P L D 1957 (W (PLP)

A. R. CHANGEZ, J.‑

Ghulam Nabi, aged 46 years, who was the Station Master‑cum‑Goods Clerk of Railway Station Warburton at the relevant time, was tried by Khan Abdus Samad Khan, Special Judge, Sheikhupura, for offences under sections 161 and 420, P. P. C., and section 5 subsection (2) of the Prevention of Corruption Act (II of 1947). He was found guilty of offences under sections 161 and 420, P. P. C. and was sentenced to one month's rigorous imprisonment on each count and was also sentenced to pay a fine of Rs. 200 on both the counts. The sentences were ordered to run concurrently. It is not clear from the judgment if he was also convicted under section 5 subsection (2) of the Prevention of Corruption Act, but at any rate, no separate sentence was awarded on that count. The convict has appealed. When his bail application came up for hearing before me on the 10th ‑ of August 1956, I granted him bail because of the short sentence, but as the sentence appeared to be inadequate a notice was issued to him to show cause that in the event of his conviction being upheld, why his sentence should not be enhanced. The notice has now been served on the appellant. Chaudhri Nazir Ahmad Khan, Advocate, has argued the appeal on his behalf and has also shown cause as to why the sentence should not be enhanced. This order will dispose of Criminal Appeal No. 584 of 1956 and Criminal Revision No. 593 of 1956. Briefly stated the facts of the case are that the accused was the Station Master‑cum‑Goods Clerk of Railway Station Warburton in the year 1954‑

55. Ghulam Ahmad (P. W. 1) who was a partner of the Friends Enterprise Company, was running Sir Ganga Ram Cotton Factory which the Friends Enterprise Company had taken on lease from Colonial Engineering Corporation, to whom it had been allotted by the Rehabilitation authorities. In the course of his business Ghulam Ahmad P. W. used to send cotton bales through Railway to Karachi wherefrom he used to receive coal and furnace oil for running the factory. He thus came into contact with die accused who was in the habit of charging Rs. 10 per wagon as illegal gratification whether the same was loaded or unloaded, at the Railway Station Warburton. On 24th January 1955, a tank of furnace oil was received at the station in the name of Friends Enterprise Company vide Railway Receipt Exh. P. A, Ghulam Ahmad sent the Railway Receipt Exh P. A. to the accused through his clerk, Munshi Rahmat Ali (P. W. 4) along with Rs. 600 for taking delivery of the furnace oil after paying Rs. 542‑10‑0 which were due as freight charges etc., on Railway Receipt Exh. P. A. Rahmat Ali P. W. went to the accused to whom he handed over the receipt Exh. P. A. and six currency notes of Rs. 100 each. The accused gave delivery of the furnace oil but did not return the balance of Rs. 57‑6‑0, saying that some more money was due from Ghulam Ahmad and that he should send him to settle the account. He, accordingly, conveyed the message of the accused to Haji Ghulam Ahmad P. W. As he had to attend to some business of his at Lahore, Haji Ghulam Ahmad went to see the accused on the 4th of February 1955, and enquired from him as to what other amount was due from him. The accused told him that the fare for the furnace oil had been undercharged at Karachi and that some 'other charges and taxes had also to be realised on the Railway Receipt Exh. P. A. The accused then prepared the account on the chit Exh. P. B. He told Haji Ghulam Ahmad that Rs. 669‑10‑ were due as a, fare and Rs.10 were his usual emolument and Rs. 7 were to be charged as refugee tax. The total amount thus came to Rs. 686‑10‑

0. It was conceded before me by the learned counsel for the appellant that these items were entered by the accused in the chit Exh. P. B. Below this there are a few more entries in pencil which Ghulam Ahmad admits to have written at the instance of the accused. He has stated that the accused had told him that as the delivery of the furnace oil was actually taken on 26th January 1955, therefore, an additional sum of Rs. 30‑3‑0 as demurrage had to be charged, for which he gave a receipt (Exh, P. C.) dated 26th January 1955, He also demanded another sum of Rs. 10 as illegal gratification. The total demand thus amounted to Rs. 726‑13‑0 out of which the accused had already received Rs. 600 and, therefore, Rs. 126‑13‑0 were still due, but it appear: that by a mistake the total due shown on Exh. P. B. is Rs. 126‑10‑0 Ghulam Ahmad protested but the accused, in order to satisfy him that this amount was in fact, due showed him an entry in the delivery register at the back of page 62, where he had entered the amount in lead pencil in the column of "undercharge". As Ghulam Ahmad had no money with him, he promised to pay the amount later. Ghulam Ahmad also told the accused that he had struck a bargain for the supply of 200 bales of cotton with a buyer from Karachi and that two wagons would be