Promode Ranjan Saha and anr. Vs. the State - Court Judgment

Excerpt:
- - osman ali and biswambar datta a tiger was baggi ed by biswambar datta but that the reward tor this was given to one jan mahammed at the instance of osman all and that since then biswambar has not been on good terms with osman ali. if asl he would have it, he was not present at all on the scene of occurrence, i fail to see how he could have been a defence witness the very suggestion only tends to prove his presence. thus osman all had not been benefited at all by the pavment of bribe and had good cause for grievance against biswambar datta and so he was willine to make the complaint against the officer. i fail to see how the defence has been prejudiced by this. it was only on being satisfied with the report of p. 21. thus i am unable to see any substance to the various contentions..... t.n.r. tirumalpad, j.c.1. biswambar datta, the appellant in the jail appeal no. 4 of 1959 was the nrst accused in special court case no. 5 of 1958 before the special judge, tripura in which he was convicted under section 161 l.p.c. and sentenced to 6 months' r.i, promode ranjan saha, the appellant in criminal appeal no. h of 1959 was the second accused in the said case who was convicted by the special judge under section 165a ipc for abetment of the offence by the first accused and sentenced similarly to 6 months' r.l the appellant in criminal appeal no. 3 of 1959 appeared by counsel while the appellant in jail appeal no. 4 of 1959 was unrepresented by counsel though he was present in person. the learned advocate who appeared for promode ranjan saha was kind enough to argue the case for.....

Judgment:

T.N.R. Tirumalpad, J.C.

1. Biswambar Datta, the appellant in the Jail Appeal No. 4 of 1959 was the nrst accused in Special Court case No. 5 of 1958 before the Special Judge, Tripura in which he was convicted Under Section 161 l.P.C. and sentenced to 6 months' R.I, Promode Ranjan Saha, the appellant in Criminal Appeal No. H of 1959 was the Second accused in the said case who was convicted by the Special Judge Under Section 165A IPC for abetment of the offence by the first accused and sentenced similarly to 6 months' R.L The appellant in Criminal Appeal No. 3 of 1959 appeared by counsel while the appellant in Jail Appeal No. 4 of 1959 was unrepresented by counsel though he was present in person. The learned Advocate who appeared for Promode Ranjan Saha was kind enough to argue the case for Biswambar Datta also, as there was no conflict between the cases of the two appellants.

2. On 11-9-1957 one Osman Ali Sarda (P.W. 1) of town Pratapgarh who had obtained the permit Ext. 4 from the District Magistrate to transport 50 maunds of paddy from the village to his town residence was bringing the paddy in ai Lorry T.R.L. No. 53. At about 4 P.M. the Lorry driven by Mannaf Meah (P.W. 3) arrived at the Police Check-Post at Asram Chowmohani which was guarded by Biswambar Datta who was a Habildar in the Tripura Police Force.

Besides Osman Ali and Mannaf Meah there were in the Lorry Birendra (P.W. 2) the Driver's assistant, Man Meah (P.W. 4) a cousin brother of Osman Ali, Omar Ali (P.W, 5) the uncle of Osman Ali and Lai Meah (P.W. 6) who belonged to the same Para as Osman Ali. Biswambar wanted to see the permit for the transport of paddy and after seeing it stated that the Lorry was carrying more than 50 maunds and wanted the paddy to be weighed. Accordingly the Lorry was taken near a banyan tree by the side of the road and a weighing balance was brought from a shop nearby and the paddy was weighed. On all the above mentioned facts the prosecution and Biswambar Datta are agreed.

3. Now it is the case of the prosecution that the weighing balance was brought from the shop of Promode Ranjan Saha and that he helped Biswambar Datta to weigh the paddy. Promode Saha totally denied that the weighing balance was his or that he was present at the place of occurrence on that day, though he admitted that he has got a shop very near the Check-Post. Biswambar Datta did not specifically deny that it was Promode Saha's weighing balance that was used or that the latter took part in the weighing, though he doe not positively affirm it in his statement Under Section 342.

