VISHNU KRISHNA BELURKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE question that has been referred to the Full Bench runs as follows : "Whether the documents like Ex. 28, being the Statement of the complainant recorded by P.S.I. Sarakwas (P.W. 13), Ex. 33 being the first panchanama made in the presence of panchas and signed by the panchas. Ex. 34 being the second panchanama prepared under the signature of the panchas by P.S.I. Sarakwas (P.W. 13) after the trap was successful and Ex. 35 being panchnama prepared by P.S.I. Sarakwas (P.W. 13) are in any manner hit by the provisions of Section 162 of the Code of Criminal Procedure and if at all to what extent and whether they can be entirely excluded as inadmissible -

(2.) THE question framed arises in these circumstances. In the year 1967 one Vidyadhar Bakare was appointed an Arbitrator for Town Planning Scheme Nos. I and III and the locality known as Parvati was included in Scheme No. III. The scheme was prepared by Poona Municipality in the year 1934 and thereafter the draft scheme was approved in the year 1943. Various arbitrators were appointed but ultimately it was Vidyadhar Bakare who was in charge of implementation of the Scheme. Original accused No. 1 Ramakant Vishnu Brahme (since acquitted) was working as Assistant Engineer while original accused No. 2 Vishnu Krishna Belurkar (appellant No. 1 in the appeal) and original accused No. 3 Shriram Balkrishna Vaidya (appellant No. 2 in the appeal) were respectively working as a Junior Assistant and a Draughtsman in the office of the Arbitrator. In the concerned locality one Omprakash Mundada the complainant, owned a plot bearing S. No. 250 -B which was included in the reservation made for a garden called Peshwe Park in the Scheme. It appears that the complainant along with a couple of other plot -holders were making attempts to get their plots excluded from the reservation made in the Town Planning Schema and according to the prosecution for showing this favour the accused had conspired to obtain illegal gratification from the plot -holders. The prosecution case was that initially in January 1970 original accused No. 1 had promised to exclude the plots from reservation and had demanded reward in the sum of Rs. 5000/ - but later on complainant Umprakash accompanied by one Mahetabsingh, another plot -holder, jointly met accused No. 1 as well as accused No. 2 when it was agreed that Rs. 4000 should be paid for the work. Rs. 2000/ - by each of the plot -holders; it was further agreed that out of this amount of Rs. 2000/ - payable by each, Rs. 500/ - were to be paid in advance and Rs. 1500 after the work was done. The last meeting which complainant Omprakash had with accused No. 2 was on 16th February 1970 and on this occasion the complainant is said to have told accused No. 2 that he would pay the money within two or three days. The complainant then decided to trap the persons demanding such bribe and therefore on 18 -2 -170 he approached the Anti -Corruption Police and he lodged a complaint with P.S.I. Sarakwas alleging that illegal gratification to the tune of Rupees 2000/ - was being demanded from him by accused Nos. 1 and 2 for exclusion of his plot from reservation that was made for the garden in the scheme and that he was going to pay Rs. 500 being the first instalment of the bribe to accused No. 2 in the latter's office and that therefore necessary action be taken. This complaint was produced at the trial at Ex. 28. On the very day P.S.I. Sarakwas decided to lay a trap and with that end in view called two panchas and in their presence the complainant was made to repeat the entire story to the two panchas, demonstration of application of the anthracene powder to the currency notes produced by the complainant was given under ultra violet lamp and instructions were issued to the complainant not to part with the amount unless demand was made by accused No. 2; a panchanama recording all that transpired was drawn by P.S.I. Sarakwas and the said panchanama (hereinafter called 'pre -trap panchanama') was produced at the trial at Ex. 33. As arranged the complainant accompanied by one of the panchas viz. Bendre walked in the office of accused No. 2 while the other members of the raiding party including P.S.I. Sarakwas and the other panch Ambdekar waited at some distance from the office of accused No. 2. Panch Bendre was instructed to remain along with the complainant throughout and listen to the conversation and watch everything that would take place at the time when the bribe amount would pass from the complainant to the accused. Accordingly panch Bendre and the complainant entered the cabin of accused No. 2 who asked them to take their seats and the complainant stated that he had come as settled. Accused No. 2 got the relevant maps pertaining to the Scheme in question produced on his table through one Patwardhan and on the basis of those maps accused No. 2 told the complainant as to how much land from his not would be acquired. Thereafter he called accused; No. 3 to his cabin and on his arrival accused No. 2 told accused No. 3 that the complainant had come prepare and further told him that he (accused No. 3) should receive whatever the complainant would give. Thereupon accused No. 3 asked the complainant to see him at his residence at night, whereafter they all left the cabin of accused No. 2. While going to the 2nd floor where accused No. 3 had his cabin the complainant told accused No. 3 that he had no time to go to his (accused No. 3's) residence at night and hence he should receive then and there. Accused No. 3 asked the complainant and the panch witness to wait and after doing some work in his cabin he returned and along with the complainant and the panch he climbed down to the ground floor. Prosecution case further was that while prooeeding to a hotel they came across sugarcane juice shop and at the instance of accused No. 3 they all entered that shop, sugarcane juice was ordered for three of them and before sugancane juice was served, according to the prosecution, accused No. 3 asked the complainant to "give as instructed by Saheb", whereupon the complainant took out the currency notes from his pocket and handed them over to accused No. 3 and told him to accept after counting the same. Accused No. 3 said he had confidence in him and there was no necessity to count and he kept the notes in his pant pocket. After