required on the following day when he would bring with hire the Karachi man. The accused asked him to bring Rs. 20 in addition as the usual dasturi for the supply of two wagons. Ghulam Ahmad had, therefore, to pay Rs. 146‑10‑0 to the accused. He then left. On 5th February 1955, Ghulam Ahmad went to Sheikh Abdur Rahman, Inspector, Anti‑Corruption Department, and told him his story. He asked him to go to the Court of the Additional District Magistrate, Sheikhupura, where he followed him and presented the application, Exh. P. H., before the Additional District Magistrate for nominating a Magistrate to supervise the raid, who marked it to Mr. Muhammad Salim, Magistrate 1st Class, for conducting the raid. Mr. Salim (P. W. 5) then recorded the statement, Exh. P. D. of Ghulam Ahmad P. W. He also noted down the numbers of the notes Exhs. P. 1 to P., 8, of the value of Rs. 145 at Exh. P. D. Ghulam Ahmad was searched by him and he had on his person only Rs. 146 consisting of Rs. 145 in notes and one‑rupee coin. It was arranged that the Magistrate would pose as the purchaser of 200 bales of cotton for whom two wagons were required. Both of them then went into the office of the accused, leaving outside Sheikh Abdur Rahman. Ghulam Ahmad introduced Mr. Salim to the accused as the trader from Karachi. He then asked him about the dues which he had to pay and the accused told him that he already knew the amount which was to be paid Ghulam Ahmad took out the chit Exh. P. B., and told the accused that he had to pay Rs. 126‑10‑

0. The accused confirmed that the amount of Rs. 126‑10‑0 was the correct amount. Ghulam Ahmad then read each item noted on the chit and when he referred to item of Rs. 10 as the amount to lye paid to him, the accused corrected him, saying that it was about some tax which Mr. Salim could not follow. After this Ghulam Ahmad gave Rs 20 to the accused and said. He then paid the sum of Rs. 125 to the accused and got a concession of Rs. 1‑10‑0 from the accused. The accused then put all this money into his pocket and asked Ghulam Ahmad to bring the bales of cotton. He got the signatures of Mr. Salim on the risk note, Exh. P. E. on the forwarding note, Exh. P. F., and on the register for the supply of vehicles at page 38 at Exh. P. G. Ghulam Ahmad went out at the instance of the accused to arrange for bringing the bales of cotton but returned soon after, accompanied by Sheikh Abdur Rahman P. W., who introduced himself and disclosed the identity of the Magistrate to the accused. Mr. Salim then recovered the currency notes, Exh. P. 1 to P. 8, from the person of the accused. Mr. Salim enquired from the accused as to why he had charged more than the sum mentioned in the Railway Receipt, Exh. P. A. who explained that the Railway Receipt was undercharged. In reply to a question by Mr. Salim if he had already received Rs. 600 the accused told him that he had received only Rs.

567. The accused was then asked to produce the delivery book which he did. It is Exh. P. H. At the back of page 62, there was an entry in respect of the Railway Receipt, Exh. P. A. and the Magistrate noticed that in the column of "undercharge" the entry had been rubbed off, which the Magistrate encircled with ink, and marked it as Exh. P. H./1. He then searched Ghulam Ahmad. P. W. and recovered,, from his person one‑rupee coin. The Magistrate then prepared the raid report, Exh. P. K. and at Exh. P, L. he entered all the documents which he had taken into possession. He then handed over the raid report, the registers etc., and the money to Sheikh Abdur Rahman P. W. who got a case registered at the Police Station Jaranwala on 6th February 1955, vide formal first information report Exh. P. N. On 6th February 1955, he took into possession the cash Book, Exh. P. F. F. and the receipt book Exh. P. E. E. vide memo. Exh. P. R. which is also signed by the accused. On 9th February 1955, he obtained permission from the Additional District Magistrate for investigating the case vide his order on application Exh. P. S. He took into possession some other documents from the office of the accused including Railway Receipts Exhs. P. J., P. U., P. V., P. W., and P. A. A. and after completing the investigation of the case, obtained the sanction of the Central Government for the prosecution of the accused vide Exh. P. C. C. and challaned the accused. At the trial six witnesses were examined in support of the prosecution case. The accused denied having committed the offences and explained that Rs. 20 were received by him as balance of the demurrage for which he had already issued the receipt on 26th January 1955, on receipt of Rs. 10‑3‑0 as part payment from Ghulam Ahmad P. W. As regards the amount of Rs. 125 his explanation was that the Railway Receipt Exh. P. A. had been undercharged and that the amount of Rs. 129 was due to the Railway on that account. He admitted that he had received earlier Rs. 542‑10‑0 but denied the receipt of Rs.