4. The further prosecution case is that after the weighing, Biswambar Datta gave it out that the paddy was 9 maunds in excess. Osman AH denied it, as according to him he was carrying only 48 maunds of paddy. It had taken some 3 to 4 hours for the weighing of the paddy and it was drizzling. Then Biswambar Datta said that he would release the paddy if he was paid a bribe of Rs. 50/- to which Osman Ali did not agree. As1 the Lorry was being thus delayed further Mannaf Meah (P.W. 3) said that he would insist on double charge if there was further delay. Then there was a discussion and ultimately Biswambar reduced his demand to Rs. 30/-.

As there was no other alternative, Osman Ali, agreed to pay and sent his cousin brother Man Meah (P.W. 4) in the rickshaw of P.W. 7 to fetch the money from his house at Pratapgarh. At that time Biswambar Datta left the place stating that the money may be handed over to Promode Ranjan Saha and that the Lorry will then be released by the constable who was on duty. The permit was handed over to the said constable by him before he left the place. Man Meah (p.W. 4) returned with the money in the rickshaw and handed it over to Osman Ali who handed it over to Promode) Ranjan Saha. Then the permit containing the eiw dorsement by Biswambar Datta that the Lorryw contained 50 maunds was handed back to Osman V Ali by the constable and the Lorry was allowed to proceed at about 9-15 P.M.

5. This part of the story in the above paragraph is completely denied by Biswambar Datta and Promode Ranjan Saha. Promode Ranjan Sahal would say that he was not present at all, while according to Biswambar Datta, he weighed the paddy and found it to be only 50 maunds and so allowed the Lorry to proceed.

6. On this part of the case we have the evidence of Osman Ali (P.W. 1) who brought the paddy, his cousin Man Meah (P.W. 4), his uncle Omar Ali (P.W. 5), his Para man Lai Meah (P.W. 6) and also the Driver and his assistant, P.W. 3 and P.W. 2. The rickshaw-puller P.W. 7 Nur Meah has also been eiamined to speak about the rickshaw being engaged to bring the sum of Rs. 30/- from the house of Osman Ali at Pratangarh. In the course of the statement Under Section 342 Biswambar Datta did not say that P.Ws. 1-6 were not present at the place when the paddy was weighed by him even though their evidence was specifically put to him. He would only say that their evidence is false. As for Promode Ranjan Saha, his defence being a total denial of his presence at the time of the incident the only question is whether the evidence of P.Ws. 1-7 should be believed against himj or whether his defence should be accepted.

The evidence of P.W. 1-7 has been exhaustively dealt with by the learned Special Judge and he has accepted the same as true. I may also say that in the course of the arguments before me no serious contradictions were pointed out as between the evidence of one witness and another. The only contradiction which I am able to see after a careful perusal of the depositions is that P.W. 21 Birendra said that the head-lights of the truck were on and that the sum of Rs. 30/- was paid to Pro-mode Saha by Osman Ali in front of the head-lights, while according to P.Ws, 3 and 4 the lights were not on. This single contradiction did not appear to me to be so serious as to discredit the entire evidence of P.Ws. 1-7.

7. The argument advanced by the appellants' learned Counsel was that Osman Ali had a grudge against Biswambar Datta for the reason that sometime ago when the then Chief Commissioner went on a tiger hunt and took with him. Osman Ali and Biswambar Datta a tiger was baggi ed by Biswambar Datta but that the reward tor this was given to one Jan Mahammed at the instance of Osman All and that since then Biswambar has not been on good terms with Osman Ali. Though this was the story set up by Biswambar Datta in his statement Under Section 342, the suggestion put to Osman Ali in evidence was something quite different. It was that Biswambar Datta got the reward and that this enraged Jan Mahammed who was related to Osman Ali. Osman Ali in reply to the suggestion denied that he was present at the hunt.

He also denied the relationship between him and Tan Mohammed and he confessed ignorance as to whether Biswambar Datta and Jan Mohammed had gone for the hunt. No evidence of any kind was adduced for the defence to prove the alleged enmity between Biswambar Datta and Osman Ali. Even the cause for enmity mentioned by Biswambar showed only that he had a cause for grievance against Osman Ali and not that Osman Ali had any motive to bring a false charge against Biswambar Datta. Thus this suggestion was rightly rejected by the Special Judge.

