iminal Appeal No155 of 1965
M R Barot and R Gopalakrishnan for the appellants
P K Chatterjee R H Dhebar and section P Nayyar for the respondent
The Judgment of the Court was delivered by HegdeJ
The appellants in this appeal are two police officers
The first appellant Bhanuprasad Hariprasad Dave was the police Sub Inspector and the second appellant Rajuji Gambhirji was his writer constable in February 1963
At that time both of them were attached to the Navrangpura police station Ahmedabad
They were tried and convicted by the Special Judge Ahmedabad for offences under section 161 read with section 165 A of the Indian Penal Code and section 5 1 d read with section 5 2 of the Prevention of Corruption Act No 2 of 1947 and for those offences each of them was sentenced to suffer rigorous imprisonment for two and half years and a fine of Rs 1000 in default to suffer further rigorous imprisonment for year
The judgment of the learned Special Judge was affirmed by the High Court of Gujarat
It is against that judgment this appeal has been filed after obtaining special leave from this Court
To state briefly the prosecution case is as follows  Ramanlal the complainant in this case wrote a postcard on February 11 1963 to one Madhukanta a lady teacher requesting her to ask Chandrakanta another lady teacher working with her to meet him in connection with certain work
Therein he also wrote that he would be glad if Madhukanta could accompany Chandrakanta
The headmaster of the school where Madhukanta and Chandrakanta were working happened to read that postcard
She took Madhukanta to task for allowing strangers to write to her in that manner
Piqued by the conduct of Ramanlal Madhukanta made over the postcard in question to the first appellant probably with a request that Ramanlal might be pulled up for his conduct
On February 16 1963 the first appellant sent the second appellant to fetch Ramanlal to the police station
On his arrival at the police station Ramanlal was abused and slapped by the first appellant
With a view to got out of the situation
Ramanlal agreed to pay the sum demanded
He therefore asked the first appellant time for payment till the 18th
The first appellant agreed to the same
On the morning of 18th Ramanlal met the Deputy Superintendent of Police AntiCorruption Department and complained to him about the incident in question
He was asked to give a written complaint in that regard which he did
Thereafter he produced before the Dy
SP ten currency notes of Rs 10 each
The numbers of those notes were noted and then those notes were treated with anthracene powder
Ramanlal was asked to give those notes to the first appellant if he made any further demand for bribe
Thereafter he was sent to the police station with the panch witness Dahyabhai
But when they went to the police station they found that the first appellant was not there
They were told that he had gone to attend court
Hence Raman lal and Dahyabhai returned to the office of the Anti Corruption Department and reported to the Dy
SP about the same
Under instructions from the Dy
SP he again went to the office of the Anti Corruption Department on the evening of that day with currency notes
Those notes were again treated with anthracene powder and their numbers noted
Ramanlal was again sent to the Police station with Dahyabhai on that evening at about 5 3o pm
When they went there the first appellant was not there but the second appellant was there
He told them that the first appellant was expected in the station at any moment
Thereafter the second appellant Ramanlal and Dahyabhai went to a nearby tea shop and took tea
By the time they returned to the police station the first appellant was there
Ramanlal told the first appellant that he had brought the money
Then he asked him to pay the same to the second appellant who was in one of the rooms of the police station
When Ramanlal went to pay the money to the second appellant the first appellant took out the postcard written by Ramanlal to Madhukanta showed it to Dahyabhai and thereafter tore it to pieces and burnt it
Meanwhile Ramanlal went and paid the currency notes in question to the second appellant
While Ramanlal and Dahyabhai were in the police station police Sub Inspector Erulker and constable Santramji both belonging to the Anti Corruption Department were observing from a nearby compound the happenings in the police station
The second appellant immediately on receiving the notes in question left the police station
But he was followed by constable Santramji
From the police station the second appellant first went to the shop of one Sanghvi and changed one of the currencynotes
From there he went to the pan shop of Sendhalal and there changed three more currency notes
Thereafter constable Santramji was not able to keep track of him
Meanwhile when things did not go according to plan Ramanlal was somewhat confused
He after paying the amount to the second appellant L1OSup
Cl68 3 26 straight rused back to the Dy
SP and told him what had happened at the police station
Immediately the Dy
He seized the burnt pieces of the postcard
Some of the unburnt pieces were recognised by Ramanlal as portions of the postcard written by him to Madhukanta
From there the Dy
SP proceeded to the shop of Sanghvi and Sendhalal and seized the currency notes changed in their shops by the second appellant
Their numbers tallied with the numbers of the notes earlier handed over to Ramanlal after being treated with anthracene powder
Those notes were full of anthracene powder
The same night the second appellant was arrested and at that time it was found there was considerable anthracene powder on his person
After in vestigation the appellants were prosecuted for the offences mentioned earlier
Both the trial court and the High Court have accepted the prosecution case
This Court being a court of special jurisdiction does not examine the evidence afresh except under exceptional circumstances
