Mehar Singh Hazara Singh vs State of Pepsu

Mehar Singh, J.—This is an appeal by Mehar Singh accused from the judgment and order, dated 4-11-1954, of the Special Judge of Kapurthala convicting him under S. 5(2), Prevention of Corruption Act (2 of 1947) and sentencing him to four months rigorous imprisonment with a fine of Rs. 200/- as in default to further two months rigorous disownment.

The accused was a patwari and was posted in Bheronpur patwar circle in Tehsil Bassi of the Patiala district. His headquarters were at village Bheronpur. Dial Singh P.W. 2 and Gurbachan Singh belong to village Dhinpur in the same Tehsill. Gurbachan Singh had mortgaged some of his land with Muslims, who had transferred, their mortgagee rights to Dial Singh P.W. 2.

Gurbachan Singh made an application to the Competent Officer at Nabha seeking (sic) his interest from the evacuees interest in the land under the provisions of Evacuee interest (Separation) Act, 1951. In that case Dial Singh P.W. 2 was also interested. In connection with that case Gurbachan Singh required copies of Khasra girda-waries for production before the Competent Officer. Gurbachan Singh and Dial Singh P.W. 2 approached the accused for the copies.

The accused demanded Rs. 15/- for supply of the same and to that Gurbachan Singh agreed, the accused told them to come for copies within about ten days at Bassi. On 15-9-1054 Gurbachan Singh and Dial Singh P.W. 2 came to Bassi and (sic) the accused in a verandah adjoining the local bar room. They asked him or copies and Dial Singh P.W. 2 offered him Rs. 15/- as had been agreed, but the accused raised his demand to Rs. 25/-.

S. Basharat Singh pleader P.W. 6 had been engaged by Gurbachan Singh as counsel in that; case and be had been engaged by Dial Singh P.W. 2 also but in another case. Dial Singh P.W. 2 approached S. Basharat Singh P.W. 6 and told him that the accused was demanding Rs. 25/- from him and Gurbachan Singh as bribe for the supply of the copies of khasra girdawaries.

S. Basharat Singh P.W. 6 took Dial Singh P.W. 2 to the Court of the Sub-Divisional Magistrate S. Shanti Sarup P.W. 1 and the matter was brought to the notice of the latter. The Sub-Divisional Magistrate took down the statement Ex. PB of Dial Singh P.W. 2 in this connection and he initialed currency notes P1 to P3 of the value of Rs. 25/- and made them over to Dial Singh P.W. 2 for payment to the accused.

Thereafter Dial Singh P.W. 2 again approached the accused and gave him the money. Immediately after the Sub-Divisional Magistrate appeared on the scene the had previously sent word about the matter to S.I. Raghbir Singh P.W. 7, who also arrived on the scene about the same time. In the presence of Dial Singh P.W. 2, Narain Singh P.W. 3, Banta Singh P.W. 4, and Thakar Singh P.W. 5 the three currency notes P1 to P3 were recovered by the Sub-Divisional Magistrate and the Sub-Inspector from the person of the accused.

The Sub-Divisional Magistrate empowered the Sub-Inspector to conduct the investigation. A recovery memo was prepared about the amount recovered from the accused and another recovery memo was prepared about the copies of khasra girdawaries Exs. PD1 and PD2, which were also found on the person of the accused and were meant for Gurbachan Singh.

A case was registered against the accused and he was put On trial for an offence under S. 5(2) Prevention of Corruption Act (Act II of 1947) and has been convicted and sentenced as above.

The defense of the accused is that on September 4 or 5 1954 Gurbachan Singh alee, asked I him for copies OF khasra girdawaries and at village Bheronpur. He told him that the cost would be Rs. 2-4-0 and it would take some time to prepare the copies. Gurbachan Singh did not come to him till 15-9-1954. On 14-9-1054, Dial Singh P. W. 2 approached him and asked him for a loan of Rs. 25/- saying that he had engaged S. Basharat Singh P.W. 6 in a case pending before the Deputy Commissioner of Patiala and the counsel was insisting upon the payment of his fee that very day.

He told Dial Singh P.W. 2 to bring some one who knew both of them and who could stand surety for the repayment of the amount. He also told him to inform Gurbachan Singh that the copies of khasra girdaw�ies were ready and that he could take the same on the next day at Bassi. Dial Singh P.W. 2 them brought munshi Mihan Singh, clerk to S. Basharat Singh P.W. 6, and lambardar Sadha Singh D.W. 1 of village Kukar-Majra, who stood surety for him and then he paid Rs. 25/- as loan to him.

On the following day Dial Singh P.W. 2 met him alone and he demanded repayment of the loan of the previous day from him. Dial Singh P. W, 2 said that he would return with the money within about two hours. He then came back to him between 2 and 3 P.M. and gave him the currency notes PI to P3 of the value of Rs. 25/-, which he placed in the pocket of his shirt. Soon after the Sub-Divisional Magistrate and the Sub-Inspector arrived and recovered the currency notes from his person.

