BAIDYA NATH PRASAD SRIVASTAVA v. STATE OF RIBAR April 30, 1968 [V. RAMASWAMI, G. K. MITTER AND C. A. VAIDIALINGAM, JJ.] Evidence-Failure of accused to produu evidence in support of his plea cannot be 1nade basis of conviction-It is for prosecution to prove its case.
Code of Criminal Procedure, s. 342A-Failure of accu:nd to examine himself–Court must 1101 co1nnten1 on it. The appellant was a Mukhtear practising in Bihar. He along with some others attested ·the identity of certain persons on applications fer loans under the Agriculturists Loan Act, 1884. It was found that the applications had been made under false names and the appellant along with other accused was tried for an offence under s. 467 read with s. 109 l.P .C. The appellant's plea was that he had made the endorsements on the assurance of a co-accused and in view of the fact that another
~ukhtear, D had also attested the loan applications. D's plea as an accused was that he had made the attestation on the assuranee of one The Sessions Judge acquitted all the accused.
The State of Bihar appealed to the High Court. Durio~ the pendency of the appeal D died. The High Coun set aside the acquittal of the appellant and convicted him on two grounds namcly, (i) iliat though he had raised a defence that he had attested the applications on the assurance of S, no evidence had been produced to support this defence; (ii) that D with whose case the appella!\l's case was closely connected had not examined him"'lf under s. 342A of the Criminal Prooedure Code in support of his plea, and the same consideration applied to the appellant also. On
appeal to this Court by special leave. HELD : The order of the High Court could not be sustained. (i) Jn requiring evidence in support of the plea raised by :he appel- lant the High Coun really threw the burden of proof on him instead of finding out whether the prosecution had proved its ~
and whether the order of acquittal was erroneous. [ 174 Fl (ii) In commenting on the failure of the accused to examine thc1n- sel»cs on oath under s. 342A Cr. P.C. the Hi~h Coun committed a breach of the proviso to that section which specifically states that the failure of an accused to give evidence sh31l not be made the subject of comment by any of the parties, or the court, or give rise to n~Y pr_esumptioo a<?ainst himself or any other person charged together with btm at the same time. [175 Bl
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 47 of 1966. Appeal by special leave from the judgment and order dated September 6. 1965 of the Patna High Court in Government Appeal No. 23 of 1962.
B. P. Singh and D. N. Misra, for the appellant. D. P. Singh and K. M. K. Nair, for the respondent. c BAIDYA NATH v. BlliAR STATE (Vaidialinlfam, I.) The Judgment of the Court was delivered by
c Vaidialingam, J. On behalf of ~e sixth-accused, the appel- lant herein· in this appeal, by special leave, Mr. B. P. Smgh, learned co~nsel, challenges the order of the Patna High Court, dated September 6, 1965, setting aside the order of acquittal, passed by the Second Additional Sessions Judge, Muzaff3:1'pur, and convicting hinl for an offence, under s. 467, read with s. 109, IPC., and passing a sentence of three months' rigoroUs im- prisomnent.
For the relief and rehabilitation, of people who had suffer- ed, in 1954, by the heavy floods in Sitamarhi Sub-Division, the Government of Bihar was granting loans to needy and suitable persons, under the Agriculturist's lpan Act, 1884. The appeJc !ant was a Mukhtear, practising at Sitamarhi. There are certain formalities, to be gone through, in the matter of obtaining the loans, under that Act. One of the requirements was that an ap- plicant had to put his signature, on an agreement form and, that he should be identified, by a lawyer, who should also attest his signature. Several officers, connected with this Loan Department, including the Mukhtears practising at Sitamarhi, one of whom was the appellant, were alleged to have entered into a conspiracy, between November 19, 1955 and December 22, 1955, to cheat
the Govermnent, by inducing it to grant loans, iri the names of fictitious persons, and, in pursuance . of that conspiracy, two applications, for loans in the names of two fictitious persons, Durga Singh and Hari Shankar Singh, were filed before the Sub Divi- sional Officer, Sitamarhi. According to the prosecution, the ap- pellant and another Mukhtear. Devendra Prasad, had certified, in the loan applications of Durga Singh arid Hari Shankar Singh, that they knew those parties and that they had signed, in their presence. The amounts were drawn, in the usual course, from the .treasury, by the said two persons; and, ultimately, it came to light that the two persons were fictitious persons, got up by the several accused.
