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Sunny Honey (Student)     02 April 2009

Judgments Required

JUDGEMENT REQUIRED URGENTLY - Pyare Lal Vs State of Rajasthan (1963) CrLJ 178 (SC)



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 3 Replies

Vinodkumar Kotabagi (Advocate and Trademark Attorney)     02 April 2009

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N.K.Assumi (Advocate)     03 April 2009

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manu (advocate)     07 April 2009

Supreme Court of India


PETITIONER:
PYARE LAL BHARGAVA

Vs.

RESPONDENT:
STATE OF RAJASTHAN

DATE OF JUDGMENT:
22/10/1962

BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
IMAM, SYED JAFFER
AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.

CITATION:
1963 AIR 1094 1963 SCR Supl. (1) 689
CITATOR INFO :
RF 1967 SC 349 (11)
F 1973 SC 264 (5)


ACT:
Criminal Law-Theft-Temporary deprivation of property, if
wrongful loss-Retracted confession-Evidentary value-
Corroboration-Rule of practice-Indian Penal Code, 1860 (Act
45 of 1860), ss. 378, 379-Indian Evidence Act, 1872 (1 of
1872), ss. 3, 24.



HEADNOTE:
The appellant was convicted under s. 379 of the Indian Penal
Code. He was a Superintendent in the Chief Engineer's
office and got a file removed from the Secretariat through a
clerk, took it home and made it available to his friend, the
co-accused, who removed certain documents by substituting
others. The appellant returned the file to the office that
next day. He made a confession when the Chief Engineer
threatened that if he did not disclose the truth the matter
would be placed in the hands of the Police. That confession
was later retracted. The three courts below were of the
opinion that the statement of the Chief Engineer did not
amount to a threat in the circumstances of the case.
Held, that s. 24 of the evidence Act waives the stringent
rule of proof as laid down by s. 3 of the Act and requires
the court to form a prima facie opinion on the evidence and
circumstances of the particular case whether a confession
should or should not be excluded as being involuntary. It
is not possible to lay down any inflexible standard and the
Supreme Court acting under Art. 136 of the Constitution
would not ordinarily differ from the concurrent findings
arrived at by the courts below.
A retracted confession may form the legal basis of a con-
viction if the court is satisfied that it was true and
voluntarily made. As a general rule of practice, however,
it is unsafe to rely upon a confession, much less a
retracted confession, unless the court is satisfied that the
retracted confession was true, voluntarily made and
corroborated in material particulars.
In the present case there could be no doubt that the
necessary ingredients constituting the offence of theft were
mad
690
To constitute theft the loss caused need not be permanent
Even temporary dispossession, though the person taking the
property intended to restore it, may constitute theft.
Illustrations (b) and (1) of s. 378 of the Indian Penal Code
clearly show that a temporary deprivation of another person
of his property may cause wrongful loss to him.



