NITYA NAND PREM LAL Vs. STATE

JUDGEMENT

(1.) Nitya Nand has been found guilty by a Special Judge appointed under the Prevention of Corruption Act 1917 as amended in 1952 of having committed an offence under Section 5(1)(a) of the Act punishable under Section 5(2) of the Act. He was sentenced on 12-5-1953 to one month's rigorous imprisonment and to pay a fine of Rs. 50/-. He has appealed. When this appeal came up for preliminary hearing he was bailed out by an order of the Chief Justice, made on the 26th of May, 1953.

(2.) The facts which led to this case are given in the first information report which was lodged on the 17th of October. 1951 at Ambala Canton-ment Railway Station Police Station at 7.45 p.m. The offence is said to have been committed at 5.30 p.m. at Railway Station Barera. The information was given by Mr. Ram Rang, A. S. I., Anti-Corruption Staff, at 6.15 p.m. in which he states that on receiving information that the Railway Staff at Barara took bribes besides Government dues in doing official work, that they would not discharge their legitimate duty without taking bribe and that people of the neighbouring places had to give illegal gratification for getting their goods booked, he formed a raiding party including Dewan Chand Constable and a man called Lal Singh and had with them Mr. B. K. Chotani, Magistrate 1st Class, Ambala, who was sent after-a special request had been made to the A. D. M. Ambala for that purpose. When the party reached Barara they searched the person of one Chaman Lal from whom nothing was recovered. Thereafter Mr. Chotani put his initials 'B. K.' on three currency notes of one rupee each and gave them to Chaman Lal. He was instructed to get his fresh Tindas weighing three and a half maunds booked for Jagadhari station, and to hand over all the three above-mentioned currency notes to the Assistant Station Master on duty. He was told to give a signal if the Assistant Station Master received from him any amount as bribe besides the charges in connection with the railway receipt. Accordingly at 5.30 p.m. Chaman Lal took his four baskets of fresh Tindas to the railway station. At that time Nitya Nand (the present accused) was on duty. Nitya Nand prepared a railway receipt for three and a half maunds and gave it to Chaman Lal. Chaman LSI gave the currency notes to Nitya Nand. Nitya Nand handed over some balance to Chaman Lal. Lal Singh had been sent with Chaman Lal for his supervision. At the given signal Ram Rang, Mr. Chotani and Dewan Chand Constable reached, the spot and searching Chaman Lal a railway receipt for Rs. 1/2/- from Barara to Jaga-dhari, four labels and sis anna pieces were re-covered. Vishan Das Station Master, Barara, was sent for. In the presence of the aforesaid Magistrate the booking cash was checked. The amount was found to be Rs. 12/6/containing the three marked currency notes. After scrutiny of his record the Station Master, Barara, told them that there was an excess of Rs. 1/8/-in the Government cash. On that the three currency notes of one rupee each and six anna pieces, the railway receipt and labels recovered from Chaman Lal were taken into possession. The present complaint was sent for the registration of a first information report. This first information report stated that investigation would be made after taking permission from a first class magistrate.

(3.) It is clear from this first information report that the police party became a party of persons engaged in committing an offence, the offence being aiding, abetting, instigating and conspiring with Chaman Lal in corrupting the Railway Staff. It is said in --'Khadam Ali v. Emperor', AIR 1919 Lah 234 (A), that persons merely present when money is given to a bribe-taker are not accomplices, but the case is different if they have cooperated in the payment of the bribe, or taken some part in the negotiations for its payment. In the latter case they cannot be regarded as independent witnesses and their evidence is tainted. In another case --'Rajoni Kant v. Asan Mullick', 2 Cal WN 672 (B), it is said that where certain persons accompanied another who was entrusted with and carried the money intended to be given as a bribe to the head-constable, in the knowledge that it was to be so paid and in order to witness and assist in such payment, they were held to be accomplices. In this case Chaman Lal according to himself is habitually given to offering bribes. He was accosted by Ram Rang and others. Mr. Chotani has stated that he gave Chaman Lal instructions. Ram Rang has stated that he asked Chaman Lal to offer the money. In the case of -- 'Brannaa v. Peek', decided by the King's Bench Division in England reported as -- '1947-2 All ER 572 (C)', the Lord Chief Justice of England, Lord Goddard, said as follows at page 573 :