No good reasons were shown to us for departing from the ordinary rule
Hence we proceed on the basis that the findings of fact reached by the High Court are correct
Before proceeding to examine the various contentions ad vanced on behalf of the appellants it is necessary to mention that in this case there were two investigations
As seen earlier the trap in this case was laid by the Dy
SP Anti Corruption Department
But when the case came up for trial before the learned Special Judge objection was taken to the trial of the case on the ground that in view of the provisions of the Bombay State Commissioner of Police Act 1959 the investigation in this case should have been made by a Superintendent of Police as there was a Police Commissioner for the city of Ahmedabad
The learned Special Judge accepted that contention and directed a fresh investigation to the extent possible by one of the Superintendents of Police
Because of the fresh investigation in respect of most of the prosecution witnesses the police diary contained two statements one recorded by the DySP and the other by the SP in the course of the trial of the case several prosecution witnesses were alleged to have gone back on the statements given by them during investigation
While deposing in court 27 Madhukanta asserted that she had destroyed the postcard written by Ramanlal as soon as she read the same whereas both Ramanlal as well as the panch witness Dahyabhai had deposed that the first appellant had shown them the postcard in question
SP wherein she appears to have stated that she had given the postcard in question to the first appellant
Mr Barot learned counsel for the appellants strenuously contended that in view of the order of the Special Judge directing re investigation in law the record of the investigation made by the DySP stood wiped out and therefore Madhukanta should not have been cross examined with reference to the statement alleged to have been made by her during the first investigation
We are unable to accept this contention as correct
It is true that the first investigation was not in accordance with law but it is no sense non est
Investigation as held by this Court in section N Bose vs State of Bihar1 includes the laying of trap
That part of the investigation was admittedly done by the Dy
The statements recorded by the Dy
SP in the course of his investigation  though the investigation in question was illegal see H 
N Rishbud vs the State of Delhi2 are still statements recorded by a police officer in the course of investigation under Chapter XIV of the Code of Criminal Procedure and consequently they fall within the scope of sections 161 and 162 of the said Code
Neither in Rishbud s case2 nor in section N Bose s case where investigations had been carried on in contravention of section 5 A of the Prevention Corruption Act this Court considered those investigations as non est
Both the trial court and the High Court have accepted the evidence of Ramanlal and Dahyabhai in preference to that of Madhukanta that the first appellant was in possession of the postcard in question on February 18 1963
This is essentially a finding of fact
In our judgment in coming to that conclusion those courts did not ignore any legal principle
It was next contended by the learned counsel for the appellants that the appellants were convicted solely on the basis of the testimony of Ramanlal the DySP Erulker and Santramji who according to him are all interested witnesses and their evidence not having been corroborated by any independent evidence the same was insufficient to base the conviction of the appellants
Before examining this contention it may be mentioned that so far as Dahyabhai was concerned he appeared to have turned hostile to the prosecution at the trial
He supported the evidence of Ramanlal in some respects but in most important respects he did not support the prosecution case
He admitted 1 CrA1091967decided on March261968
2 11955 1 SCR 1150
28 to have accompanied Ramanlal both in the morning and on the evening of the 18th
He also admitted that he and Ramanlal met a police Sub Inspector in the police station who showed them the postcard written by Ramanlal to Madhukanta
He also corroborated Ramanlal about the talk that Ramanlal had with that Sub Inspector in connection with the payment of bribe
But when it came to the question of identifying that Sub Inspector he denied that it was the first appellant
He also did not identify the second appellant
It was obvious that the had been gained over
So far as Sanghvi is concerned he admitted that a police constable in uniform came to his shop on the evening of the 18th and changed a ten rupee corrency note
But he stated that he was not able to say whether that constable was the second appellant
Sendhalal deposed that a person came to him on the evening of the 18th and changed three ten rupee currency notes
He also stated that he was unable to say whether it was the second appellant who changed those notes he went a step further and stated that the person who came to his shop was not in uniform
But the fact remains that the currency notes seized from the shops of Sanghvi and Sendhalal are the very notes whose numbers had been earlier noted by the Dy
SP and further treated with anthracene
There is the evidence of constable Santramji to establish that the notes in question were changed at the shops of Sanghvi and Sendhalal by the second appellant
The trial court as well as the High Court accepted the evidence of Dahyabhai Sanghvi and Sendhalal to the extent it supported the prosecution case and rejected the rest
It was open for those courts to do so
Now coming back to the contention that the appellants could not have been convicted solely on the basis of the evidence of Ramanlal and the police witnesses we are of opinion that it is an untenable contention
The utmost that can be said against Ramanlal the DySP Erulker and Santramji is that they are partisan witnesses as they were interested in the success of the trap laid by them
