Radhakishan vs State of U.P.

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

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 160 to 162 of 1960

Decision Date: 27 September 1962

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

In the matter titled Radhakishan versus State of Uttar Pradesh, the Supreme Court of India delivered its judgment on the twenty‑seventh day of September, 1962. The case was heard by a bench comprising Justice J. R. Mudholkar, Justice Syed Jaffer Imam, and Justice N. Rajagopala Ayyangar. The petitioner was Radhakishan and the respondent was the State of Uttar Pradesh. The judgment is reported in the 1963 volume of the All India Reporter at page 822 and also appears in the 1963 Supplement to the Supreme Court Reporter at page 408. Other citations to later reports include F. 1980 SC 593, F. 1985 SC 989, and D. 1985 SC 1672. The central issue involved a criminal trial for the alleged secrecy of postal articles under section 52 of the Post Offices Act, 1898 (VI of 1898).

The factual backdrop, as outlined in the headnote, described the appellant as a postman who lived in the same household as his father. Undelivered postal articles were discovered in an almirah located within their shared residence; the key to the almirah had been produced by the father. The appellant was tried and convicted on the charge that he had secreted the postal articles contrary to section 52 of the Act. The appellant argued that the prosecution had failed to demonstrate that he had been entrusted with the articles and contended that, because he did not have exclusive possession of the articles, the element of secrecy could not be established. The Court held that entrustment is not a necessary ingredient of the offense under section 52. The Court observed that where the legislature intends to make entrustment a requirement, it would use clear language to that effect, and such language was absent from the provision. The Court explained that the term “to secret” means “to hide,” and that retaining an undelivered postal article in an almirah for an inordinately long period amounts to hiding it. However, the Court further held that the appellant was not in exclusive possession of the postal articles, and therefore no inference could be drawn that he had secreted them. Because the key was produced by the appellant’s father, the Court concluded that it could not be inferred that the appellant had joint or exclusive possession of the almirah. Moreover, the presence of other items belonging to the father, along with some belonging to the appellant, in the almirah precluded any inference that the appellant alone possessed the seized articles.

The judgment fell within the criminal appellate jurisdiction concerning Criminal Appeals Nos. 160 to 162 of 1960. These appeals were taken by special leave from the judgment and order dated the twentieth day of January, 1960, delivered by the Allahabad High Court in Criminal Government Appeals Nos. 2011 to 2013 of 1958. Counsel for the appellant were B. C. Misra and P. K. Chakravarti, while the respondent was represented by G. C. Mathur and C. P. Lal. Justice Mudholkar delivered the opinion of the Court on the twenty‑seventh of September, 1962. The three appeals originated from three distinct trials conducted before the Additional Sessions Judge in Bulandshahr, but they were argued together because each raised identical legal questions.

In the three proceedings that were combined for argument, the respondent was a postman employed at the Bulandshahr post office. He was tried for violations of section 52 of the Indian Post Office Act, 1898, and in two of the cases he also faced charges under sections 467 and 471 of the Indian Penal Code. The prosecution alleged that the postman either stole or concealed five registered letters and that he fabricated three receipts to make it appear that the letters had been received by the intended addressees. The learned Additional Sessions Judge acquitted the appellant of all the charges. The State, however, filed an appeal before the Allahabad High Court, limiting the appeal solely to the acquittal on the ground of section 52 of the Post Office Act. The High Court held that the appellant had indeed concealed the five registered letters, set aside the trial court’s judgment, convicted him in each of the three cases for the offence under section 52, and imposed a term of rigorous imprisonment of one year for each conviction. The appellant then obtained special leave to challenge the High Court’s order before this Court.