600. He maintained that he had entered the amount due from Ghulam Ahmad in the "undercharge" column of the delivery register but had not erased the same before the raid. In support of his version he produced eight witnesses in defence. (After discussing the evidence, the judgment proceeded) Before I proceed to discuss the remaining points raised on behalf of the appellant, I would like to dispose of an important objection which is usually raised in such cases. It was contended on behalf of the appellant that the statement made by the accused in the presence of the Magistrate, or directly to him in reply to his enquiry to explain, whether it amounts to confession or not, is inadmissible as the same was made in the course of the investigation and falls within the rule of exclusion as is laid down by their Lordships of the Privy Council in the well‑known ruling given in the case of Nazir Ahmad v. The King‑Emperor (63 I A 372). The facts of that case were that a dacoity case had been registered under section 396, I. P. C. and was being investigated by the police. On an application by the police, Mr. L. D. Vasisht, a 1st Class Magistrate, had been deputed to accompany the investi gating officer to the spot, and had witnessed the accused pointing out places material to the events connected with dacoity. At the trial the Magistrate deposed that while pointing out the places material to the events connected with the dacoity, Nazir Ahmad had made a full confession as to his participation in the dacoity and firing a revolver. Their Lordships, after referring to the relevant provisions of the Criminal P. C., held that since the confession had been made to the Magistrate in the course of investigation of a case registered with the police, he should have recorded the confession as provided by sections 164 and 364 of the Code of Criminal Procedure, and that the oral evidence of the Magistrate was not admissible. It was further observed that "the rule which applies is . . . , . . that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden". Before this there was some conflict of judicial opinion on this point in the various High Courts of India, but since the authoritative pronouncement of their Lordships of the Privy Council in the aforesaid ruling, the matter has been set at rest once for all. To the same effect is the ruling of the Supreme Court of India in Rao Shiv Bahadur Singh v. State of Vindhva Pradesh (A I R 1954 S C 322) where it was held: "There is authority however for the proposition that once the investigation had started any non‑confessional statement made by the accused also required to be recorded in the manner indicated in that section (section 164, Criminal P. C.) and if no such record had been made by the Magistrate, the Magistrate would not be competent to give oral evidence of such statement having been made. See‑Nazir Ahmad v. King‑Emperor (AIR 1936 P C 253) and Legal Remembrancer, Bengal v. Lalit Mohan Singh Roy (A I R 1922 Cal. 342) followed in Abdul Rahim v. Emperor (A I R 1925 Cal. 926) and Karu Mansukh v. Emperor (A I R 1937 Nag. 254)", In that case it was conceded before their Lordships of the Supreme Court of India that before the raid actually took place the first information report had been registered and the investigation into the offence had been started. No one can dispute the propositions of law enunciated in the above two rulings, but the question is whether in the present case investigation into the offence had been started by the police before the raid by the Magistrate. In similar circumstances, this point came up for decision before a Division Bench of this Court in the case of the Crown v. Nur Alam (P L D 1955 Lah. 667), where my Lord the Chief Justice, Mr. Justice S. A. Rahman, with whom Mr. Justice Shabir Ahmad agreed, observed as follows:‑- " I do not think Mr. Zulla is right in saying that the police had started investigation of the offence revealed by the complaint of Muhammad Sadiq, which had merely mentioned the demand of the respondent for illegal gratification and an arrangement for its payment having been agreed to. The offence for which the respondent was prosecuted was not the one evidenced by the complaint made to the Deputy Superintendent Police by Muhammad Sadiq but the offence which was actually completed by the passing of the illegal gratification at the time of the raid It could only be after the money had passed that investigation could in any sense be said to have started qua that offence." In that case it had been contended by the learned counsel for Nur Alain that the police had already received information through Muhammad Sadiq of a cognizable offence within the meaning of section 161, P. P. C., which makes even an agreement to accept or an attempt to obtain from any person any illegal gratification an offence under that section. It was further contended that the investigation had started as soon as the Sub‑Inspector had been directed by the Deputy Superintendent of Police to organise a raid in pursuance of the complaint made by Muhammad Sadiq, P. W. In repelling this contention, the above‑quoted observations were made by the learned Chief