KISHAN DAYAL Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by Kishan Dayal against his conviction by the learned Session Judge (Special Judge) Kotah u/s 161, IPC. He has been sentenced to one year's R. I. and a fine of Rs. 100/- and indefault to further rigorous imprisonment for 3 months.

(2.) THE prosecution story is that the accused was a Head Constable in-charge of police station Khatoli in Dec, 1954. On or about 18th December, 1954 he sent Noor Mohd. constable to call Nandlal Mahajan of village Bagli to the said police station. Nandlal did not accompany Noor Mohd. to Khatoli at that time but promised to go to Khatoli on the next market-day which was to fall on the next Tuesday, that is, 23rd December, 1954. On 23rd December, 1954 Nandlal went to police station Khatoli in the company of Motilal Patel of Bagli, (hereinafter to be referred to as Patel ). THE accused was found there. He told Nandlal that he had abducted a Brahman woman of Bagli whose name was Lakhi. Nandlal denied the allegation. THE accused however persisted and a demanded a sum of Rs. ]50/- for hushing up the matter. Nandlal had to agree and promise to the amount on the next market day. On coming back from Khatoli Nandlal went to one Bhuramal a congress man, of village Gothra and told him all that had happened between him and the accused. THEreafter some time about the 28th December, 1951 Nandlal with Bhuramal went to Swaimadhopur taking six notes of the total value of Rs. 150/- along with him. Of these notes one was of the value of Rs. 100/- and five of the value of Rs. 10/-each. Leaving Nandlal at Sawaimadhopur. Bhuramal proceeded to Jaipur and contacted Sri Lalit Narain. S. P. , Anti Corruption Department and told him all that had passed between the accused and Nandlal, Sri Lalit Narain issued an order Ex. P. 5, dated ;28th December, 1954 to Sri Motilal, Dy. S. P. Anti Corruption Department directing him to go to the spot and do the needful. Moti Lal Dy. S. P. (hereinafter to be referred to as the Dy. S. P.) then left for Sawaimadhopur in the company of Bhuramal and some of the members of his staff with the order Ex. P. 5. At Sawaimadhopur the Dy. S. P. met Nandlal who put up a report before him which is dated 29th December, 1954 and is Ex. P. 3 on the record and handed over the hundred rupee note to him. It is Art. 1 on the record. THE Dy. S. P took that note to Sri Shishram, S. P. , Sawaimadhopur and got it initialled by him and kept it with his ownself. Nandlal returned on foot to his village Bagli and the Dy. S. P. with Bhuramal and his staff and the note Art. 1 proceeded in a car to Khatoli. Nandlal in the company of the Patel also reached Khatoli and met the Dy. S. P. and his party on 30th December, 1954. THE Dy. S. P. handed over the signed currency note Art. 1 to Nandlal after preparing the memo Ex. P. 2 for the purpose of handing it over to the accused. Nandlal was told that after the note had been delivered, he should make a signal so that the police party might know that the note had been delivered to the accused. Nandlal in the company of Patel then went to deliver that note to the accused who was found in the company of the Circle Inspector concerned. THE note could not therefore be delivered to the accused at that time and Nand Lal along with Patel returned to the Dy S. P. and told him that no opportunity could be found to deliver the note to the accused and that he would go again in the evening to nana it over to the accused. Ac about dusk time Nandlal with Patel went to Noor Mohd. constable and asked him to take him to the accused. Noor Mohd. told Nandlal that that was not the proper time to see the accused, and asked Nandlal to see him next morning, as the Circle Inspector was to leave in the night. Nandlal and the police party had to stay at Khatoli in the night. Next morning, that is, on 3st December, 1954 when Nandlal was sitting at a temple known as Mdtaji-ka-temple, the accused and Noor Mohd. were brought by Patel to that place Nandlal thereupon handed over the note Art. 1 to the accused. THE accused asked him why he was paying Rs. 100/- only and not the agreed sum of Rs. 150/- whereupon Nandlal replied that he was able only to procure that amount. THE accused put that note Art. 1 in the upper front pocket of his khaki coat which he was wearing at that time and asked Nandlal to go away. In the meanwhile on a signal made by Patel the police party came up to the accused and asked him to deliver the hundred rupee note Art. 1 which he had taken from Nandlal. THE accused at first tried to put off but on the insistence of the police party he had to take out and hand over the note to the Dy. S. P. A recovery memo was prepared and it is Ex. P. 4 on the record. THE recovery was made in the presence of Gopilal Brahman and Chagganlal Maha-jan who were procured by the police party to witness the search. THEy attested the recovery memo Ex. P. 4. THE accused was arrested and sanction u/s 6 of the Prevention of Corruption Act (hereinafter to be referred to as the Act) was obtained from the D. I. G. P. , Udaipur Range to prosecute the accused. THEreafter the accused was prosecuted u/s 161, IPC in the court of the learned Sessions Judge (Special Judge), Kotah.

(3.) THEIR Lordships condemned the action of Pt. Dhanraj in procuring the amount of Rs. 25,000/- for payment as a bribe by Nagindas to the accused. THEIR Lordships also condemned the practice of involving the Magistrates in such traps and also condemned the conduct of Shri Shantilal Ahuja in lending himself to the police for the purpose of trapping the accused. THEIR Lordships expressed their disapproval as follows - "we cannot however leave this case without expressing our strong disapproval of the part which the police authorities and Shanti Lal Ahuja, the Additional District Magistrate took in this affair. As already observed this offence would never have been committed by the appellant No. 1 but for the fact that the police authorities provided Nagindas with the wherewithal of the commission of the offence, Sir Chinubhai as it appears from the evidence was not in a position to provide Nagindas with this sum of Rs. 25,000/ - or any large sum and in fact in spite of the telephone calls made by Nagindas upon him had not provided any amount beyond Rs. 3,000/- which was meant for the other expenses of Nagindas to him. Nagindas was therefore not in a position to provide this sum of Rs. 25,000/- for payment of the bribe or the illegal gratification to the appellant No 1. But for the adven-titious aid which he got from the police authorities the matter would not nave progressed any further, and Nagindas would have left Delhi empty handed. The police authorities however once they got scent of the intention of Nagindas thought that it was too good an opportunity to miss for entrapping the appellant No. 1 who occupied the position of the Minister of Industries in the State of Vindhya Pradesh They therefore provided the sum of Rs. 25,000/-on their own and handed it over to Nagindas. The police authorities in this step which they took showed greater enthusiasm than Nagindas himself in the matter of trapping the appellant No. 1. It may be that the detection of corruption may some times call for the laying of traps, but there is no justification for the police authorities to bring about the taking of a bribe by supplying the bribe money to the giver where he has neither got it nor has the capacity to find it for himself. It is the duty of the police authorities to prevent crimes being committed. It is no part of their business to provide the instruments of the offence. We cannot too strongly disapprove of the step which the police authorities took in this case in the matter of providing the sum of Rs. 25,000/ to Nagindas who but for the police authorities thus coming to his aid would never have been able to bring the whole affair to its culmination. Not only did the police authorities thus become active parties in the matter of trapping the appellant No. 1, they also provided a handy and an ostensibly independent witness in the person of Shantilal Ahuja, the Additional District Magistrate. Even though he was a member of the judiciary he lent his services to the police authorities and became a limb of the police as it were. The part which Shantilal Ahuja , the Additional District Magistrate took in this affair cannot be too strongly condemned. " (Paras 27 and 28 at p. 334-335)