The prosecution's case was that on May 12, 1956 the residence of the appellant and his father, Diwan Singh, a retired police head constable, was searched by CID Inspector S. N. Singh together with Sub‑Inspector Masood Murtaza of the Bulandshahr police. The search was conducted in connection with a separate matter involving the firm Greenwood Publicity. During the search the officers unexpectedly discovered a large number of letters and postcards, among them the five registered letters that formed the subject of the charges. At the time of the search the appellant, who also served as a trade‑union official, was not present in Bulandshahr; he was on leave in Delhi attending a postal conference. The seized items were found inside an almirah, the key to which had been produced by the appellant’s father. The items were not inventory‑listed on the spot; instead they were taken in a sealed packet to the Kotwali where they were later recorded. Several other objects were also seized, but those have no relevance to the matters charged against the appellant. The defence asserted that the Bulandshahr post office was divided into two rival factions and that the opposite faction had planted the letters. According to the appellant, any planting must have occurred at the Kotwali when the Sub‑Inspector prepared the inventory list of the seized articles. He further maintained that neither the house nor the almirah from which the letters were alleged to have been taken was under his exclusive control. He clarified, and this point was not denied, that the house consisted of only two rooms, was rented in his father’s name, and that both father and son occupied those rooms, while the almirah remained under the father’s possession as evidenced by the key he produced.

It was observed that the almirah containing the seized articles was situated in a house that was rented in the name of the appellant’s father, and that the key to the almirah had been produced by the father, thereby indicating that the almirah was in the father’s possession. On behalf of the appellant, counsel raised six specific points for consideration. The first point contended that the findings of the High Court did not establish any offence under section 52 of the Post Office Act. The second point argued that the prosecution had failed to prove that the five registered letters were in the exclusive possession of the appellant. The third point asserted that the search of the premises was illegal because it contravened sections 103 and 165 of the Code of Criminal Procedure. The fourth point claimed that the Additional Sessions Judge, while examining the appellant, had not complied with the requirements of section 342 of the Code of Criminal Procedure. The fifth point maintained that the High Court had not identified any compelling reasons for setting aside the appellant’s acquittal. The sixth point submitted that, because the sentences in the three cases had been ordered to run consecutively, the total punishment imposed was excessive. The Court indicated that it would first address the last four of these points.

Regarding the alleged illegality of the search, the Court explained that even if the search were held to be illegal, the seizure of the articles would not automatically be vitiated. The Court noted that a violation of sections 103 and 165 of the Code of Criminal Procedure might give the person whose premises are searched the right to resist the search, and that an illegal search could prompt the trial Court to scrutinise the evidence of seizure more closely. However, the Court emphasized that beyond these two possible consequences, no further legal effect would follow. The High Court had accepted the prosecution’s evidence concerning the fact of seizure, and because the determination of that fact lay within the domain of the fact‑finding court, the Court declined to re‑examine the High Court’s conclusions on that point. Turning to the alleged breach of section 342 of the Code of Criminal Procedure, the Court observed that neither the Additional Sessions Judge nor the High Court had received any grievance alleging such a breach, nor had the appellant demonstrated that he had been prejudiced by any such breach. Consequently, the Court held that the issue could not be raised for the first time in an appeal under Article 136 of the Constitution, noting that whether prejudice existed was a factual question that could not be newly agitated at this stage. With respect to the fifth point, the Court reiterated its earlier position that an appeal against an acquittal is not to be treated differently from an appeal against a conviction. Accordingly, if the High Court, after evaluating the evidence on record, found that the acquittal was not justified, it could set aside the acquittal without having to first conclude that there were “compelling reasons” for doing so.

