S.C.R.

SUPREME COURT REPORTS 1077

rendering services which the State considers beneficial in the public interests and which the people have to accept whether they are willing or not.

Our conclusion, therefore, is that section 58 is not ultra vires of the State Legislature by reason of the fact that it is not a tax but a fee which comes within the purview of entry 47 of List III in Schedule VII of the Constitution.

The result, therefore, is that in our opinion the appeals are allowed only in part and a mandamus will issue in each of these cases restraining the State Government and the Charity Commissioner from enforcing against the appellants the following provisions of the Act to wit :- ( i) Section 44 of the Act to the extent relates to the appointment of the Charity s10ner as a trustee of religious public trust court,

that it Commisby the

(ii) the provisions of clauses (3) to (6) of section 47, and

(iii) clause (c) of section 55 and the part of clause ( 1) of section 56 corresponding thereto.

The other prayers of the appellants stand dismissed.

Each party will bear his own costs m both the appeals.

M. P. SHARMA AND OTHERS

tJ.

SATISH CHANDRA, DIS1'RICT MAGISTRATE,

DELHI, AND OTHERS.

[MEHR CHAND MAHAJAN c. J., MDKHERJEA,

S. R. DAs, V1vIAN BosE, GHDLAM HASAN,

BHAGWATI, JAGANNADHADAS and

VENKATARAMA AYYAR JJ.J

Constitution of India, arts. 19(1)(!) and 20(3)-Search warrant issued under s. 96(1) of the Code of Criminal Procedure (Act V of 1898)-Whether ultra vires art. 19(1~(!)-Search and seizure of

Ratilol Panackarul

Gandhi

V, Tiet Stat. ef

Bombay atlld

Others.

Mukherjeo].

March 15.

M. P. Sharma

and Others

Satish Chandra, District Magistrate,

Delhi, and Others.

documents under :s. 94 and 96 of the Code of Criminal Procedure-

T:Vhether compelltd production thereof-Within the meaning of art. 20(3).

Held, that the provision for the search warrant under the first alternative of s. 96( 1) of the Code of Crin1inal Procedure does not offend art. 19(1)(£) of the Constitution.

A search and seizure is only a temporary interference with the right to hold the property searched and tht: articles seized.

Statutory recognition in this behalf is a necessary and reasonable restriction and cannot per se be considered to be unconstitutional.

A compelled production of incriminating documents by a person against whom a First Information Report has been made is testimonial compulsion within the meaning of art. 20(3) of the Constitution.

But a search and seizure of a document under the provisions of ss. 94 and 96 of the Code of Criminal Procedure is not a compelled production thereof within the meaning of art. 20 ( 3) and hence does not offend the said Article.

A power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for in:o.porting into it, a totally different fundamental right by some process of strained construction.

Scope and connotation of art. 20(3) explained. fohn Lilburn"s Case (3 State Trials 1315), Boyd

v. United States (116 U.S. 616), Weeks v. United States, (232 U.S. 383), Feliz Gould v. United States (255 U.S. 298), Entick v. Carrington (19 State Trials 1030), Hale v. Henkel (201 U.S. 43), and Satya Kinkar Roy v. Nikhil Chandra fyotis!iopadhaya (A.LR. 1951 Cal. 104) referred to.

ORIGINAL JuR1so1cT10N PETITIONS Nos. 372 and 375 of 1953.

Original petition under article 32 of the Constitution of India for the enforcement of fundamental right.

Veda Vyas and Daulat Ram Kalia (S. K. Kapur and Ganpat Rai, with them) for the petitioners.

C. K. Daphtary, Solicitor General for India (Porus A. Mehta and A. M. Chatterjee, with him) for the respondents.

1954. March 15.

The Judgment of the Court was delivered by JAGANNAD!cLD.\S J.

JAGANNADHADAS J.-These two applications are for relief under article 32 of the Constitution arising out of similar and connected set of facts and are dealt with together.

They arise under the following circumstances. The Registrar of the Joint Stock Companies, Delhi State, lodged information with the Inspector- General, Delhi Special Police Establishment, to the following effect.

Messrs.

Dalmia Jain Airways Ltd. was registered in his office on the 9th July, 1946, with an authorised capital of Rs. 10 crores and went into liquidation on the 13th June, 1952.

An investigation into the affairs of the company was ordered by the Government and the report of the inspector appointed under section 138 of the Indian Companies Act indicated that an organised attempt was made from the inception of the company to misappropriate and embezzle the funds of the company and declare it to be substantial loss, and to conceal from the shareholders the true state of affairs by submitting false accounts and balance-sheets.

Various dishonest and fraudulent transactions were also disclosed which show that false accounts with fictitious entries and false records were being maintained and that dishonest transfers of moneys had been made.

It was accordingly alleged that offences under sections 406, 408, 409, 418, 420, 465, 467, 468, 471 and 477(a) of the Indian Penal Code had been committed.

It was also stated that Seth R. K. Dalmia who was the Director and Chairman of Dalmia Jain Airways Ltd. has been controlling certain other concerns, viz., ( 1) Dalmia Cement & Paper Marketing Co., Ltd., (2) Dalmia Jain Aviation Ltd. now known as Asia Udyog Ltd., and (3) Allen Berry & Co., Ltd. through his nominees and that all these concerns were utilised in order to commit the frauds.

It was further stated therein by the Registrar of Joint Stock Companies that to determine the extent of the fraud, it was necessary to get hold of books not only of Dalmia Jain Airways Ltd. but also of the allied concerns controlled by the Dalmia group, some of which are outside the Delhi State. Lists of the offices and places in which and of the persons in whose custody the records may be available were furnished.

Speedy 4-36 S. C. !ndia.(59

M. P. Sharma

and Others

Satish Chandra, District Magistrate, Delhi, and

Othtrs

Jagannadha das].

M. P. Sharma and Others.

Satish Chandra, District Magistrate, Delhi, arid

Others.

jagannadhadas J.

investigation was asked for.

This information was recorded by the Special Police on the 19th November, 1953, as the First Information Report.

On the basis thereof an application was made to the District Magistrate, Delhi, under section % of the Criminal Procedure Code, for the issue of warrants for the search of documents and in the places, as per schedules furnished.

Permission to investigate in respect of some of the non-cognisable offences mentioned in the First Information Report was also asked for.

On the same day, the District Magistrate ordered investigation of the offences and issued warrants for simultaneous searches at as many as 34 places. The searches were made on the 25th November, 1953, and subsequent days and a voluminous mass of records was seized from various places.

The petitioners pray that the search warrants may be quashed as being absolutely illegal, and ask for return of the documents seized.

In Petition No. 372 of 1953 there are four petitioners of whom the second is the Delhi Glass Works Ltd., and the first the Deputy-General Manager thereof, the third its Secretary and the fourth a shareholder therein.

In Petition No. 375 of 1953 there are five petitioners of whom the first is Messrs.

Allen Berry & Co., Ltd., second Asia Udyog Ltd., the third Shri R. K.

Dalmia, the fourth the Secretary and General Attorney of the third and the fifth a shareholder of petitioners Nos. 1 and 2, and an officer of petitioner No. 2.

It will be seen that the petitioners in both the petitions belong to the four concerns, namely, ( 1) Delhi Glass Works Ltd., (2) Messrs. Allen Berry & Co., Ltd., (3) Asia Udyog Ltd., and (4) Dalmia Jain Airways Ltd.

The last three are stated to be Dalmia concerns but it does not appear from the records placed before us what exact connection Delhi Glass Works Ltd. has with them.

However, it is admittedly one of the places for which a search warrant was asked for and against which the First Information Report appears to have been lodged.

In the petitions various questions were raised.

But such of them which raise only irregularities and illegalities of the searches and do not involve any consitutional violation are matters which may

be more appropriately canvassed before the High Court on applications under article 226 of the Constitution and we have declined to go into them.

The petitionen have, therefore, confined themselves before us to two grounds on which they challenge the constitutional validity of the searches. The contentions raised a:-e that the fundamental rights of the petitioners under article 20(3) and article 19(l)(f) have been violated by the searches in question.

So far as the contention based on article 19(1) (f) is concerned we are unable to see that the petitioners have any arguable case.

Article 19(1) (f) declares the right of all citizens to acquire, hold and dispose of property subject to the operation of any existing or future law in so far as it imposes reasonable restr'.ctions, on the exercise of any of the rights conferred thereby, in the interests of general public.

It is urged that the searches and seizures as effected in this case were unreasonable and constitute a serious restnct1on on the right of the various petitioners, inasmuch as their buildings were invaded, their document< taken away and their business and reputation affected by these largescale and allegedly arbitrary searches and that a law (section 96(1), Cr.P.C.) which authorises such searches violates the constitutional guarantee and i> involved in this case in respect of the wauant.• on the right to hold and enjoy property.

No doubt a seizure and carrying away is a restriction of the possession and enjoyment of the property seized.

This, however, is only temporary and for the limited purpose of investigation.

A search and seizure is, therefore, only a temporary interference with the right to hold the premises searched and the articles seized.

Statntory rgulation m this behalf 1s necessary and reasunable restriction cannot per se be considered to be unconstitutional.

The damage, if any, caused by such temporary interference if found to be in excess of legal authority is a matter for redress in other proceedings.

We are unable to sec how any question of violation of article 19(1) (f) is invalid.

But, a search by itself is not a restriction m question which purport to be under the Erst

M. P. Sharma

and oth rs v.

- Salish Chandra

District Magistratt, Delhi, and

Others.

Jagannadhadaa ].

M.P. Sharma and Others

Satish Chandra, District Magistrate, Delhi, and Others.

Jagannadha

das].

alternative of section 96(1) of the Criminal Procedure Code.

The only substantial question, therefore, that has been raised is the one relating to article 20(3) which runs as follows :

"No person accused of any offence shall be COffif pelled to be a witness against himself."

