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Arjuna Misra Vs. the Indian Union - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Case NumberSupreme Court Appeal No. 4 of 1950
Reported inAIR1950Ori235; 16(1950)CLT115
ActsConstitution of India - Article 134(1); Code of Criminal Procedure (CrPC) , 1898 - Sections 342 and 404
AppellantArjuna Misra
RespondentThe Indian Union
Appellant AdvocateK.N. Agarwala and ;M.S. Rao, Advs.
Respondent AdvocateGovernment Adv.
Cases Referred and Krishna Chandra v. Rajendra Narayan
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....ray, c.j.1. this is an application by the prisoner (arjuna misra) whose convictions under sections 457, 380 and 461, penal code, have been confirmed by this court in criminal revision no. 116 of 1949. the applicant invokes us to certify that the case is a fit one for appeal to the supreme court within the meaning of article 134(1)(c) of the constitution of india, in order that he may prefer an appeal against the final order of conviction and sentences in the said criminal proceeding. the pith and substance of the various contentions advanced is that, at the end of the hearing before this court, is the background of the findings recorded therein, there does not exist any reliable evidence upon which a conviction can be safely or justly based and that, accordingly, the principles of natural.....

Ray, C.J.

1. This is an application by the prisoner (Arjuna Misra) whose convictions under Sections 457, 380 and 461, Penal Code, have been confirmed by this Court in Criminal Revision No. 116 of 1949. The applicant invokes us to certify that the case is a fit one for appeal to the Supreme Court within the meaning of Article 134(1)(c) of the Constitution of India, in order that he may prefer an appeal against the final order of conviction and sentences in the said criminal proceeding. The pith and substance of the various contentions advanced is that, at the end of the hearing before this Court, is the background of the findings recorded therein, there does not exist any reliable evidence upon which a conviction can be safely or justly based and that, accordingly, the principles of natural justice have been violated resulting in substantial and grave injustice to the applicant.

2. The applicant and one P. J. Patnaik (since acquitted by the final order of this Court in Cri. Revn. No. 73/46 which was heard analogously with Cri. Rev. No. 116/49 and disposed of by one judgment governing both) had been tried jointly on identical charges arising out of one occurrence.

3. The occurrence related to a theft of a sum of Rs. 2290-14-0 from an iron-safe in the Office of the Superintendent of Police, Koraput, on 17th November 1946, between the hours 5-30 and 7-30 P. M. The theft was discovered immediately when the night watchman came to the office at about 7-30 P. M. and found the safe broken open. A first information report was lodged which, besides informing about the occurrence of theft of money, was lacking in all relevant details as to when, how and by whom the discovered crime had been committed. Investigation was taken up immediately and a general search of the premises of the Reserve Police Barracks, nearby, of which the applicant (Arjuna Misra) was one of the inmates undertaken. This continued till the 21st. In the afternoon of that date, investigation changed hands and C. I. D. Inspector from Cuttack took it over. He arrested Arjuna who confessed to him. His confessional statement constitutes the fabrics of the prosecution story. The statement, as recorded, by a Magistrate under Section 164, Criminal P. C., is quoted in extenso :

