T.N.R. Tirumaupad, J.C.
1. This is an application for the issue of a certificate under Article 134(l)(c) of the Constitution.
2. The petitioner Amal Roy Choudhary who was an. Inspector of the Procurement Directorate of the Tripura Government was prosecuted along with two others, Abdul Rahaman who was a purchasing agent of food grains at Baksanagar for the Government and Gopal Chakravorty who was also an Inspector like the petitioner. Abdul Rahaman was charged Under Section 420 IPC that he on 16th March, 1954 cheated the Government of Tripura by dishonestly inducing it to deliver Rs. 87,900/- through the Sonamura Sub-Treasury.
The petitioner was charged with abetment that he abetted Abdul Rahaman in the commission of the offence of cheating by giving two false certificates dated 28-2-1954 and 2-3-1954 which were marked as Exts. P-7 and P-8 at the trial and thereby made it possible for the said Abdul Rahaman to commit the said offence. Gopal Chakravorty was 'also charged with abetment. But we are not concerned with him in the present petition. The Magistrate's Court convicted all the 3 persons and sentenced them to imprisonment and fine. The Sessions Judge in appeal confirmed the conviction and sentence of Abdul Rahaman and the peti- tioner but acquitted Gopal Chakravorty, in the revisions filed in this Court by Abdul Rahanwa and the petitioner this Court refused to interfere with the conviction and sentence of either person. Now the petitioner prays that a certificate may be issued that it. is a fit case for appeal to the Supreme Court. Abdul Rahaman has not asked for any such certificate.
3. I shall state the facts necessary for th purpose of appreciating the questions of law raised by the petitioner which according to him would justify this application for a certificate.
4. Abdul Rahaman was, as I said, a purchasing agent of food grains at Baksanagar. He had to purchase grains and to produce them at Baksanagar in the godown of the Storing agent one Altap Ali. The grains so produced had to be weighed in the presence of the Inspector of Procurement and stored in the godown. and entered in the godown registers and the Inspector had to issue certificates stating that the food grain has been received from the particular purchasing agent and weighed in his presence and stored in the godown belonging to the Storing agent. 'Ob the strength of the said certificates, bills are prepared in the office of the S.D.O. at Sonamura and it is cashed at the Treasury office at Sonamura by the purchasing agent.
5. The petitioner was the Inspector at Baksanagar in February and March, 1954. On 28-2-1954 the petitioner as Inspector issued the certificate Ext. P-7 stating that 800 mds, of rice were received from Abdul Rahaman, and weighed in his presence and stored in the godown of Altap . Ali at Baksanagar. Again on 2-3-1954 he issued another certificate Ext. P-8 to the effect that 1000 mds. of rice were similarly received from Abdul Rahaman, and weighed in his presence and stored in Altap All's godown.
The value of the rice shown as received and stored under those two certificates amounted to Rs. 27,900/-. Bills were prepared in the office of the S. D, O. Sonamura, one Kula Chandra Singhs as directed by him on the strength of these two certificates and they were cashed by Abdul Rahaman on 16-3-1954. The two bills were however not produced in the criminal case.
6. On 23-3-1954 P.W. 1, the Director of Food-grains and Procurement arrived at Baksanagar on getting information that there was shortage of stock in Altap Ali's Eodowns at Baksanagar. On the same day the petitioner was relieved of his office as Inspector at Baksanagar as seen from Ext. D-6. P.W. 1 conducted an enquiry and on 24-3-1954 Abdul Rahaman made a statement to him that the petitioner, Inspector of Procurement gave him Rs. 27,900/- on 16-3-1954 after getting a bill passed from the Sonamura Treasury on condition that Abdul Rahaman should deposit in the Government godown the rice purchased with the amount and that he had spent some portion of the amount and had a balance of Rs. 18,200/-with him and further that as it was not possible for him to purchase rice with the amount and as he was not able to keep the money with him safely he was voluntarily depositing the sum of Rs. 18,200/- with the Officer-in-charge of the Police station. He also said that the sum wholly belonged' to the Government as it was paid to him in advance for purchasing rice and that he had no claim over the money.