The argument urged before us is that a search to obtain documents, for investigation into an offence is a compulsory procuring of incriminatory evidence from the accused himself and is, therefore, hit by article 20(3) as unconstitutional and illegal. It 1s not disputed that, prima facie, the article in question has nothing to indicate that it comprehends within its scope, the prohibition of searches and seizures of documents from the custody of an accused.

But it is urged that this is necessarily implied therein by certain canons of liberal construction which are applicable to the interpretation of constitutional guarantees.

In suppqrt of this line of argument great reliance has been placed upon American deciions in which similar questions were canvassed.

The argument on behalf of the petitioners is presented in the following wav.

The fundamental guarantee in article 20(3) comprehends within its scope not merely oral testimony given by an accused in a criminal case pending against him, but also evidence of whatever character compelled out of a person who is or is likely to become incriminated thereby as an accused.

It, therefore, extends not only to compelled production of documents by an accused from his possession, but also to such compelled production of oral or documentary evidence from any other person who may become incriminated thereby as an accused in future proceedings. If this view of the content of article 20(3) is accepted, the next step in the argument presented is that a forcible search and seizure of documents is, for purposes of constitutional protection of this guarantee, on the same footing as a compelled production of the said documents by the person from whom they are seized.

This chain of reasoning, if accepted in its entirety, would render searches and seizures of documents and any

statutory provisions in that behalf illegal and void, as being in violation of the fundamental right under article 20(3).

The question thus raised is of farreaching importance and reqmres careful consideration.

Article 20(3) embodies the principle of protection against compulsion of self-incrimination which is one of the fundamental canons of the British system of criminal 'jurisprudence and which has been adopted by the American system and incorporated as an article of its Constitution.

It has also, to a substantial extent, been recognised in the Anglo-Indian administration of criminal justice in this country by incorporation into various statutory provisions.

In order, therefore, to arrive at a correct appraisal of the scope and content of the doctrine and to judge to what extent that was intended to be recognised by our Constitution-makers in article 20(3), it is necessary to have a cursory view of the origin and scope of this doctrine and the implications thereof as understood in English law and in American law and as recognised in the Indian law.

In English law, this principle of protection against self-incrimination had a historical origin.

It resulted from a feeling of revulsion against the inquisitorial methods adopted and the barbarous sentences imposed, by the Court of Star Chamber, in the exercise of its criminal jurisdiction.

This came to a head in the case of John Lilburn(') which brough~ about the abolition of the Star Chamber and the firm: recognition of the principle that the accused should not be put on oath and that no evidence should be taken from him.

This principle, in course of time, developed into its logical extensions, by way of privilege of witnesses against self-incrimination, when called for giving oral testimony or for production of documents.

A change was introduced by the Criminal Evidence Act of 1898 by making an accused a competent witness on his own behalf, if he applied for it.

But so far as the oral testimony of witnesses and the production of documents are concerned, the protection against

(1) 3 State Trials 1315.

M. P. Sharma

and Others

Satish Chandra, District Magi.strait, Delhi, and

Otl1'Ts.

J agannai/ha-

. das].

M. P. Sharma

and Others

Satish Chandra, District Magis trate, Delhi, and

Otliers.

Jagannadhadas J.

self-incrimination continued as before. (See Phipson on Evidence, 9th Edition, pages 215 and 474).

These principles, as they were before the statutory change in 1898, were carried into the American legal system and became part of its common law. (See Wigmore on Evidence, Vol. VIII, pages 301 to 303).

This was later on incorporated into their Constitution by virtue of the Fifth Amendment thereof. The language of the Fifth Amendment was considered by the American Courts as being wide enough to cover all the aspects of the principle of protection against selfincrimination as administered under the English common law including oral testimony of witnesses and production of documents. (See Willis on Constitutional Law, pages 518 and 519).

In course of time further extensions of that privilege were recognised by the courts relating to searches and seizures.

It came to be held that unreasonable searches and seizures of documents fell equally within the mischief of the Fourth and the Fifth Amendments fBoyd v. United States(') ] , and that documents or other evidence so obtained were inadmissible in evidence [Weeks v.

United States(')].

In the Indian law the extent to which this protection is recognised appears from the various relevant statutory provisions . from time to time.

Section

III of Act XV of 1852 recognised that an accused in a criminal proceedings was not a competent or compellable witness to give evidence for or against himself.

This provision was repealed by the Evidence Act I of

1872. But meanwhile the Criminal Procedure Code of 1861 in sections 204 and 203 thereof respectively provided that no oath shall be administered to the accused and that it shall be in the discretion of the Magistrate to examine him.

The Criminal Procedure Code of 1872 by section 250 thereof made a general questioning of the accused, after the witnesses for the prosecution had been examined, compulsory and section 345 thereof provided that no oath or affirmation shall be

(•) II6 U.S. 616.

(2) 232 U.S. 383.

S.C.R.

SUPREME COURT REFCJ:'/, TS 1085

administered to the accused person.

These features have been continued in the later Codes of Criminal Procedure and have been incorporated into section 342 of the present Criminal Procedure Code of 1898. The only later statutory change, so far, in this behalf, appears to be that brought about by section 7 of the Prevention of Corruption Act, 1947.

By virtue of that section an accused is a competent witness on his own application in respect of offences under that Act.

So far as witnesses are concerned, section III of Act XV of 1852 also declared the protection of witnesses against compulsion to answer incriminating questions.

Shortly thereafter in 1855, this protection was modified by section 32 of Act II of 1855 which made him compellable to answer even incriminating questions but provided immunity from arrest or prosecution . on the basis of such evidence or any other kind of use thereof in criminal proceedings except prosecution for giving false evidence.

This position has been continued under section 132 of the Evidence Act I of 1872 which. is still in force.

So far as documents are concerned, it does not appear that the Indian statutory law specifically recognised protection. against production of incriminating documents until Evidence Act I of 1872 was enacted which has a provision in this bel;@lf in section 130 thereof.

It is not quite clear whether this section which excludes parties to a suit applies to an accused.

Thus so far as the Indian law is concerned it may be taken that the protection against self-incrimination continues more or less as in the English common law,. so far as the accused and production of documents are concerned, but that it has been modified as regards oral testimony of witnesses, by introducing compulsion and providing immunity from prosecution on the basis of such compelled evidence.

Since the time when the principle of protection against self-incrimination became established in English law and in other systems of law which have followed it, there has been considerable debate as to the utility thereof and serious doubts were held in some quarters that this principle has a tendency to d>feat justice.

In support of the principle it is .claimea that the protection

M. P. Sharma

and Others

V, Satish Chandra, District Magistrate, Delhi, and

Others.

Jagannadha

dtisJ.

M. P. Shanna

and Others

Satish Chandra, District Magistrate, Delhi, and

Others.

Jagannadhadas ].

of accused against self-incrimination promotes active investigation from external sources to find out the truth and proof of alleged or suspected crime instead of extortion of confessions on unverified suspicion. (See Wigmore on Evidence, Vol. VIII, page 309).

It is also claimed that that privilege in its application to witnesses as regards oral testimony and production of documents affords to them in general a free atmosphere in which they can be persuaded to come forward to furnish evidence in courts and be of substantial help in elucidating truth in a case, with reference to material within their knowledge and in their possession. (See Wigmore on Evidence, Vol. VIII, page 307).

On the other hand, the opinion has been strongly held in some quarters that this rule has an undesirable effect on social interests and that in the detection of crime, the State is confronted with overwhelming difficulties as a result of this privilege. It is said this has become a hiding place of crime and has outlived its usefulness and that the rights of accused persons are amply protected without this privilege and that no innocent person is in need of it. (See Wigmore on Evidence, Vol. VIII. pages 314 and 315).

Certain passages at pages 441 and 442 of Vol. 1 of Stephen's History of the Criminal Law of England are also instructive in this context and show a similar divergence of opinion.

In view of the above background, there is no inherent reason to construe the ambit. of this fundamental right as comprising a very wide range.

Nor would it be legitimate to confine it to the barely literal meaning of the words used, since it is a recognised doctrine that when appropriate a constitutional provision has to be liberally construed, so as to advance the intendment thereof and to prevent its circumvention.

Analysing the terms in which this right has been declared in our Constitution, it may be said to consist of the following components. ( 1) It is a right pertaining to a person "accused of an offence"; (2) It is a protection against "compulsion to be a ' witness"; and (3) It is a protection against such compulsion resulting in his givinir evidence "against himself".

The cases with which we are concerned have been

presented to us on the footing that the persons against whom the search warrants were issued, were all of them persons against whom the First Information Report was lodged and who were included in the category of accused therein and that therefore they are persons "accused of an offence" within the meaning of article 20 (3) and also that the documents for whose search the warrants were issued, being required for investigation into the alleged offences, such searches were for incriminating material.

It may be noticed that some of the accused enumerated in the First Information Report are incorporated companies.

But no question has been raised before us that the protection does not apply to corporations or to documents belonging to them-a question about which there has been considerable debate in the American Courts. On the above footing, therefore, the only substantial argument before us on this part of the case was that compelled production of incriminating documents from the possession of an accused is compelling an accused to be a witness against himself.

This argument accordingly raises mainly the issue relating to the scope and connotation of the second of the three components above stated.

Broadly stated the guarantee m article 20(3) is against "testimonial compulsion".

It 1s suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand.

We can see no reason to confine the content of the constitutional guarantee to this barely literal import.

So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in article 20(3) is "to be a witness." A person can "be a witness" not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see section 119 of the Evidence Act) or the like. "To be a witness" is nothing more than "to furnish evidence", and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes.

So far as

M. P. Sharma

and Others

Satish Chandra.

District Magistrate, Delhi, and

0th.rs.

]agannadkadas ].

M. P. Sharma

and Others

Salish Chandra, Dhtrict Magistrat~, Delhi, and Others.

Jagannadhadas].

production of documents is concerned, no doubt section 139 of the Evidence Act says that a person producing a document on summons is not a witness.

