Patna High Court
Rishi And Anr. vs State Of Bihar on 17 November, 1954
Equivalent citations: AIR1955PAT425, 1955CRILJ1377, AIR 1955 PATNA 425
JUDGMENT Imam, J.
1. There are two petitioners, namely, Eishi alias Rishi Padda Dutta and Thakur Kishku. They were tried and convicted by Mr. J. N. Sinha, Magistrate, first class, at Jamtara under Section 7, Essential Supplies (Temporary Powers) Act, 1946, and sentenced to undergo rigorous imprisonment for six months each. They preferred an appeal against their conviction and sentence to the court of the Sessions Judge at Dumka. The learned Sessions Judge maintained the sentence, but altered the conviction under Section 7 of that Act to one under Section 8 of the same Act.
With the exception of this modification, the appeal was dismissed. Against the order of the learned Sessions Judge dismissing these petitioners appeal, the petitioners moved this Court in revision.
2. The prosecution case, in short, is that on 15-2-1952 at about 7 p.m. the learned Sub-divisional Magistrate of Jamtara, namely, Sri As Haseeb was returning in a jeep from Maithon dam and was crossing the Barakar river. It is alleged that he found two carts proceeding towards the said river and that each cart contained four bags of rice, each bag weighing about two maunds. The prosecution case further is that Khare Kisku and Thakur Kisku were the cartmen and that Khare Kisku had given put when questioned by the Sub-divisional Magistrate that the bags containing rice were loaded on his cart and that the bags belonged to Rishi Dutta of Panjania.
Thakur Kisku also gave out that the rice in the bags in his cart belonged to Haripada Dutta of Panjania village. These cartmen alleged that these bags of rice were being taken to one Charan Maira of village Bhagabandh in the district of Manbhum which is on the other side of the river. It is alleged that at the time there was inter-district ban on movements of rice at certain places. That being so, the said bags of rice were seized by the Sub-divisional Magistrate.
The Sub-divisional Magistrate not being content with this questioned Rishi Dutta at Panjania, and he too admitted that he had sent the quantity of rice in payment of the Deorhia loan taken by him from the person, mentioned above, of Bhagabandh in Manbhum District. Thereafter the said Sub-divisional Magistrate submitted a report on the basis of which the learned Magistrate Mr. J. N. Sinha took cognizance.
Khare Kisku, Thakur Kisku and Rishi Dutta were tried in the court below jointly along with Haripada Dutta concerning the offence under Section 7, of the Essential Supplies (Temporary Powers) Act, 1946. Haripada Dutta was acquitted and the remaining accused persons were convicted.
3. The defence case on behalf of Rishi Dutta was that the rice in question did not belong to him, nor did he cause it to be carried to the other side of the" river in the district of Manbhurn. Khare Kisku and Thakur Kisku, however, admitted that they were carrying the rice in the carts and further stated that the rice belonged to a man of Bhagabandh who had obtained it in village Panjania and that they had been asked to carry the rice upto Birgaon Ghat on the river Barakar and in the Sub-division of Jamtara, alleging, at the same time that from that place the said rice would be carried to the other side of the river by labourers on their heads.
4. The first point raised before us was that the confessional statements were not admissible in evidence and that being so, the conviction based mainly on the confessions should be set aside as also the sentence. It will be necessary to consider the case of the petitioner Rishi Dutta separately from the case of the petitioner Thakur Kisku. The first point to be determined is whether the confessional statements made before the Sob-divisional Magistrate were one under Section 164 or 364 of the Criminal P.C. or not.
In order that these confessions to the Magistrate to be treated as statements coming under Section 164 of the Criminal P. C., it is necessary for the prosecution to prove that the said confessional statements were in the course of investigation or thereafter before an enquiry or trial. It is more than obvious on the prosecution case itself that the confessional statements to the learned Sub-divi-isional Magistrate were not in the course of investigation, viz., police investigation, for Section 164 falls in Chapter XIV which deals with "information to the police and their powers to investigate".
That being so, it cannot be said that the confessional statements were made under Section 164 of the Criminal P. C.; because they were not made during, the course of the investigation. The question still arises whether they were made before an enquiry or trial. Section 164, Criminal P. C. contains me following important words --" "or at any time afterwards before the commencement of the inquiry or trial".
The words "or at any time afterwards" obviously denote that if the confession was not made in the course of the investigation, then it must be made any time afterwards but before the enquiry or trial commenced. In other words, there must have been some investigation. If there has been no investigation at all, then the question "or at any time afterwards" does not arise. That being so, it cannot be said that the confessional statements made before the Sub-divisional Magistrate were made at any time afterwards before the commencement of the enquiry or trial.