This statement was recorded by P.W. 1 and it was marked in the Criminal Court as Ext. P-10. I may also add that this statement was treated by all the Courts which, dealt with this case as an extrf-Judicial confession made by Abdul Raha-isao.an'diit has been relied upon strongly for the purpose of convicting, Abdul Rahaman and it bas been taken into consideration Under Section 30 of the Evidence Act in; order to convict the petitioner of the offence of abetment.
7. P.W. 1 directed P.W. 8 on 23-3-1954 to verify the stock in Altap Ali's godowns at Baka-nagar. P.W. 8 was helped by P.W. 2 and P.W. 7 in such, verification. The verification was done in the presence of the petitioner and Gopal Chakravorty, the two Inspectors. On 28-3-1954 P.W. 8 submitted the report Ext. P-9 which disclosed that there was a shortage of 2595 mds. 5 seers of rice in the godowns.
8. On the strength of the extra-judicial confession Ext. P-10 made by Abdul Rahaman and on the strength of the verification report Ext. P-9, P, W. 1 was satisfied that Abdul Rahaman had not supplied the 1800 mds. of rice contained in the certificates Exts. P-7 and P-8 and hence criminal proceedings were started against the 3 persons mentioned above.
9. In the Magistrate's Court it was proved that the report Ext. P-9 was not quite correct and that 840 mds. of rice which were transferred from the godowns of Altap Ali had not been given, credit to and that the real deficit was only 1755 mds. 5 seers. But still as this deficit was not explained by the petitioner or by Abdul Rahaman and as Abdul Rahaman had admitted in Ext. P-10 that Rs. 27,900/- being the amount seen under the certificates Exts. P-7 and P-8 were received by him as advance for purchase which meant that he had not purchased the 1800 mds. of rice or stored the same in Altap Ali's godown, the Magistrate's Court came to the conclusion that Abdul Rahaman had cheated the Government of the said sum of Rs. 27,900/-.
The Court said that as purchasing agent Abdul Rahaman knew that he can receive payment only for rice supplied by him and not as advance for purchase. The petitioner who was the Inspector had certified by Exts. P-7 and P-8 that the 1860 mds. of rice were weighed in his presence and stored in the godown.
The Magistrate's Court came to the conclusion on the strength of the deficit seen under Ext. P-9 and on the strength of the confession of Abdul Rahaman (Ext. P-10) that the petitioner had abetted Abdul Rahaman in cheating the Government of Rs. 27,900/- by issuing the two false certificates. Thus the petitioner was found guilty of abetment firstly on the strength of the deficit which was noticed in Altap Ali's godown and secondly on the confession of Abdul Raha-inan, while Abdul Rahaman was convicted on his confession that he had received the money as advance and not after his purchase and supply, which . confession was found to be corroborated by the deficit established by the report Ext. P-9.
10. It has to be mentioned here that Abdul Rahaman retracted his confession at the time of the trial and he stated that he was made to give the statement by threat and coercion. His plea was that the 1800 mds. of rice were supplied and stored in the godowns of Altap Ali. It has also to be mentioned that the confession was recorded by P.W. 1 at the Police station and that the sum of Rs. 18,200/- as seen from Ext. P-10 was said to have been handed over to the Officer-in-charge of the Police station.
This extra-judicial confession was sought to be proved in the Magistrate's Court as a voluntary-confession by the evidence of P.W. 1, the Director of Food and Procurement. Evidently the prosecution felt that because Abdul Rahaman had retracted the confession and had stated that it was obtained by coercion and pressure, it was necessary to have the evidence of P.W. 1 corroborated by other evidence. P.W. 1 had necessarily to state that tie confession recorded by him was voluntary and that no coercion was practised even though it was recorded in the presence of the Police officer.
11. So the prosecution examined another purchasing agent as P.W. 9 who was said to have been present when it was recorded, P.W. 9 stated in his examination-in-chief that he was present when Abdul Rahaman gave Rs. 18,000/-and odd to the Director and when Abdul Rahaman admitted that out of the amount got by cashing the bill he had made a loan of Rs. 3000/-to one Abdul Majid. P.W. 9 however did not say that he was present when Abdul Rahaman's statement was recorded. But in cross-examination by Abdul Rahaman, P.W. 9 stated that he was not present at the time when Abdul Rahaman gave the money to the Director and further that Abdul Rahaman had told him that the Director had brought him to the Police station by sending 3 constables armed with guns and that the Director had told him that he would be severely dealt with and a case would be filed against him.