But that section is meant to regulate the right of cross-examination.

It is not a guide to the connotation of the word "witness'', which must be understood in its. natural sense, i.e., as referring to a.person who furnishes evidence.

Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as. opposed to the negative attitude of silence or submission on his part.

Nor is there any reason to think that the protection in respect of the evidence se> procured is confined to what transpires at the trial in the court room. The phrase used in article 20(3) is "to be a witness" and not to "appear as a witness":- It follows that the protection afforded to an accused in so far as it is related to the phrase "to be a witness"· is not mere1y in respect of testimonial compulsion in the court room but may well . extend to compelled testimony previously obtained from him.

It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. \Vhether it is available to other persons in other situations does not call for decision in this case.

Considered in this light, the guarantee under article 20(3) would be available in the present cases to these petitioners against whom a First Information Report has been recorded as accused therein.

It would extend to any compulsory process for production of evidentiary documents which are reasonably likely - to support a prosecution against them.

The question then that arises next is whether search warrants for the seizure of such documents from the custody of these persons are unconstitutional and hence illegal on the ground that in effect they are tantamount to compelled production of evidence.

It is urged that both search .and seizure of a document uand a compelled production thereof on notice or summons serve the same purpose of being

S.C.R.

SuPREME COURT REPORTS 1089

available as evidence in a prosecution against the . person concerned, and that any other view would defeat or weaken the protection afforded by the guarantee of the fundamental right.

This line of argument is not altogether without force and has the apparent support of the Supreme Court of the United States of America in Boyd v. United States(').

The question there which came up for consideration was in fact the converse, namely, whether a compulsory production of documents on the facts of that case amounted to search and seizure. There are dicta in that decision to the effect that a compulsory production of a man's private papers is a search and seizure since it . affects the sole object thereof and that by this process the court extorts from the party his private books and papers to make him liable for penalty. It is necessary, therefore, to examine this decision rather closely in order to determine how far it can be a safe guide for our purpose.

The question therein arose under the following circumsta)lces.

In an Act to amend the Customs Revenue Laws, there was a provision which enabled the Government Attorney to make a written motion to the court for the issue of a notice to the opposite-party for production of papers in his possession. The motion could be made if in the Attorney's opinion those books contain materials which will prove an alleged fact in support of a charge of defrauding the revenues, jnvolving penalty and forfeiture of merchandise to which the fraud relates. It is also provided by the said section that if the court in its discretion allows the motion in which is set out the fact sought to be proved and calls upon the defendant to produce the documents, and the defendant fails or refuses to produce them without any proper and satisfactory explanation, the allegation of fact sought to be proved by such production may be deemed to have been confessed.

The question that thereupon arose was whether an order for production made by the court under that section did not violate the constitutional rights declared by the Fourth and Fifth Amendments of the

(1) 116 U.S. 616.

M. P. Sharma and Others

Satish Chandra, District Magis trate, Delhi, and

Others.

Jagannadhadas J.

.MP. Sharma

and Others

v . . Sa:ish Chandra

District Magis.

Jrate, Delhi, and

Others

7agannadhadas J.

American Constitution. follows: These amendments are as

Amendment IV. "The right of the people to be secure m their persons, houses, papers, and effects against unreasonable searches and seizures, shall not . be violated; and no warrants shall issue, ' but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Amendment V. "No person ...... shall be compelled in any criminal case, to be a witness against himself ; ........ " On the facts of the above case, there was no difficulty in holding that the production of documents m response to the motion granted by the court was a compelled production of incriminating evidence and that it violated the Fifth Amendment. The minority judgment brought this out clearly m. the following passage: . ''The order of the court under the statute is in effect a subpoena duces tecum; and though the penalty for the witness' failure to appear in court with the criminating papers is not fine and imprisonment, it is one which may be made more severe, namely, to have the charges against him of a criminal nature taken for confessed and made the foundation of the judgment of the court.

That this is within the protection which the Constitution intended against compelling a person to be a witness against . himself is, I think, quite clear." The majority Judges, however, went one step further and said as follows :

"The compulsory production of a man's private papers is search and seizure."

and again thus "We have been unable to perceive that the seizure of a man's private books and papers to . be used in evidence against him is soubstantialy different from compelling him to be a witness against himself."

Thus in the view that the order for production was tantamount to search and seizure and that in the case it was for a purpose prohibited by the Fifth Amendment, they held that the Fourth Amendment prohibiting unreasonable searches was also violated.

The minority Judges, however, did not accept this view and pointed out that there was an essential difference between the seizure of a document on search and the production of a document.

But even otherwise, it would appear on a careful consideration of the decision that the majority were at pains to make out that, in the circumstances of the case the order for production would amount to "an unreasonable search and seizure" and is hence unconstitutional as violating the Fourth and Fifth Amendments. The case, therefore, does not lend support for any general doctrine that a search and seizure in all circumstances is tantamount to a compelled production in violation of the Fifth Amendn:1ent.

That decision itself expressly recognizes the legality of various kinds of searches and indeed the Fourth Amendment itself shows it.

Thus what that decision really established was that the obtaining of incriminating evidence by illegal search and seizure is tantamount to the violation of the Fifth Amendment.

It was in this light that subsequent cases have also understood this decision. [See Felix Gouled v. United States(')].

Boyd's case(") has relied on the famous judgment of Lord Camden in Entick v. Carrington( 3 ), and learned counsel for the petitioners has also relied on it Strenuously before us.

Wigmore in his Law of Evidence, Vol. VIII, page 368, has shown how some of the assumptions relating to it in Boyd's case("), were inaccurate and misleading.

While no doubt Lord Camden refers to the principle of protection against self-accusation with great force, in his consideration of the validity of general search-warrants, that case does not treat a seizure on a search warrant as ipso facto tantamount to self-incrimination.

All that was said

(1) 255 U.S. 298; 65 Law. Edn. 647 at 651 and 653.

(2) 116 U.S. 616.

(3) 19 State Trials 1030.

M. P. Sharma

and Otbrs.

Salish Chandra, District Magistrate, Delhi, and'

Others.

Jagannadha

das J.

M. P. Sharma

and Others

Satish Chandra, District Magistrate, Delhi, and

Ot,,,,.s.

Jagannadhadas J.

was that the legal philosophy underlying both is the same, as appears from the following passage :

"It is very certain, that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same principle.

There too the innocent would be confounded with the guilty."

It may be noted that Lord Camden's judgment shows, by an elaborate dissertation, that the search warrant therein under consideration was unauthorised and illegal. Thus even the above dictum has reference only to an illegal search.

It is, therefore, impossible to derive from Boyd's case (1), support for the proposition that searches and seizures, in general, are violative of the privilege of protection against self-incrimination.

Nor is it possible to import that doctrine with its differentiation between legal and illegal searches into our Constitution because we have nothing in our Constitution corresponding to the Fourth Amendment enabling the courts to import the test of unreasonableness or any analogous criterion for discrimination between legal and illegal searches.

In the arguments before us strong reliance has also been placed on the provision of sections 94 and 96 of the Criminal Procedure Code in support of the broad proposition that a seizure of documents on search is in the contemplation of law a compelled production of documents. The sections run as follows :

"94(1).

Whenever any court, or in any place beyond the limits of the towns of Calcutta and Bombay, any officer in charge of a police-station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such court or officer, such court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend

(l) Jl6 u. s. 616

and produce it, or to produce it, at the time and place stated in the summons or order. ,,

"96(1). Where any Court has reason to believe that a person to whom a summons or order under section 94 or a requisition under section 95, subsection ( 1), has been or might be addressed will not or would not produce the document or thing as required by such summons or requisition, or where such document or thing is not known to the court to be in the possession of any person, or where the court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served bv a general search or inspection, It may issue a search-warrant ; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter mntained. ,,

It is pointed out that the procedure contemplated is that normally there should be a summons or notice for production under section 94 and it is only if there is no compliance therewith or if the Magistrate is satisfied about the likelihood of non-compliance that a search warrant is to be issued.

It is, therefore, urged that these provisions themselves show that in law search and seizure is a substitute for compelled production on 5ummons.

There has been some debate before us whether section 94 applies to an accused person and whether there is any element of compulsion in it. For the purpose of this case it is unnecessary to decide these points.

We may assume without deciding that the section is applicable to the accused as held by a Full Bench of the Calcutta High Court in a recent case in Satya Kinkar Roy v. Nikhil Chandra Jyotishopadhaya(' ). We may also assume that there is an element of complusion implicit in the process contemplated by section 94 because, in any case, noncompliance results in the unpleasant consequence of invasion of one's premises and rummaging of one's

(1) A.I.R. 1951 Cal. IOI.

M. P. Sharma

and Others

Satish Chandra, District Magis~ trate, Delhi, and

Others.

Jagannmfha~

d"' ].

M. P. Sharma

and Othtrs

V, Satish Chandra, District Magistrate, Delhi, and

Others.

Jagannadha

dasJ.

private papers by the minions of law under a search warrant. Notwithstanding these assumptions we are unable to read sections 94 and 96(1) of the Criminal Procedure Code as importing any statutory recognition of a theory that search and seizure of documents is compelled production thereof.

It is to be noticed that section 96( l) has three alternatives and that the requirement of previous notice or summons and the non-compliance with it or the likelihood of such noncompliance is prescribed only for the first alternative and not for the second . or the third.

A "general search" and a "search for a document or a thing not known to be in possession. of any particular person" are not conditioned by any such requirement.

Indeed in cases covered by the second alternative such a requirement cannot even be contemplated as possible.

It would, therefore, follow, on the theory propounded, that some at least of the searches within the scope of the second and third alternatives in section 96 ( 1) would fall outside the constitutional protection of article 20(3)-an anomalous distinction for which no justification can be found on principle.

A consideration of the history of Indian statutory legislation relating to searches does not support the theory propounded.

