1. This is an appeal by the Superintendent and Remembrancerof Legal Affairs, Bengal, on behalf of the Province of Bengal against an orderof acquittal of the accused, K. Zahiruddin by Mr. A. Hossain, PoliceMagistrate, Sealdah. The accused was tried before him on a charge of havingaccepted a bribe of Rs. 800 from a contractor Mr. Gopi Mohan Bhattacherjee (P.W. 7) on 24th August 1944. The accused was at the relevant time Grain DepotOfficer of the East Indian Railway at Howrah and as such used to approve andaccept commodities from the contractors with whom orders were placed by theHead Office. Mr. Bhattacherjee is proprietor of the firm of Messrs. G.Bhattacherjee & Co. and Messrs. Union Laboratory who had contract businesswith the railway. In the course of dealings a quantity of mustard oil of theHowrah Grain Depot was found to be bad and was sold off, Mr. Bhattacherjeestender at Rs. 33 a maund being accepted. When he came to take delivery therewas a trouble as to whether the drums were to be supplied by the railway or notand eventually on a reference to the Head Office railway drums were allowed tobe used. According to the contractor in the course of the discussion about thisthe accused proposed that he should be paid Rs. 5 a maund as a bribe. There wasanother transaction regarding Haldi and black pepper. The goods were refused asbeing of bad quality and again in this connection it is alleged that he made afurther suggestion about being bribed. The contractor wrote to the DeputyGeneral Manager, Food, the superior officer of the accused, complaining aboutthe accuseds objection to the quality of the supply. There was anothertransaction with regard to Mug Dal and in the course of negotiations about thathe again alleges that the accused was demanding bribe. The contractor went tothe Head Office and Major Deb Dutt (P. W. 4). He was then referred first to Mr.Jones, the security officer, and also to Mr. K. N. Mukherjee, Superintendent ofPolice, Special Police Establishment.

2. In consequence of this an arrangement was made to try andtrap the accused at the time when a bribe was paid. The first attempt was madeon 23rd August at the East Indian Railway Office at Howrah. The party consistedof Mr. B. C. Dutt, Deputy Superintendent of Police, Inspector Lahiry, Mr.Ghose, Magistrate, the contractor and apparently one other police officer. Nothingwas done as according to the contractor although Rs. 400 had been taken by himto pay as the bribe in regard to the mustard oil matter the accused wanted Rs.800 and proposed that it should be paid the next day at his house. According tothe contractor this conversation took place outside the office of the accusedon the verandah and the party came away and arrangements were made for anotherattempt the following day.

3. On this day an order for investigation was obtained bythe police from the Additional District Magistrate, 24 Parganas at Alipur andanother Magistrate of the First Class Mr. B. K. Roy was deputed to go with theparty. Mr. Dutt, Inspector Lahiry, the Magistrate and the contractor went intaxi to the house of the accused at 31 Circus Avenue. It was during the time ofthe black out. The taxi remained outside in the street facing east. Between thetaxi and the entrance to the accuseds house there was a broken lorry facingopposite direction of the foot path, part of which was paved and part of whichwas unpaved. Word was sent through the durwan of the premises to call theaccused. Mr. Dutt had told the contractor that he was to feign an injured legas the reason for not going into the premises and that the Magistrate was to beintroduced as the contractors uncle. Mr. Dutt took his stand on the foot pathjust to the west of the lorry and Inspector Lahiri at the back of the lorryalso on the foot path. The accused came down, got into the taxi, was paid Rs.800 and had some conversation with the contractor about rates. He then got outof the taxi. A signal by a torch was given by the contractor and the policeofficers closed on him, called out to him. He ran but was caught at theentrance to his house. He threw notes down and these were after some searchdiscovered on the mudguard of the lorry. A search list was prepared. A copy wasgiven to the accused and he signed in acknowledgment of the receipt. TheMagistrate made an endorsement on the same day on the paper Ex. 3 which was theapplication by Mr. Dutt to the Additional District Magistrate, Alipur, for theorder for investigation. The numbers of the notes had been taken and thenumbers of the notes found on the lorry were found to tally.