8. Another suggestion made was that Osman Ali being a Sardar or a man of some rank was en- raged at Biswambar Datta for having stopped the Lorry and insisted on the contents being weighed in the road and so Osman Ali told him that he knew Police officers and would teach a lesson to Biswambar Datta. But though Biswambar stated so in his statement Under Section 342, no such suggestion was put to Osman Ali. On the other hand the Suggestion made was simply that Osman Ali felt Insulted as the head of a Para at his paddy being unloaded and that he had brought the false charge at the instigation of Jan Mohammed and Idlian Khalifa.

The suggestion was, of course, denied by Osman Ali and no evidence from any person present at the time of weighing was let in, in support of die suggestion. Biswambar Datta has naturally to make such suggestions to discredit the evidence of P.W. 1. But as he has not made any attemptt to prove them, they have to be treated as simply invented for the occasion. I may also say that on behalf of Promode Saha no suggestion was put to any of the witnesses to show why they should have spoken about his part in the occurrence if he was not present at all at that time.

Promode Saha's case was that he was implicated as an accused for fear that he may figure as a defence witness for Biswambar Datta. If asl he would have it, he was not present at all on the scene of occurrence, I fail to see how he could have been a defence witness The very suggestion only tends to prove his presence. There were as many as 10 shop-keepers near the Police Check-Post and it is not explained why Promode Saha should be pitched upon by the prosecution witnesses, particularly when no kind of enmity is even suggested as between Osman Ali and Promode Saha. Thus the defence of either appellant has not been able to establish anything against the prosecution witnesses 1-7 which would discredit their evidence.

9. The evidence of the said witnesses has completely established that the Lorry was stopped by Biswambar Datta on the ground that it contained more than 50 maunds of paddy, that Biswambar Datta went to the shop of Promode Saha and brought the weighing balance, that he and Pro-mode Saha weighed the paddy by tying the balance on one of the branches of the banyan tree, that Biswambar Datta then gave it out, that the paddy was 9 maunds in excess, that Osman Ali disputed it, that thereupon Biswambar Datta made a demand of Rs. 50/- to allow the Lorry to go, that Osman Ali declined to pay the bribe, that at that time P.W. 3 began to press for double charge if the Lorry was further delayed, that there was then a discussion in the room of the Check-Post in which Promode Saha also joined, that Biswambar Datta then reduced his demand to Rs. 30/-, that Osman Ali then sent his cousin Man Meah to his house to fetch the money in the rickshaw of P.W. 7 Nur Meah, that Biswambar Datta then left the place saying that the money may be handed over to Promode Saha and that permit will be given back by the constable, that later. Man Meah returned with the money and handed it over to Osman Ali, that Osman Ali gave it to Promnde Saha, that the permit- was then handed over to Osman Ali by the constable and the Lorry was allowed to proceed.

10. Normally in a case of illegal gratification it is difficult to get witnesses in support of the demand and the payment as the bribe-giver will not be willing to come forward on account of the benefit received by him by the payment of the bribe and as such bribe is usually not paid in the presence of witnesses. In the present case however Osman Ali admittedly was not curving over 50 maunds, But still he was given a lot of trouble by Biswambar Datta and the Lorry can-vine the paddy was detained for 4 to 5 hours and Osman Ali was made to nay the bribe to avoid further delay at the Check-Post. Thus Osman All had not been benefited at all by the pavment of bribe and had good cause for grievance against Biswambar Datta and so he was willine to make the complaint against the officer. Perhaps Biswambar Datta thought that by his going away from the place and by getting the money through Promode Sana, he could prevent his offence being detected,

11. The overwhelming evidence which w9 have in this case regarding the demand for bribe of Rs. 50/-, the reduction of the amount to Rs. 80/-, the direction by Biswambar Datta to hand it over to Promode Saha, the fact of the money being brought by Manf Meah from Osman Ali's house at Pratapgarh the subsequent payment to Promode Saha and the release of the Lorry after the payment cannot be overlooked by any Court. Even if we treat the evidence of P.W. 1 Osman Ali and his relatives P.Ws. 4 and 5 as interested, as suggested by the defence, we have still the evidence of the Lorry driver P.W. 3, his assistant P.W. 2 and Lai Meah P.W. 6 and the rickshaw-puller P.W. 7.

The only criticism attempted by the defence as against the said witnesses was that P.Ws. 3 and 6 belonged to the same Para as P.W. 1, while P.W. 2 being the assistant of P.W. 3 was forced to support the other witnesses. There is no reason to .hold that simply because witnesses belonged to the same Para they should give false evidence to support another man belonging to that Para. The only suggestion against P.W. 7 was that he was warned by Biswambar Datta for careless driving. But this suggestion was denied by the witness and remained unproved.

