Authored By : Robert Fulton Rampini, J. Pratt

Robert Fulton Rampini and J. Pratt, JJ.

1. This is a reference by the Sessions Judge of Patna underSection 307 of the Code of Criminal Procedure. Deodhar Singh, Sub-Inspector,and Fariduddin, Head Constable, were placed upon their trial, the former onthree charges under Section 161 and two under Section 218 of Indian Penal Codeand the latter for abetment of the three offences under Section 161.

2. The jury, by a majority of three to two, found theaccused persons guilty on all the charges. The Sessions Judge was willing toaccept the finding on the charges under Section 218 against the Sub-Inspector,but was of opinion that the charges of bribery and abetment of bribery were notsustainable, because they rested entirely on the testimony of accomplices whohad not been corroborated in material particulars. He, therefore, referred thewhole case to this Court, being precluded by Clause (2) of Section 307 of theCriminal Procedure Code from recording a judgment of conviction on the chargesunder Section 218 regarding which he was in agreement with the verdict of themajority of the jury.

3. The alleged offences are said to have been committed withreference to a gambling case under Bengal Act II of 1867. The accusedSub-Inspector having obtained a warrant under Section 5 of that Act from theDistrict Superintendent of Police to arrest all persons found gambling in thehouse of Paltu Lall, proceeded at about midnight of the 12th November to make araid upon the premises. With the aid of the accused Head Constable and a largeforce of constables he arrested a great many gamblers and brought them to thethannah, and all the 25 persons whom he sent up for trial were afterwardsconvicted, with the exception of one man, who was treated as an approver.

4. In his first information report purporting to have beenwritten at 1 A.M., the Sub-Inspector does not include Nawab Singh and Rung Lalin the list of persons arrested, and in his special diary, prepared almostsimultaneously, he states that they were found at the door of Paltus house andwere not concerned in the gambling within, and so he had promptly let them go.The case for the prosecution is that these two men were arrested with theothers inside the gambling house, taken with them to the thannah and notreleased till 7 or 8 A.M. The Sub-Inspector is accordingly charged underSection 218 with framing two incorrect records with intent to save Nawab Singhand Rung Lal from legal punishment.

5. It is further alleged that the Sub-Inspector did notrelease some of the other prisoners on bail until he received bribes for thepurpose, and that he was aided and abetted by Fariduddin, Head Constable. Threespecific instances of the receipt of illegal gratifications have been deposedto and embodied in the charges, viz: (1) Rs. 200 paid by Radha Lall for therelease of Paltu (2) Rs. 50 paid by Mahomed Kasim for the release of Nur Khan,and (3) Rs. 12 paid by Rafat Bahadur for the release of Gopi Lall and GabhanLall.

6. As regards the charges under Section 218 two questionsarise, one of fact and the other of law. The question of fact is whether NawabSingh and Rung Lal were actually arrested with the other gamblers and conveyedto the thannah, and there released several hours after their arrest. TheSessions Judge agrees with three of the jurymen that they were, and we aresatisfied on the evidence that such was the case. The witness Luchman Singconstable says that 29 men were arrested inside Paltus house, and that RungLal was one of them. Paltu Lall says that both Nawab Singh and Rung Lall werein his house while the gambling was going on. Nadir Ali, constable, who was onsentry duty at the thannah from 2 A.M. to 6 A.M. on the 13th November, says"Deodhar Singh and Fariduddin and others brought 27 persons charged withgambling to the lock up. They were counted in my presence. I know Rung LalSingh and Nawab Singh alias Bindha Singh. I know them for a long time. I sawthese men with the accused. 24 were placed in the hajat: Rung Lal, Nawab andNanku were not placed in hajat. They were allowed to remain outside thelock-up, and then they were taken to the Sub-Inspectors room. These three menare well-bo-do. They were let go. No money was paid in my presence. I heard thesound of money." Another constable named Mazhur Hossein, whom theSub-Inspector took with him to the scene, says he was present when the arrestswere made, that Rung Lal was one of the persons arrested, and that he was takento the thannah at 3 A.M.