'On Sunday after 3 o'clock I met him (P. J. Patnaik) in the office. He told me to sit on the (illegible) of my house on that evening. When I would stand near the well then you would come to me. On hearing this I went back to my house. There was none in the house where we were present. While it was going to be dark P. J. Patnaik came to me. I went to him as I saw him. He told me to bring a crowbar. On the very moment I ran to C/24 and asked him for crowbar. He gave me. While I was bringing the crowbar he gave me direction by winking his eyes and went 25 cubits ahead of me. I followed him on the hospital road. There is way near the Kana, where the wires had near pressed. He was waiting for me there. We met together there. We both entered into the compound. He gave me a torch and directed me to help him with light and he would do rest. He took the crowbar from my hand. One glass of the back door was missing. He pushed his hand inside it and opened the door. We both entered iota the room. On his direction I showed him light. Ha thrust the crowbar inside the lock. He gave a jerk but the lock did not give way. He gave repeated jerks so the look was opened. I was waiting outside to watch if anybody was coming. But there was none there. He further directed me to go outside and watch. Accordingly I went outside. Then the door was already opened. The crowbar was lying on the floor. He put the G. C. notes of the box inside his clothes. He directed me to bring the crowbar. Ha went ahead. I followed him. We went back on the same way we came. We both went to D.I.'s quarter. We both went inside it. He gave me some bundle of G. C. notes and directed me to run away. As I was going with the crowbar and G. C. notes he asked me to give back the crowbar, lest I might show it to anybody. He also brought the lock of the iron cash chest. The lock was broken. He took away the lock, crowbar and rest of G. C. notes. So I told him if you would take the crowbar how could I manage as it belonged to others. So he directed me to say that somebody had taken it. I ran away through the ground. I told C/24 in the morning that I had thrown the crowbar into the well and not to ask me for it. I told him a lie being afraid of 'search.' I did not tell him about the theft. I kept some of the money in a barley tin and concealed it inside a 'Kia' bush. I put some of the money inside a cigarette tin and concealed it inside the almirah of my house. Although there was search in my house in the night none could see the money. Next day C/22, 24 and two Ratho brothers all told the fact of crowbar in the office. The Dy. S. P., S. I. and other officers began to ask me about this. But I did not tell. Next day or after two days I was placed under suspension. On that evening I told G. N. Tripathy that P. J. Patnaik and myself had thrown the crowbar into the well, I made over to him a bundle of 100 G C. notes and told him to throw it in the house of C/24 and report the theft. He told me to throw it in the morning. So I gave him the money in the morning. I told him to give share of the amount if no blame would come to me. Ha assured me to give help He kept Rs. 100 in his house. I sent for C/382 and requested him to report this fact. He gave me word but did not do it. I came back with a request not to say this fact to anybody. Sometime after some Police Officers same to the line in a car. So then I concealed the cigarette tin containing the money inside the cowdung heap on the way side. It was recovered during search. Afterwards I was called and examined by some Police Officers and I told all the facts. I showed the amount kept inside the barley tin. I was arrested. I first told G. N. Tripathy about P. J. Patnaik. We together bad a talk on this matter on that Sunday. We together were putting up in a mass for some days.'

4. The confession has been found to have been made voluntarily and was accepted and acted upon by the trial Court and the Court of appeal below. Both the said Courts recorded a finding that the confession, though retracted at the trial stage, was reliably adequate evidence corroborated as it had been in material particulars by the evidence of various witnesses examined in the case. Accordingly, the applicant petitioner as well as his co-accused were convicted of all the offences with which they had been charge and sentenced. Two learned Judges of this Court, in exercise of their revisional jurisdiction, invoked by both the accused persons, made a detailed examination of the evidence adduced by the prosecution, and the defence evidenced adduced by P. J. Patnaik and recorded a finding of acquittal of P. J. Patnaik while confirming the conviction and sentence of the applicant.

5. In acquitting P. J. Patnaik, the Court came to certain very definite and unequivocal findings to be stated presently. It is to be seen whether the conviction of the applicant based as it is on the self-same evidence, ought to stand side by side and consistently with those said findings.

6. As to the confessional statement describing the modus operandi of breaking open the iron safe by P. J. Patnaik with the help of a crowbar, the learned Judge (Panigrahi J. who delivered the Court's Judgment) records asfollows:

'According to the Courts below, the fact as to how the embaded look of the iron-safe was opened still remains a mystery. Whether the safe as well as the padlock were opened by keys, real or false, or whether they were opened by violence could not be determined by the Courts below in view of the circumstances negativing the story of alleged violence and forcible opening of the padlock and the Iron-safe. The facts disclosed at the time were more consistent with the natural opening of the padlock and the safe with their keys than the forcible opening with the aid of & crowbar ...I am loth to believe that the padlock or the iron-safe itself was broken open as alleged by the prosecution with the help of a crowbar which was never recovered. The marks of violence alleged to have been notice the iron chest were probably those that were made at the instance of the Superintendent of Police while he was conducting the sound test (the sound test made in the courage of investigation in order to ascertain whether in case of violence with a crowbar for breaking open the iron safe, the sound created would be audible to the Magazine Guards on duty very near the scene of occurrence). The removal of the net bag--(leaving alone a small cash box which also contained a fairly large sum of money)--is also a circumstance which does not appeal to be natural. If their had been a burglary, why the small cash box was left untouched and why only the bag was removed defies explanation. The find of a two rupee note near about the iron safe also raises suspicion. The whole affair is a made-up job, having regard to the fact that the notes in the iron safe were stitched. ... In view of the apparent contradictions in the evidence regarding the borrowing of a crowbar by Arjun and its non recovery by the Police, I am not inclined to accept the story that a crowbar was actually used to force the safe open.'

7. Besides, the prosecution story, as a whole, was not accepted to be true, the retracted confession of the applicant notwithstanding. The learned Judge, in this connexion, said.

'A number of witnesses were examined to prove the alleged burglary but after going through the evidence of all these witnesses, I have been left with the impression in my mind that it was a made up story and that the chest and the padlock were opened with the help of key either by the custodian of the keys or by some one else with his connivance. . . . The presence of P. W. 1, Head-clerk of the Police Supdt.'s Office who was in charge of cash in the iron chest which was sealed and looked up by him in the office on the day of occurrence which was a Sunday and the evidence that he was there till after 5 O'clock lends support to the inference that he was himself the thief or an active participant or abettor of the theft.'

In relation to the complicity of the said Head-clerk, the learned Judge further observed:

'The suggestion of the accused P. J. Patnaik that P. W. 1 was heavily involved in debts and was short of funds and that he therefore resorted to the story of burglary to cover up his acts of misappropriation cannot be brushed aside as untenable. I am loth to believe that the padlock or the iron safe itself was broken open as alleged by the prosecution....'

Except for the evidence of the Head-clerk there is no other proof on record to show that the stolen property was in the iron safe at the alleged hour of occurrence.

8. It may be noted here that the applicant was a treasury peon attached to the Superintendent of Police's Office and in that capacity he used to attend to the behests of the Head-clerk (P. W. 1) and to sleep sometimes at the latter's lodge. This circumstance and certain others to be mentioned presently have, in the main, been relied upon in corroboration of the retracted confessional statement.

9. It would be worthwhile to devote a few lines to the general nature of the evidence adduced by the prosecution in corroboration of the material particulars of the applicant's confession and to note, after almost wholesale condemnation of such evidence, bow much of it outstood and survived the test so as to ensure the corroboration of the confession relied upon for the applicant's conviction. This becomes particularly necessary as preponderance of what is found to be false in the confessional statement of the applicant over what is found true is so great that reliance on that confession deprives the accused of the substance of the fair trial and the protection of law, and, besides, it is necessary to evaluate the consequence of a departure from the statutory process of drawing the attention of the accused to what is considered an almost conclusively corroborative incriminating circumstance appearing in the case, particularly, if such a circumstance is capable of being pressed home to establish the accused's guilt. The departure from such of the legal processes as are ordained to ensure fair trial and justice tends (to use the language of their Lordships of the Privy Council in the case of Ibrahim v. The King, 18 C. W. N. 705: (A. I. R. (1) 1914 P. C. 155: 15 Cr. L. J. 326)

'to divert the due and orderly administration of law into a new course which may be drawn into an evil precedent in future'.

10. The prosecution evidence, in this behalf, may be classified into several categories, with reference to their bearing on the confession. They are to prove (i) the negotiation by the applicant for borrowing and ultimate procurement of the crowbar with which the padlock and the embedded lock of the iron safe are alleged to have been broken by P. J. Patnaik, the co-accused; (ii) the movements of the applicant and P. J. Patnaik together in a suspicious manner on the eve of the alleged hour of occurrence and a short while thereafter, and the conversation between them regarding disposal of the stolen property said to have been overheard by one of the police constables; (iii) the applicant's conduct in getting planted a bundle of ten-rupee notes into the house of one of the constables in the barracks in order to inveigle the latter into complicity in the crime and to track off the course of investigation; (iv) applicant's leading the investigating officer to a Murga bush and producing a part of the alleged stolen notes concealed underneath in a barley tin, and (v) the applicant's retracted confession.