The provisions for searches are to be found in the successive Codes of Criminal Procedure. In the earliest Code, Act XXV of 1861, there appears no provision for issuing summons or notices for production of documents, but there was only a provision for the issue of a search warrant by a Magistrate under section 114 thereof, which is in the following terms :

"When a Magistrate shall consider that the production of any thing is essential to the conduct of an enquiry . into an offence known or suspected to have been committed, he may grant his warrant to search for such thing ; and it shall be lawful for the officer charged with the execution of such warrant to search for such thing in any house or place within the jurisdiction of such Magistrate.

In such case the Magistrate may specify in his warrant the house or place, or part thereof, to which only the search shall extend."

There was also section 142 of the said Code which vested in an officer in charge of police station with the power to make a search suo moto in certain circumstances.

In the next Criminal Procedure Code, Act I of 1872, the relevant provisions were in sections 365, 368 and 379. Section 379 was more or less a repetition of section 142 of the previous Code (Act XXV of 1861) vesting power in a police officer to make a suo moto search.

Section 3.65 appears to be the earliest statutory provision for the issue of a summons, either by a police officer or by a court for the production of a document required for ilwestigation.

This was followed by section 368 relating to the issue of searchwarrants which was in the following terms :

"When a Magistrate considers that the production of anything is essential to the conduct of an inquiry into an offence known or suspected to have been committed or to the discovery of the offender, or when he considers that such inquiry or discovery will be furthered by the search or inspection of any house or place, he may grant his search-warrant; and the officer charged with the execution of such warrant may search or inspect any house or place within the jurisdiction of the Magistrate of the District.

The Magistrate issuing such warrant may, if he sees fit, specify in his warrant the house or place, or part thereof, to which only the search or inspection shall extend; and the officer charged with the execution of such warrant shall then search or inspect only the house, place or part so specified."

It will be noticed that even when the procedure of summons for production of documents was introduced, as above in section 365, the provision for the issue of a search-warrant in section 368 had absolutely nothing to do with the question of non-compliance by the concerned person with the summons for production. It is only in the next Criminal Procedure Code, Act X of 1882, that the provisions, sections 94 and 96, appear which correspond to the present sections 94 and 96 of Act V of 1898, linking up to some extent the issue of 5-98 SC India.(59

M.P. Shtmn•

and OtherJ

y, SatiJh Chandra,\.

District Magistrate, Delhi, and

Others.

]agannatfhadas J.

M. P.Sharm•

and Others

r atiJh Chandra, District Magis- Jrate, Delhi, and

Others.

Jagannadhadas ].

search-warrants with non-compliance or likelihood of non-compliance with a summons to produce.

It may be mentioned in passing that the provision for the issue of general search warrants appears for the first time in the Procedure Code of 1882 and even there the issue of such general warrants is not based on noncompliance with a previous summons for production.

It is, therefore, clear that there is no basis in the Indian law for the assumption that a search or seizure of a thing or document is in itself to be treated as compelled production of the same.

Indeed a little consideration will show that the two are essentially different matters for the purpose relevant to the present discussion.

A notice to produce is addressed to the party concerned and his production in compliance therewith constitutes a testimonial act by him within the meaning of article 20(3) as above explained.

But search warrant is addressed to an officer of the Government, generally a police officer.

Neither the search nor the seizure are acts of the occupier of the searched premises. They are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any sense.

Even in the American <lecisions there is a strong current of judicial opinion in support of this distinction. In Hale v.

Henkel('), Justice McKenna in his dissenting judgment makes the following observations :

"Search implies a quest by an officer of the law ; a seizure contemplates a forcible dispossession of the owner ............ The quest of an officer acts upon the things themselves,-may be secret, intrusive, accompanied by force.

The service of a subpoena is but the delivery of a paper to a party,-is open and aboveboard.

There is no element of trespass or force in it."

A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law.

When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a

(1) 201 U.S. 43; 50 Law. Edn. 652.

fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.

Nor is it legitimate to assume that the constitutional protection under article 20(3) would be defeated by the statutory provisions for searches.

It is to be remembered that searches of the kind we are concerned with are under the authority of a Magistrate (excepting in the limited class of cases falling under section 165 of the Criminal Procedure Code). Therefore, issue of a search warrant is normally the judicial function of the Magistrate.

When such jndicial function is interposed between the individual and the officer's authority for search, no circumvention thereby of the fundamental right is to be assumed.

We are not unaware that in the present set up of the Magistracy in this country, it is not infrequently that the exercise of this judicial function is liable to serious error, as is alleged in the present case.

But the existence of scope for such occasional error is no ground to assume circumvention of the constitutional guarantee.

We are, therefore, clearly of the opinion that the searches with which we are concerned in the present cases cannot be challenged as illegal on . the ground of violation of any fundamental rights and that these applications are liable to be dismissed.

As stated at the outset, we have dealt only with the constitutional issues involved in this case leaving the other allegations as to the high-handedness and illegality of the searches open to be raised and canvassed before the High Court on appropriate applications.

But we cannot he! p observing that on those allegations and on the material that has come within our notice, there appears to be scope for serious grievance on the side of the petitioners, which requires scrutiny.

We accordingly dismiss these applications but without costs.

M.P. Sharma

and Others

Satish Chandra,

District Magistrate, Delhi, and

Others.

Jagarmadha~

das].

section 58

Schedule VII

Section 44

section 47

section 55

section 56

M. P. SHARMA AND OTHERS

SATISH CHANDRA, DISTRICT MAGISTRATE, DELHI, AND OTHERS

MEHR CHAND MAHAJAN

S. R. DAs

V1vIAN BosE

GHDLAM HASAN

BHAGWATI

JAGANNADHADAS

Constitution of India

arts. 19(1)(!) and 20(3)

s. 96(1)

Code of Criminal Procedure

art. 19(1~(!)

M. P. Sharma

Satish Chandra

s. 94 and 96

Code of Criminal Procedure

art. 20(3)

s. 96( 1)

art. 19(1)(£)

art. 20(3)

ss. 94 and 96

Code of Criminal Procedure

art. 20

art. 20(3)

S. 616

S. 383

S. 298

S. 43

article 32

Constitution of India

Veda Vyas

Daulat Ram Kalia

S. K. Kapur

Ganpat Rai

C. K. Daphtary

Porus A. Mehta

A. M. Chatterjee

article 32

Dalmia Jain Airways Ltd.

9th July, 1946

13th June, 1952

section 138

Companies Act

Indian Penal Code

Seth R. K. Dalmia

Dalmia Jain Airways Ltd.

Dalmia Jain Aviation Ltd.

Asia Udyog Ltd.

Allen Berry & Co., Ltd.

Dalmia group

Delhi

jagannadhadas

District Magistrate, Delhi

25th November, 1953

Delhi Glass Works Ltd.

R. K.

Dalmia

article 226

article 20(3)

article 19(l)(f)

article 19(1)

Article 19(1)

section 96(1)

Cr.P.C

article 19(1)

M. P. Sharma

But, a search by itself is not a restriction m question which purport to be under the Erst

M. P. Sharma

and oth rs v.
Salish Chandra

District Magistratt, Delhi, and

Others.

Salish Chandra

Jagannadhadaa

M.P. Sharma

Jagannadha

section 96(1)

article 20(3)

article 20(3)

article 20(3)

article 20(3)

article 20(3)

Article 20(3)

article 20(3)

John Lilburn

Jagannadhadas

III of Act

Evidence Act I of

meanwhile the Criminal Procedure Code

sections 204 and 203

section 250

section 345

S. 616

S. 383

SUPREME COURT REFCJ:'/, TS 1085

section 342

Criminal Procedure Code

section 7

Prevention of Corruption Act, 1947

section 32

section 132

Evidence Act I of 1872

Evidence Act I of 1872

section 130

M. P. Sharma

M. P. Shanna

Jagannadhadas

England

article 20

article 20(3)

article 20(3)

section 119

section 139

article 20(3)

article 20(3)

S. 616

Jagannadhadas

.MP. Sharma

ish Chandra

Boyd

Camden

Wigmore

S. 298

S. 616

Jagannadha

das

sections 94 and 96

Calcutta

Bombay

s. 616

section 94

section 95

section 94

section 94

Calcutta High Court

section 94

Jagannmfha~

sections 94 and 96(1)

section 96( l)

section 96

article 20(3)

section 114

section 142

sections 365, 368 and 379

Section 379

section 142

Section 3

section 368

section 365

section 368

sections 94 and 96

sections 94 and 96

agannatfhadas

article 20(3)

McKenna

S. 43

article 20(3)

section 165

M.P. Sharma

Jagarmadha~


SUPREME COURT REPORTS [1954]

RAO SHIV BAHADUR SINGH AND ANOTHER

March5. v.

THE STATE OF VINDHYA PRADESH.

[BHAGWATI, JAGANNADHADAS and VENKATARAMA

AYYAR JJ.]

Code of Criminal Proced11re (Act V of 1898), s. 164-Magistrate not recording statement of accused as required by the section-Whether competent to give oral evidence of such statement--Disapproval of the action of Police in entrapping the accused and providing the bribe-giver the instruments of offence.

After the investigation into an offence has been started on the registration of the First Information Report by the Police, no statement n1ade y the accused to the Magistrate can be proved unless the statement has been recorded in accordance with the provisions of s. 164 of the Code of Criminal Procedure and therefore, it the non-confessional state1nent has not been recorded by the.

Magistrate in the manner indicated in s. 164, the Magistrate would not be competent to give oral evidence of such statement having been made by the accused.

Nazir Ahmad v. King Emperor (A.LR. 1936 P. C. 253), Legal Remembrancer v. Lalit Mohan Singh Roy (I.L.R. 49 Cal. 167), Abdul Rahim and Others v. Emperor (26 Cr. L. J. 1279) and Karu Mansukh Gond v. Emperor (A.LR. 1937 Nag. 254) referred to.