JUDGMENT:
CRIMINAL APPELLATE, JURISDICTION: Criminal Appeal No. 2 of
1962.
Appeal by special leave from the judgment and order dated
April 25, 1953 of the Rajasthan High Court Jaipur Bench,
Jaipur in Criminal Revision No. 237 of 1956.
S. P. Varma, for the appellant.
S. K. Kapur and P. D. Menon, for the respondent.
1962. October 22. The judgment of the Court was delivered
by
SUBBA RAO, J. This appeal by special leave is directed
against the decision of the High Court of Rajasthan in
Criminal Revision No. 237 of 1956 confirming that of the
Sessions judge, Alwar, convicting the appellant under s. 379
of the Indian Penal Code and sentencing him to a fine of Rs.
200/-.
To appreciate the questions raised in this appeal the
following facts, either admitted or found by the High Court,
may be stated. On November 24, 1945, one Ram Kumar Ram
obtained permission, Ex. PB, from the Government of tile
former Alwar State to supply electricity at Rajgarh, Khertal
and Kherli. Thereafter, he entered into partnership with 4
others with an understanding that the licence would be
transferred to a company that would be floated by the said
partnership. After the company was formed, it put in an
application to the Government through
691
its managing agents for the issue of a licence in its
favour. Ex. P. W. 15/B is that application. On the advice
given by the Government Advocate, the Government required
Ram Kumar Ram to file a declaration attested by a Magistrate
with regard to the transfer of his rights and the licence to
the company. On April 8, 1948, Ram Kumar Ram filed a
declaration to that effect. The case of the prosecution is
that Ram Kumar Ram was a friend of the appellant. Pyarelal
Bhargava, who was a Superintendent in the Chief Engineer's
Office, Alwar. At the instance of Ram Kumar Ram, Pyarelal
Bhargava got the file Ex. PA/ 1 from the Secretariat
through Bishan Swarup, a clerk, before December 16, 1948,
took the file to his house sometime between December 15 and
16,1948, made it available to Ram Kumar Ram for 'removing
the affidavit filed by him on April 9, 1948, and the
application, Ex. P. W. 15/B from the file and substituting
in their place another letter Ex. PC and another
application Ex. PB. After replacing the said documents,
Ram Kumar Ram made an application to the Chief Engineer on
December 24, 1948, that the licence should not be issued in
the name of the company. After the discovery of the
tampering of the said documents, Pyarelal and Ram Kumar were
prosecuted before the Sub-Divisional Magistrate, Alwar--the
former for an offence under s. 379 and s. 465, read with s.
109, of the. Indian Penal Code, and the latter for an
offence under ss. 465 and 379, read with s. 109 of the
Indian Penal Code. The Sub-Divisional Magistrate convicted
both the accused under the said sections and sentenced them
on both the counts. On appeal the Sessions judge set aside
the Conviction under s. 465, but maintained the conviction
and sentence of Pyarelal Bhargava under s. 379, and Ram
Kumar Ram under s. 379, read with s. 109, of the Indian
Penal Code. Ram Kumar Ram was sentenced to pay a fine of
Rs. 500/- and Pyarelal Bhargava to pay a fine of Rs. 200/-.
Against these convictions both the accused
692
filed revisions to the High Court and the High Court set
aside the conviction and sentence of Ram Kumar Ram but
confirmed those of Pyarelal Bhargava. Pyarelal Bhargava has
preferred the present appeal.
Learned counsel for the appellant raised before us three
points, namely, (1) the High Court has wrongly relied upon
the confession made by the accused before Shri P. N.
Singhal, Officiating Chief Secretary to the Matsya
Government at that time, as that confession was not made
voluntarily and, therefore, irrelevant under s. 24 of the
Evidence Act; (2) the said confession having been retracted
by the appellant, the High Court should not have relied upon
it as it was not corroborated in material particulars; and
(3) on the facts found 'the offence of theft has not been
made out within the meaning of s. 379 of the Indian Penal
Code. Another argument, namely, that the statement made by
Pyarelal Bhargava before the Chief Secretary was not a
confession in law, was suggested but not pursued and,
therefore, nothing need be said about it.
The first question turns upon the interpretation of the
provisions' of s. 24 of the Evidence Act and its application
to the facts found in this case. Section 24 of the Evidence
Act lays down that a confession caused by inducement, threat
or promise is irrelevant in criminal proceedings under
certain circumstances. Under that section a confession
would be irrelevant if the following conditions were
satisfied: (1) it should appear to the court to have been
caused by any inducement, threat or promise; (2) the said
threat, inducement or promise must have reference to the
charge against the accused person; (3) it shall proceed from
a personal authority; and (4) the court shall be of the
opinion that the said inducement, threat or promise is
sufficient to give the accused per-son grounds which would
appear to him reasonable in supposing that he would gain an
advantage or avoid any
693
evil of a temporal nature in reference to the proceedings
against him. The crucial word in the first ingredient is
the expression " appears". The appropriate meaning of the
word "appears" is "seems". It imports a lesser degree of
probability than proof. Section 3 of the Evidence Act says:
"A fact is said to be 'proved' when after
considering the matters before it, the Court
either believes it to exist, or considers its
existence so probable that a prudent man
ought, under the circumstances of the