11. The prosecution witnesses, whose evidence comes within the first, second and third categories as enumerated above, were all disbelieved by the learned Judges of this Court, and P. J. Patnaik was exonerated from complicity in the crime. A different version of the crime was supposed instead. The necessary and irresistible conclusions flowing therefrom is that so much of the confession as related to P. J. Patnaik's complicity in the crime and was sought to be corroborated by the evidence aforesaid must be held to have been ruled out as bolstered up in order to save P. W. 1 (Head-clerk)--the real thief, according to the ultimate finding of this Court, who was in a position of dominating the will and enjoying the confidence of the applicant. In this connection, it may be noted that as to P. W. 18, who was examined to establish a very important link incriminating the applicant, namely, his manoeuvring to foist the guilt on P. C. 22 (P. W. 11), the Court pronounced 'no reliance can be placed on the worthless evidence of this witness for any purpose.'

12. For facility of reference, I shall quote below the remnants of the confession that alone can be said to have stood unscathed by the Court's condemnation:

'He (according to the confessing accused P. J. Patnaik) gave me some bundle of G. C. notes and directed me to run away. ... I kept some of money in a barley tin and concealed it inside a 'Kia' bush. I put some of the money made a cigarette tin and concealed it inside the Almirah of my house. Although there was search in my house in the night none could see the money. ... So then I concealed the cigarette tin containing the money inside a cowdung heap on the way side. It was recovered during search. Afterwards I told all the facts. I showed the amount kept inside the barley tin.'

The question arises whether this part of the confessional statement taken out of its contest in which it was originally fitted can be relied upon after the corroborating proof was made unavailable to the prosecution. Stories told by the petitioner were designedly made to harmonise and fit into each other. When one story is rejected as incredible, the reliability of the other is necessarily affected. That the acquitted P. J. Patnaik gave the notes to the petitioner can no longer be assumed. Coming to that position, the Court had to surmise that some body else, most likely P. W. 1, was the thief, or, at any rate, abettor of theft. Leaving that out as a mere conjecture, the remnant of the confession would amount to the applicant petitioner acknowledging having concealed some money in the batley tin in the mango bush and in the cowdung heap. He is not according to the prosecution, associated with the recovery of the latter from the road side cowdung heap, but, with regard to the former, it has been proved that he- produced them. The Investigating Officer has deposed that the accused first told him that he had kept the stolen money under the bush, and then produced. The statement that it was stolen money is obviously inadmissible being a confessional statement made to the Police Officer. Assuming that the very notes recovered were the ones that had been issued by the treasury for the use of the Police Office and had been stolen, the position reduced itself to this that the applicant petitioner received the stolen goods from some unknown source under circumstances yet unravelled and had concealed the same. If this is to be pressed home against the accused as an incriminating circumstance, he must be given an opportunity to explain. Such is the purpose for which an examination of accused under Section 342, Criminal P. C., is meant. It, no doubt, affords a very strong corroborating of the accused's confession that he came by some of the stolen money. From this, it may be presumed that he was either the thief or a receiver of stolen property.

13. As this stage, I shall address myself to the judgment of this Court to demonstrate how the principles of natural justice have been disregarded in determining the applicant petitioner's guilt, particularly, after condemning almost whole of the corroborating evidence. The learned Judge says:

'The case of Arjun Misra, stands on a different footing. The confession that he made before the Magistrate though subsequently retracted finds corroboration from other evidence recorded in the case,'

The corroborating circumstances are stated categorically to be (i) his knowledge of the contents of the iron safe; (ii) his opportunities of pilfering the keys from P, w. 1's house and making false keys; (iii) his being hand-in glove with and enjoying the confidence of P. W. 1, for which it is said he can be regarded as particeps criminis with P. W. 1 as against whom, weight has been given to the suggestion of the accused P. J. Patnaik that in order to cover up his acts of misappropriation he resorted to the story of burglary; and (iv) his sudden disappearance from the Police Office at the time of roll call on the night of 17-11-1946--the day of occurrence--the established position on the evidence is that the petitioner was present among all the Police Constables that had gathered on an alarm being given on discovery of theft at the Police Office but was found absent at the time of roll call which was decided to be taken probably for the purpose of finding out a clue to the crime and that a number of other constables also were absent at the time.