12. I therefore entirely agree with the conclusion of the Special Judge that the case against the two appellants has been proved beyond any possibility of doubt.

13. The occurrence as I said took place on 11-9-1957. The complaint Ext. 2 was filed by Osman Ali before the Superintendent of Police, Tripura on 13-9-1957. It was pointed out by the defence, that If the alleged demand and payment were true Osman, AH who had to pass the Police station in taking the Lorry from the Check-Post to his house at Pratapgarh would have straightaway given a complaint at the Police station instead of waiting for two days and giving a written complaint to the Superintendent of Police.

The suggestion was that there has been some deliberation between 11-9-1957 and 13-9-1957 and that during that period a false story must have been concocted. I was not impressed with that argument at all. Osman Ali evidently had a tiring day having taken the Lorry in the morning to his village and on his way back in the evening with the paddy being detained at the Check-Post in drizzling rain for about 5 hours and it was not surprising that at that late hour (9-15 P.M.) he did not stop at the Police station on the way to give a complaint. Moreover such complaints against public officers cannot be given without some deliberation.

14. the complainant himself felt that he had1 to give some explanation for not filing the complaint on 12-9-1957. He stated in his evidence that on 12-9-1957 he along with one Idhan Khalifa met Biswambar Datta, that the latter denied taking any money & told them that would see Idhan Khalifa after 10 P.M. after finding out if the shop-keeper had received any money in his name, that Biswambar Datta did not turn up h so Idhan Khalifa told the complainant ihat he may take such steps as advised. So he filed the complaint the next day. But this Idhan Khalifa was not examined by the prosecution. The defence suggested before the Special Judge that it was the duty of the prosecution to examine Idhan Khalifa as he was an important witness and that the non-examination of such an important1 wit-r.ess was unfair to the defence. The prosecution thereupon produced Idhan Khalifa before the Special Judge on 13-2-1959, but they did not examine him on tile ground that he would not support the prosecution.

They tendered him for being examined by the defence, but the defence declined to examine him. I should think that the defence cannot expect anything more than this to be done by the prosecution. Atter all, the evidence of Idhan Khalifa as lar as the prosecution was concerned was only to explain the delay of one day in filing the complaint & therefore he cannot be called an important prosecution witness without whose evidence the case cannot be brought home against the accused. If the defence thought that his evidence would be useful to them, nothing prevented them from examining him. The prosecution was justified in not examining him as their witness.

15. It was however contended by the defence that the name of Idhan Khalifa was not shown as a witness in the charge-sheet filed before the S.D.M. and no copy of his statement recorded under Section 161 was given to the accused as required Under Section 173 Cr. P.C and that the defence has thereby been prejudiced. It was not brought out in the cross-examination of the Investigating Officer that any statement was at all recorded Under Section 161 from Idhan Khalifa in the course of the investigation.

16. After all the delay of one day in filing the, complaint in a case of bribery is certainly not very material and does not in any manner show that in the interval of that one day a false case has been concocted against the accused persons.

17. Many other points were raised before me by the defence lawyer all of which had also been raised before the Special Judge and considered by him. It was mentioned that the constable to whom the permit was handed over by Biswambar Datta when he left and who handed back the permit to Osman Ali when the money was paid to Promode Saha was as much guilty, if the case was true, as Biswambar Datta and Promode Saha and that the prosecution has kept back this constable without impleading him as a co-accused or at least examining him as a prosecution witness.

I cannot say that the constable was guilty of any offence as he had no hand either in demanding the money or in receiving it and as he handed back the permit only as directed by his superior officer. The constable would have been a proper prosecution witness but there was little likelihood of his supporting the prosecution if he was examined as he would be compromising his own position to some extent. The prosecution did not even disclose the name of the constehle who was involved in this matter. No doubt this was a lacuna on the part of the prosecution.

