Piyush Kanti Deo vs The State of Bihar

S.K. Katriar, J.—This criminal revision application is directed against the judgment dated 18.8.88, passed by Mr. Satyendra Kumar Gupta, 2nd Additional Sessions Judge, West Champaran, Bettiah, in Criminal Appeal No. 32/87 (Piyush Kanti Deo vs. State of Bihar), whereby he has affirmed in full the judgment dated 18.8.87, passed by Mr. Ram Nath, Chief Judicial Magistrate, Bettiah, in Tr. No. 4/86/G.R. No. 73/81 (State of Bihar vs. Piyush Kanti Deo). The trial court by its judgment convicted the petitioner u/s 409 I.P.C. and sentenced him to undergo rigorous imprisonment for six years, and further sentenced him to pay a fine of Rs. 5,000/- and in default whereof he was further to suffer a sentence for six months rigorous imprisonment. The sentences were to run consecutively. According to the prosecution case the petitioner was a Nazir in Sikta Block in the district of West Champaran at the relevant point of time. According to the written report dated 17.1.81 (Ext. 2), the informant, Tripurari Sharan Srivastava (P.W. 7), the petitioner herein had been entrusted with the duty of taking bill No. 174/80-81, for Rs. 16,000/- to the Collector, West Champaran, Bettiah, for his countersignature and thereafter for presentation in the Treasury for encashment. The accused-petitioner did not return to Sikta Block till 15.1.81 and, therefore, information was sent to the higher authorities at Bettiah. The informant, who was the Project Executive Officer, Sikta Block, alongwith other functionaries went to Bettiah and tried to ascertain the whereabouts of the accused petitioner where it was learnt that he had encashed 8 M.R.D. bills totalling Rs. 1,65,000/- which he did not deposit in the concerned Bank account of the Government. The aforesaid report dated 17.1.81 gave the details of the 8 bills. The written report was lodged on 17.1.81, and on the basis of which a formal F.I.R. (Ext.3) was drawn, and a police case was registered against the accused petitioner u/s 409 I.P.C. The police investigated the allegations and submitted charge-sheet against the accused petitioner u/s 409 IPC. The learned C.J.M. was pleased to take cognizance and framed charges against the petitioner u/s 409 I.P.C. The petitioner did not plead guilty and claimed to be tried.

The prosecution examined altogether following ten witnesses. Awadhesh Kumar Verma (P.W. 1) was the Head Clerk in the office of the S.D.O., Bettiah; Bihari Nath Mishra (P.W. 2), was posted as an Assistant in the Government Treasury, Bettiah, and was looking after miscellaneous revenue deposit and repayment; Ram Bahal Singh (P.W. 3) was posted as Accountant in the Government Treasury at Bettiah; Kailash Prasad Gupta (P.W. 4) was posted as Nazir at Sikta Block; Akileshwar Kumar Choudhary (P.W. 5), was posted as an officer in the State Bank of India at Bettiah; Khaderu Mishra (P.W. 6) was a Junior Management officer of the State Bank of India at the Cash counter and was declared hostile; Tripurari Sharan Srivastava (P.W. 7), the informant, was posted as the Project Executive Officer at Sikta Block at the relevant point of time; another Tripurari Sharan Srivastava (P.W. 8), was the Investigating Officer of the case; Bimal Kumar (P.W. 9), was posted as Judicial Magistrate at Bettiah, and had recorded the confessional statement of the accused u/s 164 Cr. P.C.; and Mahesh Prasad (P.W. 10), was posted as Head Clerk in the Block office at Sikta at the relevant point of time.

The prosecution has proved the following documents. Ext. 1 is general cash book of Sikta Block; Ext. 2 is written report of the informant; Ext. 3 is the signature of the informant on the formal FIR, & the formal FIR is Ext.4.

It is relevant to State that about two years & eight months after the occurrence, the petitioner had surrendered in a police station at Calcutta i.e. on 6th or 7th September 1983. He was lodged in Barrackpur jail and wherefrom the police had brought him to Bettiah. Thereafter his confessional statement u/s 164 Cr.P.C. was recorded on 16.9.83 by Mr. Bimal Kumar (P.W. 9), who was then posted as Judicial Magistrate at Bettiah.

