Om Prakash vs State Of U. P.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 15 September, 1959

Coram: A.K. Sarkar, M. Hidayatullah

In the matter titled Om Prakash versus State of Uttar Pradesh, decided on 15 September 1959, the Supreme Court of India recorded that the appellant, Om Prakash, had been tried before the Special Judge at Bulandshahar on two separate charges, the first under Section 165A of the Indian Penal Code and the second under Sections 468 together with Section 109 of the Indian Penal Code. The Special Judge was exercising the jurisdiction conferred on him by Section 6 of the Prevention of Corruption Act, 1947. The trial court convicted the appellant under Section 165A, imposing a rigorous imprisonment term of one year, while acquitting him of the second charge. The appellant then appealed to the High Court of Allahabad, challenging his conviction on the ground that it violated Article 20 of the Constitution because the alleged offence was said to have occurred on 4 December 1948, a date preceding the creation of Section 165A, which was introduced into the Indian Penal Code on 28 July 1952 by Section 3 of the Criminal Law Amendment Act (No. 46 of 1952). The High Court accepted this argument, altered the conviction to one under Section 161 read with Section 109 of the Indian Penal Code, and nevertheless upheld the original sentence. Subsequently, the appellant applied for a certificate of fitness under Article 134(1)(c) of the Constitution; the High Court refused the certificate, and the appellant obtained special leave to appeal from this Court.

The two charges on which the appellant was tried are reproduced because they contain the essential facts relevant to the appeal. The first charge states that on or about 4 December 1948 the appellant paid a sum of three hundred rupees to Roshan Lal Gupta, who was a unit clerk in the office of M. I. at Bulandshahar, for the purpose of obtaining fictitious brick permits. The permits allegedly obtained were numbers 19, 23, 24, 25 and 26 from Indent Book No. 59. These permits were later discovered, an order was issued prohibiting their credit, and they were cancelled, thereby constituting an offence punishable under Section 165A of the Indian Penal Code, within the jurisdiction of the Special Judge. The second charge alleges that the appellant abetted Roshan Lal in forging the same permits, taking them in fictitious names, with the intention that the permits would be used to cheat the department and the cultivators generally. This conduct was said to amount to an offence punishable under Section 468 together with Section 109 of the Indian Penal Code, also before the Special Judge, and the appellant was directed to be tried on these charges.

In the present appeal the appellant raised only two substantive points. The first point contended that the High Court acted without jurisdiction or otherwise acted illegally when it altered the conviction to one under Section 161 read with Section 109 of the Indian Penal Code. The second point, not fully set out in the excerpt, asserted that the High Court was in error on some other aspect of its decision.

The Court observed that the prosecution had relied upon Exhibits P-3 and P-4, which were two statements made by the appellant, and treated those statements as confessions of the offence with which he was charged. The Court noted that no other evidence, not even corroborating evidence, had been presented to substantiate the accusation. Regarding the appellant’s first contention, the Court explained that, in law, the effect of Section 161 read with Section 109 of the Indian Penal Code is essentially the same as that of Section 165A, at least insofar as the abetment of an offence that has actually been committed is concerned. The Court held that the amended charge did not require any additional facts to be brought to the appellant’s notice, and that the punishment prescribed under Section 161/109 is identical to that under Section 165A. The Court further clarified that, even if Section 165A could be regarded as a newly created offence, it merely expressed what was already covered by the two other sections. The only substantive change introduced by Section 165A related to the abetment of offences that have not been committed, that is, Section 161 together with Section 116. In view of the provisions of Sections 225 and 537 of the Code of Criminal Procedure, the Court stated that an error in the charge could not be taken into account, particularly because the appellant himself could have raised this objection at an earlier stage of the trial. Moreover, the Court found that no prejudice had been demonstrated and none could be inferred. Consequently, the Court rejected the appellant’s first contention.