I find actually that there were 3 constables1 on duty in succession between 4 P.M. and 9 P.M. on that day and it may be that the difficulty in finding out the particular person involved was the reason for not examining the constable. I fail to see how the defence has been prejudiced by this. Biswambar Datta certainly knew who the constable was who was on duty at the particular time &: nothing prevented the constable being called as his witness to dispute the prosecution case which stood proved with the evidence of P.Ws. 1-7. The defence had actually friken time for His examination of defence witnesses, but ultimately they chose not to examine any witness.

18. It was again pointed out that the occurrence was alleged to have taken place in the open road near 10 shops, but that not one independent witness in the locality was examined. We have to remember that the demand and payment of bribe took place on a dark night in drizzling rain and it cannot be expected that the shop-keepers having their shops at a distance of 25 cubits would have been interested in what was going on at such a time. Then again the demand and the fixing of the bribe amount is said to have taken place inside the room of the Check-Post, though the actual payment to Promode Sana was said to have been made outside. I see nothing improbable in the evidence of the witnesses on this matter,

19. Another objection advanced was about the investigation. It was stated that when the F.I.R. was filed before the Superintendent of Police on 13-9-1957, the Superintendent of Police directed the Deputy Superintendent of Police P.W. 12 to enquire and report and that the enquiry conducted by P.W. 12 was itself part of the investigation, that P.Ws. 3 and 4 had admitted that their statements were recorded by P.W. 12 and that therefore the said statements ought to have been handed over to the defence. P.W. 12 however denied that ho held any investigation or recorded any statements.

According to him, he only tested the witnesses who were mentioned in the F.I.R. I have no hesitation to accept the evidence of P.W, 12. Evidently P.Ws, 3 and 4 were confusing when they mentioned that their statements were recorded by him. After all the Superintendent of Police did not ask P.W. 12 to start investigation, but only to make an enquiry and submit a report to him. When such a serious complaint of bribery against a public servant is made by a person, there is nothing wrong in a preliminary enquiry being carried out to find out whether there was any truth in the complaint before regular Police investigation is started and statements are recorded Under Section 161.

It is in the interests of public officers that such procedure should be adopted. It was only on being satisfied with the report of P.W. 12 that the Superintendent of Police directed P.W. 13 the Circle Inspector of Police to start the investigation after getting the necessary authorisation from the District Magistrate as required under the Criminal Law Amendment Act. I am unable to see how this has in any way prejudiced the defence.

20. It is seen from Ext. 6 that P.W. 13 applied to the District Magistrate on 2-10-1957 and got an order authorising him to investigate the case on 6-10-1957 and he commenced the investigation the very same day and examined P.Ws, 1, 4 and 5 on 6-10-1957 and 7-10-1957. The defence pointed out to me from the unfiled records another application by P.W. 13 to the Distinct Magistrate which, is an exact copy of Ext. 6 in which the District Magistrate had issued another authorisation on 8-10-1957. From the existence of two such orders by the District Magistrate—one on 6-10-1957 and1 the other on 8-10-1957 it was argued that the authorisation in Ext. 6 must have been antedated and that the investigation had actually commenced even before the authorisation was given on 8-10-1957. P.W. 13 was queslioned about this and he stated that he got the authorisation Ext. 6 on 6-10-1957 at the residence of the District Magistrate but that he trot another authorisation in writing dated 8-10-1957 evidently passed by the District Magistrate in his office.

There is no reason to believe that the District Magistrate would have colluded with the Investiga-thf officer by issuing an antedated authorisation as contained in Ext. 6. One fails to see why the District Magistrate should do so. The suggestion appeared to be quite fantastic to me. There is no doubt as stated by the Special Judge that the investigation commenced only on proper authorisation.

21. Thus I am unable to see any substance to the various contentions advanced on behalf of the appellants and I am satisfied that their conviction by the learned Special Judge was quite correct.

22. The learned Special Judge has sentenced each of the appellants to 6 months R.I. It is necessary to point out that there has been unnecessary and avoidable delay in the investigation of this case. Though the investigation commenced on 6-10-1957, 1 lie charge-sheet was filed only on 23-9-1968, about a year later went though all the witnesses to be examined in the case were local persons. It is seen that P.Ws. 1-7 who are the main witnesses regarding the charge were all examined by the Investigating Officer before 8-12-1957. Still it took 9 months more to file the charge-sheet.