In regard to sentencing, the Court observed that the maximum term of imprisonment prescribed under section 52 of the Act is seven years; consequently, imposing consecutive sentences in the three cases does not amount to an excessive punishment of the appellant. Concerning the application of section 52, the prosecution’s evidence was limited to the recovery of registered letters from an almirah situated in the appellant’s residence. From this fact, the prosecution could at most establish that the appellant had possession of the letters, assuming that he had exclusive control over the house and the almirah. Counsel argued that mere possession does not demonstrate that the appellant secreted the letters. He further contended that for a post‑office officer to be convicted under any of the offences listed in section 52, it must also be shown that the officer was entrusted with the postal article in question. Section 52 of the Act provides: “Penalty for theft, dishonest, misappropriation, secretion, destruction, or throwing away of postal articles.—Whoever, being an officer of the Post Office, commits theft in respect of, or dishonestly misappropriates, or, for any purpose whatsoever, secretes, destroys or throws away, any postal article in course of transmission by post or anything contained therein, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be punishable with fine.” The first offence named in the section is theft, and it cannot be said that entrustment is a necessary element for theft. If entrustment were proved but the article was not disposed of in a manner authorized by the Act, the appropriate charge would be criminal breach of trust rather than theft. Mr Misra submitted that the appellant cannot be said to have secreted the letter merely because it was found in the almirah that was allegedly under his exclusive possession. The dictionary defines “to secrete” as to hide; therefore, retaining a postal article addressed to a particular person in an almirah for an unduly long period, when the holder is a post‑office officer, amounts to hiding that article. Whether a particular act constitutes “secreting” depends on the facts of each case, and the Court held that in the present circumstances the prosecution had established facts sufficient to support an inference of secreting. The Court also examined section 55, which makes clear that when entrustment is an essential ingredient of an offence, the legislature uses explicit language to that effect. Consequently, if the legislature had intended that entrustment be a prerequisite for an officer to be punished for secreting, destroying, or discarding a postal article, it would have expressed that requirement in language similar to that used in section 55.

The Court explained that the legislature’s purpose was to make it clear that, for a post‑office officer to be punished for secreting, destroying or discarding a postal article while it was “in course of transmission by post”, it was essential that the article had been entrusted to that officer. If that had been the intention, the statute would have employed wording similar to that found in section 55. Considering that post‑office officers regularly have access to postal items kept or lying in the post office during the performance of their duties, the Court held that the legislature deliberately broadened the ambit of section 52. This expansion was meant to cover acts of secrecy, destruction or disposal of postal articles by an officer even when those articles had not been formally entrusted to him, or even when they were not articles that the officer was required or authorised to handle in the ordinary course of his work. The objective of the provision, the Court said, was to prevent any tampering with postal items that were “in course of transmission by post”. Accordingly, the kinds of secrecy or destruction targeted by the provision are those that would frustrate, or be likely to frustrate, the delivery of the items to their intended recipients.

Mr Misra argued that it was incorrect to state that the five registered letters recovered from the almirah were still “in course of transmission by post” because the recovery occurred seven or eight months after the letters had been dispatched, and no complaint had ever been lodged by either the senders or the addressees regarding nondelivery. He further pointed out that for at least three of the registered letters, acknowledgments allegedly issued by the addressees were on file with the post office. Although he admitted that the prosecution claimed those acknowledgments were fabricated, the Court noted that this allegation had been rejected by the Court of Sessions and that the Government had not appealed that portion of the decision. Consequently, the Court was constrained to regard those three letters as having been properly received by the addressees. The expression “in course of transmission by post” is defined in section 3(a) of the Act as follows: “a postal article shall be deemed to be in course of transmission by post from the time of its being delivered to a Post Office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Chapter VII.” The Court emphasized that a mere delay of several months in delivering a postal article does not terminate its status as being in course of transmission. It is a common occurrence that delivery of postal items is occasionally delayed for a substantial period, whether due to accident or the negligence of postal employees, and the law must accommodate such possibilities.