Justice. In the instant case what had happened was that Ghulam Ahmad. P. W., had informed Sheikh Abdur Rahman, (P.W. 6) on 5th February 1955, that the accused had demanded a certain amount from him which he was not liable to pay, but, in view of his persistent demands, he had promised to pay the amount to the accused on that day, whereupon Sheikh Abdur Rahman approached the Additional District Magistrate, Sheikhupura, by application (Exh. P. H.) for nominating a Magistrate to supervise the raid. The Additional District Magistrate had then deputed Mr. Salim to conduct the raid, who, in obedience to the order of the Additional District Magistrate, had conducted the raid and was present through out. He had heard the talk between the accused and Ghulam Ahmad P. W.; he had seen the passing of the money; he had recovered the amount and had asked the explanation of the accused ; he had taken certain books into his possession and had prepared the report, Exh. P. K., in which he had incorporated all what had transpired during the raid, and in the end, he had noted that as the facts disclosed that the accused had committed an offence under section 161, P. P. C. and under section 5 (2) of the Prevention of Corruption Act, 1947, therefore, he was handing over the report and the books taken into possession to Sheikh Abdur Rahman for necessary action. Thereafter the latter got the report registered at Police Station Jaranwala on 6th February 1955, and after obtaining the necessary sanction on 9th February 1955, had started the investigation. In accordance with the principle laid down in the case Crown v. Nur Alam quoted above, it cannot be held that the investigation had started at any time earlier than the handing of the report and the documents by the Magistrate to Sheikh Abdur Rahman P. W., and as such any statement made d by the accused, whether it' amounted to a confession or not, was not made during the course of investigation and is, therefore, not hit by sections 162 and 164 of the Code of Criminal Procedure. It was so held by a Full Bench of the Allahabad High Court in Shyamalal Sharma v. King- Emperor (A I R 1949 All. 483), wherein the facts were almost similar to the facts of the present case. The following passage from the judgment of Seth, J., with whom the other two judges had agreed, may be quoted with advantage :‑ " It is thus clear that Mr. Ibrahim took charge and remained in charge of all the proceedings that took place up to the time when Exh. P. 10 was handed over by him to Ahibaran Singh and that nothing which may be described to be an investigation was done by Ahibaran Singh until Exh. P. 10 was handed over to him. It has been recently held by this Court in Bhondu v. Rux (1949 A L J 174: A I R 1949 All. 364), that an investiga tion under Chapter 14, Criminal P. C., starts, with the first step taken by the police towards the ascertainment of the offence and the culprit thereof and not before that. Ahibaran Singh has not been proved to have taken any such step before Exh. P. 10 was made over to him. It was made over to him before the investigation had started. An investigating officer means an officer who is carrying on an investigation. There could not be an investigating officer before investigation had begun. Ahibaran Singh was, therefore, not an investigating officer when Exh. P. 10 was handed over to him. Even if it be assumed t‑hat a person authorised to investigate may be deemed to be an investigating officer, also at a time before he had begun to investigate, Ahibaran Singh was not such an officer because, as found above in answer to the first question, he had no authority to investigate this crime." Mr. Ibrahim, who has been referred to in the above quotation, was the Magistrate who had conducted the raid and Mr. Ahibaran Singh was the Sub‑Inspector of the Special Police Establishment who had received the information that the applicant Ram Prakash had agreed to accept a bribe from one Amanat Ullah and who had made an application to the Additional District Magistrate for deputing a 1st class Magistrate to supervise the raid. A similar view was taken by a Division Bench of the Pepsu High Court in State Madan Mohats (A I R 1953 Pepsu 182). While dealing with section 164 of the Code of Criminal Procedure, it was observed as follows:‑-- " The section expressly limits its application to confession made to a Magistrate in the course of investigation under this chapter or at any time afterwards before the commence ment of the enquiry or trial. Here, no case had been registered with the police nor was one under investigation. Even the offence had not yet been committed and the Magistrate was only required to trap the respondent while committing the offence. Chhutkannoo Singh v. Rex (A I R 1949 Oudh 84), is an authority on all fours and in that a similar view was taken." The learned counsel for the appellant has not been able to show me any authority to the contrary. It is, therefore, clear that there is preponderance of authority in support of the view that a statement made by an accused person before the raiding Magistrate, whether it amounts to a confession or not, is admissible and