Pyare Lal Bhargava vs State of Rajasthan

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 2 of 1962

Decision Date: 22 October 1962

Coram: Syed Jaffer Imam, N. Rajagopala Ayyangar, J.R. Mudholkar, Subba Rao, K.

In this case the matter was titled Pyare Lal Bhargava versus State of Rajasthan and was decided on 22 October 1962 by the Supreme Court of India. The bench that heard the appeal comprised Justice Subbarao, K., Justice Syed Jaffer Imam, Justice N. Rajagopala Ayyangar and Justice J. R. Mudholkar. The judgment bears the citation 1963 AIR 1094 and also appears in the Supreme Court Reporter Supplement (1) page 689. Subsequent citations include RF 1967 SC 349 (11) and F 1973 SC 264 (5). The legal provisions discussed were sections 378 and 379 of the Indian Penal Code, 1860, together with sections 3 and 24 of the Indian Evidence Act, 1872. The headnote recorded that the appellant had been convicted under section 379 for theft, that he held the position of Superintendent in the Chief Engineer’s office, and that he had caused a file to be removed from the Secretariat through a clerk, taken the file home and made it available to a co‑accused friend who substituted certain documents. The appellant returned the file to the office on the following day. When the Chief Engineer warned that failure to disclose the truth would result in police involvement, the appellant made a confession, which he later retracted. The lower courts held that the Chief Engineer’s warning did not amount to a threat under the circumstances. The Supreme Court observed that section 24 of the Evidence Act relaxes the strict proof rule of section 3 and requires the trial court to form a prima facie view of whether a confession is involuntary, noting that no inflexible standard can be prescribed and that the Court, exercising its power under article 136 of the Constitution, would not ordinarily depart from the findings of the lower courts.

The Court further explained that a retracted confession may form the basis of a conviction only if the Court is satisfied that the confession was true, voluntarily made and corroborated by material particulars. As a general rule, reliance on any confession, and especially on a retracted confession, is unsafe unless such satisfaction is achieved. In the present matter the Court found no doubt that the essential elements of theft were present, emphasizing that loss need not be permanent; even temporary dispossession intended to be restored can constitute theft. The Court referred to illustrations (b) and (c) of section 378, which demonstrate that a temporary deprivation of another person’s property can cause wrongful loss. Accordingly, the Court affirmed the conviction under section 379. The judgment formed part of Criminal Appeal No. 2 of 1962, an appeal by special leave from the judgment and order dated 25 April 1953 of the Rajasthan High Court.

The appeal by special leave was filed against the decision of the High Court of Rajasthan in Criminal Revision No. 237 of 1956, which had confirmed the judgment of the Sessions judge of Alwar that convicted the appellant under section 379 of the Indian Penal Code and imposed a fine of Rs 200. The High Court Jaipur Bench heard the matter, with counsel S. P. Varma representing the appellant and counsel S. K. Kapur and P. D. Menon representing the respondent. The judgment for this appeal was delivered on 22 October 1962 by Justice Subba Rao, J.

To understand the issues raised, the material facts, either admitted or found by the High Court, are set out. On 24 November 1945, one Ram Kumar Ram obtained permission, exhibited as PB, from the Government of the former Alwar State to supply electricity at Rajgarh, Khertal and Kherli. Subsequently, he entered into partnership with four other individuals with the understanding that the licence he held would be transferred to a company to be formed by the partnership. After the company was incorporated, it applied through its managing agents for the issue of a licence in its favour; the application is recorded as exhibit PW 15/B. On the advice of the Government Advocate, the Government required Ram Kumar Ram to file a declaration, attested by a Magistrate, concerning the transfer of his rights and the licence to the company. Accordingly, on 8 April 1948, Ram Kumar Ram filed the required declaration.

The prosecution’s case was that Ram Kumar Ram was a friend of the appellant, Pyarelal Bhargava, who held the position of Superintendent in the Chief Engineer’s Office, Alwar. At the instance of Ram Kumar Ram, Pyarelal Bhargava obtained the file, exhibited as PA/1, from the Secretariat through a clerk named Bishan Swarup before 16 December 1948. Between 15 and 16 December 1948, Bhargava took the file to his residence, made it accessible to Ram Kumar Ram, and allowed Ram Kumar Ram to remove the affidavit filed on 9 April 1948 and the application PW 15/B from the file. In their place, the parties inserted another letter, exhibited as PC, and another application, exhibited as PB. After the documents were replaced, Ram Kumar Ram filed an application to the Chief Engineer on 24 December 1948, requesting that the licence not be issued in the name of the company.