The conduct of the Police and the Additional District Magistrate in actively instigating the accused to commit the offence of which he was charged by furnishing him with the necessary materials (without which he could not have committed the offence), for the purpose of trapping him, was strongly disapproved.

It is the duty of the police to prevent the crimes being committed.

It is no part of their duty to provide the instruments of the offence.

The observations of Mr. Justice P. B. Mukherji in the case of M. C. Mitra v. The State (A.LR. 1951 Cal. 524 at p. 528) condemning the practice of sending Magistrates as witnesses of Police trap endorsed because such practice makes a Magistrate a party or a limb of the Police during police investigation and undermines seriously the independence of the Magistrates and perverts their judicial outlook.

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 7 of 1951.

Appeal under article 134(1)(c) of the Constitution of India from the Judgment and Order dated the 10th March, 1951, of the Judicial Commissioner, Vmdhya

Pradesh, Rewa in Criminal Appeal No. 81 of 1950 arising out of the Judgment and Order dated the 26th July, 1950, of the Court of the Special Judge, Rewa, in Criminal Case No. 1 of 1949.

Jai Gopal Sethi (K. B. Asthana, with him) for appellant No. 1.

C. Isaacs (Murtza Faz! Ali, with him) for appellant No. 2.

Porus A. Mehta for the respondent.

1954. March 5.

The Judgment of the Court was delivered by

BHAGWATI J.-The appellant No. I was the Minister of Industries and the appellant No. 2 was the Secretary to the Government of the Commerce and Industries Department of the State of Vindhya Pradesh.

The appellant No. 1 was charged with having committed offences under sections 120-B, 161, 465 and 466 of the Indian Penal Code and the appellant No. 2 under sections 120-B and 161 of the Indian Penal Code as adopted by the Vindhya Pradesh Ordinance No. 48 of 1949. They were tried in the Court of the Special Judge at Rewa under the Vindhya Pradesh Criminal Law Amendment (Special Courts) Ordinance No. LVI of 1949 and the Special Judge acquitted both of them.

The State of Vindhya Pradesh took an appeal to the Court of the Judicial Commissioner, Rewa.

The Judicial Commissioner reversed the order of acquittal passed by the Special Judge and convicted both the appellants of the several offences with which they were charged.

The Judicial Commissioner awarded to the appellant No. 1 a sentence of 3 years rigorous imprisonment and a fine of Rs. 2,000 in default rigorous imprisonment of 9 months under section 120-B of the Indian Penal Code and a sentence of three years' rigorous imprisonment under section 161 of the Indian Penal Code, both the sentences to run concurrently.

He imposed no sentence upon the appellant No. 1 under sections 465 and 466 of the Indian Penal Code.

He awarded to the appellant No. 2 a sentence of rigorous imprisonment for one year and a fine of Rs. 1,000 and in default ngorous imprisonment for

Rao Shiv Bahadur

Singh and

Another

The Slate of V indhya Pradesh.

Bhagwati].

Rao Shiv Bahadut

Singh af'ld

Anothlr

Vo The State of Vindhya Pradesh.

Bhagwati],

llOO

SUPREME COURT REPORTS [1954}

nine months under section 120-B of the Indian Penal Code.

He did not award any separate sentence to appellant No. 2 under section 161 of the Indian Penal Code.

On an application made to the Judicial Commissioner, Rew a, for leave to appeal to the Supreme Court the Judicial Commissioner granted the appellants leave to appeal under article 134( l) ( c) of the Constitution in regard to the four points of law raised in the case before him.

The constitutional points involved in the appeal came up for hearing before the Constitution Bench of this court and were dealt with by the Judgment of this court delivered on the 22nd May, 1953. The Constitution Bench held that the appeal to the Judicial Commissioner from the acquittal by the Special Judge was competent and that there was no infringement of the fundamental rights of the appellants under articles 14 and 20 of the Constitution (Vide [1953] S.C.R. ll88).

The appeal was accordingly directed to be posted for consideration whether it was to be heard on the merits.

An application was thereafter made by the appellants to this court for leave to urge additional grounds and this court on the 20th October, 1953, made an order that the appeal should be heard on merits.

The appeal has accordingly come up for hearing and final disposal before us.

The case for the prosecution was as follows.

By an agreement executed on the 1st August, 1936, between the Panna Durbar of the one part and the Panna Diamond Mining Syndicate represented by Sir Chinubhai Madholal and Hiralal Motilal Shah of the other part, the Panna Durbar granted to the syndicate a lease to carry on dian10nd mining operations for a period of 15 years. The period of the lease was to expire on the 30th October, 1951, but there was an option reserved to the lessee to have a renewal of the lease for a further period of 15 years from the date of such expiration.

There were disputes between the syndicate on the one hand and the Panna Durbar on the other and by his order dated the 31st October, 1946, the Political Minister of Panna stopped the mining operations of the syndicate.

The State of

Panna became integrated in the Unit of Vindhya Pradesh in July, 1948, and the administration of Panna came under the control and superintendence of the Government of Vindhya Pradesh with its seat at Rewa under His Highness the Maharaja of Rewa as Rajpramukh and the appellant No. 1 became the Minister in charge of the Industries Department in the Cabinet which was formed by the Rajpramukh. The appellant No. 2 held the post of Secretary, Commerce and Industries Department, and was working under the appellant No. I.

On the 1st September, 1948, the syndicate appointed one Pannalal as Field Manager to get the said order of the Panna Durbar stopping the working of the mines rescinded.

Pannalal made several applications for procuring the cancellation of the said order and on the 13th January, 1949, and the 26th January, 1949, Pannalal made two applications and handed them over personally to the appellant No. 1 requesting for the resumption of the mining operations and was asked to come in February for the purpose.

The appellant No. 1 consulted the legal advisers of the State and a questio11naire was framed which was to be addressed to the syndicate for its answers.

When Pannalal went to Rewa the questionnaire was handed over to him on the 9th February, 1949, for being sent to Sir Chinubhai.

Sir Chinubhai sent the replies to the said questionnare along with a covering letter dated the 18th February, 1949, wherein he expressed a desire to meet the appellant No. I for personal discussion in regard to the settlement of the matter of the resumption of the mining operations etc.

In reply to the telegrams sent by Sir Chinubhai on the 19th February, 1949, the Personal Assistant to appellant No. 1 intimated to Sir Chinubhai that he could go to Rewa and see the appellant No. 1 on the 7th March, 1949.

As Sir Chinubhai was ill he deputed hls Personal Assistant, Nagindas Mehta to go to Rewa and see the appellant No. 1 on his behalf.

Nagindas arrived at Rewa on the evening of the 6th March. 1949.

The appellant No. 1 had gone out of Rewa and Nagindas had to wait.

He saw the appellant No. I on the morning of the 8th March, 1949, but was asked

Rao Shiv Bahadur

Singh and

Another

The Stale qf Vindhya Prad11Jh.

Bhagwati].

Rao Shiv Bahadur

Singh and Anothtr

The State of f indhya Pradesh.

BhagwatiJ.

to see the appellant No. 2.

The appellant No. 2 saw Nagindas at the Guest House here he had put up nd informed Nagindas that a third party was offenng Rs. 50,000 for the mmmg rights.

Nagindas told the appellant No. 2 that the syndicate was a limited concern and could not afford to pav so much money but if the amount was reduced they would make an effort to pay the sum.

The appellant No. 2 then told Nagindas that he would talk over the matter with the appellant No. 1 and let him know.

The same day in the afternoon the appellant No. 2 saw Nagindas at the Guest House and informed him that as the syndicate was working for the last so many years the appellant No. 1 was prepared to reduce the amount to about Rs. 25,000.

Nagindas told the appellant No. 2 that he would talk over the matter with Sir Chinubhai in Bombay and would let him know about it.

Nagindas then left for Bombav but he reached Bombay on the 29th March, 1949. having been detained on the way for some other business of his. He saw Sir Chinubhai in Bombay and reported to him what had happened at Rewa and gave him to understand that resumption orders would not be passed unless a bribe of Rs. 25,000 was paid.

Sir Chinubhai did not approve of the idea of giving a bribe and suggested that Nagindas should lay a trap for catching the appellant No. 1. Nagindas sent a telegram on the 29th March, 1949, agreeing to go to Rewa in the week thereafter for completion.

On receipt of that telegram the appellant No. 2 in the absence of appellant No. 1 who was on tour sent a telegram on the 1st April, 1949, to Sir Chinubhai pressing him to come the same week as his presence was essential to complete the matter which had been already delayed.

On the 4th April, 1949, Pannalal was informed by the appellant No. 2 that the appellant No. 1 was leaving for Delhi that day and that he should go to Bombay and send Sir Chinubhai to Delhi to meet the appellant No. 1 in the Constitution House where he would be staying.

He also gave a letter to Pannalal to the same effect. Appellant No. 1 left for Delhi on the 4th April, 1949, with the files of the Panna Diamond Mining

Syndicate and reached Delhi on the 5th April, 1949. On the 6th April, 1949, the appellant No. 1 sent a telegram through his Personal Assistant Mukherji to Sir Chinubhai at Bombay asking him to meet the appellant No. 1 -0n the 7th, 8th or 9th April, 1949, at 31 Constitution House for final talks regarding the Panna Diamond Mining Syndicate.

On receipt of the said telegram Sir Chinubhai sent a telegram in reply stating that his Personal Assistant, Nagindas and Pannalal were reaching Delhi on the 9th April, 1949.

Nagindas reached Delhi on the 8th April, 1949, and put up at the Maidens Hotel and Pannalal reached Delhi on the 10th April, 1949, and put up at the Regal Hotel. On the 9th April, 1949, Nagindas informed the appellant No. 1 on the telephone about his arrival at Delhi and an appointment was fixed for 10-30 a.m. on the 10th April, 1949.