The accused further says that when the Sub-Divisional Magistrate approached him he told him that Dial Singh P.W. 2 had given him the currency notes in payment of the loan obtained by him on the previous day. In support of this defense lambardar Sadha Singh D.W. 1 has been produced by the accused.

The learned Special Judge has rejected the defence of the accused and disbelieved his single defence witness.

The accused has admitted the recovery of the three currency notes of the value of Rs. 25/- from his person. The recovery is even otherwise a proved fact from the testimony of the Sub-Divisional Magistrate P.W. 1, Dial Singh P.W. 2, Narain Singh P.W. 3, Banta Singh P.W. 4, Thakur Singh P.W. 5, and S.I. Raghbir Singh P.W. 7. The only question for consideration is whether the amount was taken by the accused as bribe from Dial Singh P.W. 2 or as a repayment of the loan, which loan Dial Singh P.W. 2 had taken from him a day earlier?

The story of the accused about the loan is to say the least somewhat fantastic. It is in the evidence of Sadha Singh D.W. 1 that the accused did not know Dial Singh P.W. 2. In the vernacular record this is the position although in the English record there appears to be a typographical mistake in this connection, but the vernacular record is to be taken to be correct.

The accused not knowing Dial Singh P.W. 2, it is not understandable how the latter should imagine that the accused would advance him a loan of Rs. 25/- or the accused should agree to do so. The fact that the accused says that he required sureties from Dial Singh P.W. 2 also indicates that they were not well acquainted. Dial Singh P.W. 2 is said to have produced two sureties. One of them was the clerk to S. Basharat Singh P.W. 6 and that clerk has not been produced as a witness.

The other was lambardar Sadha Singh D.W. 1 and he has appeared to support the defence of the accused. This lambardar does not belong either to Bheronpur or to the village of Dial Singh P.W. 2. He admits that he did not know the name of Dial Singh P.W. 2 previously, but says that he knew him by face, because he had visited his village once or twice with another man, who is married to some one else''s daughter in the village.

These facts have to be stated to be rejected as completely worthless piece of evidence. The lambardar did not know the witness and therefore could not be expected to agree so readily to be a surety for the return of loan by him, a stranger to him. If I the accused was keen in having somebody as surety for the return of the loan, he might as well have obtained a writing from Dial Singh P.W. 2. The learned Special Judge was only too right in disbelieving lambardar Sadha Singh D.W. 1 and in rejecting the defence version.

Another aspect of the defence of the accused is that in his statement at the trial he says that he told the Sub-Divisional Magistrate that the, money given to him by Dial Singh P.W. 2 was repayment of the loan obtained by the latter on the preceding day. There are six witnesses to the recovery. No question on this point was put to five out of them and it was only put to Thakar Singh P.W. 5, who says that the patwari did tell him that Dial Singh P.W. 2 had returned him the amount of the loan, but that was after the Sub-Divisional Magistrate had left.

It is not clear, if there was any truth in this statement of die accused, why it was not put to the Sub-Divisional Magistrate or the other witnesses. The Learned Counsel for the accused contends that in any case as the Sub-Divisional Magistrate left the scene immediately after the recovery, the accused came forward with this defence within a few minutes of the recovery, but I am unable to appreciate this argument because, excepting Thakar Singh P.W. 5 no other witness was questioned upon this matter.

It appears that this part of the defence of the accused is a subsequent development and has no semblance of truth in it. The defence of the accused may be rejected as mere constant.

The reason advanced by the accused for accepting money from Dial Singh P.W. 2 having been found to be untrue, there remains the testimony of Dial Singh P.W. 2 why he gave the money to the accused, and he says that it was in consequence of a demand of bribe by the accused. The Learned Counsel for the accused urges that Dial Singh P.W. 2 was at one stage willing to pay a bribe of Rs. 15/- and he is, therefore, an accomplice, and his testimony needs to be corroborated before it can be relied upon on the question of the purpose for which he gave the money to the accused.

I agree. But there is corroboration of the testimony of Dial Singh P.W. 2. He made a written statement Ex. PB before the Sub-Divisional Magistrate in which he clearly stated that the accused was demanding bribe from him and it was, in consequence of that statement that the Sub-Divisional Magistrate initialed the currency notes and then the same were passed on to the accused. The Sub-Divisional Magistrate has appeared to support that statement of the witness.

The witness is also corroborated by the recovery of the initialed currency notes and the copies of the khasra girdawaries from the possession of the accused. The version of the accused that it was a case of loan has been found to be false and that is a circumstance which cannot be lost sight of. So all these circumstances, in my opinion, provide sufficient corroboration of Dial Singh P.W. 2.

Another aspect of the case is that the idea of giving bribe did not emanate from Dial Singh P.W. 2 and he is not a person who of his own volition and merely to involve the accused in a case laid a trap against the accused, but the idea was forced upon him by the accused, and it was when the accused raised his demand of bribe over the amount already agreed upon that the witness was obliged to have recourse to the advice of his counsel and then the assistance of the Sub-Divisional Magistrate.

Even so he is an accomplice and, as I have said above, his testimony is corroborated by un-impeached evidence.