4. A formal complaint in the case was lodged by Mr. Dutt on28th February 1945. The case was sent to Rai Saheb M. B. Roy, PoliceMagistrate, for disposal, but on an application by the accused, raising thequestion of jurisdiction it was transferred to Mr. A. Hossain who finally triedand acquitted the accused.

5. The accused when examined under S. 342, Criminal P. C.stated that he did not accept any bribe and that he would written statement. Inhis written statement he denied that he ever received any illegal gratificationfrom Gopi Mohan Bhattacherjee or that he ever accepted any. The wholeprosecution story with regard to that was false. He denied that he came on theverandah with Bhattacherjee on any of the dates mentioned by him when thealleged conversation about bribes took place. On 24th August the durwan of hishouse about 8-30 or 9 P. M. came while he was sitting with his brother in hisflat and said that a man was waiting to see him in a taxi and as he could notcome up because of a bad leg he told the durwan that he would come down and thedurwan left followed by the accuseds brother. The accused changed his clothesand went down. As he was about to get down the steps to the main entrance twopolice officers stopped him, rushed inside, caught hold of him and dragged himout and accused him of having accepted the money inside the taxi. The accusedprotested and said in the presence of the Magistrate that he had neither goneto the taxi nor had taken any money from anybody. A search list was preparedand he acknowledged receipt of a copy. He alleged that Bhattacherjee hadengineered the false case against him because in the discharge of his duties hehad to reject many of the articles supplied by him and that in fact on 22ndAugust he had threatened him to drag him into Court.

6. The prosecution case is given mainly by Mr.Bhattacherjee. There is some corroboration of his general story with regard tohis transactions with the accused, his visit to his office, but there is nodirect corroboration of his story as to the demand for bribes. In fact T. C.Puni (P. W. 5), head depot store-keeper called as a prosecution witness and R.N. Chatterjee (C. W. 3) called as a court witness contradict Mr. Bhattacherjeein his statement that the accused went outside on the verandah forconversation; in particular that be went out on 23rd August when the contractorsays arrangement was made for payment at the accuseds house the following day.Mr. J. K. Ghose (P. W. 3), Magistrate, deposes as to the incident of 23rdAugust and Mr. B. C. Dutt (P. W. 1), Inspector Lahiri (P. W. 6) depose as tothe incidents of 23rd and 24th and the Magistrate Mr. Roy (P. W. 2) deposes asto the incident on the latter date. Major Deb Dutt (P. W. 4) gave some evidencewith regard to the complaint made to him and the reference to the Head Office inregard to some of the transactions.