Nagindas contacted Shri Bambawala, the Inspector- General of Police of the Special Police Establishment -0n the morning of the 10th April, 1949, before coming to meet the appellant No. 1 and told him how the appellant No. 1 was coercing him to pay a bribe. Shri

Bambawala referred Nagindas to Pandit Dhanraj, Superintendent, Special Police Establishment, and Nagindas told him the whole story of his harassment by the appellant No. 1 and it was then decided to lay

a trap for appellant No. 1.

Nagindas informed Pandit Dhanraj that he would meet the appellant No. 1 at about 11 a.m. and then report their talk to him in the afternoon.

Nagindas then saw the appellant No. 1 at the Constitution House at the appointed time and at this meeting the appellant No. 1 demanded from Nagindas a sum of Rs. 25,000 as a bribe for allowing the resumption of the mining operations and made it quite dear that he would not accept anything less than Rs. 25,000. As Nagindas had not received the moneys from Bombay, the following day, i.e., the 11th April, 1949, at 3 p.m. was fixed for the next meeting. Nagin- , das thereafter informed Pandit Dhanraj as to what had taken place at the aforesaid meeting between him and the appellant No. 1.

Nagindas went to the Constitution House and saw the appellant No. 1 at about 3 p.m. on the 11th April, 1949. Pannalal was already

Rao Shiv Bahadu1

Singh and

Anotf.er

V• The State ef V indhya Pradesh.

BhagwatiJ.

Rao Shiv Bahadur

Singh anrl

Another

T lu State oj' Vindhya Pradesh.

BhagwatiJ.

there.

Nagindas and the appellant No. 1 went into the bedroom where Nagindas requested the appellant No. I to extend the period of the lease for 10 years so that the syndicate might be compensated for the loss sustained by the stoppage of the mining operations ..

The appellant No. I thereupon asked Nagindas to submit a written application in Hindi and as Nagindas did not know it he called Pannalal into the bedroom and asked him to write out an application to that effect.

The appellant No. I after making sure from Pannalal that Pannalal was present at R_ewa on the 1st April, 1949, asked Pannalal to put the date on the said application as the 1st April, 1949.

The appellant No. I made an endorsement at the foot of the said application and dated it as of the 1st April, 1949.

It waSc arranged that Nagindas should see the appellant No. I at 9 p.m. that day, that Nagindas should pav Rs. 25,000 to the appellant No. I at that time and the appellant No. 1 would deliver the resumption order to Nagindas on payment of the said sum of Rs. 25,000.

Nagindas then left the Constitution House and reported to Pandit Dhanraj what had transpired between him and appellant No. I.

He further told Pandit Dhanraj that he had not received any moneys upto that time.

Pannalal was asked to proceed to the Constitution House in advance and inform the appellant No. 1 that Nagindas would be coming along at 9 p.m. that night.

Nagindas and Pandit Dhanraj then proceeded to the house of Shri Shanti Lal Ahuja, Additional District Magistrate. Pandit Dhanraj made arrangements for a raiding party.

Nagindas's statement was recorded on oath and a search of his person was made and he was then given three bundles containing 250 Government currency notes of Rs. 100 and a memorandum of the same was also prepared.

After these formalities were gone through Pandit Dhanraj, Nagindas and the Additional District Magistrate along with the police party left for the Constitution House.

It was arranged that Pannalal should be sent out by Nagindas after the completion of the transaction, on some pretext or other to the taxi waiting outside and that this would serve as a signal for the raiding party

which would rush into the room No. 31 Constitution House which was occupied by the appellant No. 1.

Nagindas then went inside the suit of rooms occupied by the appellant No. 1 and the appellant No. 1 took him to his bedroom and closed the door which connected the bedroom with the sitting room where Pannalal was already waiting.

After this the appellant No. 1 handed over the resumption order to Nagindas and on reading the same Nagindas found that the extension given was only for 4 years and he asked the appellant No. 1 why this was so when the appellant No. 1 had promised before to give an extension for 10 years.

On this the appellant No. 1 told Nagindas that he should put up another application after a few months and then the appellant No. 1 would extend the period.

Appellant No. 1 then signed the resumption order and put down the date thereunder as the 2nd April, 1949.

As .soon as the signed order was handed over to him Nagindas handed over to the appellant No. 1 the Government currency notes of the value of Rs. 25,000 which had been given to him previously by the Additional District Magistrate.

Nagindas then asked for an extra copy of the said order and the same was accordingly given to him after being dated and initialled by the appellant No.

1. The appellant No. 1 took the Government currency notes and put them in the upper drawer of the dressing table in the bedroom.

After the transaction was thus completed Nagindas shouted to Pannalal to go to the taxi and bring his cigarette case.

Pannalal went out to the taxi and on receipt of this signal the Additional District Magistrate and Pandit Dhanraj rushed into the sitting room along with the other members of the raiding party. The appellant No. 1 met the raiding party at the communicating door between the two rooms.

After the Additional District Magistrate and Pandit Dhanraj had disclosed their identity appellant No. 1 was asked by Pandit Dhanraj whether he had received any money as a bribe to which the appellant No. 1 rep, lie<l in the negative.

Pandit Dhanrai then told appellant No. 1 that he should produce the money which he had received, otherwise he would be

Rao Shiv Bahadur

Singh and

Anothtr

The State of V indhya Pradesh~

BhagwatiJ ..

.R.ao Shiv Bahadur

Singh and

Another

v ..

The S1ate af V indhya Pradesh.

BhagwatiJ.

forced to search the room.

On this appellant No. 1 went to the said dressing table, opened the top drawer and brought out the three bundles of Government currency notes given to him by Nagindas and handed them over to Pandit Dhanraj.

On inquiry by the Additional District Magistrate as to how he had come into possession of the said notes, the appellant No. 1 stated that he had brought Rs. 40,000 from his home out of which Rs. 15,000 had been spent by him in the purchase of a motor car and the remaining sum was with him which was required by him to purchase some ornaments in connection with the marriage of his daughter.

In the meanwhile two respectable witnesses, Shri Gadkari, who was a member of the Central Electricity Authority, Ministry of Works, Mines and Power, Government of India, and Shri Perulakar, who was the Minister for Agriculture and Labour, Madhya Bharat, were brought to the bedroom of the appellant No. 1 by the police.

The appellant No. 1 repeated the said statement and gave the same explanation before these two witnesses which he had given and made before the Additional District Magistrate and Pandit Dhanraj a little while before.

Nagindas was then searched in the presence of these two witnesses and the two copies of the order which had been given to him by appellant No. 1 were recovered from his person.

Two other copies of the said order and the application and the file of the Panna Diamond Mining Syndicate were recovered from the search of the upper drawer of the dressing table in the bedroom of appellant No. 1.

Appellant No. 1 also produced a receipt in support of his story of the purchase of the car.

The relevant memos of the search were prepared and also a list of the numbers of the Government currency notes of Rs. 25,000 which had been produced by the appellant No. 1. This list was compared and checked by the said witnesses Gadkari and Perulakar with the numbers of notes and also with those appearing in the list which was in the possession of the Additional District Magistrate and which was shown to the said witnesses. They found that the numbers in the said two lists tallied in all respects. After the completion of the list the Additional

District Magistrate confronted appellant No. 1 with the documents which were produced before him by Naginuas antl also the list of notes and asked appellant No. 1 if he had any explanation to offer.

The appellant No. 1 was confused and could give no explanation.

On further enquiry whether the appellant No. 1 had any other money with him, he opened an iron confiuential box a key of which was in his possession and brought out a sum of Rs. 132 which was not taken charge of as the same had no concern with the case. Thereafter appellant No. 1 was put under arrest and was subsequently released on bail. * * * * After these documents were forged the next important event was the passing of the sum of Rs. 25,000 as and by way of bribe or illegal gratification by Nagindas to the appellant No. 1.

Here also it would have been difficult for the prosecution to establish the guilt of the appellant No. 1 if the matter had rested merely on the evidence of Naginuas or that of the police witnesses supported as they were by Shanti Lal Ahuja, the Additional District Magistrate.

Nagindas's evidence suffering from the infirmity pointed out before could not be enough to carry conviction with the court. He was out to trap the appellant No. 1 and had been clever enough also to have inveigled the police authorities to procure the wherewithal of the bribe for him.

It is patent that but for the procurement of these Rs. 25,000 by the police authorities and their banding over the sum to Nagindas, Nagindas would not have had the requisite amount with him and the offence under section 161 would never have been committ<; d.

The police authorities also exhibited an excessive zeal in the matter of bringing the appellant No. 1 to book and their enthusiasm in the matter of trapping the appellant No. 1 was on a par with that of Nagindas and both the parties were thus equally to blame in the matter of entrapping the appellant No. 1.

The evidence of these witnesses therefore was not such as to inspire confidence in the mind of the court.

Shanti Lal Ahuja, the Additional District Magistrate, also lent himself to the police authorities and became

Rao Shiv Bahadur

Singh and

Another

The State of Vindh)'a Pradesh~

Bhagwati].

Rao Shiv Bahadur Singh and

Another

The State of Vindhya Pradesh.

Bhagwati].

almost a limb of the police.

His position as the Additional District Magistrate was submerged and he reduced himself to the position of an ordinary witness taking part in the affair as a member of the raiding party and his evidence could be no better or no worse than that of the police witnesses themselves.

If therefore the matter had rested merely upon their evidence it would have been difficult to carry the guilt home to the appellant No. 1.

The evidence as to the recovery of this sum of Rs. 25,000 from the top drawer of the dressing table in the bedroom of the appellant No. 1 and also in regard to the handing over of that sum by the appellant No. 1 to Shanti Lal Ahuja, the Additional District Magistrate, was equally tainted and if that evidence stood by itself no court would have been safe in acting upon the same.

The statement which was made by the appellant No. 1 to Shanti Lal Ahuja, the Additional District Magistrate, was inadmissible in evidence.

Section 162 of the Criminal Procedure Code rendered the statement made by the appellant No. 1 to the police officers inadmissible. The investigation into the offence had already started immediately on the First Information Report being registered by the police authorities and Pandit Dhanraj himself admitted in his evidence that the investigation into the offence had thus started before the raid actually took place.