The defence has examined only one witness, namely, Hira Lal (D.W.1). He has proved Exts. A and A/1 which are entries in paragraphs 30 and 6 of the case diary respectively. After the conclusion of the trial, the learned Chief Judicial Magistrate, Bettiah, convicted the petitioner u/s. 409 IPC, and sentenced him as stated above. The petitioner''s appeal was dismissed and the conviction and sentence recorded by the trial court was affirmed in full. The learned appellate court recorded the following findings of facts in the impugned judgment substantially affirming those of the trial court:

(i) The petitioner was posted as a Nazir in the Sikta Block in January 1981.

(ii) Bill nos. 150 to 157 were handed over to the accused-petitioner for obtaining the countersignature of the Collector, Bettiah.

(iii) After obtaining the countersignature of the Collector, Bettiah, the accused-petitioner had presented the same in the Government Treasury which were duly passed by P.W. 2.

(iv) The 8 bills in question amounting to Rs. 1,65,000/- was paid to the petitioner in cash.

(v) The confessional statement of the accused petitioner u/s 164 Cr.P.C. was duly recorded by P.W. 9. and the legal requirements were substantially complied with.

(vi) The accused had confessed his guilt. Thus the entire allegation that the accused had encashed the 8 bills, and misappropriated a sum of Rs. 1,65,000/- is proved by the confessional statement alone, let alone the other evidence on record. The accused-petitioner was required to transfer the aforesaid bill amount from A.L.P. head to M.R.D. head and the same were required to be taken to the Block office, but the petitioner instead encashed the same and misappropriated it.

While assailing the validity of the impugned judgment, Learned Counsel for the petitioner submitted that the prosecution has failed to prove the prosecution case beyond all reasonable doubts. In view of the nature of the prosecution case, it should have been primarily proved by documentary evidence. The prosecution case has instead been sought to be proved by oral evidence which is also unsatisfactory. In other words, in her submission, the prosecution has not been able to prove beyond all reasonable doubts that the petitioner had taken the 8 bills in question from Sikta Block, presented the same in the Government Treasury at Bettiah, had got the same passed, and received the cash from the cash counter at the State Bank of India, Bettiah Branch.

Learned A.P.P. submitted in reply that the issues are concluded by findings of facts, which are quite reasonable and bear a reasonable nexus with the evidence on record. Major portion of the evidence of the prosecution witnesses have gone unchallenged in the cross-examination on behalf of the accused. He further submitted that the evidence of the prosecution witnesses has to be read with the confessional statement made by the accused u/s 164 Cr.P.C. The two are complementary to each other, and corroborate each other. He has relied on a judgment of the Supreme Court reported in State of Kerala Vs. Putthumana Illath Jathavedan Namboodiri, , in an effort to convince this Court that the scope of criminal revisional jurisdiction against a judgment of conviction is very limited.

I have carefully considered the submissions of both sides and I am convinced that the learned APP is right in his submission that the present proceeding is concluded by findings of facts. Learned Counsel for the petitioner has taken me through the entire evidence on record, oral as well as documentary, in an effort to establish that the same is too deficient to prove the prosecution case. this Court does not intend in its criminal revisional jurisdiction to substitute its views in place of those of the courts below. That is the function of the appellate court, not the revisional court. On the basis of the materials on record, it is not at all possible to state that the findings of facts recorded by the trial court are perverse. On the contrary, I state that those are quite logical and bear a reasonable nexus with the materials on record. this Court is convinced that the findings of fact recorded by the appellate court are reasonable and are quite possible conclusions flowing from the evidence on record. In fact, I go to the extent of stating that on a perusal of the entire evidence on record that I reach the same findings of fact as recorded by the courts below. Learned APP has rightly relied on the judgment of the Supreme Court reported in State of Kerala Vs. Putthumana Illath Jathavedan Namboodiri, , paragraph 5 of which is set out herein-below.

Having examined the impugned judgment of the High Court and bearing in mind the contentions, raised by the Learned Counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned Judgment of the High Court from the aforesaid stand-point, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge, while confirming the conviction of the respondent. In this view of the matter the impugned Judgment of the High Court is wholly unsustainable in law and we, accordingly set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence.