The Court then turned to the appellant’s second contention, which required a more detailed examination. The evidence on record showed that Roshan Lal Gupta held the position of Unit Clerk in the office of the Mechanical Inspector, Agricultural Department, Bulandshahar. In that capacity, he had issued permits numbered 19, 23, 24, 25 and 26 from Indent Book No. 59, purporting to be in the names of witnesses 5, 6 and 7. The original permits were not produced in the case because they had not been seized from the appellant; instead, only the counter-foils were produced, allegedly bearing the signatures or thumb-marks of the mentioned witnesses. The witnesses were examined and testified that they had neither received any such permits nor applied for them, and that the signatures or thumb-marks on the counter-foils were not theirs. The prosecution further established that instructions had been given to brick-makers not to honour these permits, and as a result, no bricks were delivered on the basis of those permits. An enquiry into the matter was apparently initiated following a complaint lodged by the appellant with the Assistant Agricultural Engineer in Aligarh on 17 January 1949. That complaint was recorded as an application in the Paper Book and identified as Exhibit P-3. As a consequence of the complaint, the appellant was summoned before Sri Kant Sharma, Assistant Agricultural Engineer (identified as witness 4), and there he submitted a written statement on 7 May 1949, which expanded upon his earlier complaint and set out additional facts; this document was identified as Exhibit P-4. The prosecution’s case was therefore constructed on the basis that certain indents had been issued in the names of persons who had neither applied for them nor required bricks, and that the appellant had made two written statements, contained in Exhibits P-3 and P-4, setting out his version of events. The High Court had treated those two documents as confessions, and, together with other oral evidence, had found that they established a case of abetment of taking a bribe committed by Roshan Lal Gupta. The Court highlighted that the essential question on appeal was whether the two documents indeed amounted to a confession when read as a whole; if they did, the conviction would stand, but if they did not, the appeal would succeed.

In this case, the Court observed that the prosecution alleged certain indents had been issued in the names of individuals who had neither applied for them nor required bricks, and that the appellant had furnished two written statements, exhibited as Exhibits P-3 and P-4, setting out his own version of the events. The High Court had treated those two documents as confessions and, when read together with the oral testimony, concluded that they established an offence of abetment of taking a bribe committed by Roshan Lal Gupta. The appeal therefore turned on the question of whether the two documents, taken as a whole, amounted to a confession. The Court noted that if the documents were indeed confessions, the conviction would stand; if not, the conviction would have to be set aside.

The Court then referred to the definition of confession laid down by the Privy Council in the well-known case of Narayana Swami v. Emperor, which states that a confession must either admit the offence in its terms or, at the very least, disclose substantially all the facts constituting the offence. The Court explained that an admission of a highly incriminating fact alone does not constitute a confession, giving the example of an accused acknowledging possession of a weapon without explaining how it came into his hands. The Court further criticized the definition of “confession” found in Article 22 of Stephen’s Digest of the Law of Evidence, which broadly describes any admission by an accused that suggests he committed the crime. The Court emphasized that such a definition is not contained in the Evidence Act, 1872 and would not accord with the ordinary use of the word “confession.” The same perspective had been reaffirmed by this Court in Palvinder Kaur v. State of Punjab.

Applying these tests, the Court said it must examine whether the two documents satisfy the criteria for a confession. It reminded that the record contains no proof of any payment of money or the reason for such payment. Consequently, the central issue to be determined is whether the appellant expressly admitted paying a bribe to Roshan Lal Gupta, or whether his intention to pay can be inferred as a proved fact from the contents of Exhibits P-3 and P-4.