7. Hari Charan, the approver in the gambling case, deposesthat Nawab Singh and Rung Lal were inside Paltus house with the othergamblers. Finally we have the testimony of Radha Kant, a pleader of the JudgesCourt, who says he knows Rung Lal and saw him at the thannah when he went thereat 8 A.M. Some witnesses put the release of the two men at an earlier hour, butthe pleaders estimate of time is more likely to be correct. On the wholeevidence we are satisfied that the Sub-Inspector released the two men manyhours after they had been lawfully arrested, and that he framed incorrectrecords to save them from punishment, probably because they had made it worthhis while to do so.

8. The question of law raised before us is that the offencedoes not come within the purview of Section 218, because the Sub-Inspector forwhich the warrant of arrest was issued be a cognizable one, the Sub-Inspectorwas charged with the du was not "charged" by law or competentauthority with the preparation either of a first information report or of aspecial diary, and that his action was voluntary and superfluous. It isconceded that if the offencty of preparing the documents which he furnished. Itis contended that the offence is a non-cognizable one within the meaning ofClause (1)(n) of Section 4 of the Code of Criminal Procedure.

9. Now, under the Gambling Act, it is not every PoliceOfficer who can arrest without a warrant. It is only the District Superintendentof Police who can arrest or by warrant direct the arrest of persons gambling ina house. The District Superintendent being a Police Officer who may, under alaw for the time being in force, viz., the Gambling Act, arrest withoutwarrant, we think that the requirements of Clause (1)(f) of the above sectionsare satisfied, and that the offence in question is, therefore, a cognizableoffence. "We cannot accept the contention that the words in thatclause" a Police Officer" mean "any and every" PoliceOfficer. It is sufficient if the Legislature has limited the power of arrest toany particular class of Police Officers. We may add that we do not think theword "charged" in the section is restricted to the narrow meaning ofenjoined by a special provision of law." The District Superintendent saysit was the practice to require a first information report, &c, in gamblingcases just as in ordinary cognizable cases, and therefore the Sub-Inspector wasnot acting of his own volition but in pursuance of an order laid upon him.

10. Therefore, both in law and fact, we find that DeodharSingh is guilty of the charges under Section 218.

11. Turning next to a consideration of the charge underSections 161 and 161/114, we find that the first refers to a bribe given byRadha Lall on behalf of Paltu. The witnesses in support of it are Paltu, RadhaLall, Mir Khan, who was punished for gambling, Liakat Hossein, WriterConstable, and the pleader, Radha Kant. The Deputy Legal Remembrancer contendsthat the last named was not an accomplice, though it seems clear that theothers were.

12. The next charge relates to a bribe of Rs. 50 given byMahomed Kasim to procure the release of Nur Khan. The witnesses to this areBrij Kishwar, mukhtear, Medhi Hossein and Mahomed Kasim; while Beni Mirza givescorroborative evidence as to the demand of money and other circumstances,though he did not actually see the payment. With reference to this matter RadhaKant says he saw Beni Mirza and Brij Kishwar at the thannah in the Sub-Inspectorsroom, that they came to bail out Nur Khan and were talking to the Sub-Inspectorand Head Constable about releasing Nur Khan on bail, and his impression is thatthey were talking about money.