Learned APP is equally right in his submission that oral evidence on behalf of the prosecution has to be read with the confessional statement of the accused u/s 164 Cr.P.C. and the evidence of P.W. 9. who had recorded the confessional statement. The vice versa is equally true. In other words, the two are complementary and supplementary to each other, and corroborate each other. As stated above, the written report (Ext. 2), is dated 17.1.81, and after about two years and eight months on 6th or 7th of September 1983, the petitioner had voluntarily surrendered in a police station at Calcutta. On remand, the Bettiah police had brought him from Calcutta. His confessional statement u/s 164 Cr.P.C. was recorded on 16.9.83 by Mr. Bimal Kumar, Judicial Magistrate, Bettiah, who was examined in support of the prosecution case as P.W. 9. According to the confessional statement, the accused had on 6th or 7th of September 1983, voluntarily surrendered in Noihaaddi police station in Calcutta. He was then taken to Barrackpur jail from where the Bettiah police had brought him to Bettiah. As to the allegations of misappropriation of Rs. 1,65,000/- he said that on 10.1.81 he had withdrawn a sum of Rs. 1,65,000/- from the Government Treasury at Bettiah on the basis of the 8 bills in question. He had committed the offence in conspiracy with two friends of his father whose names are mentioned in his statement. He further stated that the conspiracy had completely deprived him of his discretion and wisdom (Buddhi Bhrast Ho Gaya Tha). He had withdrawn the entire amount on the suggestion of the said two persons and the three together had gone to Calcutta. He had stayed at the house of Nitya Nand Ghosh, one of the co-conspirators. It has been decided that the misappropriated amount will be distributed amongst themselves. He has further said that he does confess his guilt and he is liable to the punishment. He requested the Magistrate that in case he is awarded the sentence of imprisonment, he should be lodged in a jail away from Bettiah where he can have solitude and aloofness. In accordance with the mandate of section 164 Cr.P.C., the Magistrate has recorded the following statement towards the end of the confessional statement:

Bimal Kumar, Judicial Magistrate, Bettiah, who had recorded the aforesaid confessional statement, was examined as P.W. 9. He has stated in his deposition that he identified the accused-petitioner standing in the dock. He had confessed the allegation of misappropriation of Rs. 1,65,000/- which he had withdrawn on 10.1.81 encashing 8 bills from the Government Treasury at Bettiah. The same was in pursuance of a conspiracy of three persons including the accused-petitioner. P.W. 9 has proved the confessional statement which is in his own handwriting and is marked Ext. 1. He has stated in his cross-examination that the entire procedure for recording confessional statement was followed. The same is not in the form of questions and answers. The same could not be recorded in the prescribed form because of absence of the same. He had orally and clearly explained to the accused-petitioner that the confessional statement of the accused may go against him and may be used against him. No question was put to P.W. 9 about false implication or that he was making the statement under some duress or threat. The whole of the cross-examination of P.W. 9 is set out hereinbelow

It is thus manifest from a close scrutiny of the confessional statement and the deposition of P.W. 9 that the accused petitioner had made his confessional statement voluntarily, free from duress. The fact that the bills were encashed way back in January 1981 & he had voluntarily surrendered on 6th or 7th of September 1983 is more than adequate evidence of the fact that he had far more than sufficient time for reflection. He has stated in his statement that he was in Calcutta without his family. All this must have filled him with contrition and overwhelmed him with loneliness caused by the absence of him family. He was after all in hibernation for 2 years & eight months and, therefore, there could not have been the question of being chased by the police or under any kind of duress or threat. He must have reflected over the entire matter leading to his voluntary surrender and voluntary confession of the guilt. Secondly, he had surrendered on 6th or 7th of September 1983, and his confessional statement was recorded on 16.9.93. There was thus sufficient time on the second leg also for reflection. There is no evidence on record, nor there is any cross-examination of, or suggestion to, the prosecution witnesses that the accused was under duress, threat, or pressure at the hands of any body including the police to confess his guilt. Thirdly, the confessional statement read with the deposition of P.W. 9 makes it abundantly clear that the petitioner was under no duress, no threat and had made his statement voluntarily. I, therefore, reach the conclusion without hesitation that the confessional statement of the accused petitioner was perfectly voluntary, of his own free will & volition, completely & entirely unoppressed by any threat or duress. He had sufficient time to think freely whether or not to make the confessional statement.