After this cross-examination, the prosecution. requested the Court for permission to treat the witness as hostile Under Section 154 of the Evidence Act and to allow the prosecution to cross-examine him. The Magistrate granted the permission and he was further cross-examined. The Magistrate on the strength of the said cross-examination by the prosecution and on the strength of the permission granted to treat him as hostile relied on the evidence of P.W. 9 given in examination-in-chief to corroborate the evidence of P.W. 1 that the confession was voluntary and not extorted and the Magistrate rejected the evidence of P.W. 9 given in the cross-examination by Abdul Rahaman on the ground that the replies in the said cross-examination were intended to help a brother purchasing agent.
Thus he made use of the evidence of P.W. 9 to come to the conclusion that Ext. P-10 was voluntary. Here it may be mentioned that P.W. 9 had not stated in his evidence that he was present when Ext. P-10 was recorded and that his evidence did not help the prosecution to show that the confession, as recorded, was voluntary. P.W. 9 spoke in examination-in-chief only of what Abdul Rahaman orally stated to the Director. The appellate Court as well as the Court of 'he Judicial Commissioner also relied on the evidence of P.W. 9 as supporting the confession and proving it to be voluntary (paragraph 21 of this Court's judgment).
12. My learned predecessor relied on the well-known decision of the Calcutta High Court, Amritlal v. Emperor reported in ILR 42 Cal 957 : A.I.R. 1916 Cal 188, in holding that the permission to cross-examine P.W. 9 was rightly given to the prosecution Under Section 154 of the Evidence Act. It seems to me that this is a very important question of law which requires an authoritative J pronouncement of the Supreme Court. Sections 113 and 138 deal ith the order of examination of a witness and state that a witness shall be first examined-in-chief by the party who calls him and then if the adverse party so desires be cross-examined and then if the party calling him so desires be re-examined for the purpose of explanation of matters referred to in cross-examination.
Section 142 states that leading questions must not if objected to by the opposite party be asked in examination-in-chief or in re-examination except with the permission of the Court and Section 143 states that leading questions may be asked in cross-examination. It is in the light of the provisions in Sections 137, 138, 142 and 143 that Section 154 has to be read, which permits the Court, in its discretion, to allow a person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
13. The decision in ILR 42 Cal 957 : A.I.R. 191.6 ,Cal 188, holds that if new matter is introduced :in cross-examination by the adverse party, the 'party calling a witness may be allowed by the Court, in its discretion, Under Section 154 to put leading questions after the said cross-examination. This has to be done evidently in the course of the re-examination. It will be using the re-examination for a quite different purpose than the one intended. If it is to be treated as cross-examination by the party who called him, it will upset the order of examination referred to in Sections 187 and 138. As to whether the said decision is still correct law is a matter which must be decided by the highest Court in the light of the vast experience gained subsequent to that decision.
14. Secondly, the question arises whether P.W. 9 in the present case had introduced new matter in cross-examination or whether he only contradicted what he stated in examination-in-chief and if he only so contradicted whether the discretion was correctly exercised by the Magistrate in not only allowing him to be treated as a hostile witness and permitting cross-examination by the prosecution but in also rejecting his answers in the cross-examination by the adverse party as interested evidence and in accepting his answers in the examination-in-chief as corroborating evidence of P.W. 1. This is all the more important as the confession Ext, (P-10 which was held to be voluntary on the strength of the evidence or P, Ws. 1 and 9 has been used in this case not only against Abdul Rahaman who made the confession but also against the co-accused, the petitioner in convicting him, even though the said confession was retracted at the time of the trial.