The reason for the further delay appeared to have been — (1) for the holding of a test investigation parade (2) for getting the sanction to prosecute and (3) for examining P.W. 8, the person who typed the complaint Ext. II. The T. I. Parade was held only in March, 1958, even though Biswambar Datta had been arrested and released on bail in October, 1957 and Promode Saha in December, 1957. The holding of a T.I. Parade in March 1958 under such circumstances is nothing short of a farce. Another reason for the delay was in obtaining the required sanction to prosecute Biswam' bar Datta who was a public servant.

It is seen from the records that the application for such sanction was made by the Investigating Officer to the Superintendent of Police on d0-12-1957 but that the sanction was issued only on 4-5-1958 by the Superintendent of Police. No reason was given by the prosecution for such an inordinate delay in the issue of a sanction which was after all a formality when sufficient evidence had been collected against the public servant.

Even after obtaining the sanction on 4-5-1958 there was a further delay of over 4 months to fila the charge-sheet. To cover up this delay, the Investigating Officer appears to have examined P.W. 8 on 20-9-1958. P.W, 8 is the person who prepared Ext, 2 the complaint on a type-writer. I entirely fail to see the purpose for which the writer of the complaint should at all be examined, as the complaint has been signed by Osman AH (P.W. 1) who had stated that it was given by him,

There is no doubt in my mind that this witness has been unnecessarily examined in the course of the investigation in an attempt to explain the delay in filing the charge-sheet. This P.W. 8 is a local man and there was no reason for the It instigating Officer even if he thought the evidence of P.W. 8 was material to have delayed his examination till 20-9-1958.

23. It is the duty of the Police to complete the investigation as speedily as possible. Section 173 Criminal Procedure Code lays down that the investigation shall be completed without unnecessary delay. I have pointed out that there has been unnecessary and avoidable delay in this case. An attempt has been made to cover up such delay by examining a thoroughly unnecessary witness nearly 9 months after the investigation had for all practical purposes been completed.

If the Police seem to be under the impression that investigations are to be carried out at their own leisure, it is high time that their attention is drawn to Section 173 Cr.PC. It is to avoid such delays that case diaries are required to be submitted to superior officers so that necessary instructions may be given to the Investigating Officers. But such supervision seemed to be utterly lacking in the1 present case.

24. Persons accused of offences are entitled to expect that the cases against them should be investigated as quickly as possible so that they may know what they are being charged with. Nay, such quick investigation and charge-sheeting are necessary even in the interests of the prosecution as otherwise when the case comes on for trial the very delay in investigation may make it difficult for the prosecution witnesses to remember the details, with the result that even truthful witnesses would bungle in cross-examination and the prosecution fail for that reason.

From whatever angle we look at it, it is necessary that the Police are made to understand that investigations cannot be carried out in a leisurely way. If they seem to be under that impression, it is high time that their minds are disabused of such notions by proper supervision by superior officers.

25. Even the Magistrate before whom the charge-sheet was filed delayed forwarding the papers to the Special Judge for nearly 3 months after the charge-sheet was filed before him by the Police on 23-9-1958. He also seemed to be under the impression thait he could forward the records at his own leisure. I can find no excuse why the S. D. M. should have delayed it so long. He must] have known on the very date when the charge-sheet was filed before him that he did not have the jurisdiction to try the case and he should have forwarded the papers to the Special Judge immediately.

It is seen from the S. D. M's, order-sheet that even after the order forwarding the case to the Special Judge, Tripura was made by him on 28-11-11958 the papers were actually sent only on 10-12-1958. Neither the Police nor the Magistrate seemed to understand that such dilatoriness was highly reprehensible and would amount to real harassment to the accused persons who are entitled to have a speedy disposal of the case against them. One can well imagine the suspense and mental agony which they have to go through, when the case against them is delayed for no fault of theirs. It is the duty of every officer concerned with criminal justice to avoid such delays.

26. Though in the present case the investigation was completed in December, 1957, the accused persons were brought to trial before the Special Judge only in December, 1958, one year later. Having regard to the mental agony which the accused persons had thus to suffer while they were kept in sense about the charges against then, I am satis-that they are entitled to have a reduction of the sentence passed against them by the Special Judge. The sentence passed on the appellant Biswambar Datta is reduced to the period already lindprsrme by him as hp has been in jail already from February, 1959. He is therefore directed to be set at liberty. As for the appellant Promode Saha the sentence passed on him is reduced to 3 months'