13. The third and last charge relates to Rs. 12 paid by RafatBahadur for the release of Gopi Lall and Gabhan Lall. Rafat is not connectedwith these men, but is related to Paltu. Beni Mirza and Nur Khan say theywitnessed the payment. Rafat and Nur Khan are undoubtedly accomplices, butregarding these two latter cases the Deputy Legal Remembrancer thought itsufficient, to contend that Beni Mirza was not an accomplice. The question fordetermination is, therefore, whether Radha Kant and Beni Mizra are accomplices;for if they are not, we think we may safely rely upon their corroboration.Under the existing law the evidence of an accomplice is admissible, and aconviction is not illegal, because it proceeds upon the uncorroboratedtestimony of an accomplice. But the presumption stated in, illustration (A) ofSection 114 of the Evidence Act that an accomplice is unworthy of credit unlesshe is corroborated in material particulars has become a rule of practice ofalmost universal application. The question arises, what is an accomplice InWhartons Law Lexicon he is defined as "one concerned with another orothers in the commission of a crime." In Websters Dictionary we find thedefinition "an associate in the commission of a crime, a participator inan offence whether as principal or an accessory." Mr. Boy for the accusedcontends that the term "accomplice" has a wider signification, andthat both Radha Kant and Beni Mirza were accomplices, because they were presentwhen one or more of the bribes was paid, and yet did not inform the authoritiesfor several days. He cited the following cases in the course of his argument:Queen v. Chundo Chundalinee (1875) 24 W.R. 55; Queen-Empress v. Maganlal I.L.R(1889) ., 14 Bom., 115; Queen-Empress v. Chagan, Dayaram I.L.R. (1890) , 14Bom., 331; Queen-Empress v. OHara I.L.R. (1890) 17 Cal., 642; Ishan Chundra v.Queen-Empress I.L.R (1893) 21 Cal. 328; Jogendro Nath Bhaumik v. Sangat Garo(1897) 2 C.W.N., 55; Rajoni Kanto Bose v. Asan Mullick : 2C.W.N., 672; and Alimuddin v. Queen Empress (1895) I.L.R., 23 Cal 361 [LQ/CalHC/1895/116] .

14. In Queen v. Chundo Chundalinee (1875) 24 W.R. 55,persons who were regarded as accomplices were described as "more or lessparticipators in the crime," which was one of murder by poison. One ofthem was as inmate, of the house where the man was poisoned in her presence,the other supplied the poison, and both of them, though aware of the crime,took no means to prevent or disclose it, although bound by Section 44 of theCode of Criminal Procedure to give prompt information to the nearest Magistrateor Police Officer.

15. In Queen-Empress v. Maganlal I.L.R(1889) ., 14 Bom.,115, and Queen-Empress v. Chagan Dayaram I.L.R (1890) 14 Bom., 331, thepersons, described as accomplices were persons who had either subscribed to thebribe or collected subscriptions or paid the money to the accused. That wouldbring them within the definition we have previously indicated. In Queen-Empressv. OHara I.L.R (1890) 17 Cal., 642, known as the OHara case, Petheram, C.J..in delivering the judgment of the Full Bench, observed: "We think that,these facts are such as would form sufficient grounds for putting Goldsboromghon his trial upon a charge of abetting the murder, and this, notwithstandingthe remonstrance which, according to his evidence, he offered to OHara justbefore the shot was fired. From this point of view, and having regard to thefact that he had received a pardon under Section 337, and gave his evidenceunder that section, Goldsborough was, we think, an accomplice within themeaning of the rule under the law existing in India."

16. In the case of Ishan Chandra v. Queen-Empress I.L.R(1893) 21 Cal., 328 [LQ/CalHC/1893/100] , the informer Gooroo Pershad revealed a plot, which had forits object the substitution of a forged document for a genuine one in aCollectorate record, arid his evidence was that he had joined the conspiracy atthe outset, not with criminal intent, but in order to frustrate the plot andbring the criminal to justice. In referring to this the Judges said: "Weare not prepared to say that he was an accomplice. He may have been one, but itwould be impossible to say in this case than he helped in the commission of theoffence. He was undoubtedly cognizant of it, and omitted to disclose it for sixdays. From any point of view we do not think that his testimony is such as tojustify a conviction, except where he is corroborated." From this we maygather that in the opinion of the Court the mere fact that Gooroo Pershad wascognizant of the offence, and omitted to disclose it for six days, was notsufficient to constitute him an accomplice when it did not appear that hehelped in the commission of the offence.