is not hit by sections 162 and 164 of the Code of Criminal Procedure, because in circumstances like these the investigation into the offence for which he is later tried does not start until the raid report is given to a police officer competent to investigate the case. Another objection, which was taken by the learned counsel for the appellant, was that it was highly undesirable that a Magistrate should join a trap raid, but I have not been able to appreciate the effect of this argument. I am not unmindful of the observations of their Lordships of the Privy Council in this respect in the case of Nazir Ahmad v. King Emperor referred to above, but howsoever, undesirable it may be, the evidence of the Magistrate cannot be excluded merely on the score of undesirability unless his evidence comes within the rule of exclusion on the ground of being irrelevant or inadmissible. It is true that such a Magistrate is relegated to the position of an ordinary citizen and he exposes himself to the risk of being dubbed as a liar if his evidence is disbelieved. The fact, However, cannot be lost sight of that unfortunately in our country there is a dearth of such public-spirited citizens who would readily come forward to assist the police in the onerous task of detection of such crimes and those who do are usually described as the stock witnesses of the police. Now that the judiciary is being separated from the Executive, I see no harm if Executive Magistrates are deputed to supervise such raids in order to ensure a fair deal to the accused. There is no reason to suppose that in their zeal to suppress crime, the Magistrates would stoop so low as to fall in line with the wishes of the police in concocting false cases. On the other hand, I am quite sure that the Magistrates will prove equal to the task and will never permit themselves to be made use of by the police as their tools. But in the discharge of their duties they must act fairly and honestly, so as to inspire confidence even in the mind of the culprit. If they join such a raid, they must, if possible, try to hear the talk which takes place between the decoy witness and the culprit, and, if it could be so arranged, should see for themselves the passing of the money to the culprit. After disclosing their identity, they should there and then ask for the explanation of the accused and should record it in the form of questions and answers as no harm will be done if the statement of the accused, whether it amounts to a confession or not, is recorded in accordance with section 164 of the Code of Criminal Procedure, although strictly from a legal point of view it is not necessary unless the same is recorded in the course of the investigation by the police. They must then prepare a report in which they should incorporate all what had transpired during the raid. (After dealing with the evidence further, the judgment proceeded.) For the aforesaid reasons, I have no doubt in my mind that the accused had accepted Rs.20 by way of illegal gratification and Rs. 125 by cheating Ghulam Ahmad P.W. by falsely representing to him that it was due as undercharge. Under the circumstances, the accused has been rightly convict ed of the offences under sections 161 and 420 of the P. P. C. As regards the sentence, the learned counsel for the appellant conceded before me that it was inadequate. But he contended that there were no good grounds for the enhancement of the sentence. It was pleaded that in the event of his conviction being upheld, he shall have to lose his job. He had put in twenty‑seven years' service and shall have to forego all the benefits of his service. I have taken into consideration all these matters and I regret to note that the learned Special judge did not realise the seriousness of the offence. The sentence of one month's rigorous imprison ment on each count bears no relation to the gravity of the offence committed by the accused. Offences of this nature are on the increase and corruption in these days has unfortunately assumed alarming proportions. Such offences are rarely detected. The State must be purged of its corrupt employees with a strong hand and those who indulge such corrupt practices deserve no leniency and must be awarded deterrent sentence. The sentence imposed on a person convicted of an offence must be commensurate with the gravity of the offence. The sentence of one month's rigorous imprisonment awarded to the accused by the learned Special judge is manifestly inadequate. Having regard to all the circumstances of the case, I think this is a fit case in which a sentence of one year's rigorous imprisonment on each count should be awarded to the accused. I accordingly enhance the sentence to one year's rigorous imprisonment on each count for which he has been convicted Both the sentences shall, however, run concurrently. The sentence of fine imposed by the learned Special judge is also maintained. The result is that this appeal is dismissed but the sentence is enhanced as indicated above. The appellant is on bail. He must immediately surrender to undergo the sentence of imprisonment now imposed on him. A.H. Appeal dismissed: Sentence enhanced.