The statement made by the appellant No. 1 to Shanti Lal Ahuja, the Additional District Magistrate was therefore made after the investigation had started and during the investigation of the offence and was therefore hit by section 164 of the Criminal Procedure Code.

It was urged on behalf of the respondent that this statement was not a confessional statement and was therefore not hit by section 164 and Shanti Lal Ahuja, the Additional District Magistrate, could therefore depose to such statement even though the same was not recorded as required by the provisions of section 164 of the Criminal Procedure Code.

There is authority however for the propos1t10n 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 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 by the accused. (See A.LR. 1936 Privy Council 253 and Indian Law Reports 49 Calcutta 167 followed in 26 Criminal Law Journal 1279 and A.LR. 1937 Nagpur 254).

The statement made by the appellant No. 1 therefore to Shanti Lal Ahuja, the Additional District Magistrate, not having been recorded by him in accordance with the provisions of section 164 was inadmissible in evidence and could not be proved orally by him.

If therefore the statement was thus eliminated from evidence nothing remained so far as the witnesses Nagindas and Pannalal on the one hand and the police witnesses as well a.s Shanti Lal Ahuja, the Additional District Magistrate, on the other hand were concerned which could bring the guilt home to the appellant No. 1.

Reliance was therefore placed by the . prosecution on the evidence of Gadkari and Perulakar.

They occupied responsible positions in life and were absolutely independent witnesses.

Two criticisms were levelled against their evidence by the Special Judge. The one criticism was that contrary to the evidence of Pandit Dhanraj they asserted that their statements were not recorded on the night of the 11th April, 1949. Pandit Dhanraj had re.corded their statements after they had left the bedroom of the appellant No. 1 at the Constitution House relying upon his memory of the events that had happened that night. These statements however were not read over to them and therefore could not have the value which otherwise they would have had.

The other criticism was that they had appended their signatures to the Panchanama of the numbers of the currency notes recovered at that time which Panchnama contained the statement that on being asked the appellant No. 1 had produced the bundles of currency notes from the top drawer of the dressing table.

This statement was not factually correct as both these witnesses were brought into the bedroom of the appellant No. 1 after the recovery of the Government currency notes by the police from the appellant No. 1.

It was cer- }\ tainly indiscreet on their part not to have scrutinised • >

Rao Shiv Bahadur Singh and Another v.

T1" Stateof Vindhya Pradesh.

Bhagwati].

Rao Shiv Bahadur

Singh and

Another

The State of Vindhya Pradesh.

BhagwatiJ.

the contents of the Panchnama before they appended their signatures thereto. That is however a far cry from coming to the conclusion that they acted m a highly irresponsible manner and their testimony was unreliable.

The circumstances under which the numbers of the currency notes were recorded m the Panchnama, the statement made by the appellant No. 1 to them and the confusion into which the app<"llant No. 1 fell when he was questioned by the police authorities on the tallying of the numbers contained in the memo prepared when the raid was organised with the numbers of the currency notes actually found in the bedroom of the appellant No. 1 were events which would indelibly print themselves in the memory of these witnesses and even though they were examined in the Court of the Special Judge about 10 months after the occurrence, these events and particularly the fact that the appellant No. 1 claimed these moneys which were thus recovered as his own would certainly not be in any manner whatever forgotten by them.

The only suggestion which was made against the credibility of these witnesses on this point was th::it they must not have exactly remembered what transpired on that night in the bedroom of the appellant No. 1 and that they might have committed an honest mistake when narrating the events that had happened on that night.

An honest lapse of memory would no doubt be a possibility but having regard to the circumstances of the case we are of the opinion that the events that happened that night in the bedroom of the appellant No. 1 and which were deposed to by these witnesses were not such as to be easily forgotten by them and when these witnesses deposed to the fact that the appellant No. 1 claimed this sum of Rs. 25,000 as his own and was utterly confused when explanation was sought from him by the police authorities in regard to the tallying of the numbers of these Government currency notes, it is not easy to surmise that they were suffering from any lapse of memory.

The evidence of these witnesses in regard to the statement made by the appellant No. 1 before them was also attacked on the ground that Shanti Lal

Ahuja, the Additional District Magistrate's asking the appellant No. 1 to repeat the statement which he had earlier made before him to these witnesses was a mere camouflage. Shanti Lal Ahuja, the Additional District Magistrate, knew very well that the statement made by the appellant No. 1 to him was not recorded under the provisions of section 164 of the Criminal Procedure Code and was therefore inadmissible in evidence and he therefore resorted to these tactics of having the appellant No. 1 repeat the very same statement to these witnesses so as to avoid the bar of section 164.

Reliance was placed in this behalf on A.LR. 1940 Lahore 129 (Full Bench) where it was held that if on the facts of any case it was found that a statement made to a third person was in reality intended to be made t-0 the police and was represented as having been made to a third person merely as a colourablc pretence in order to avoid the provisions of section 162 the court would hold it excluded by the section.

The san1e ratio it was submitted applied to the statements made to these two witnesses because they were a colourable pretence to avoid the provisions of section 164 of the Criminal Procedure Code which had certainly not been complied with by Shanti Lal Ahuja, the Additional District Magistrate.

It has however to be observed that every statement made to a person assisting the police during an investigation cannot be treated as a statement made to the police or to the Magistrate and as such excluded by section 162 or section 164 of the Criminal Procedure Code. The question is one of fact and has got to be determined having regard to the circumstances of each case.

On a scrutiny of the evidence of these two witnesses and the circumstances. under which the statements came to be made by the appellant No. 1 to them we are of the opinion that tht appellant No. 1 was asked by Shanti Lal Ahuja, the Additional, District Magistrate, to make the statements to these two witnesses not with a view to avoid the bar of section 164 of the Criminal Procedure Code or by way of colourable pretence but by way of greater caution particularly having regard to the fact that the appellant No. 1 occupied the position of a Minister of

6-98 S.C. India/59

Rao Shiv Bahatl"'

Singh and

Another

The Stak of VindfiJa Praduh.

Bhapati]•

Rao Shiv Bahadur

Singh and

Another

TM State of Vindhya Prarksh.

BhagwatiJ.

Industries in the State of Vindhya Pradesh.

The statements made by the appellant No. 1 to these witnesses therefore did not suffer from this disability and were admissible in evidence.

The evidence of these witnesses being thus worthy of credit and the statements made by the appellarit No. 1 to them being admissible in evidence there is no doubt that the appellant No. 1 claimed these moneys, viz:, Rs. 25,000, which were recovered from the top drawer of the dressing table in the bedroom of the appellant No. 1 as his own being the balance of Rs. 40,000 which he had brought from his home when he came to Delhi.

If this was so the very fact that the numbers of these Government currency notes of the value of Rs. 25,000 tallied with the numbers of the notes which had been handed over to Nagindas earlier when the raid was organised and which numbers were also specified in the memo prepared at that time was enough to establish the falsity of the allegation made by the appellant No. 1 that he had brought these moneys from his home. These moneys .were proved to have been provided by the police authorities and given to Nagindas when the raid was organised and were the instruments of the offence of the taking of the bribe or illegal gratification by the appellant No. 1.

If the numbers of these notes tallied with the numbers of the notes which were thus handed over by the police authorities to Nagindas they could not have belonged to the appellant No. 1 and were certainly brought there by Nagindas and handed over by him to the appellant No. l as alleged by the prosecution.

A suggestion was made that there was opportunity for Nagindas to plant these moneys into the top drawer of the dresing table when the back of the appellant No .. 1 was turned upon him. Even assuming that there was that possibility it is sufficiently negatived by the fact that "".hei; i these moneys were recovered from the top drawer either at the instance of Nagindas as alleged by the appellant No. 1 or at the . instance of the appellant No. 1 as alleged by the prosecution the appellant No. 1 did. not .express any surprise at these moneys being thus found there. If the version of the appellant No. 1

was correct he had only brought about Rs. 25,000 from his house.

Rs. 15,000 has been already spent by him in the purchase of the car.

About Rs. 10,000 were spent by him in the purchase of the ornaments and only a sum of Rs. 100 odd was the balance left with him.

According to that version there was _not the slightest possibility of the sum of Rs. 25,000 being found in the top drawer of the dressing table. flar from expressing a surprise in this manner the appellant No. 1 claimed these moneys as his own.

The appellant No. 1 could not have by any mischance failed to appreciate that these Government currency notes which were thus recovered from the top drawer of the dressing table exceeded by far the amount which according to him he had left with him by way of balance and the most natural reaction to the recovery of this large sum of money would have been that he would have certainly denied that these moneys were llis and he would have been surprised at finding that such a large sum of money was thus found there.

No such reaction was registered on his face.

On the contrary if the evidence of the two witnesses Gadkari and Perulakar is to be believed and we see no reason why it should not be believed, the appellant No. 1 claimed this sum of Rs. 25,000 as his own being the balance out of the money which he had brought from his home when he came to Delhi. This is sufficient to establish that these moneys which earlier had been handed over by the police authorities to Nagindas found their way into the top drawer of the dressing table in the bedroom of the appellant No. 1 and were the primary evidence of the offence under section 161 having been committed by the appellant No. 1.

The further circumstance that on the numbers of these notes being tallied and his explanation in that behalf l?eing asked for by the police authorities the appellant No. 1 was confused and could furnish no explanation in regard thereto also supports this conclusion and there is no doubt left in our minds that the appellant No. 1 was guilty of the offence under section 161 of the Indian Penal Code with which he was charged.

Rao Shiv Bahadur

Singh and

Another

The State of Vindll)1a Pradesh.

BhagwatiJ.

Rao Shiv Baharlur Singh and Another v.

The State of VindJrya Pradesh.

BhagwatiJ.