7. If the evidence of the Magistrate, Mr. B. K. Roy, isbelieved and relied on this proves conclusively that the accused was paid Rs.800, purporting to be a bribe in the taxi by the contractor and that almostimmediately afterwards the accused was caught by the police officers seen tothrow down the money and the money was found on the lorry. We can see no reasonwhatever for disbelieving that story. The defence have tried to suggest that insome way or other the man in the taxi was not the accused. When the Magistratewas deposing apparently the accused was sitting in the body of the Court andasked to identify the accused, he actually pointed out to the accusedsbrother. The Magistrate explicitly stated in his evidence that the man caughtwas the man in the taxi and even the accused does not dispute that he was infact the man caught, or that he acknowledged receipt of the search list. Theaccuseds story in his written statement suggesting that in some way his brotherhad got into the taxi was evidently a mere opportunist endeavour on his part tomake use of the fact that the Magistrate when he deposed about nine monthsafter the occurrence mistook in Court the accuseds brother for the accused.There was no cross-examination of this witness to endeavour to shake hisevidence or suggest that the man caught, the man who signed the search list,was not the man to whom the money was paid. The accused has merely endeavourednow to suggest that they were different, that the man paid was the brother andthe man caught was the accused. Further advantage evidently was taken of theway in which the case was brought to Court and the absence of any elaborateexamination of the witnesses so that the durwan and the taxi driver haveclearly been suborned and now give a story which is only too patently someattempt to make up something to fit in with this slip made by the Magistrate inidentifying the brother. The durwan tells a story that he saw the brother goingdown and he saw a man run away through the entrance of the house when theaccused was caught He himself disappeared out of fear and took no part in theproceedings. The taxi driver comes and identifies the brother as the man whogot into the taxi. Incidentally his evidence on this point creates otherdifficulty for the accused when he endeavours to suggest that the Magistratecould not see who was the man who got into the taxi. It is suggested that theconversation deposed to by the contractor and the Magistrate as to what wassaid by the man who came to the taxi shows that it was not Zahiruddin. It wasadmittedly dark and raining and some sort of remark would have to be made byZahiruddin coming to the taxi, and we can see nothing unusual in the remarks asdeposed to, nothing in them inconsistent with the fact that it was Zahiruddinhimself who was speaking. The Magistrates evidence as to the conversation inthe taxi if believed is completely fatal, quite apart from any other evidence,to any suggestion that the man in the taxi was not Zahiruddin. It is thedefence case that Mr. Bhattacherjee is villain of the deepest dye and extremelycunning a man who undertook in the presence of a Magistrate, a DeputySuperintendent of Police and an Inspector of Police of some experience to passa bribe of Rs. 800, or to appear to pass a bribe of Rs. 800 to a man whoaccording to the defence was practically unbribable. We cannot imagine what usewould have been to him to pass the money over to the brother of the accusedwith the police officers waiting outside to catch the man. Mr. N. K. Basuappeared in the course of the argument rather to give up this theory that itwas the brother of the accused who got into the taxi but although pressed hewas unable to furnish us with any theory which could really explain the facts.In support of his contention that Mr. Bhattacherjee is a man of the worstcharacter he referred to the fact that the police were not going to trust himto go upstairs and give the money so that they might have to rely on his bonafides but had insisted that he should tell the story of a damaged leg so thatthe money should be passed in the presence of the Magistrate. This theoryrather precludes any theory that the police themselves were in any way partiesto a trap or rather to a nefarious plan to trap an innocent party. It suggeststhat they were as one would expect, treating the matter as a test and they hadat that stage before the bribe passed, asmuch interest to see that an innocentperson was not being caught out by a wicked contractor, as seeing that anhonest contractor was being saved from the dishonest demands of a bad officer.We can find no conceivable reason for not accepting the evidence as given. Thefacts here go further. We can think of no theory making the most unfavourableassumptions about the witnesses, which will (sic) the facts other than theplain view that the case happened as stated by the witnesses. The accused wasin fact caught in the act, seen in the act by a Magistrate committing theoffence of accepting bribe.

8. On the facts only two points appear to be urged by Mr. N.K. Basu in favour of the accused. The first was to contend that he could showthat Mr. Bhattacherjees story of the accused coming out on the verandah on23rd August was totally false. We think that this argument probably originatedin a slight error in the recording of the evidence. If the evidence is read asa whole it is quite clear that Mr. Dutt and the Magistrate Mr. Ghose, waited atsome distance about 100 cubits from the accuseds office while Mr.Bhattacherjee and the Inspector and another went on ahead towards the office.The contractor alone entered the office and Mr. Lahiri deposed that he saw himcome out with the accused. We have no hesitation in preferring the evidence ofMr. Lahiri on this point to that of the subordinates of the accused. The factthat Mr Lahiri saw him come out of course does not carry the matter very farbut at any rate the defence contention fails namely that they could show thaton this point Mr. Bhattacherjee was deliberately telling a falsehood.

9. The other contention argued is really in our opinion ofthe nature of a quibble on words. After the occurrence a sketch map was drawnby Mr. Dutt. The point D is shown as where the Deputy Superintendent of Policeand the Inspector stopped the accused from entering his house. His evidence isthat "I found that accused was about to enter his house. Then both I andLahiri rushed towards him and asked him to wait." It appears that therewas in fact at the time a baffle wall in front of what may be called strictlythe entrance of the house. This was one of the major discoveries of the learnedMagistrate who held a local investigation at the spot before he came to theastonishing conclusion that the accused was not guilty in this case. The sketchmap does not show any baffle wall. Mr. Dutt stated in cross-examination that hedid not remember if there was a baffle wall. On this slender material anelaborate theory was built that the man from the taxi had in fact gone behindthe baffle wall and was caught behind the baffle wall and that there was Borneopportunity for change of persons and that therefore the police did notactually arrest the man who got out of the taxi. The cross-examination of thewitnesses in regard to this matter is very interesting. It does not exist atall. It is quite obvious that the defence did not dare to bring out this pointbut saved it for argument and the local inspection of the Magistrate.