17. In the case of Jogendro Nath Bhaumik v. Sangat Garo: 2 C.W.N 55, it appears that after the amount of the bribeshad been settled with the Head Constable, the persons went home for the money,and next day they took the two witnesses with them to the thannah and made thepayments. There the witnesses seem to have aided and abetted the bribe-givers;they accompanied them for the express purpose of paying the bribes, and so weretreated as no better than accomplices. In the case of Rajoni Kanto Bose v. AsanMullick : 2 C.W.N. 672, it was held that persons who went tosee and assist in the payment of bribes were accomplices. In the case ofAlimuddin v. Queen-Empress I.L.R (1895) 23 Cal. 36, it was held that wherewitnesses appeared to have taken an active part in carrying away a person afterhe had been grievously assaulted and was in a helpless condition, and then leavinghim in a field where he was subsequently found dead, their evidence was nobetter than that of accomplices; at any rate, they took such a part in thetransaction as to make it most unsafe for the Court to rely upon theirevidence, unless corroborated in material respects.

18. Now, in the present case, no obligation was imposed bylaw upon Radha Kant or Beni Mirza to inform the authorities about the taking ofbribes. And unless it can be shown that they somehow co-operated in the paymentof bribes, or were instrumental in the negotiations for their payment, we thinkthat none of the cases which have been cited is an authority for theproposition that they were accomplices, inasmuch as they witnessed the paymentand did not promptly inform the authorities. As regards the pleader witness itis in evidence that, so far from countenancing the payment of a bribe, someangry words passed between him and the Sub-Inspector on the subject. He himselfsays "I thought it would be foolishness for me to remonstrate, as I sawthey were determined to take. I felt that great oppression was practised by thePolice Officers. I told Paltu he could get off on presenting a petition; so faras I remember, I said it was not advisable to give any bribe." Refer-ringto his delay in informing the authorities he said: "After Paltu wasreleased on bail I wanted to inform the Magistrate or the DistrictSuperintendent of Police, or the Assistant District Superintendent of Police. Idid not do it on that day as there was no hurry. On the following Friday, i.e.,four or five days after, I informed the Assistant District Superintendent ofPolice and he recorded my statement." He also said," I took advicewhat I should do. I went of my own accord to the Assistant District Superintendentof Police, I was advised by elders not to mix in this matter, unless I wasasked....1 considered there would be no stop put to such zulum as I saw at thethannah unless I. spoke."

19. We find nothing blameworthy in Radha Kants conduct, andwe think it was only natural that he should hesitate arid fate advice beforeventuring to launch a complaint of bribery against the Police. Beni Mirza is amukhtear who went to get Nur Khan released on bail, a perfectly legitimateaction. The Sub-Inspector told him that Rs. 200 had been settled, and that ifhe paid that sum Nur Khan would be released. Next Brij Kishwar came andpromised Rs. 50. As a matter of fact Beni Mirza did not stop to seethe bribepaid, and there is nothing to show that he joined in the negotiations regardingit. He says he told the darogah it was illegal. He actually saw Rafat Bahadurpay Rs. 12 for the release of other men, but that was a matter in which thewitness in no way concerned himself. He made his statement to the AssistantSuperintendent five days after the occurrence.

20. We must hold that Beni Mirza was not an accomplice. Itis abundantly proved that the Head Constable, whose presence is not denied, wasan active agent in obtaining the bribes. All the charges under Sections 161 and161-114 are satisfactorily proved. It will, however, be only necessary to passsentence regarding one of them.

21. We find Deodhar Singh guilty of the charges underSections 218 and 161 of the Indian Penal Code, and direct that he be sentencedto six months rigorous imprisonment on one charge under Section 218, and to afurther term of six months rigorous imprisonment on one of the charges underSection 161, or to an aggregate of one years rigorous imprisonment. We pass nosentence on the remaining charges.

22. We find Fariduddin guilty of the charges under Section161 read with Section 114 of the Indian Penal Code, and direct that he undergosix months rigorous imprisonment.

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Queen-Empress vs. Deodhar Singh and Ors. (05.09.1899 -CALHC)