In the statement the appellant submitted, he explained that he needed bricks for the construction of a house and that he learned that bricks and cement could be obtained from the office of the Mechanical Inspector of Bulandshahar. He said that a clerk named Babu Roshan Lal had informed him of this possibility. Accordingly, the appellant requested that the clerk procure a permit for the bricks on his behalf. He recounted that on 4 December 1948 Babu Roshan Lal visited his residence, received a payment of three hundred rupees, and handed over four permits bearing identification numbers 23, 24, 25 and 26 from Book No. 59 dated 11 November 1948, as well as permits of D. Section 6, Bulandshahar bearing serial numbers 31, 32, 33 and 34 from Book No. 4 dated 23 November 1948. The appellant further stated that, despite receiving these permits, he was unable to obtain the bricks. He claimed to have searched for Babu Roshan Lal and to have met him again on 30 December 1948, at which time the clerk assured him that the permits had been processed by his department, that he was on leave, that his leave would end on 15 January 1949, and that fresh permits would be supplied after that date. The appellant said that on 17 January 1949 he met the clerk at the clerk’s office, learned that the clerk had been suspended, and, when he demanded the bricks, the clerk behaved badly towards him. The appellant concluded the statement by praying that justice be done to him, either by providing the bricks he had sought or by refunding the three hundred rupees, describing such relief as an act of great kindness.

The Court noted that the two parties gave opposite interpretations of this document. The appellant’s counsel argued that the appellant had been cheated by Roshan Lal Gupta, who allegedly issued permits in the names of persons who had never applied for any permit and then handed those permits to the appellant. The counsel further asserted that a sane person would not have lodged the complaint if it did not involve him in a criminal proceeding, and that the final sentence of the complaint indicated that the appellant believed the three hundred rupees were to be paid for the permits or for the price of the bricks. Accordingly, the appellant acted in good faith and was deceived by Roshan Lal Gupta. In contrast, counsel for the State contended that the complaint demonstrated that Roshan Lal Gupta had personally delivered the permits to the appellant’s house and had collected the money there. The State’s counsel emphasized that there was no evidence that the appellant had ever applied for a permit, and that the fact that the permits bore the names of other individuals should have prompted an enquiry into why such permits were issued and why the appellant was asked to pay three hundred rupees. Even assuming that the State’s inference could be drawn, the Court observed that, in light of the judgments of the Privy Council and this Court, it could not be concluded that the document satisfied the condition precedent for a confession, and therefore the document at most suggested an inference of guilt without constituting an admission of the offence.

The Court first examined whether the prerequisite for treating an admission as a confession had been satisfied. It concluded that, at most, the document under consideration could be said to permit an inference that the appellant had committed the alleged wrongdoing, but the document could not be stretched to show that the appellant had admitted the offence in its proper terms, nor could it be said to contain substantially all of the factual elements that constitute the offence of abetment. Having reached that conclusion, the Court turned its attention to the next piece of evidence, identified as Exhibit P-4, to determine whether that document added anything to the so-called confession contained in the first document, or whether, when read together, the two documents would together amount to a confession. Exhibit P-4 is likewise brief, and the Court reproduced its contents in full: “As per enquiry made by you from me, I want to submit in addition to my previous application that, even before this, Roshan Lal Gupta had brought and given a permit for 5000 bricks to Lala Munshi Lalji in connection with the construction of his well and had promised that he would get the cement, which had moistened due to heavy rains, exchanged from his office. For this Rs 150 were received (by him) in this period. He also said that a report for exchange of the cement was to be made to the Inspector, Mr Bhatnagar, who must, therefore, also get a share. He took a sum of Rs 150 also for getting the subsidy for engine granted saying that his (Munshi Lal’s) work could not be done without giving this money inasmuch as the matter related to the refund of a huge amount and Mr Bhatnagar had also to get a share in it. After this Mr Bhatnagar also came for verification of this amount. When I did not get the goods, I demanded the money back from Roshan Lal. He told me that he would give me the money when he would have got back the same from Mr Bhatnagar. Thereafter Mr Bhatnagar also came to me. I made a demand for refunding the money. Mr Bhatnagar promised to refund the money after returning to Bareilly. I have not received that amount as yet. In this connection a talk had taken place between Mr Bhatnagar and Roshan Lal that Mr Bhatnagar had not received his share in the sum of Rs 300 received on the basis of the four permits and that he had knowledge of these permits also.” The Court observed that this statement was recorded four months after the alleged payment, and therefore the critical issue was whether the information the appellant professed to possess was in fact in his possession at the time he made the payment. The second document further disclosed that, on a previous occasion, Roshan Lal Gupta and/or Mr Bhatnagar had also taken Rs 300 from a person identified as Lala Munshi Lalji in connection with a permit for 5000 bricks and a subsidy for an engine. Counsel for the appellant argued that the purpose of introducing this document was merely to show that the appellant’s case was not an isolated instance of money being taken, and that the information disclosed did not constitute a confession of the offence charged.