We cannot however leave this case without expressing our strong disapproval of the part which the police authorities and Shanti Lal Ahuja, the Additional District Magistrate, took in this affair. As already observed this offence would never have been committed by the appellant No. 1 but for the fact that the police authorities provided Nagindas with the wherewithal of the commission of the offence.

Sir Chinubhai as it appears from the evidence was not in a pos1t1on to provide Nagindas with this sum of Rs. 25,000 or any large sum and in fact in spite of the telephone calls made by Nagindas upon him had not provided any amount beyond Rs. 3,000 which was meant for the other expenses of Nagindas, to him.

Nagindas was therefore not 111 a position to provide this sum of Rs. 25,000 for payment of the bribe or the illegal gratification to the appellant No. I.

But for the adventitious aid which he got from the police authorities the matter would not have progressed any further, and Nagindas would have left Delhi empty handed.

The police authorities however once they got scent of the intention of Nagindas thought that it was too good an opportunity to miss for entrapping the appellant No. 1 who occupied the position of the Minister of Industries in the State of Vindhya Pradesh.

They therefore provided the sum of Rs. 25,000 on their own and handed it over to Nagindas. The police authorities in this step which they took showed greater enthusiasm than Nagindas himself in the matter of trapping the appellant No. 1.

It may be that the detection of corruption may sometimes call for the laying of traps, but there is no justification for the police authorities to bring about the taking of a bribe by supplying the bribe money to the giver where he has neither got it nor has the capacity to find it for himself.

It is the duty of the police authorities to prevent crimes being committed.

It is no part of their business to provide the instruments of the offence.

We cannot too strongly disapprove of the step which the police authorities took in this case in the matter of providing the sum of Rs. 25,000 to Nagindas who but for the

police authorities thus coming to his aid ould nc; ver have been able to bring the whole affair to its culromation.

Not only did the police authorities thus become active parties in the matter of trapping the appellant No. 1 they also provided a handy and an ostensibly independent witness in the person of Shanti Lal Ahuja, the Additional District Magistrate. Even though he was a member of the judiciary he lent his services to the police authorities and became a limb of the police as it were.

The part which Shanti Lal Ahuja, the Additional District Magistrate, took in this affair cannot be too strongly condemned.

We can only repeat in this connection the observations of the Privy Council in A.LR. 1936 Privy Council 253 at page 258 in regard to the Magistrates placing themselves in positions where they would have to step into the witness box and depose as ordinary citizens :-

"In their Lordships' view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers under section 162 of the Code; and to be at the same time freed, notwithstanding their position as Magistrates, from any obligation to make records under section 164.

In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever .......... "

The position was laid down with greater emphasis by Mr. Justice P. B. Mukharji in A.LR. 1951 Calcutta

524 at page 528 where the learned Judge observed :-

"Before I conclude I wish to express this court's great disapprobation of the practice that seems to have become very frequent of sending Magistrates as witnesses of police traps.

The Magistrate is made to go under disguise to witness the trap laid by the police.

In this case it was Presidency Magistrate and in other cases which have come to our notice there have been other Magistrates who became such witnesses.

To make the Magistrate a party or a limb of the police during the police investigation seriously

Rao Shiv Bahadur

Singh and

Anoth11

The State of Vindh;'a PradtJli.

BhagwatiJ.

Rao Shiv Bahad111

Singh atcd

Anotl1er

Tht Stat1 of Vindhya Pradesh.

Bhagwati].

undermines the independence of the Magistrates and perverts their judicial outlook. The Magistrates are the normal custodians of the general administration of criminal justice and it is they who normally decide and pass judgments on the acts and conduct of the police.

It is not enough to say, therefore, that the Magistrate acting as a witness in a particular case does not himself try that case.

This practice is all the more indefensible here specially when there is no separation of the executive from the judiciary.

The basic merit of the administration of criminal justice in the State lies in the fact that the person arrested by th~ police is entitled to come before an independent and impartial Magistrate who is expected to deal with the case without the Magistrate himself being in any way a partisan or a witness to police activities.

There is another danger and that is the Magistrates are put in the unenviable and embarrassing position of having to give evidence as a witness and then being disbelieved.

That is not the way to secure respect for the Magistracy charged with tl1e administration of justice.

In my judgment this is a practice which is unfair to the accused and unfair to the Magistrates.

It is also unfair to the police.

Because charged with the high responsibility and duty of performing a great and essential public service of this State the police cannot afford to run the risk of opprobrium, even if unfounded, that they have enlisted the Magistrate in their cause.

That risk is too great and involves forfeiting public respect and confidence ............ "

We perfectly endorse the above observations made by Mr. Justice P. B.

Mukharji and hope and trust that Magistrates will not be employed by the police authorities in the manner it was done by the Special Police Establishment in this case before us.

The independence of the judiciary is a priceless treasure to be cherished and safeguarded at all costs against predatory activities of this character and it is of the essence that public confidence in the independence of the judiciary should not be undermined by any such tactics adopted by the executive authorities. We

have therefore eliminated from our consideration the whole of the evidence given by Shanti Lal Ahuja, the Additional District Magistrate, and come to our conclusion in regard to the gilt of the appellant No. 1 relying solely on the testimony of the two independ- . ent witnesses Gadkari and Perulakar.

The result therefore is that the appeal of the appellant No. 1 will be dismissed except with regard to his conviction and sentence under section 120-B of the Indian Penal Code and the convictions and sentences passed upon him by the Judicial Commissioner under section 465 and section 466 as also section 161 of the Indian Penal Code will be confirmed. The appeal of the appellant No. 2 will be allowed and he be acquitted Md discharged of the offences with which he was charged and immediately set at liberty.

The bail bond of the appellant No. 2 will be cancelled.

V. M. SYED MOHAMMAD AND COMPANY

THE ST A TE OF ANDHRA. (With Connected Appeal)

[MEHR CHAND MAHAJAN C. J., MuKHERJEA,

S. R. DAS, V1v1AN BosE and

GHULAM HASAN JJ.J

Constitution of India, art. 14-Government of India Act, 1935, "'"Y 48 in List I/ of the Seventh Schedule-Madras .General Sales Tax Act (IX of 1939)-Whether ultra vires the Constitution or Government of India Act, 1935-Rule 16(5) framed under the Act-Whether ultra vires s. 5 (vi) of the Act.

Held, that the Madras General Sales Tax Act (IX of 1939) is not ultra vires the Government of India Act, 1935 as entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935 was wide enough to cover a law imposing a tax on the purchaser of goods as well as on the seller.

Held, also that inasmuch as there was nothing to suggest that the purchasers of other commodities were similarly situated as the purchasers of hides and skins in the present case, the Act

Rao Shiv Bahadt11

Si'flgh and

Another

The Stale of Vindhya Pradesh.

Bhagwati].

March111 ..

RAO SHIV BAHADUR SINGH AND ANOTHER

THE STATE OF VINDHYA PRADESH

BHAGWATI

JAGANNADHADAS

s. 164

s. 164

Code of Criminal Procedure

s. 164

P. B. Mukherji

article 134(1)(c)

Constitution of India

Jai Gopal Sethi

K. B. Asthana

C. Isaacs

Murtza Faz! Ali

Porus A. Mehta

sections 120

Indian Penal Code

sections 120

Indian Penal Code

Court of the Special Judge at Rewa

State of Vindhya Pradesh

section 120

Indian Penal Code

section 161

Indian Penal Code

sections 465 and 466

Indian Penal Code

Slate of V indhya Pradesh

State of Vindhya Pradesh

section 120

Indian Penal Code

section 161

Indian Penal Code

Supreme Court

article 134( l)

Constitution Bench

22nd May, 1953

articles 14 and 20

20th October, 1953

1st August, 1936

Panna Durbar

Panna Diamond Mining Syndicate

Chinubhai Madholal

Hiralal Motilal Shah

30th October, 1951

Panna

31st October, 1946

State of

Panna

Vindhya Pradesh

Government of Vindhya Pradesh

Rewa

Rajpramukh

1st September, 1948

Pannalal

13th January, 1949

26th January, 1949

Chinubhai

Nagindas Mehta

Nagindas

Rao Shiv Bahadur

State of f indhya Pradesh

Nagindas

Bombay

Bombav

29th March, 1949

1st April, 1949

4th April, 1949

Pannalal

Delhi

Panna Diamond Mining

Syndicate

Bambawala

Pandit Dhanraj

11th April, 1949

Nagin-

Singh

State ef V indhya Pradesh

State oj' Vindhya Pradesh

Shanti Lal Ahuja

2nd April, 1949

Pandit Dhanraj

Pandit Dhanrai

State of V indhya Pradesh~

Gadkari

Central Electricity Authority

Perulakar

Madhya Bharat

Additional District Magistrate

Naginuas

Nagindas, Nagindas

section 161

Rao Shiv Bahadur

Singh

State of Vindh)'a Pradesh~

Section 162

section 164

section 164

section 164

section 164

Nagindas

Pannalal

Shanti Lal Ahuja

Stateof Vindhya Pradesh

Shanti Lal

Ahuja

section 164

section 164

section 162

section 164

section 162

section 164

section 164

State of Vindhya Prarksh

section 161

section 161

Indian Penal Code

Rao Shiv Bahadur

Singh

State of Vindll)1a Pradesh

Rao Shiv Baharlur Singh

State of VindJrya Pradesh

section 162

section 164

P. B. Mukharji

Rao Shiv Bahadur

Singh

State of Vindh;'a

P. B.

Mukharji

section 120

Indian Penal Code

section 465

section 466

section 161

Indian Penal Code

V. M. SYED MOHAMMAD

MEHR CHAND MAHAJAN

MuKHERJEA

S. R. DAS

V1v1AN BosE

GHULAM HASAN

Constitution of India

art. 14

Government of India Act, 1935

Seventh Schedule

General Sales Tax Act

s. 5

Government of India Act, 1935

Rao Shiv Bahadt11

Stale of Vindhya Pradesh