having juice they all left the shop and proceeded towards the arbitrator's office but when they arrived near the compound of a school the complainant gave the agreed signal whereupon P.S.I. Sarakwas and the members of the raiding party rushed to the spot. P.S.I. Sarakwas disclosed his identity to accused No. 3 and asked him about the money and also asked accused No. 3 to go to Municipal dispensary for his search. In the search the currency notes were recovered from accused No. 3 and under violet lamp the notes, the hands of accused No. 3 and his pant packet were seen and all these emitted bluish glow. The numbers of the currency notes recovered from accused No. 3 tallied with the numbers that had been mentioned in the pre -trap panchnama. Another panchnama (hereinafter referred to as 'post -trap panchnama') was drawn regarding all that had transpired during the raid and it was produced, at the trial at Ex. 34. Later on that very day, yet another panchanama was also drawn wherein it was recorded that the bottle of anthracene powder which had been sealed previously had its seal intact; this was produced at Ex. 35 at the trial. After completing the investigation a chargesheet was submitted against the three accused for the offences of conspiracy acceptance of bribe and criminal misconduct. In the Court of the learned Special Judge charges under Section 120 -B, Section 161 read with Section 120 -B and Section 5(1)(d) read with Section 5(2) of Prevention of Corruption Act, 1947 read with Section 120 -B were framed. In the alternative charges were also framed for the offences under Section 161 and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 read with Section 34 I.P.C. On an appreciation of evidence that was led before him the learned Special Judge. Poona acquitted accused No. 1 of all the charges levelled against him but recorded a conviction against accused No. 2 and accused No. 3 (appellants Nos. 1 and 2 in the appeal) under Section 161 read with Section 34 I.P.C. and under Section 5(1)(d) with Section 5(2) of the Prevention of Corruption Act read with Section 34 I. P.C. and sentenced each one of them to suffer R. I. for one year and to pay a fine of Rs. 500/ - and in default he directed each of them to suffer R. I. for 3 months. Accused Nos. 2 and 3 preferred an appeal to this Court being Criminal Appeal No. 948 of 1972 challenging their convictions and sentences imposed upon them by the learned Special Judge, Poona.

(3.) WHEN the appeal came up for hearing before Masodkar J. on behalf of the appellants a contention was raised that some material aspects of the conversation which allegedly transpired at the time of the passing of the money from the Complainant to accused No. 3 which were deposed to by panch Bendre in his deposition did not find place in the post -trap panchnama (Ex. 34) and such omission introduced a serious infirmity in the prosecution case and as such the prosecution evidence, particularly the evidence of panch witness Bendre should not be relied upon. In particular it was pointed out that the complainant had stated in his evidence that accused No. 3 'then asked me to pay the amount as told by Saheb' While panch Bendre had stated that accused No. 3 asked the complainant to give as instructed by Saheb' but in Ex. 34 the past -trap panchnema it had been merely recited that accused No. 3 thereafter demanded money from the complainant and as such the prosecution evidence should not be accepted. In answer to the above contention it was urged on behalf of the State by the learned Assistant Government Pleader Mr. Chitnis that the entire post -trap panchnama (Ex. 34) was itself inadmissible the contents whereof were hit by the provisions of Section 162 of Criminal Procedure Code and of that was so, there was no question of there being any infirmity as suggested on behalf of the accused and the prosecution evidence, particularly of the panch could not be rejected. Incidentally, we really fail to appreciate how such a contention could advance the prosecution case any further, for assuming that the entire panchanama (Ex. 34) is hit by Section 162 Criminal Procedure Code still under the proviso it could be used as a previous statement of the panch witness to contradict him and a significant omission amounting to a contradiction could be brought on record with the result that it will introduce an infirmity in the evidence of the panch witness However, the contention was raised and in support thereof Mr. Chitnis relied upon a judgement of the Division Bench of this Court consisting of Bhasme and Joshi J.J. delivered on 29.8.1972 in Criminal Appeal No. 840 of 1972 : (Since reported in ILR (1974) Bom 613) where the Division Bench has taken the view that in corruption case though the commission of crime and investigation ran side by side these were distinct and independent events having separate legal character and that the incorporation of facts seen and conversation heard in the panchanama that was being drawn while the investigation was on, will have to be regarded as statements made by the panch to the police officer during the course of investigation and such the contents or at any rate the material portion of such panchmama would come within the ban of Section 162. It appears that though Mr. Chitnis confined his contention to the post -trap panchnama being hit by Section 162, reference seems to have been made to all such documents like the initial complaint the pre -trap and post -trap panahanama etc. in which statements came to be recorded after the investigation has commenced and the same being hit by Section 162. When the aforesaid view expressed by the Division Bench was pressed into service for acceptance of the contention that the contents of the post -trap panchanama Ex. 34 would be hit by provisions of Section 162 Criminal. P.C. Masodkar J. felt that it raised a very important question which required consideration by a larger Bench and since he was told that in Criminal Appeal No. 705 of 1966 (Bom) a contrary view by implication had been taken by another Division Bench consisting of Chandrachud and Gatne JJ. on 13.2.1968, he directed that the papers of the appeal be placed before the Hon'ble the Chief Justice for making a reference to a Full Bench for decision of the question involved and that is how the question set out at the commencement of this judgement has been referred to us for decision.