This takes me on to another vital aspect of the matter on which both sides have advanced elaborate arguments. Learned Counsel for the petitioner submitted that the provisions of section 164 Cr.P.C. have not been properly and strictly followed in the present case, the relevant portion of which is set out hereinbelow for the facility of quick reference :�

Recording of confessions and statements.�(1)........

(2) The Magistrate shall before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

(3) ...........

(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect :

I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed) A.B. Magistrate.

(5) ........

(6) .......

12.1. Learned Counsel submitted that the confessional statement gives no impression that the learned Magistrate had forewarned him that his confession may be used as evidence against him. She has relied on the following reported judgments :�

(i) Sarwan Singh Vs. The State of Punjab,

(ii) Kehar Singh and Others Vs. State (Delhi Administration),

(iii) Shivappa Vs. State of Karnataka,

12.2 Learned APP has submitted in opposition that the provisions of section 164 Cr.P.C. have been substantially complied with in the present case. Law is well settled that the confessional statement needs some corroboration which is entirety satisfied in the present case. The fact that some corroboration is needed is a rule of prudence normally observed by the courts as a matter of abundant precaution & is no requirement of Sec. 164 read with section 281 of the Code. In fact, the confessional statement of the accused in the present case itself proves the guilt of the accused fully. He has submitted that the evidence on record other than the confessional statement is by itself adequate to prove the guilt of the accused. He further submits that the observance of the provisions of section 164 Cr.P.C. with all its rigours can be supplemented by evidence. The omission, if any, in the confessional statement in the present case has been fully satisfied by the deposition of P.W. 9, the Judicial Magistrate, who had recorded the same. Learned Counsel further submitted that the judgments relied on by the Learned Counsel for the petitioner really support the prosecution case. He has relied on the following reported judgments :�

(i) Sarwan Singh Vs. The State of Punjab,

(ii) Shankaria Vs. State of Rajasthan,

(iii) AIR 1978 SC 1771 (State of U.P. vs. Boota Singh)

As to the judgment of the Supreme Court in Sarwan Singh''s case (supra), the following portion may be usefully quoted :�

Nevertheless usually Courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case. In the present case, the learned Sessions Judge has considered the question about the voluntary character of the confession made by Sarwan Singh and has found in favour of the prosecution... ... ... ... ... Prima facie whether or not the confession is voluntary would be a question of fact and we would be reluctant to interfere with a finding on such a question of fact unless we are satisfied that the impugned finding has been reached without applying the true and relevant legal tests in the matter... ...

There can be no doubt that, when an accused person is produced before the Magistrate by the investigating officer, it is of utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make a confession at all. It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case.

However, speaking generally, it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded.

13.1 As to the judgment in the case of Kehar Singh (supra), paragraph 117 may be usefully quoted :�

On a consideration of the above decisions it is manifest that if the provisions of S.164(2) which require that the Magistrate before recording confession shall explain to the person making confession that he is not bound to make a confession and if he does so it may be used as evidence against him and upon questioning the person if the Magistrate has reasons to believe that it is being made voluntarily then the confession will be recorded by the Magistrate. The compliance of the sub-sec. (2) of S.164 is therefore, mandatory and imperative and non-compliance of it renders the confession inadmissible in evidence. Section 463 (old Section 533) of the Code of Criminal Procedure provides that where the questions and answers regarding the confession have not been recorded evidence can be adduced to prove that in fact the requirements of sub-sec. (2) of S.164 read with S.281 have been complied with. If the Court comes to a finding that such a compliance had in fact been made the mere omission to record the same in the proper form will not render it inadmissible evidence and the defect is cured under S.463 (S.533 of the old Criminal Procedure Code) but when there is non-compliance of the mandatory requirement of S. 164(2) Criminal Procedure Code and it comes out in evidence that no such explanation as envisaged in the aforesaid subsection has been given to the accused by the Magistrate this substantial defect cannot be cured under S.463 Criminal Procedure Code.

(Emphasis supplied).