I am, therefore, satisfied that it cannot be held upon the facts of this case that the confessional statements before the Sub-divisional Magistrate were made under Section 164 of the Criminal P. C. Indeed, this was the view of the learned Sessions Judge also. The next question to be determined is whether the confesional statements the learned Sub-divisional Magistrate were made under Section 364 of the Criminal P. C. or not.
Section 364 of the Code provides for examination of the accused and how it should be recorded in Chapter XXV with the heading "of the mode of taking and recording evidence in inquiries and trials". It is clear from the facts of this case that the confessional statements before the learned Sub-divisional Magistrate were not made in ail inquiry or trial, and therefore, these confessional statements cannot be treated as one under Section 364 of the Criminal P. C. The learned Sessions Judge also was of the opinion that these confessional statements were not under Section 164 or under Section 364 of the Criminal P. C., and upon these grounds he did not act upon the principles laid down in the Privy Council decision reported in -- "Nazir Ahmad v. King Emperor', AIR 1936 PC 253 (2) (A), The said confessional statements before the learned Sub-divisional Magistrate were not proved as those statements if recorded were not produced, in court; but the confessional statements to the Magistrate were sought to be proved by oral evidence.
It was submitted that in view of Section 91 of the Evidence Act, the confessional statements before the learned Sub divisional Magistrate could not be proved by oral evidence, and therefore, the oral evidence of the Sub-divisional Officer regarding these statements was inadmissible, and thus the confessions could not be proved. The learned Sessions judge was of the view that Section 91 of the Evidence Act did not apply to a confessional statement made to the Sub-divisional Magistrate since the provisions of Section 91 of the Evidence Act is restricted to the terms, of a contract or of a grant or of any other disposition of property which nave been reduced to the form of a document or in all cases in which any matter is required by law to be reduced to the form of a document.
With this view I am entirely in agreement, and in my opinion. Section 91, Evidence Act, would not be a bar to admission of oral evidence when a confessional statement is made to the Sub-divisional Magistrate which he was not bound to record under Ss. 164 and 364 of the Criminal P. C. I am fortified in this view by the observations of their Lordships in the Privy Council decision reported in AIR 1936 PC. 253(2) (A).
At page 257 it is observed as follows :
"The matter to be considered and decided is one of plain principle and first importance, namely, is such oral evidence as that of the Magistrate Mr. Vasisht, admissible? It was said for the respondent that it was admissible just because it ad nothing to do with Section 164 or with any record. It was argued that it was admissible by virtue of Ss. 17, 21, 24 and 26, Evidence Act, 1872, just as much as it would be if deposed by a person other than a Magistrate.
It was also said, and with this argument their Lordships agree, that if the oral evidence was admissible then Section 91, Evidence Act, requiring evidence in writing did not apply because the matter would in such a case not be one which had to be reduced to writing."
It is thus clear, therefore, that as the confessional statements before the Sub-divisional Magistrate were not under Section 164 of the Criminal P. C. or Section 364 of that Code, and therefore, were not required to be recorded in writing, Section 91, Evidence Act was no bar for adducing oral evidence to prove the said confessional statements.
5. The question, however, is whether a confessional statement made to a Magistrate can be treated as extra-judicial confession; in other words, can the confessional statement be considered to have been made to an ordinary individual, such as a private citizen? In that same decision of the Privy Council, their Lordships have observed as follows :
"for the appellant it was said that the Magistrate was in a case very different from that or a private person, and that his case and his powers were dealt with and delimited by the Criminal Procedure Code, and that if this special Act dealing with the special subject-matter now in question set a limit to the powers of the Magistrate,, the general Act could not be called in aid so as to allow him to do something which he was unable to do, or was expressly or impliedly forbiddert to do, by the Special Act.
The argument was that there was to be found by necessary implication in the Criminal Procedure Code a prohibition of that which was here attempted to be done; in other words, that the Magistrate must proceed under Section 164, or not at all."
Their Lordships further go on to observe:
"It can hardly be doubted that a Magistrate would not be obliged to record any confession made to him if for example, it were that of a self-accusing madman or for any other reason the Magistrate thought it to be incredible or useless for the purposes of justice. Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applies is a different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all.
Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts -- 'Taylor v. Taylor', (1875) 1 Ch D 426 at p. 431 (B) and although the Magistrate acting under this group of sections is not acting as a Court, yet he is a judicial officer and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to Section 164."
Their Lordships have further observed as follows :
"On the matter of construction Sections 164 and 364 must be looked at and construed together, and it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves. Upon the construction adopted by the Crown, the only effect of Section 164 is to allow evidence to be put in a form in which it can prove itself under Sections 74 and 80, Evidence Act.
Their Lordships are satisfied that the scope and extent of the section is far other than this, and that it is a section conferring powers on Magistrates and delimiting them. It is also to be observed that, if the construction contended for by the Crown Be correct, all the precautions and safeguards laid down by Sections 164 and 364 would be of such trifling value as to be almost idle.