It cannot be said and it was not said that they were accomplices
Therefore the law does not require that their evidence should be corroborated before being accepted as sufficient to found a conviction
This position is placed beyond controversy by the decision of this Court in the State of Bihar vs Basawan Singh1 wherein this Court laid down overruling the decision in Rao Shiv Bahadur Singh vs State of Vindhya Pra desh 2 that where the witnesses are not accomplices but are merely partisan or interested witnesses who are concerned in the success of the trap their evidence must be tested in the same way as any other interested evidence is tested and in a proper case the court may look for independent corroboration before convict 1  2 29 ing the accused person
We are unable to agree that any different rule was laid down in Major E G Barsay vs The State of Bombay1
It must be remembered that the decision in Basawan Singh s case1 was given by a Bench of Five Judges and that decision was binding on the Bench that decided Major Barasay s case1
Some of the observations in Major Barasay s case1 no doubt support the contention of the appellants
But those observations must be confined to the peculiar facts of that case
It is now well settled by a series of decisions of this Court that while in the case of evidence of an accomplice no conviction can be based on his evidence unless it is corroborated in material particulars but as regards the evidence of a partisan witness it is open to a court to convict an accused person solely on the basis of that evidence if it is satisfied that that evidence is reliable
But it may in appropriate case look for corroboration
In the instant case the trial court and the High Court have fully accepted the evidence of Ramanlal the Dy
SP Erulker and Santramji
That being so it was open to them to convict the appellants solely on the basis of their evidence
That apart their evidence is substantially corroborated by the evidence of Dahyabhai Sanghvi and Sendhalal
in the case of partisan witnesses the corroboration that may be looked for is corroboration in a general way and not material corroboration as in the case of the evidence of accomplices
It was next contended that even if we accept the prosecution case in full no offence can be said to have been made out under section 161 of the Indian Penal Code
We are unable to accept that contention
To establish the offence under section 161 of the Indian Penal Code all that prosecution had to establish was that the appellants were public servants and that they had obtained illegal gratification for showing or forbearing to show in the exercise of their official functions favour or disfavour to Ramanlal
If he had used his official position to extract illegal gratification the requirements of the law is satisfied
This position is made clear by the decision of this Court in Mahesh Prasad vs The State of UP 3 and Dhaneshwar Narain Saxena vs The Delhi Administration 4
Lastly we come to the question whether the prosecution was barred by section 161 1 of the Bombay Police Act 1951 Bombay Act 22 of 1951 which to the extent material for our present purpose says that in any case of alleged offences by a police officer or of a wrong alleged to have been done by such officer by any 1 1962 2 SCR195
2  3  4  30 act done under colour or in excess of any such duty or authority as mentioned in that Act the prosecution shall not be entertained or shall be dismissed if instituted more than six months of the act complained of
Admittedly the prosecution in this case was instituted more than six months after February 18 1963 the day on which illegal gratification was obtained
In support of the contention that the prosecution is barred by limitation reliance was placed on the decision of this Court in Virupaxappa Veerappa Kadampur vs The State of Mysore1
Therein a head constable was charged under section 218 of the Indian Penal Code
The prosecution case was that on February 23 1954 on receipt of some information that some persons were smuggling ganja the headconstable arrested a person with a bundle containing 13 packets of ganja and seized them and in the panchnama he incorrectly showed the seizure of nine packets of ganja and that on the next day he however prepared a new report in which it was falsely recited that the person with the bundle ran away on seeing the police after throwing away the bundle containing nine packets of ganja
The allegation against the head constable was that the prepared a false report with the dishonest intention of saving the person concerned from whom the ganja was seized and who had been actually caught with ganja from legal punishment
This Court held that under section 161 of the Bombay Police Act 1951 the words under colour of duty have been used to include acts done under the cloak of duty even though not by virtue of the duty that when the head constable prepared a false report he was using the existence of his legal duty as a cloak for his corrupt action and that therefore the act thus done in dereliction of his duty must be held to have been done under colour of duty
The rule laid down in that decision is inapplicable to the facts of the present case
He by taking advantage of_that duty pre pared a false panchnama and false report and therefore it was held that what he did was under the colour of duty
In the present case the appellants cannot be said to have received the bribe under the colour of their duty
There was no connection between the duties to be performed by them and the receipt of the bribe in question
The facts of the present case bear some similarity to the facts in the State of Andhra Pradesh vs N Venugapol2 and the rule laid down therein bears on the question under discussion
This cannot be said to have been done under 1 1963 Supp 2 SCR 62  31 colour of duty
The charge against the second appellant is that he aided the first appellant in his illegal activity