The Learned Counsel for the accused contends that the testimony of the Sub-Divisional Magistrate must be ignored because their Lordships of the Supreme Court have in Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, disapproved of a Magistrate participating in a trap as in this case and thus underlining the independence of the judiciary.

Their Lordships in the above said case approved the observation of P.B. Mukharji J. at page 528 in - M.C. Mitra Vs. The State, , but the learned judge has observed that the practice is indefensible specially when there is no separation of the executive from the judiciary.

In this State Judicial Magistrates have been separated from the executive Magistrates since its formation and the observations of the learned Judge do not, thus, aptly apply to the Sub-Divisional Magistrate in this case, who is an executive Magistrate. It follows that the observations of their Lordships of the Supreme Court do not apply to die present case either. There is, consequently, no weight in this argument of the Learned Counsel.

Immediately upon recovery of the amount from the accused, the Sub-Divisional Magistrate ordered the sub-inspector to investigate the case and apparently the case has been investigated by a properly authorized police officer according to S. 5A (c), Prevention of Corruption Act, 1947.

However, the Learned Counsel for the accused urges that that order of the Sub-Divisional Magistrate cannot be taken as an order by a Magistrate of the first class as required by the said section because the Sub-divisional Magistrate by participating in the trap against the accused put himself in the position of an ordinary citizen witness and thus ceased to be a Magistrate to be able to give such an order.

I am not quite able to appreciate the argument. I cannot understand how the Sub-Divisional Magistrate, who is an executive Magistrate, ceased to be so merely because a complaint was made before him that the accused was demanding bribe and when the bribe was given he was present at the time of the recovery of the bribe amount.

The Learned Counsel for the accused in support of his contention places reliance upon an observation of their Lordships of the Privy-Council in - AIR 1936 253 (Privy Council) , at p. 258 (C), which is-

In their Lordships view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers than as judicial persons: to be by reason of their position freed from the disability that attaches to police-officers under S. 162 of the Code; and to be at the same time freed, notwithstanding their position as Magistrate, from any obligation to make records under S. 164.

In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever.........

In that case their Lordships were considering the record of a confession by a Magistrate not in conformity with Ss. 164 and 364, Criminal P.C., and the observations refer to the conduct of the Magistrate in not conforming to the procedure provided in those sections. I do not see bow from those observations an inference is available that the Sub-Divisional Magistrate in the present case ceased to be a Magistrate because he was present at the time of the recovery of the bribe amount from the accused.

In my opinion merely because the Sub-Divisional Magistrate was present when the amount was recovered from the accused that does not mean drat in law he ceased to be a Sub-Divisional Magistrate. He was, therefore, competent to order the Sub-Inspector to carry on the investigation and the order is a valid order under S. 5A(c), Prevention of Corruption Act, 1947.

According to S. 4, Prevention of Corruption Act, 1947, there is a presumption, where it is proved that an accused person has accepted or obtained for himself or for any other person, any gratification (other than legal remuneration) or any valuable, thing from any person, that he accepted or obtained that gratification or that valuable thing, as the case may be, as a motive or reward such as is provided in S. 161, Penal Code.

In this case the accused has accepted the amount from Dial Singh P.W. 2 and the; presumption is that he accepted it as bribe, The Learned Counsel for the accused contends that if the accused establishes the probability that the money was given to him innocently, he has rebutted the presumption and is entitled to an acquittal.

Reliance is placed on - ''R v. Carr Braint'', (1943) 2 All ER 156 (D), which was a case underlie English Prevention of Corruption Act 1916 and S. 2 of that Act provides that a consideration shall be deemed to be corruptly "given unless the contrary is proved. The provision is pari passu with S. 4, Prevention of Corruption Act, 1947. In that case the Court of Criminal Appeal observed at pages 158 and 159 that

in any case where, cither by statute or at common law, some matter is presumed against an accused person ''unless the contrary is proved,'' the jury should be directed that it is for them to decide whether the contrary is proved; that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt; and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish.

The law here is the same. All that is required from the accused in a case of this type and having regard to S. 4, Prevention of Corruption Act, 1947 is to establish by evidence satisfying the Judge of the probability that the amount he received, or obtained was received or obtained by him innocently, he establishes that probability he has rebutted the presumption and is entitled to be acquitted.

But in this case the accused has failed to establish that probability and his version that the sum of Rs. 25/- was given to him by Dial Singh P.W. 2 in repayment of the loan which had been taken by that witness on the previous day has been found to be untrue.

So that (a) the testimony of Dial Singh P.W. is otherwise corroborated that the accused accented the amount from him as bribe, and (b) under S. 4, Prevention of Corruption Act, 1947, it is to be presumed that he accepted it as illegal gratification and the accused has failed to prove the contrary.

In the result, the of under S. 5(2) Prevention of Corruption Act. 1947 has been brought home to the accused and his conviction is maintained. The sentence is commensurate with the nature of the offence and the circumstances of the case. The appeal is dismissed. The accused will surrender his bail-bond�and be taken into custody to serve out the remaining term of his imprisonment.