10. After the accused left the taxi and Mr. Roy got down Mr.Bhattacherjee had the taxi moved on to a distance. His explanation is that hedid not wish to get mixed up in the rather unpleasant business of the arrest.Mr. Basu contended that this act indicated some mala fide intention on the partof Mr. Bhattacherjee. We think the explanation is a true one. The way in whichit has been sought to blacken the character of Mr. Bhattacherjee on behalf ofthe accused in this case shows how unpleasant it can be for a public spiritedperson who refuses to be a victim of a corrupt official and tries to see thathe shall be brought to justice.

11. There remain two points of law to be considered. On 5thNovember 1914, Mr. B. K. Roy wrote out his version of what had occurred at hishouse and made it over there to the Deputy Superintendent Mr. B. C. Dutta. Whenhe came to depose he had this paper in his hand and evidently refreshed hismemory from it. The learned Magistrate comments on the fact in his record ofthe evidence and in some extraordinary way in his judgment of acquittal findsthis one of the reasons why the accused should be acquitted. Clearly the trialMagistrate ought not to have allowed this paper to be used for the purpose ofthe witness refreshing his memory in view of the provisions of S. 162, CriminalP. C. Mr. A. K. Basu on behalf of the Crown has sought to urge that such a useis not a use for any purpose at the trial as referred to in S. 162, Criminal P.C. but we are unable to accept this contention. For their own convenience inthis type of cases the system is for the police to move the District or theAdditional District Magistrate as was done here for an order for investigation.The order is really given in anticipation of the commission of the offence. Sofar in all the cases of this type which had been heard here it has beenaccepted that such an order is valid, and it follows as a conclusion that oncethe crime is committed, anything done by way of investigation is done as aninvestigation under chap. 14, Criminal P. C. Therefore the statement made byMr. B. K. Roy to Mr. Dutt who was the investigating officer in the case,although he also eventually became the formal complainant in the followingFebruary, must be held to be a statement made to him under S. 162, Criminal P.C. and therefore his use of it in the witness-box to refresh his memory iscontrary to the provisions of S. 162, Criminal P. C. Similarly the endorsementby Mr. B. K. Roy on Ex. 3 must amount also to a statement to the police ininvestigation and was inadmissible for similar reasons. In the same way theevidence that was given at the trial as to what the accused said whenchallenged namely the evidence that he denied that he was Zahiruddin was alsoinadmissible.

12. It is well established that breaches of the provisionsof S. 162, Criminal P. C. are not in themselves necessarily fatal to theproceedings and may in appropriate circumstances be cured, as the expressionis, under the terms of S. 537, Criminal P. C. In the present case it will beseen that the accused took some advantage of the use of the statement of 5thNovember by Mr. B. K. Roy, to cross-examine him with regard to it that is tosay to make legitimate use of that statement under the terms of S. 162. Againalthough the Magistrate was wrongly allowed, (no doubt from his own point ofview in the best interests of the case asmuch as any one else) to refer to hisearlier record of his recollection of what occurred, there seems to us to be nosubstantial reason whatever to doubt that his evidence without the use of thepaper to refresh his memory would not have been in any material particulardifferent from the evidence he actually gave. In our opinion, no real prejudicewas caused to the accused by the use of the statement. As regards the admissionof the accuseds statement denying his identity and Mr. Roys endorsement asour discussion of the evidence shows these are quite immaterial. There is ampleevidence apart from them to establish the guilt of the accused.

13. The result is that we allow this appeal and set asidethe order of acquittal by Mr. Hossain which, we may add, in our opinion, is oneof the most extraordinary orders we have ever seen in our experience. Theaccused is convicted on the charge under S. 161, Penal Code and sentenced toone years rigorous imprisonment. The accused must surrender to his bailforthwith and serve out the sentence now imposed upon him.

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Superintendent and Remembrancer of Legal Affairs,Bengal vs. K. Zahiruddin (29.01.1946 - CALHC)