When the tampering of the documents was discovered, both Pyarelal Bhargava and Ram Kumar Ram were prosecuted before the Sub‑Divisional Magistrate of Alwar. Bhargava was charged with an offence under sections 379 and 465 read with section 109 of the Indian Penal Code, while Ram Kumar Ram was charged with offences under sections 465 and 379 read with section 109. The Sub‑Divisional Magistrate convicted both accused on all counts and imposed sentences. On appeal, the Sessions judge set aside the conviction under section 465 but upheld the conviction and sentence of Pyarelal Bhargava under section 379, and similarly upheld the conviction of Ram Kumar Ram under section 379 read with section 109, imposing a fine of Rs 500 on Ram Kumar Ram and a fine of Rs 200 on Bhargava. Both accused then filed revisions before the High Court, which set aside the conviction and sentence of Ram Kumar Ram but confirmed those of Pyarelal Bhargava. The present appeal was filed by Bhargava challenging that decision.

In the matter before the Court, the appellant Pyarelal Bhargava and the co‑accused Ram Kumar Ram had each been convicted under section 379 read with section 109 of the Indian Penal Code. The lower court imposed a fine of five hundred rupees on Ram Kumar Ram and a fine of two hundred rupees on Pyarelal Bhargava. Both men challenged those convictions by filing revisions before the High Court. The High Court set aside the conviction and the fine imposed on Ram Kumar Ram, but it left in force the conviction and the fine imposed on Pyarelal Bhargava. Dissatisfied with that outcome, Pyarelal Bhargava lodged the present appeal. The counsel for the appellant advanced three principal points of contention. First, he argued that the High Court had erred in relying upon a confession that the appellant had allegedly made before Shri P. N. Singhal, who was then the Officiating Chief Secretary of the Matsya Government, because the confession was not made voluntarily and therefore should have been excluded as irrelevant under section 24 of the Evidence Act. Second, the counsel contended that the confession had subsequently been retracted by the appellant and had not been corroborated by any material particulars, so that the High Court should not have placed reliance on it. Third, he maintained that, on the basis of the facts that had been established, the offence of theft had not been proved within the meaning of section 379 of the Indian Penal Code. An additional argument, suggesting that the statement made before the Chief Secretary did not amount to a legal confession, had been hinted at but not pursued, and consequently the Court saw no need to address it further. The first issue therefore required an interpretation of section 24 of the Evidence Act and an assessment of how that provision applied to the facts of the present case. Section 24 provides that a confession caused by any inducement, threat or promise is to be regarded as irrelevant in criminal proceedings if certain conditions are satisfied. The conditions are: (i) the confession must appear to the court to have been caused by an inducement, threat or promise; (ii) the inducement, threat or promise must be connected with the charge against the accused; (iii) it must emanate from a personal authority; and (iv) the court must be of the opinion that the inducement, threat or promise is sufficient to give the accused reasonable grounds to believe that he would obtain an advantage or avoid a temporal evil in relation to the proceedings. The word “appears” in the first condition is understood to mean “seems”, indicating a lower degree of probability than that required for proof. Section 3 of the Evidence Act explains that a fact is said to be proved when, after considering the matters before it, the court either believes the fact to exist or regards its existence as so probable that a prudent person, under the circumstances of the particular case, ought to act on the supposition that it exists. Consequently, while the normal test of proof demands a high degree of probability, section 24 relaxes that stringent rule and substitutes a lesser degree of assurance as the criterion. The standard of the prudent man is not wholly displaced, but the strict requirement of proof is eased. Nevertheless, this relaxation does not permit a court to base its opinion on pure conjecture; a prima facie opinion founded upon the evidence and circumstances may be adopted as the appropriate standard. In other words, on the basis of the evidence and the surrounding circumstances, it may appear to the court that a threat, inducement or promise existed, even though such a fact is not proved beyond a strict standard. This intentional departure from the rigid proof requirement has been incorporated by the legislature to exclude confessions that are forced or induced, particularly in situations where direct evidence is lacking.