15. All the Courts have accepted the confession as having been made voluntarily on the strength of the evidence of P.W. 1 supported by the evidence given in the examination-in-chief by P.W. 9 and rejecting P.W. 9's evidence in cross-examination as false and interested evidence. Thus the question of law arises whether the discretion of the Court was rightly exercised in allowing P.W. 9 under S, 154 to be treated as a hostile witness after his cross-examination by the adverse party was over when it was left only for the prosecution to re-examine him and whether the Courts were right in accepting his evidence in examination-in-chief and rejecting his evidence in cross-examination and thereby treating the statement Ext. P-10 as voluntary.
I may also state that P.W. 9 has nowhere stated in his evidence that he was present when Ext, P-10 was recorded by P.W. 1, This is therefore a serious question which requires an authoritative pronouncement of the Supreme Court and if necessary a reconsideration of the decision In Amritlal's case, ILR 42 Cal 957: A.I.R. 1916 Cal 188.
16. Another important question of fact and law also arises in the present case. The Magistrate held the statement Ext. F-10 to be a confession within the meaning of Sections 24 and 30 of the Evidence Act and he used it a strong evidence against Abdul Rahaman and he took it into consideration against the petitioner. The question arises in this case whether Ext. P-10 at all amounts to a confession by Abdul Rahaman in the face of the decision of the Privy Council in Narayana Swami v. Emperor, 43 Cal WN 473: A.I.R. 1939 PC 47, wherein Lord Atkin has stated that no statement that contains self-exculpatory matter can amount to a confession if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed and that a confession must either admit in terms, the offence or at any rate substantially all the facts which constitute the offence,
17. The learned Magistrate held that Abdul Rahaman has admitted in the statement that he drew Rs. 27,900/- from Sonamura Treasury though no rice was purchased by him and that he admitted that the money belonged to the Government and that therefore there was no doubt that his admissions constituted the offence or led to the inference of guilt. In arriving at this conclusion the learned Magistrate also stated that Abdul Rahaman who was working as a purchasing agent for a long time must have been conversant with the fact that only after the purchased rice was received and stored in the godown that the bill for the value of rice can be cashed from the Treasury. Thus he inferred that when Abdul Rahaman admitted that he got the money as advance without purchasing the rice it amounted to an inference of guilt.
The learned Magistrate has misquoted the statement of Abdul Rahaman in coming to that conclusion. He did not state that be withdrew the money from the Treasury. What he stated hag been summarised by me in paragraph 5 of this Order, It was that the petitioner gave him Rs. 27,900/- on 16-3-1954 after getting the bill passed at the Sonamura Treasury on condition that Abdul Rahaman should deposit the rice purchased with the amount in the Government godown and that he was returning the money to the Officer-in-charge of the Police station as he was not in 8 position to purchase the rice with the amount which belonged to the. Government.
The question therefore arises whether this is an inculpatory statement by Abdul Rahaman admitting the terms constituting the offence of cheating Under Section 420. To my mind, it does not admit any offence of cheating within the meaning of Section 420 IPC under which the charge was brought against him. On the other hand, it seems to throw the blame entirely on the petitioner for having the money given in advance to Abdul Rahaman for the purpose of purchasing the rice and it tries to absolve himself of all Blame by saying that he was returning the amount because he was not in a position to purchase the rice. This aspect of the matter has not been considered by any of the Courts. In fact the appellate Court and my learned predecessor have not discussed the question whether Ext. P-10 amounted to a confession, but have simply treated it as a confession on the finding given by the Magistrate on that question. This matter also requires serious consideration by the Supreme Court.
18. The importance lies in the fact that the conviction of both Abdul Rahaman and the petitioner was based on this so-called confession. No doubt, the fact that there was a deficit of 1755 and odd mds. of rice in the godown of Altap Ali on the basts of the report Ext. P-9 was also placed before the Courts. But it was not enough if the existence of a deficit in the godowns was proved to bring home the case to the accused. It had to be established by the prosecution that the deficit could be related solely to the 1800 mds. of rice alleged to have been stored in the godown as seen from the certificates Exts. P-7 and P-8. To establish that fact, the prosecution had to show that to some previous time before the checking and verification by P.W. 8 there wag a stock verification by a responsible officer and the stork w found correct and that subsequent to that verification all other rice except the rice under Exts. P-7 and P-8 which have been stored in the go-down have been accounted for properly and that Ars 1800 mds, of rice under Exts. P-7 and P-8 alone remained unaccounted for and constituted die deficit.
