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 panchanama 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 Scheme 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 Es. 5000 but later on complainant Omprakash accompanied by one Mahetab singh, another plot -holder, jointly met accused No. 1 as well as accused No. 2 when it was agreed that Es. 4000 should be paid for the work, Es. 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 Es. 1500 after the work was done. The last meeting which complainant Omprakash had with accused No. 2 was on February 16, 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 February 18, 1970 he approached the Anti -Corruption Police and he lodged a complaint with P.S.I. Sarakwas alleging that illegal gratification to the tune of Es. 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 Es. 500 being the first instalment of the bribe to accused No. 2 in the latter's office and that therefore necessary action he taken. This complaint was produced at the trial at exh. 28. On the very day P.S.T. 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 pamchas, 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.T. Sarakwas and the said panchanama (hereinafter called 'pre -trap panchanama') was produced at, the trial at exh. 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.T. Sarakwas and the other panch Ambedkar waited at some distance from the office of accused No. 2. Punch Bendre was introduced to rernfiin 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 plot 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 prepared 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, where after 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 proceeding 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 sugarcane 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 ultra violet lamp the notes, the hands of accused No. 3 and his pant pocket 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 panchanama. Another panchanama (hereinafter referred to as 'post -trap pom -chanama') was drawn regarding all that had transpired during the raid and it was produced at the trial at exh. 34. Later on, 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 exh. 35 at the trial. After completing the investigation a charge -sheet 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 120B, Section 161 read with Section 120B and Section 5(7)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 read with Section 120B were framed. In the alternative, charges were also framed for the offences tinder Section 161 and Section 5(7)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 read with Section 34, Indian Penal Code. 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, Indian Penal Code and under Section 5(7)(d) with Section 5(2) of the Prevention of Corruption Act read with Section 34, Indian Penal Code and sentenced each one of them to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500 and in default he directed each of them to suffer rigorous imprisonment for three 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.) IT may be stated at the outset that Mr. Adik who appeared for appellant No. 1 (original accused No. 2) and Mr. Tipnis who appeared for appellant No. 2 (original accused No. 3) were obviously not interested in getting the entire panchanamas excluded from consideration and both of them, therefore, raised the same contention before us which was urged before Mr. Justice Masodkar, namely that since the post -trap panchanama (exh. 34) was silent about certain important aspects of the conversation that took place between the com. plainant on the one hand and accused No. 3 on the other on the occasion of the passing of the money, the punch's evidence suffered from serious infirmities and as such the prosecution case should not be accepted. In fact, in order to maintain that there were such infirmities in the prosecution evidence, it was contended by them that the post -trap panchanama (exh. 34) could not be rendered inadmissible on the basis of any ban contained in Section 162, Criminal Procedure Code. It was Mr. Chitnis appearing for the State who raised a contention that several documents which have been referred to in the question framed for our determination, particularly post -trap panchanama (exh. 34) would become inadmissible by reason of the ban contained in Section 162, Criminal Procedure Code. Mr. Chitnis pointed out that in anti -corruption cases, like the one before us, cognizance of offences alleged to have been committed by an accused either under Section 161, Indian Penal Code or under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act could be said to have been taken by the investigating officer no sooner a complaint in respect of the alleged demand of a bribe by a public servant is lodged and investigation undertaken by the investigating officer must be deemed to be an investigation in respect of both the offencesone of demanding a bribe allegedly already committed by a public servant and the other about to be committed, namely of acceptance of bribe by such public servant. He went on to point out further that things that usually take place, particularly the passing of the money from the complainant to the accused and the conversation between the two on that occasion occur during the course of investigation that has already commenced and though it is true that services of the panchas are usually requisitioned for observing the passing of money and hearing the conversation, the post -trap panchanama is usually drawn by the police officer or the police scribe reciting what the panch states about all that he had seen or heard and therefore the contents or recitals in such panchanama will have to be held as statements made by the panch, to the police officer who has been investigating the offence or offences. His contention in substance was that what is recorded in the panchanama is nothing but communication made by the panch as to what he had seen and what he heard to the police officer who has been investigating the offence, for, according to him, it is implicit in the act of writing the panchanama by the police officer or the police scribe that the panch narrates or communicates what he has seen or heard both before the arrival of the investigating officer on the scene or after his arrival. In other words, according to Mr. Chitnis, communication in fact precedes the record that is made by the police scribe at the dictation of the panch and in that sense the contents of the panchanama, particularly as to what transpired at the time of passing of the money, will have to be regarded as statements made by the panch witness to the investigating officer and therefore such statements would become inadmissible by reason of the ban contained in Section 162, Criminal Procedure Code. He thus urged that -the recitals in the panchanama as to what the panch had seen and as to what he had heard would always be a narration by the panch witness to the police officer and therefore the same would be hit by Section 162, Criminal Procedure Code. He undoubtedly relied upon the judgment of the Division Bench of this Court Dilip Sadashiv Apte v. The State of Maharashtra where such a contention was accepted. He also relied upon the Supreme Court judgment in the case of Ramktehan Mithanlal v. State of Bombay (1934) 57 Bom. L.R. 600. popularly known as the Lloyds Bank case. Mr. Chitnis particularly pointed out that in that case the Supreme Court accepted the view of the Calcutta High Court and the Allahabad High Court which made a distinction between mental act of identification and communication of that fact to another person, the former not falling within the ban contained in Section 162, Criminal Procedure Code while the latter being hit by the ban contained in that section, but the Supreme Court held that the physical fact of identification, which fact either took the form of oral statement or making a sigh, or gesture including1 the pointing out by finger or nod of assent in answer to a question, had no separate existence apart from the statement involved in the very process of identification and in so far as a police officer sought to prove the fact of such identification, such evidence of his would attract the operation of Section 162, Criminal Procedure Code and would be inadmissible in evidence. It was urged by Mr. Chitnis that by parity of reasoning it should be held that after the trap was carried out and when panchas set about to record what they had seen and heard at the time of passing of the money as also all that transpired subsequently, the recording of the same in a panchanama written out by the police officer or the police scribe has no separate existence but constitutes a record of narration or statement made by the panch to the police officer of what he had seen and heard and therefore such record should be deemed to be a statement made by the panch witness to the police officer during the investigation under Chapter XIV and the same would be hit by Section 162, Criminal Procedure Code. He also relied upon a judgment of the Supremo Court in Kanu Ambu Vish v. State of Maharashtra : 1971CriLJ1547 where, according to him, his contention has been by implication accepted because in that case in regard to a post -trap panchanama in anti -corruption case the Court has made observation to the effect that, 'any statement made in the panchanama cannot be used in evidence except for the purpose of contradicting the witness whose statement is contained in the panchanama.' He also brought to our notice that the view taken by the Division Bench in Dilip Sadashiv Apte v. The State of Maharashtra had been approved by Justice S.K. Desai in his judgment Akbar Ismail Sheikh v. The Stale of Maharashtra (1973) Cri App 868 , decided by S.K. Desai J., on October 3, 1973 (Unrep.) and the reasoning was also approved of by Mr. Justice Naik and applied to a panchanama made recording the statement made by accused leading to discovery under Section 27 of the Evidence Act.