Any Magistrate of any rank could depose to a confession made by an accused so lone as it was not induced by a threat or promise, without affirmatively satisfying himself, that it was made voluntarily and without showing or reading to the accused any version of what he was supposed to have said or asking for the confession to be vouched by any signature. The range of magisterial confessions would be so enlarged by this process that the provisions of Section 164 would almost inevitably be widely disregarded in the same manner as they were disregarded in the present case.
As a matter of good sense, the position of accused persons and the position of the magistracy are both to be considered, An examination of the Code shows how carefully and precisely defined is the procedure regulating what may be asked of or done in the matter of examination of accused persons and as to how the results arc to be recorded and what use is to be made of such records.
Nor is this, surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath. So with regard to the magistracy, it is for obvious reasons most undesirable that Magistrates and Judges should be in the position of witnesses in so far as it can be avoided. Sometimes it cannot be avoided, as under Section 533, but where matter can be made of record and therefore admissible as such, there are the strongest reasons of policy for supposing that the Legislature designed that it should be made available in that form and no other.
In their Lordships' view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers, than as judicial persons; to be by reason of their position freed from the disability that attaches to 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. Their Lordships, are, however, clearly of opinion that this unfortunate position cannot in future arise because, in their opinion, the effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by Magistrates when made during an investigation, and to render inadmissible any attempt to deal with then in the method proposed in the present case.
The evidence of Mr. Vasisht should therefore in the opinion of their Lordships, have been rejected by the Court."
6. In the above case, the statement was not purported to have been recorded by the Magistrate under Section 164 of the Criminal P. C., as in present case; I have already stated above, there was no statement at all recorded by the Magistrate, under Section 164 of the Criminal P. C. Their Lordships in the said Privy Council ruling considered a number of cases on the point of admissibility or inadmissibility of the oral evidence of the - Magistrate.
These cases are referred to in the said ruling at page 256. It appears that the majority ruling and in particular the rulings of the Calcutta High Court' clearly indicate such evidence as inadmissible.
7. In a ruling of the Patna High Court reported in --. 'Emperor v Kommoju Brahman', AIR 1940 Pat 163 (C), a Division Bench ruling, this very matter was under consideration. Meredith, J, (as he then was) when dealing with this point observed as follows:
"It might be said that even if the confession is not one properly recorded by the Magistrate under Section 164, it might still be proved, not under the provisions of Section 80, Evidence Act, not as a confession formally recorded by a Magistrate, but as a sort of extra-judicial confession made to a person whose position renders him worthy of credit.
It might be argued with some plausibility (sic) that if a casual confession to an outsider made without any warning, such as the extra-judicial confession to the doctor in the present case, can be proved, then why cannot the confession to the Magistrate be equally proved? Is not a Magistrate ~ as worthy of credence as a doctor or as a chance bystander who hears an extra-judicial confession?
And if the provisions of Section 80, Evidence Act, are not applicable, why riot the provisions of Sections 17, 21, 24 and 26?
The answer to this is that the Privy Council in AIR 1936 PC 253 (2) (A) has considered this very question and has said "No". In view of that deci sion it must be held that, though an extra-judicial confession to any ordinary person (other than a police officer) can be proved, such a confession cannot be proved at all if made to a Magistrate unless the provisions of Section 164, Criminal P. C., have been complied with; and it will not help, in view of that decision, for a Magistrate to say that he did not purport to act under the provisions of Section 164."
8. The principle appears to be that where the Legislature has specially provided in clear and precise terms how a confession is to be made to a Magistrate and thereby delimiting the powers of the Magistrate, it is not open to the prosecution to resort to some other method, namely, that of extra-
judicial confession being made to the Magistrate. In my opinion, having regard to the rulings stated above, namely, that of the Privy Council and some of the rulings of the Calcutta High Court and the ruling of the Patna High Court just referred to, the confessions made to the Magistrate in this case are inadmissible in evidence, and must, therefore, be excluded from consideration.
9. I will now deal with the merits of the case excluding the confessions made to the Magistrate. So far as Rishi alias Rishi Padda Dutta is concerned, the. only evidence against him is the confession made to the Magistrate and P. W. 5. The confession of Rishi Padda Dutta before P. W. 5 is admissible but he has retracted this confession and as there is no corroboration, it is not possible to act on this confession. That being so, there is no evidence so far as this petitioner is concerned, and he must, therefore, be acquitted.
10. So far as Thakur Kisku is concerned, apart from the confession made to the Magistrate, there are other materials on the record. It is, therefore, necessary to see whether those materials other than the confession made to the Magistrate are sufficient to find, the petitioner guilty of the charge. framed against him. I may point out straightway that the notification of the Bihar Government imposing a baa on inter-district movements of rice was not questioned before us; nor was it questioned that, at the time of the occurrence this notification was not in force.