In this matter the Court explained that the strict rule of proof is relaxed, but a lower level of certainty is required as the test. Although the prudent‑man standard is not wholly abandoned, the Court must not base its view on pure speculation. Instead, it may accept a prima‑facie conclusion that is supported by the evidence and the surrounding circumstances. In other words, on the basis of the proof that exists, the Court may be satisfied that a threat, inducement or promise was made even though that fact may not be proved beyond doubt. This relaxation of the rigorous proof requirement has been deliberately introduced by the Legislature to prevent the use of forced or induced confessions, which are sometimes obtained when there is no direct evidence. The Court noted that it is neither possible nor advisable to impose an inflexible test for all cases, because ultimately the Court itself must decide, after examining the facts of each case, whether a confession was given voluntarily. The Court further observed that any threat, inducement or promise must arise from a person who holds authority, and that determining whether a particular individual is an authority is a factual question to be decided in each case. More importantly, the mere existence of a threat, inducement or promise is insufficient; the Court must be satisfied that, in its view, the threat or inducement was enough to create a reasonable belief in the accused’s mind that confessing would either obtain a benefit or avoid some temporal evil in connection with the proceedings against him. While this is the Court’s opinion, the standard to be applied is the accused’s reasonable belief. Consequently, the provision mandates that the Court place itself in the position of the accused and form an opinion about the state of his mind given the particular circumstances. Applying this principle to the facts of the present case, the Court found that certain documents in the Chief Engineer’s Office had been tampered with and some papers substituted. The appellant, who was the Superintendent in that office, was examined on 11 April 1949 when Shri P. N. Singhal, officiating Chief Secretary to the Matsya Government, conducted a departmental inquiry into the missing documents. The appellant, together with others, was questioned about those documents. In his first statement, marked as Exhibit PL, the appellant declared that he neither asked Bishan Swarup to bring file No. 127 nor recalled any reason for requesting that file around the relevant date. When Shri Singhal was unable to identify the person responsible for the disappearance, he expressed the view that if the full truth was not revealed, he would refer the inquiry to the police. Following this, the appellant gave another statement.

Exhibit P.L. 1 recorded that the appellant, in clear terms, admitted that around the middle of December 1948 Ram Kumar Ram removed file No. 127‑P.W./48, which concerned the issuance of a licence to the Bharat Electrical and Industrial Corporation Ltd., Alwar, from the appellant’s residence in order to show it to his lawyers, and that the appellant had taken the same file on more than one occasion for that purpose. The appellant further stated that this admission was made voluntarily. Counsel for the appellant contended that the Chief Secretary had threatened to refer the matter to the police if the appellant failed to disclose the truth, and that such a threat had compelled the appellant to make the disclosure in the hope of obtaining leniency from the concerned authority. While it is undisputed that the Chief Secretary qualifies as an authority within the meaning of section 24 of the Evidence Act, the essential question was whether the alleged statement by that authority amounted to a threat in relation to the charge against the accused, a determination that depends on the facts of the case. The three lower courts, sitting together, concluded that, given the circumstances, the statement did not constitute a threat under section 24; they characterized the statement as a general remark that any person who had lost property and could not identify the culprit might make. The courts acknowledged that under different circumstances the same remark could be regarded as a threat, and that another tribunal might reach a different view even in the present facts. Nevertheless, exercising the powers conferred by article 136 of the Constitution, the Supreme Court chose not to depart from the concurrent finding of the three courts that, in the present case, the statement did not appear to be a threat. The second submission raised by the appellant was also found to lack merit. Although a retracted confession may serve as a legal basis for conviction if the court is satisfied that it is true and was made voluntarily, the law requires that such a confession not be the sole basis for a conviction without corroboration. This requirement is not a strict rule of law but a rule of prudence; it is not an inflexible doctrine that a conviction can never be sustained without corroboration. In particular circumstances a court may be convinced of the absolute truth of a confession and may act upon it without corroboration, yet, as a general principle, it is unsafe to rely on a confession—especially a retracted one—unless the court is satisfied that the confession is true, voluntarily given, and supported by corroboration in material particulars.