In this case the Court noted that other persons were participating in the transaction besides Roshan Lal Gupta. The expression “even before this” was interpreted not as a reference to the appellant’s own complaint dated 17 January 1949 but as an allusion to an earlier episode that the appellant described in his statement. The appellant said that prior to the incident in which he was directly concerned another incident had occurred; however, he did not claim that his decision to make the payment was based on the knowledge that a bribe to Roshan Lal Gupta and/or Mr Bhatnagar was required for the issuance of the permits. He merely recounted what he knew on 7 May 1949, and there is no evidence that the same specific information was in his possession on 4 December 1948, the date on which he actually handed the money to Roshan Lal Gupta. The second portion of the document deals with events that took place after the payment had already been made and discloses that the appellant subsequently learned from Roshan Lal Gupta that the money had been passed to Mr Bhatnagar and would be returned after Mr Bhatnagar’s return to Bareilly. Consequently, the two parts of Exhibit P-4 cannot be said to contain knowledge that the appellant possessed on 4 December 1948, and if that information was acquired only later, no inference of a criminal intention in the December payment can be drawn. Moreover, the second document merely amplifies the appellant’s earlier allegation of a deal in which he lost money and received no bricks.

The Court further observed that, taken together, the two documents might suggest an inference, but such an inference does not satisfy the test laid down by this Court and the Privy Council for sustaining a conviction on the basis of an accused’s own admission. While the facts may raise a suspicion that the money was paid as a bribe, the Court cannot disregard the possibility that the appellant was deceived and lacked any intention to bribe. The Privy Council has held that unless there is a full and unequivocal admission of guilt, the facts must be interpreted reasonably and an admission of every element of the offence must be present. The prosecution’s case also suffers from a defect because the original permits that were in the appellant’s possession were never seized by the police, allowing the defence to argue that the originals were in the appellant’s name while only counterfoils bore the names of fictitious persons. Because the permits are unavailable, the Court has no means of resolving that issue. Considering the whole evidence, apart from Exhibits P-3 and P-4, the remaining material merely shows that the record indicated some permits had been issued in the names of persons who had not applied for them. Consequently, the Court concluded that the documents, though they may suggest an inference of an offence, do not amount to confessions and therefore cannot be used to fulfil the ingredients of the charge against the appellant.

The Court observed that the permits reflected in the record had been issued to individuals who had not made any application for them. Consequently, the remainder of the prosecution's case had to be constructed against the appellant primarily on the basis of his own statements contained in Exhibits P-3 and P-4. When these documents were examined in a reasonable manner, they could permit an inference that an offence had been committed, but they did not constitute confessions. Accordingly, the documents could not be used to supply the missing elements of the offence with which the appellant was charged. The Court therefore disagreed with the High Court’s assessment of this evidence and held that the documents had been mistakenly treated as pure confessions. It also found an error in the High Court’s conclusion that the appellant’s guilt had been unequivocally brought home to him. While the determination of evidential sufficiency ordinarily lies with the trial court, the present situation required intervention because the High Court had construed the two documents as confessions. No other corroborating evidence was offered, and therefore the appellate court was entitled to interfere despite the concurrent judgments of the lower courts. Consequently, the Court concluded that, on the basis of the facts, the conviction could not be sustained by the evidence. Accordingly, the appeal was allowed, the appellant’s conviction and sentence were set aside, and he was acquitted of all charges.