LexBHANUPRASAD HARIPRASAD DAVE RAJUJI GAMBHIRJI versus THE STATE OF GUJARAT
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22 BHANUPRASAD HARIPRASAp DAVE RAJUJI GAMBHDUI v. THE STATE OF Gl)JARAT April 19, 1968 A [G. K MITTER, c. A. VAIDIALINGAM AND K. s. HEGDE, JJ.] B Code of Cri111inal Procedure (5 of 1898) ss. 161 and 162-Firsr invcsrj .. gation by ·a police officer held illegal-Subsequent investigation ordercd- 1vhelher first investigation non est. Indian EVidence Act (1 of 1872)-Evidence of partisan lvitnesses- Corroboration, if necessary . .. Bombay Police Act (Dom. 22 of 1951) s. 161(1)-Investigation after C six nzonths--W~ien can be done. A postcard written by R to a lady M requesting her to ask another lady to meet him, was made over to the first appellant-a police Sub- Inspcctor. The first appc1lant asked the second appellant-his writ~r· constable--to fetch R. On his arrival, R was asked to pay money othetWise he would be harassed. R approached the Deputy Superint;ndent of Police, Arlti-Corruption Department, as a result of which ·a trap '\\·as luid and the D currcf'Jcy notes treated with anthracene given to R for the payment. R and .one D went to the first appellant, V(hO directed R to pay it to the second 4 appellant. The first appellant took out the postcard, tore jt and burnt it, \Vhile R paid the money. Another I>oJicc Sub-Inspector and constable, both belonging to the Ant.i-Corruption Department we.re keeping a watch from nearby compound. The second appcUant \Vent to L\VO shops and changed some currency notes there.. The Dy. S.P. searched the, first appcJlant but nothing incriminating was found, he seized ithe burnt pjeccs E of .postcard, some of the unburnt pieces 'vcre recognised by R. The Dy. S.P. seized the curr;ency notes fron1 the shops and their nun1ber tallied. The second appellant was arrested and considctable anthracene powder was found on his person. The appellanitS were tried under ss. 161 and I65A JP~ and ss. 5(I)(d) and 5(2) of the Prevention of O:>rruption Act by 'SpeciaJ Juc!ge, AhmeQaQad. An objection was taken to the trial that in view of Bombay State Commissioner of Police Act, 1959, the invc>l!igation F should have been made by a Superintendent of Police as there \Vas a Police Commissioner: in that .city, which :w~s upheld nn.d a frc.Sh investigation c•rdered by a Superintendent of Police. Because u( the fresh investigation~ ·in respect of most witnesses, the police diary' coritained two statements one recorded by the Dy. S.P. and the other by ¢be S.P. While deposing -in the trial Cow;t. M asserted. that she had destroyed the postcard as soon as she reacf it, and She was cross-examined by the prosec.qtion in reference :o her earlier ·statement to the Dy. S.P. to the effect that she had given the G ·postcard to the first appellant. The Trial O:>urt accepted the prosecution case and convicted the appellants, which was upheld by the High Court. In appeal before this Court, dhe appellants contended that (i) in view of ·the orde-.r of reinvestigation, the record of the investigation made hy the Dy. S.P. stood wiped. out, and therefore M could not have been cross- -examined with reference rtbereof; (ii) tHe conviction could not solely be "hased on the evidence of R and Po1ice 1witnesses, who \Vere all interested 'vitnesses; (iii) no offence. was made out under s. 161 TPC as the prosocu- ff 1ioo had to establish that tbev were public servants and had ob!ainod illegal ·}'.!:ratification for showing or forbearing tq show in exercise of their official itinctions, favour, or disfavour to R; and (iv) the prosecution v:as barred • • • • , • • ' BHANUPRASAD v. GUJARAT (Hegde, !.) 23 A by limitation bys. 16l(i) of the Bombay Police Act, 1951 as it was insti- tuted more than six months of the offence. HELD: Th,e appeal must be dismissed. (i) '[hough the first investjgation \\'as not in accurdance law, but yet it \Vas in no sense. 11011...::st. investigation includes laying of trap. That part of the· investigation \Vas done by the Dy. S.P. The statements recorded ti hy the Dy. S.P. in the Course of his investigation, though the investigation in question \Vas illegal, were still si:atcments recorded by a police officer in the course of investigation under Chapter XIV of the Code of Criminal Procedure an.ct consequently they fell within the scope of ss. 161 and 162 of the Code. [27C-F] S. N. Bose v. State of Bihar, Cr. A. 109 of 1967 decided on March 26, 1968; H. N. Rishbud v. Tile State of Delhi. [1955] 1 S.C.R. 1150; ano The
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