The Court observed that the confession was supported by material particulars. Accordingly, the High Court, applying the relevant principles, sought corroboration and identified it in the testimony of Bishan Swaroop, identified as PW‑7, and in the entry recorded in the Dak Book, exhibited as PA 4. Relying on these two pieces of corroboration, the High Court accepted the confession. The Court characterized that acceptance as a finding of fact. Because the finding was factual, the Court held that there was no permissible basis for disturbing it on appeal. The Court then turned to the question of whether the evidence established a case of theft. It recorded that, on the facts, no theft had been proved. The facts established by the trial court were that the appellant obtained a file between 15 December and 16 December 1948, brought it to his residence, made the file available to an individual named Ram Kumar Ram, and returned the file to the office on 16 December 1948. On the basis of these facts, the prosecution alleged that the appellant had dishonestly taken movable property in contravention of section 378 of the Indian Penal Code. The Court set out the language of that provision, which provides that whoever, intending to take any movable property dishonestly out of another person’s possession without that person’s consent, moves that property in order to such taking, commits theft.

To clarify the meaning of the provision, the Court dissected it into its essential elements. First, a person must intend to cause a wrongful gain to himself or a wrongful loss to another by unlawful means, relating to property to which the gaining person is not legally entitled or the losing person is legally entitled, as defined in sections 23 and 24 of the Indian Penal Code. Second, the dishonest intention must relate to movable property. Third, the property must be taken out of another person’s possession without that person’s consent. Fourth, the accused must move the property in order to effect the taking. Applying these elements to the present case, the record was under the control of the Engineering Department, which was headed by the Chief Engineer. The appellant held the position of Superintendent in that department. The appellant removed the file from the department’s custody and handed it to Ram Kumar Ram. The defence advanced three reasons why these facts did not satisfy the definition of theft: (i) the superintendent was already in possession of the file, so he could not have taken it from himself; (ii) there was no dishonest intention because the file was taken only to show it to Ram Kumar Ram and was returned the following day, hence it was not taken out of another person’s possession; and (iii) the appellant did not seek any wrongful gain nor cause any wrongful loss to any other person. The Court rejected each of these arguments, noting that the file was not in the superintendent’s personal possession but was in the Secretariat of the department under the Chief Engineer’s charge, and that unauthorized removal of the file for personal viewing constituted an unlawful taking within the meaning of section 378.

The Court noted that the appellant was only one of the officers who worked in the department of the Chief Engineer, and consequently he could not be said to be in legal possession of the file. The Court also rejected the submission that, even if the Chief Engineer had been in possession of the file, the appellant had not taken it out of his possession. It held that the offence of theft does not require a permanent removal of movable property from another’s possession with an intention never to return it. The definition of theft is satisfied when a person takes any movable property out of another’s possession even though he intends to restore it later. The Court further disagreed with counsel’s claim that no wrongful loss occurred in the present case. It explained that wrongful loss means loss by unlawful means of property to which the owner is legally entitled. The Court found that the appellant had unauthorisedly removed the file from the office and handed it to Ram Kumar Ram, thereby unlawfully taking the file from the Engineering Department and temporarily depriving the Department of its possession. The Court emphasized that loss need not arise from permanent deprivation; a temporary dispossession also constitutes loss, even if the possessor intends to return the property at a later time. A brief period during which another person is deprived of his property therefore causes loss to that person. The Court pointed to the illustrations (b) and (1) of section 378 of the Indian Penal Code to show that a person acts dishonestly when he temporarily dispossesses another of his property. Illustration (b) describes a person who places bait in his pocket, causing another’s dog to follow; if the intention is to take the dog out of the owner’s possession without consent, theft is committed as soon as the dog follows. Illustration (1) describes a person who takes an article belonging to another without consent, intending to keep it until a reward is received for its restoration; the dishonest intention makes the act theft. From these illustrations, the Court concluded that a temporary removal of a dog that may later be returned, or a temporary taking of an article with the aim of later restoration after receiving a reward, both constitute theft and cause wrongful loss to the owner. Accordingly, the Court held that the facts of the present case fell squarely within the purview of section 378 of the Indian Penal Code, and therefore the appellant had committed the offence of theft. No further points were raised before the Court. Consequently, the appeal was dismissed.