The appellant admitted having attested, in the loan applications of the two individuals concerned but he stated that he did so, on the assurance of one Sheoj~ Prasad Karpardaj. It may be stated that this Sheojee Prasad Karpardaj was also ~barge-sheeted, but he has been discharged, even by the cotmruttal Court.
The . learned Sessions Judge found, on the evidence, that Durga Smgh and Hari Shanl;;ar Singh were fictitious persons and a fraud was committed, on the Sub Divisional Officer, Sitamarhi, and the Sub-treasury, as a result of which the Government sus- tained a loss of Rs. 1,000/-. The learned Sessions Judge accept- ed the appellant's plea that he1 had made the endorsement on the s1;rRBIE COlJRT REPORTS
[1969) I S.Cll.. assurance of Sheojce Prasad Karpardaj and, in view of the fact that other Mukhtiar, Devendra Prasad, had also attested the loan applications, and acquitted him. This Devendra Prasad had also been charged, for the same offence.
While admitting, having anestcd the signatures of the ;tpplieants for the lo:m, Devendra Prasad had set up a plea that he did so, on the assurance, given by one R.udradeo Singh. This explanation has been accepted,
by the trial Coun and Devendra Prasad was acquitted. But, when the State appeal, against acquittal, was pending in the High Coun, Dcvendra Prasad died. But. we have to refer to certain
observalions. made by the High Court, regarding this Devendra Prasad, which have. more or less, fonncd the grounds. for set- ting aside 1hc order of acquittal of the appellant also. The High Court, on appeal. by the State Government, has set aside the order of acquittal of the appdlant.
Two reasons, so _far as we could sec, haw been given, by the High Court, for interfering with the order of acquittal, viz. : (i) that. though the appellant raised a defence that he attested lhe loan applications. on the representation and assurance of Sheojee Prasad Karpardaj, oo evidence has been let in, by the appellant. to support this defence; and (ii) Devcmlra Prasad, with whose case t~e appellant's also "as closely coru1ected, had raised a plea that he attested the loan applications. on the assurance and representation of Rudradeo Singh and that Devendra Pras:u! has not examined himself as a witness. under s. 342A, Cr.P.C, nor did he adduce any other evidence. in support of his claim. It is really, on these grounds, that the appellant has been convicted, for the offence under s. 467 read with s. I 09. IPC., and sentenced to undergo rigorous imprisonment. for a period of three months.
We arc satisfied that the order of the High Court cannot be sustained. Regarding the first point, mentioned above, the High Court has really thrown the burden of proof on the appellant, instead of finding out whether the prosecution has proved its case and whether the order of acquittal is erroneous.
Regarding the second point the High Court has really committed a breach of the proviso to s. 342A, when it has commented upon the non- cxamination of Devcndra Prasad, that he has not examined him- self, as a defence witness.
Under cl. (b). of the proviso to s. 342A, Cr.P.C., it is specifically provided that the failure of an accused to give evidence, shall not be made the subject of any comment, by any of the parties, or the Court, or give rise to any presumption against himself, or any person charged, to- octher with him. at the same time. The High Court has stated that the case of the appellant is closely connected with that of Dcvendra Prasad.
In fact. the appellant had pleaded that he had attested the signatures of the applicants, for the loans, 00. cause Dcvendra Prasad. another Mukhtear, had attested the same c c BAIDYA NATH V, B!HAR STATE (Vaidialingam, J.)
17 5 and also on the assurance of one Sheojee Prasad Karpardaj. Devendra Prasad had taken a plea that he had attested the signa- tures of the applicants, on the a5surance of one Rudradeo Singh, a class-mate of his. It is in considering this plea that the High Court has commented upon the failure of Devendra Prasad to give evidence under s. 342A, and the High Court has also taken the view that the same reasons will apply to the appellant's defence also. That is, the failure of the appellant, to give evidence, has. been commented upon, by the High Court, and it has also drawn a presumption, against him, both of which are illegal, under clause (b) of the proviso to s. 342A, Cr.P.C.
In view of this serious infirmity, in the judgment of the High Court, the order, under attack, is set aside, and the order of the Second Additional Sessions Jndge, Muzaffarpur,_ acquit- ting the appellant, will stand restored. In the result, the appeal is allowed.
G.C. Appeal allowed.