In interpreting the statutory definition, the Court observed that an article dispatched by post is deemed to remain “in course of transmission” until such time as it is actually delivered or can be said to have been delivered. Consequently, the Court was unable to accept the first allegation advanced by counsel Mr Misra. Regarding the second allegation, which relied on the existence of acknowledgements for three of the letters at the post office, the Court noted that such acknowledgements merely generate a presumption that the letters had been delivered to the intended recipients. However, the recipients in this case were examined and they testified that they had not received the letters in question. The High Court gave credence to this testimony, and therefore the matter was concluded on that basis. In light of these findings, the Court declined to adopt Mr Misra’s contention that the fact that a postal officer retained a postal article for an unusually long period was without significance and could not support an inference that the officer had concealed the article. The Court then turned to what it identified as the crucial issue: whether the prosecution had established that the five registered letters were recovered from the appellant’s possession. As already indicated, the prosecution’s case was limited to the fact that the letters were discovered in an almirah located in the house that the appellant shared with his father, and that the key to the almirah had been provided by the father. In addressing this point, the High Court had previously observed that (i) the respondent alone possessed the opportunity and means to obtain such a large number of postal items; (ii) at least nine of those items were addressed to the respondent himself, as shown in Exhibit Ka‑9, serial number 66; (iii) Dewan Singh, described as a very elderly man, would not intentionally place incriminating articles on his son and thus jeopardise his son’s career permanently; and (iv) the respondent alone could be said to have a motive for secretly keeping and concealing the registered letters and other postal items in question. Before the High Court could consider the circumstance that, compared with his father, the appellant might have had a superior opportunity to access the postal items, it needed to establish positively that the almirah was under the appellant’s exclusive possession. The present judgment contains no material that directly addresses this point. Since the key to the almirah was produced by the appellant’s father and there is no evidence that the key ever came into the appellant’s hands, it would be unreasonable to infer that the almirah was even jointly, let alone exclusively, possessed by the appellant. Moreover, the fact that the almirah contained, in addition to the registered letters, certain other articles belonging to the appellant does not enable an inference that the almirah was in the appellant’s exclusive possession.

In this case the Court observed that it could not sustain any inference that the almirah was in the appellant’s exclusive possession or even that he shared possession of it jointly with his father. The Court recalled that the almirah contained a large number of articles that belonged to the father and that the father possessed the key to the almirah. Consequently, the father must be deemed to be in possession of the almirah and, by extension, of its contents, including the registered letters that are the subject of the prosecution. The Court then examined the four reasons that had been advanced by the prosecution. The Court noted that the last reason was described by the High Court itself as speculative and therefore had to be excluded from consideration. The second reason was rejected as having no substance because, as the evidence showed, a very large number of the articles found in the almirah undeniably belonged to the father. The third reason, which alleged that the father would not have placed the articles in order to incriminate his son and ruin his career, was also found untenable. The Court explained that this argument presupposes that, had the father come into possession of the articles, he could have used them to incriminate the son only if he intended to do so. The Court could not understand why the father, if he had obtained the articles from any source, would not have kept them in the almirah in the same manner as the other articles that were his own property. Having dismissed the second, third and fourth reasons, only the first reason remained for consideration. The Court expressed doubt that, on the basis of that single reason alone, the High Court could have concluded that, although the locked almirah was not in the appellant’s exclusive possession, the articles contained therein were in his exclusive possession. The Court stated that, to establish that the appellant had taken advantage of an opportunity to obtain the articles, it would be necessary to show that he had exclusive possession of them. To infer exclusive possession merely because the appellant had the opportunity to reach the articles and then to assume that he necessarily exercised that opportunity would be circular reasoning. Moreover, the Court observed that there was no evidence of entrustment of the articles to the appellant; consequently, if the appellant had taken the articles from the post office, such taking would amount to theft, but the record did not establish that any theft had been committed. The Court further noted that, had theft been proven, the appellant could have been convicted under section 52 without the need to consider whether he had secreted the articles. The Court also pointed out that the counsel representing the State did not suggest that the articles had been stolen by the appellant. Therefore, the claim that the appellant had an opportunity to obtain the articles lost its significance and could not influence the question of the nature of the appellant’s possession. In view of these considerations, the Court held that the prosecution had failed to prove that the letters were in the appellant’s exclusive possession. No

The Court observed that a legal presumption could not be drawn against the appellant on the basis that he had secreted the letters merely because the letters were discovered inside the almirah. The Court explained that the presence of the letters in the almirah could, at most, be described as indicating that the almirah was under the joint control of the appellant and his father, and therefore the letters might be said to be in joint possession of the two persons. However, the Court stressed that even an inference of joint possession was not proper in the circumstances, because the prosecution had not established that the appellant and his father shared exclusive control over the contents of the almirah. Accordingly, the Court concluded that no legitimate inference of secretive possession could be made against the appellant. For these reasons, the Court allowed all three appeals that had been filed, set aside the conviction that had been recorded against the appellant, and nullified the sentences that had been imposed. The order therefore affirmed that the appellant’s appeal was allowed and the earlier judgment was vacated.