For the reasons mentioned above this appeal fails and the same is dismissed
The appellants who are on bail shall surrender forthwith to serve the remaining portion of the sentences imposed on them
YP Appeal dismissed


Summary:
A postcard written by R to a lady M requesting her to ask another lady to meet him was made over to the first appellant a Police SubInspector
The first appellant asked the second appellant his writer constable to fetch R
On his arrival R was asked to pay money otherwise he would be harassed
R approached the Deputy Superintendent of Police Anti Corruption Department as a result of which a trap was laid and the currency notes treated with anthracene given to R for the payment R and one D went to the first appellant who directed R to pay it to the second appellant
The first appellant took Out the postcard tore it and burnt it while R paid the money
Another police Sub Inspector and constable both belonging to the Anti Corruption Department were keeping a watch from nearby compound
The second appellant went to two shots and changed some currency notes there
The Dy
SP searched the first appellant but nothing incriminating was found
he seized the burnt pieces of postcard sonic of the unburnt pieces were recognised by R The Dy
SP seized the currency notes from the shops and their number tallied
The second appellant was arrested and considerable anthracene powder was found on his person
The appellants were tried tinder sections 161 ind 165A IPC and sections 51d and 52 of the Prevention of Corruption Act by Special Judge Ahmedabad
An objection was taken to the trial that in view of Bombay State Commissioner of Police Act 1959 the investigation should have been made by a Superintendent of Police is there was a Police Commissioner in that city which was upheld and it fresh investigation ordered by a Superintendent of Police
Because of the fresh investigation in respect of most witnesses the police diary contained two statements one recorded by the Dv SP and the other by the SP
While deposing in the trial Court M asserted that she had destroyed the postcard as soon as she read it and she was cross examined by the prosecution in reference to her earlier statement to the Dy SP to the effect that he had Liven the postcard to the first appellant
The Trial Court accepted the prosecution case and convicted the appellants which was upheld by the High Court
In appeal before this Court the appellants contended that i in view of the order of reinvestigation the record of the investigation made by the Dy
SPstood wiped out and therefore M could not have been crossexamined with reference thereof ii the conviction could not solely bebased on the evidence of R and Police witnesses who were all interested witnesses iii no offence
was made out under section 161 IPC as the prosecution had to establish that they were public servants and had obtained illegal gratification for showing or forbearing to show in exercise of their official functions favour or disfavour to R and iv the Prosecution was barred 23 by limitation by section 1611of the Bombay Police Act 1951 as it was instituted more than six months of the offence
HELD  The appeal must be dismissed
iThough the first investigation was not in accordance law but yet it was in no sense non est
Investigation includes laying of trap
That part of the investigation was done by the Dy
The Statements recorded by the Dy
SP in the course of his investigation though the investigation in question was illegal were still statements recorded by a police officer in the course of investigation under Chapter XIV of the Code of Criminal Procedure and consequently they fell within the scope of sections 161 and 162 of the Code27C F SN Bose vs State of Bihar Cr
A 109 of 1967 decided on March 26 1968H N Rishbud vs The State of Delhi   and The State of Bihar vs Basawan Singh   followed
ii While in the case of evidence of an accomplice no conviction can be based on his evidence unless it is corroborated in material particulars but is regards the evidence of a partisan witness it is open to a court to convict an accused solely on that evidence if it is satisfied that that evidence is reliable
But it may in appropriate case look for coroboration
In this case R and the police witnesses could not be said to be accomplices and both the courts below have fully accepted their evidence
So it was open to them to convict the appellants on the basis of their evidence
That apart their evidence was substaintially coroborated by the evidence of D and the shopkeepers
29B D The State of Bihar vs Basawan Singh   followed
Rao Shiv Bahadur Singh vs State of Vindhya Pradesh  overruled
Major EG Barsay vs The State of Bombay 1962 2 SCR 195 distinguished
iii Offence under section 161 IPC was made out The question whether there was any offence which the first appellant could have investigated or not was irrelevant
If he had used his official position to extract illegal gratification the requirement of law was satisfied
29F Mahesh Prasad vs The State of UP   Dhaneshwar Narain Saxena vs The Delhi Administration   followed
iv Section 1611 of the Bombay Police Act 1951 was inapplicable to this case
The appellants could not be said to have received bribe under the colour of their duty
There was no connection between the duties to he performed by them and the receipt of the bribe in question
All that could be said was that the first appellant a police officer taking advantage of his position as a police officer and availing himself of the opportunity afforded by the letter M handed over to him coerced R to pay illegal gratification to him
This could not be said 4to have been done  under colour of duty
The charge against the second appellant was that he aided the first appellant in his illegal activity
30G 31A The State of Andhra Pradesh vs N Venugopal 1964 3 SCR 742 referred to
Virupaxappa Veerappa Kadampur vs The State of Mysore 1963 Supp 2 SCR 6 held inapplicable