13.2 As to the judgment in Shivappa''s case (supra), the following portion of paragraphs 6 and 7 may be extracted:

From the plain language of Section 164 CrPC and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused u/s 164 CrPC, it is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused u/s 164 CrP.C. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. Full and adequate compliance not merely in form but in essence with the provisions of Section 164 CrPC and the rules framed by the High Court is imperative and its noncompliance goes to the root of the Magistrate''s jurisdiction to record the confession and renders the confession unworthy of credence ... ... ... ... ... ...

The Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his conscience that the statement the accused makes is not on account of any extraneous influence on him. That indeed is the essence of a voluntary statement within the meaning of the provisions of Section 164 CrPC and the rules framed by the High Court for the guidance of the subordinate courts. Moreover, the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the compliance with the imperative requirements of the statutory provisions, as would satisfy the court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly complied with.

13.3 As to the judgment in Shankaria''s case (supra) the Supreme Court laid down as follows in paragraph 22 of the report :�

This confession was retracted by the appellant when he was examined at the trial under S.311, Cr.P.C. on June 14, 1975. It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded under S.164, Cr.P.C., the Court must apply a double test :�

(1) Whether the confession was perfectly voluntary?

(2) If so, whether it is true and trustworthy?

Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned in S. 24, Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the Court must before acting upon the confession, reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application. Even so, one broad method which may be useful in most cases for evaluating a confession may be indicated. The Court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test.

(Emphasis supplied).

13.4. As to the judgment in the case of State of U.P. vs. Boota Singh (supra), it was a case of retracted confession and yet relied on by the Supreme Court for the purpose of conviction of the accused after setting aside the judgment of acquittal of the High Court. The Supreme Court held as follows in paragraph 11 of the report.

... ... ... ... ... ...The High Court was, therefore, not justified in brushing aside the well reasoned finding of the Sessions Judge on this point merely on the basis of speculation and the circumstances which were in fact not proved. As however the confession was a retracted one it could be acted upon only if substantially corroborated by independent circumstances. It is not necessary that a retracted confession should be corroborated in each material particular, but it is sufficient that there is a general corroboration of the important incidents mentioned in the confession. In the instant case, we find that the circumstances proved by the prosecution not only amount to a complete corroboration of the confession but provide additional circumstantial evidence against the respondent which are of a conclusive nature. We would now deal with the confession in the light of the observations made above.

Applying the aforesaid principles to the facts and circumstances of the present case, this Court is convinced that the confession of the accused-petitioner was perfectly voluntary. this Court is in full agreement with the findings recorded in this behalf by the courts below. As found hereinabove, the occurrence took place on 10.1.81 at Bettiah, and the accused-petitioner had voluntarily surrendered on 6th or 7th of September, 1983, in a police station at Calcutta. He had, thus, two years & eight months for reflection which is a very important circumstance in the present case to reach the conclusion that the confession was perfectly voluntary, entirely free from any duress or threat. As found hereinabove, it is manifest from the confessional statement read with the evidence of P.W. 9 that the provisions of section 164(2) Cr.P.C. have been fully complied with. The confessional statement of the accused has to be read with the evidence of P.W. 9 & the same are covered by the provisions of section 463 of the Code. The defect, if any in recording the confessional statement has been satisfactorily cured by the evidence of P.W. 9 in terms of section 463 of the Code. The Magistrate had explained to the accused-petitioner that he was not bound to make a confession, and if he did so, it may be used as evidence against him. It has equally been found by both the courts below with which this Court fully agrees that the confession had been made voluntarily. As laid down by the Hon''ble Supreme Court in the aforesaid judgments, if the questions and answers regarding confession have not been recorded, then evidence can be adduced to prove that. In fact, the requirement of sub-section (2) of section 164 read with section 281 have been complied with and the defect, if any, has been fully cured u/s 463 of the Code. On examination of the entire matter, this Court is convinced that the requirements of section 164 Cr.P.C. had been complied with in the present case and corroborated by other evidence on record. In fact, both supplement and complement each other. In the result, this revision application fails and is accordingly dismissed. The impugned judgment dated 18.8.88, passed by the learned 2nd Additional Sessions Judge, Bettiah, in Criminal Appeal No. 32 of 1987, is hereby up-held. The bail bond of the petitioner is hereby cancelled and he is directed to surrender in the trial court forthwith to serve the remainder of the sentence.