That being so, it has to be held that there was this notification of the Bihar Government and that it was in force at the time of the occurrence. It appears from the evidence of the prosecution witnesses that the river Barakar is the boundary line between Jamtara subdivision which is to the north of the river and the district of Manbhum which is to the south of the river. Birgaon ghat, the ghat in question, is to the north of this river and is in Jamtara subdivision.
The evidence of P. Ws. 3 and 7 proves that they were returning from Maithon dam in a jeep along with others and that they noticed from a distance of about 60 to 100 yards just after the crossing of the Barakar river two carts which had been intercepted in the Jamtara subdivision. It is thus clear upon this evidence that these carts were proceeding towards the Barakar river and were very close to this river.
The case of the cartmen was that they were taking the said bullock carts with the prohibited articles to the ghat and that the articles would then be carried over to the other side of the river by labourers. It is thus proved beyond all doubt that these, bullock carts were driven by the cartmen, one of whom is the petitioner Thakur Kisku, carrying rice and that the rice was to be transported into the Manbhum district.
The evidence of P. W. 1 is that the two carts were seen at a distance of a few yards towards the Panjania side of the river and that these carts were proceeding towards the river containing bags of rice. This evidence also supports what I have stated above that the bullock carts containing rice were being driven towards the river by the 'cartmen and that they were very close to the river at the time when this witness noticed these carts.
The evidence of P. W. 2 who was also returning with the Subdivisional officer in the same car is that he saw the carts going towards the river driven by Khare Kisku and Thakur Kisku. His evidence, therefore, also supports what I have held above. P. Ws. 3 and 4, the former being the driver of the car and the latter being an occupant "of the car, have deposed to the same effect. The evidence of P. W. 5 is of some importance. Ha is a resident of Panjania, and according to him the petitioner Thakur Kisku had confessed that the rice on his cart belonged to Haripada Dutta of Panjania and that he was carrying it to Charan Maira of Bhaga-bandh.
P. Ws. 1, 2, 3 and 4 have deposed that the petitioner Thakur Kisku had confessed before them. There is no reason whatsoever to disbelieve these witnesses and that the only conclusion that can be reasonably drawn is that the petitioner Thakur Kisku was driving one of the bullock carts with the prohibited articles, namely, the rice, and that he was driving it towards the Barakar river.
11. It is submitted on behalf of the petitioner that the petitioner himself was not taking the cart across die river and that it would have been very difficult to take the cart across the river as there was chest-deep water, and that ultimately the rice would have been carried across the river by labourers on their head. One defence witness has been examined to prove that the, water in the river at the ghat is chest-deep and that there were big boulders in the bed of the river.
The suggestion obviously is that bullock carts could not cross this river on account of boulders and the depth of the river. There is not much substance in it in view of the fact that a Jeep can go across the' river. It appears to me that the defence taken is an afterthought. What has really happened is that the petitioner Thakur Kisku, has been caught red-handed in committing this crime.
12. It was further submitted that no question was put -by the trial Court to Thakur Kisku as to whether he confessed his guilt. This was an error on the part of the trial Court, in my Opinion; but it does not materially affect this case, because in my opinion no prejudice was caused for the reason that the defence put forward was that this petitioner was taking the bullock cart to the river, and it is admitted that the prohibited article was being taken across the river, at least, by labourers.
It is for these reasons that the appellate court had converted the conviction under Section 7 of the Essential Supplies (Temporary Powers) Act, 1946, to one under S, 8 of that Act. In other words, the appellate Court held that it has been proved that the petitioner was attempting to commit the crime. In my opinion, therefore, so far as the petitioner Thakur Kisku is concerned, no case has been made out for interfering with his conviction. For the reasons stated above, in my opinion, the petitioner Rishi alias Rishi Padda Dutta should be acquitted.
13. The only question that now remains to be considered is whether the sentence imposed upon the petitioner Thakur Kisku should be maintained or modified. The sentence imposed by the trial Court on this petitioner was six months' rigorous imprisonment. The petitioner has already served about ten days in jail, and having regard to the fact that the notification in question is no longer in force and further that the petitioner is on bail, no useful purpose would be served by sending him back to jail.
I would, therefore, reduce the sentence to the period already undergone and in lieu of the balance of the sentence, I would impose a fine of Rs. 50/- in default, rigorous imprisonment for two weeks. So far as the petitioner Rishi Dutta is concerned he is acquitted. The application of the petitioner Rishi alias Rishi Padda Dutta is allowed, and the application of the petitioner Thakur Kisku is dismissed accordingly.
Ahmad, J.
14. I agree.