particular case, to act upon the supposition
that it exists.
Therefore, the test of proof is that there is such a high
degree of probability that a prudent man would act on the
assumption that the thing is true. But under s. 24 of the
Evidence Act such a stringent rule is waived but a lesser
degree of assurance is laid down as the criterion. The
standard of a prudent man is not completely displaced, but
the stringent rule of proof is relaxed. Even so, the laxity
of proof permitted does not warrant a court's opinion based
on pure surmise. A prima facie opinion based on evidence
and circumstances may be adopted as the standard laid down.
To put it in other words, on the evidence and the
circumstances in a particular case it may appear to the
court that there was a threat, inducement or promise, though
the said fact is not strictly proved. This deviation from
the strict standards ,of proof has been designedly accepted
by the Legislature with a. view to exclude forced or induced
confessions which sometimes are extorted and put in when
there is a lack of direct evidence. It is not possible or
advisable to lay down an, inflexible standard for guidance
of courts, for in the ultimate analysis it is the court
which is called upon to exclude a confession by holding in
the circumstances of a particular case that the confession
was not made voluntarily.
The threat, inducement or promise must proceed from a person
in authority and it is a question
694
of fact in each case whether the person concerned is a man
of authority or not. What is more important is that the
mere existence of the threat, inducement or promise is not
enough, but in the opinion of the court the said threat,
inducement or promise shall be sufficient to cause a
reasonable belief in the mind of accused that by confessing
he would get an advantage or avoid any evil of a temporal
nature in reference to the proceedings against him: while
the opinion is that of the court, the criterion is the
reasonable belief of the accused. The section, therefore,
makes it clear that it is the duty of the court to place
itself in the position of the accused and to form an opinion
as to the state of his mind in the circumstances of a case.
In the present case it was found that certain documents in
the Chief Enginecr's Office were tampered with and certain
papers were substituted. The appellant was the
Superintendent in the Chief Engineer's Office. On April 11,
1949, Shri P. N. Singhal, Officiating Chief Secretary to the
Matsya Government, was making a departmental inquiry in
respect of the missing documents. The appellant, among
others, was questioned about the said documents. The
appellant first made a statement, Ex. PL, in which he
stated that he neither asked Bishan Swarup to bring file No.
127, nor did he recollect any cause for calling for that
file on or about that date. As Shri Singhal was not able to
find out the culprit, he expresser his opinion that if the
whole truth did not come out, he would hand over the inquiry
to the police. Thereafter, the appellant made a statement,
Ex. P.L. 1, wherein, in clear terms, he admitted that about
the middle of December 1948 Ram Kumar Ram took file No. 127-
P. W./48 regarding issue of licence to the Bharat
Electrical and Industrial Corporation Ltd., Alwar, from his
residence to show it to his lawyers, and that he took the
file more than once for that purpose. He also added that
this was
695
a voluntary statement. Learned counsel for the appellant
argued that the Chief Secretary gave the threat that, if the
appellant did not disclose the truth he would place the
matter in the hands of the police and that the threat
induced the appellant to make the disclosure in the hope
that he would be excused by the authority concerned. There
is no doubt that the Chief Secretary is an authority within
the meaning of s. 24 of the Evidence Act, but the simple
question is whether the alleged statement by the said
authority reappears" to the court to be a threat with
reference to the charge against the accused. As we have
said, under particular circumstances whether a statement
appears to the court to be a threat or not is a question of
fact. In this case the three lower courts concurrently held
that in the circumstances of the case the statement did not
appear to be a threat within the meaning of s. 24 of The
Evidence Act., but that was only a general statement which
any person who lost his property and was not able to find
out the culprit would make. It may be that such a statement
under different circumstances may amount to a threat or it
may also be that another court may take a different view
even in the present circumstances of the case, but in
exercising the powers under Art. 136 of the Constitution we
are not prepared to differ from the concurrent finding given
by the three courts that in the circumstances of the present
case that the said statement did not appear to them to be a
threat.
The second argument also has no merits. A retracted
confession may form the legal basis of a conviction if the
court is satisfied that it was true and was voluntarily made
But it has been held that a court shall not base a
conviction on such a confession without corroboration. It
is not a rule of law, but is only rule of prudence. It
cannot even be laid down as an inflexible rule of practice
or prudence that under no circumstances such a conviction
can be
696
made without corroboration, for a court may, in a particular
case, be convinced of the absolute truth of a confession and
prepared to act upon it without corroboration; but it may be
laid down as a general rule of practice that it is unsafe to
