the accused to escape from the consequences of his being in unlawful possession of alcoholic preparations. That application was received on 13-12-1962 by Mr. Medh Mr. Medh thereupon directed Mr. Erulkar, the P.S.I. to make an inquiry. While making inquiry Mr. Erulker recorded the statement of the accused on 3-1-1963. That statement is Ex. 13 and it contained some allegations against Mr. Desai. The material allegation in respect of which this action is taken against him is that on 13-10-1962 when his Rajkamal Stores was raided and various articles seized therefrom by Mr. Desai and others, Mr. Desai had put him in fear and demanded some bribe from him. on his giving assurance that in future he will not be harassed, he gave a sum of Rs. 200/- by way of illegal gratification to Mr. Desai. That statement bore the signature of the accused. Finding the allegations of a very serious character against a high official such as Superintendent of Prohibition and Excise Mr. Erulkar told Mr. Medh that he cannot make further inquiry. Consequently Mr. Medh directed one Mr. Rana to make further inquiry in respect thereof. That inquiry was carried out and a report was submitted by Mr. Rana. In his view, the allegations made against Mr. Desai by this accused were false and that he should be prosecuted for an offence under Section 182 of the Indian Penal Code. On the basis of that report, it appears that the complaint against Shri Chaturbhuj as also against this accused was filed. Since there arose some technical defect, the case against this accused was separated and after the trial was over, the accused in that case, namely, Chaturbhuj B. Acharya was acquitted. The judgment thereof is produced in the case. It is dated 20-10-1966.

(3.) Thereafter Mr. Medh filed a complaint against this accused in the Court of the City Magistrate, 5th Court, Ahmedabad, for the same offence under Section 182 of the Indian Penal Code in respect of the same allegations made by him in his statement of 3-1-1963 before the P.S.I. Erulkar of the Anti-Corruption Bureau, against Mr. Desai since they were found to be false. To that charge levelled against him, the accused denied to have committed any offence. He, however, admitted about his having given a statement on 3-1-1963 before P.S.I. Erulkar wherein those allegations against Mr. Desai were made. But, according to him, the statement was not read over to him and that he had recorded in any manner as he chose. He has led no evidence in defence. The learned Magistrate after considering the effect of the evidence adduced in the case found that the allegations made by the accused were false and that he must be presumed to have had knowledge that the officers of the Anti-Corruption Bureau would be induced to make inquiries into the matter and that it would land Mr. Desai in serious trouble. He, therefore, found the accused guilty for an offence under Section 182 of the Indian Penal Code and sentenced him to suffer simple imprisonment for a period of three months and to pay a fine of Rs. 500/- or in default, to suffer simple imprisonment of 1 1/2 months. Feeling dissatisfied with that order passed on 28-3-1967 by Mr. N. R. Tatia, City Magistrate, 5th Court Ahmedabad, the accused has come in appeal.