ZAHIRUDDIN Vs. KING-EMPEROR

JUDGEMENT

(1.) THIS is an appeal from a judgment of the High Court in Bengal, which allowed an appeal against a Police Magistrate's order acquitting the appellant of a charge of accepting a bribe brought under Section 161 of the Indian Penal Code. The High Court set aside the order of acquittal, convicted the appellant and sentenced him to one year's rigorous imprisonment.

(2.) THE main ground of appeal is that there have been contraventions of Section 162 of the Code of Criminal Procedure, that the High Court's judgment relies on the testimony of a witness, Mr. Roy, who had given a signed statement to the police in breach of the section and had, also in breach of the section, had it before him and made substantial use of it while he was giving evidence. It was also made a ground of appeal that the police-officers engaged on the investigation had failed to keep a diary in contravention of Section 172 (1 ).

(3.) THE police witnesses testified that they saw the accused come down from his flat and enter the taxi, that after seeing the signal made by the torchlight they arrested him as he was about to re-enter the block of flats, and that as they did so he flung away a bundle of notes which they later found on the mudguard of the stranded lorry and identified as the notes previously marked. Mr. Roy gave evidence which corroborated Bhattacharjee's evidence about the passing of the marked notes from Bhattacharjee to the appellant, and the flashing of the torch; and which corroborated also the police evidence about the finding of the notes after the arrest of the appellant. Though Mr. Roy identified in Court the appellant's brother as the man who had taken the notes in the taxi, he identified the man who was arrested and who was undoubtedly the appellant with the man who received the notes. His identification of the brother in Court may therefore have been a mistake. What is more important is that the Magistrate has entered on the record at the end of Mr. Roy's examination-in-chief this note: "he refreshed his memory, from time to time, by consulting his written statement to the police during investigation. " THE Magistrate called as Court witnesses under Section 540 of the Criminal Procedure Code the doorkeeper of the block of flats, Ram Surdar, and the taxi-driver, Yasin, and they gave evidence that it was not the appellant but his brother who was in the taxi at the material time.