rely upon a confession, much less on a retracted confession,
unless the court is satisfied that the retracted confession
is true and voluntarily made and has been corroborated in
material particulars., The High Court having regard to the
said principles looked for corroboration and found it in the
evidence of Bishan Swaroop, P.W-7, and the entry in the Dak
Book, Ex. PA. 4, and accepted the confession in view of the
said pieces of corroboration. The finding is one of fact
and there is no permissible ground for disturbing it in this
appeal.
The last point is that on the facts found no case of theft
has been made out. The facts found were that the appellant
got the file between December 15 and 16, 1948, to his
house, made it available to Ram Kumar Ram and on December
16, 1948, returned it to the office. On these facts it is
contended that the prosecution has not made out that the
appellant dishonestly took any movable property within the
meaning of s. 378 of the Indian Penal Code. The said
section reads :
"Whoever, intending to take dishonestly any
movable property out of the possession of any
person without that person's consent, moves
that property in order to such taking, is said
to commit theft.
The section may be dissected into its component parts thus :
a person will be guilty of the offence of theft, (1) if he.-
intends to cause a wrongful gain or a wrongful loss by
unlawful means of Property to which the person gaming is not
legally entitled or to which the person losing is legally
entitled, as the case may be:
697
see ss.23 and 24 of the Indian Penal Code; (2) the said
intention to act dishonestly is in respect of movable
property; (3) the said property shall be taken out of the
possession of another person without his consent; and (4) he
shall move that property in order to such taking. In the
present case the record was in the possession of the
Engineering Department under the control of the Chief
Engineer. The appellant was the Superintendent in that
office; he took the file out of the session of the said
engineer. removed the file from office and handed it over
to Ram Kumar Ram. But it is contended that the said facts
do not constitute the offence of theft for three reasons,
namely, (i) the Superintendent was in possession of the file
and therefore he could not have taken the file from himself;
(ii) there was no intention to take it dishonestly as he had
taken it only for the purpose of showing the documents to
Ram Kumar Ram and returned it the next day to the office and
therefore he had not taken the said file out of the
possession of any person; and (iii) he did not intend to
take it dishonestly, as he did not receive any wrongful gain
or cause any wrongful loss to any other per-son. We cannot
agree that the appellant was in session of the file. The
file was in the Secretariat of the Department concerned,
which was in charge of the Chief Engineer. The appellant
was only one of the officers working in that, department and
it cannot, therefore, be said that he was in legal posse-
ssion of the file. Nor can we accept the argument that on
the assumption that the Chief Engineer was in possession of
the said file, the accused had not taken it out of his
possession. To commit theft one need not take movable
property permanently out of the possession of another with
the intention not to return it to him. It would satisfy the
definition if he took any movable property out of the
possession of another person though he intended to return it
later on. We cannot also agree with learned counsel that
there is no wrongful loss in the present case.
698
Wrongful loss is loss by unlawful means of property to which
the person losing it is legally entitled. It cannot be
disputed that the appellant unauthorisedly took the file
from the office and handed it over to Ram Kumar Ram. He
had, therefore, unlawfully taken the file from the
department, and for a short time he deprived the Engineering
Department of the possession of the said file. The loss
need not be caused by a permanent deprivation of property
but may be caused even by temporary dispossession, though
the per-son taking it intended to restore it sooner or
later. A temporary period of deprivation or dispossession
of the property of another causes loss to the other. That a
person- will act dishonestly if he temporarily dispossesses
another of his property is made clear by illustrations (b)
and (1) of s.378 of the Indian penal code. They are:
(b) A puts a bait for dogs in his pocket,
and thus induces z's dog to follow it. Here,
if A's intention be dishonestly to take the
dog out of Z's possession without Z's consent,
A has committed theft as soon as Z's dog has
begun to follow A.
(1). A takes an article belonging to Z out of
Z's possession without Z's consent, with the
intention of keeping it until he obtains money
from Z as a reward for its restoration. Here
A takes dishonestly; A has therefore committed
theft.
It will be seen from the said illustrations that a temporary
removal of a dog which might ultimately be returned to the
owner or the temporary taking of an article with a view to
return it after receiving some reward constitutes theft,
indicating thereby that temporary deprivation of another
person of his property causes wrongful loss to him. We,
therefore, hold that the facts found in this case clearly
bring them within the four comers of s. 378 of the Indian
699
Penal Code and, therefore, the courts have rightly held that
the appellant had committed the offence of theft.
No other Point was pressed before us. In the result the
appeal fails and is dismissed.
Appeal dismissed.





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