Otherwise, it was quite possible that the deficit in the godowns related to some other rice alleged to have been stored in the godown on the strength of other certificates. It seems to me that this aspect of the matter also has been1 lost sight of in the Courts on account of the fact that they treated Ext P-10 as a confession by Abdul Rahaman proving that the 1800 mds. have not been purchased by him but that the amount received by him was an advance for purchase.
19. We are not concerned with Abdul Rahman for the present but only with the petitioner. My learned predecessor in confirming the conviction of the petitioner has stated in paragraph 14 of his order that the books of account maintained by the petitioner and by some of the others in respect of the rice stored in the godown were not at all reliable and gave rise to a strong suspicion, especially when as public servants they were under a duty to maintain clear and correct accounts and that it gave rise to a presumption that things were not done according to rules and that the absence of explanation on the part of the petitioner who was incharge of the godown as to what happened to this big quantity of rice must also go against him.
Thus the unreliable accounts kept by the petitioner led to strong suspicion and even to a presumption against him, according to my predecessor. But neither such suspicion nor the presumption that things were not done, according to rules amounted to proof of a fact under the Evidence Act. The statement of the petitioner in His examination Under Section 342 was that he issued the two purchase certificates Exts. P-7 and P-8 on the strength of the endorsements made by Altap AH, the godown keeper that he has received the rice in question. My learned predecessor stated in paragraph 29 of his order that it was the duty of the petitioner who was in charge of the godown to Issue the certificates only when the goods were received and weighed in his presence.
There is no doubt that it is a correct statement. But we are not concerned with the question whether he discharged his duty properly or in a negligent fashion. If he was negligent he may be proceeded against departmentally. We are concerned with the question whether the petitioner abetted the offence of cheating. The fact that he did not do his duty properly either by keeping his accounts in the correct manner or by getting the rice weighed in his presence before issuing the certificates will not be proof of the abetment of the offence of cheating though it may lead to suspicion and even strong suspicion.
We are again thus reduced to the position that the main evidence against the petitioner which clinched the issue in the eyes of the Courts was the so-called confession (Ext. P-10) by Abdul Rahman stating that the 1800 mds. of rice were not purchased and that the money was given to him as an advance for the purchase by the petitioner. In paragraph 29 of his order, my learned predecessor has stated that the confession of Abdul Rahaman could certainly be taken into consideration Under Section 30 of the Evidence Act as a piece of corroborating evidence.
20. Thus the petitioner has been in fact convicted on the strength of the confession made by Abdul Rahaman. In this connection, I may also say that Sri Kula Chandra Singhs, the S.D.O. at Sonamura was not examined even though it was he who had the bills prepared, and the bills themselves were not produced as evidence. Altap Ali, the godown keeper who was also one of the accused was absconding and his version of the matter was not before the Court. Thus, in short, the confession of Abdul Rahaman was the main piece of evidence which led to the conviction to the petitioner. The question therefore arises i whether die said statement Ext. P-10 amounted to a confession at all which could be taken into con-' sideration against the petitioner Under Section 30 of the Evidence Act and whether the conviction of the petitioner on the ground of the suspicion and the presumption referred to in paragraph 14 of the order 6i my learned predecessor, with Ext. P-10 used as corroborating evidence s stated in paragraph 29 of his order was correct and proper. This is again a matter which requires consideration by the Supreme Court. I think it is a fit case where a certificate should be granted on that ground also.
21. Certain other Irregularities in the proceedings were also pointed out to me regarding the Initiation of proceedings Under Section 156(3) Cr.PC, and subsequent action taken Under Section 202 Cr.PC But they are all irregularities which do not vitiate the proceedings as pointed out by my learned predecessor and which could be cured Under Section 537 of the Cr.PC, and I see no reason to issue a certificate on the strength of such Irregularities.
22. All things considered, I consider this a fit case for Issuing the certificate asked for under Article 134(1)(e) of the Constitution,