14. I do not find anything in these circumstances that is demonstrably inconsistent with the facts on any assumptions other than the accused's guilt. The circumstances relied upon are rather conjectural. Their implications are, in my opinion, such as cannot bear the weight of any serious examination so as to read to the conclusion that the accused was none but guilty.

15. In the course of the hearing, my learned brother Narasimham J. pointed out that the fact of the production of stolen properties from a place where they were secreted by him is a very strong incriminating circumstance and goes strongly to corroborate his confession, on its broad outline, shorn of all such surplusages as had been found to be not true, that he partook in the theft irrespective of whoever else be in the conspiracy with him. This brings into prominence whether the confession was voluntary. It was, no doubt, voluntary considered in the light of the finding that he had not been tutored by the Investigating Officer to make a confession; bat the findings recorded in this Court leave no room for doubt that in weaving out a story in a manner so as to implicate P. J. Patnaik, he was under the influence of some interested unknown hand. This leads to the result that it was not a confession which was made with a view to making a full disclosure of the facts, as they are. Making allowance for such facts as have not yet been disentangled from the arena of the unknown and unproved and putting the prosecution case at the highest, the confession amounts to entangling the applicant as one who came into possession of the properties recently stolen, or, in other words, that the prosecution can be said to have established, nothing more and nothing less than, that the accused was in possession of the goods recently stolen from which an inference of guilt of either theft or receiving stolen properties may be deduced in the absence of any explanation as to the way in which they came into his possession. Before such an inference is made as is dictated by the principles of natural justice and rules of fair trial, he should be given an opportunity to explain. Denial of such an opportunity amounts to denial of fair trial. According to their Lordships of the Privy Council in the case of Otto George Gfeller v. The King, A. I. R. (30) 1943 P.C. 211: (45 Cr. L. J. 241):

'If as explanation were given which the Jury think might reasonably be true, and which is consistent with innocence although they were not convinced of its truth, the prisoners are entitled to be acquitted inasmuch as, the prosecution would have failed to discharge the duty cast upon it of satisfying the jury beyond reasonable doubt of the guilt of the accused, . . . The accused did not have to prove his story but if his story broke down the jury might convict.'

It is implicit in the rule laid down that the accused should be given an opportunity to explain. I have examined the replies given by the accused in his examination under Section 342, Criminal P. C. The incriminating circumstances now pressed against him were never put to him either directly or indirectly nor was there any other attempt to elicit an explanation from him. He was asked to explain why and under what circumstances he made a confession. His reply (the stock reply that often is resorted to by a confessing but subsequently retracting accused) is that he had been tutored by the Investigating Officer. This sort of examination of a general character might have left no lacuna if the confession were accepted or rejected, as a whole, but different considerations arise in the facts and circumstances of the present case, already dealt with, at length. In the case of Dwarikanath Verma v. Emperor, 37 C. W. N. 514: A. I. R. (20) 1933 P. C. 124: 34 Cr. L. J. 322), their Lordships of the Judicial Committee have taken pains to point out the seriousness of the failure to follow the statutory rule of legal process in a circumstance, such as this. Their Lordships were dealing with accused's failure to explain an incriminating circumstance upon which much stress was laid by the prosecution in order to prove the accused's guilt. They said:

'It appears to their Lordships that in this respect the accused has serious ground to complain of his treatment. Section 342, Criminal P. C. provides that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court shall question him generally on the case after the witness for the prosecution have been examined. .... The learned Chief Justice told the jury that the absence of blood in the body cavity was a vital point. If so, it is plain that under Section 342 of the Code it was the duty of the examining Judge to call the accused's attention to this point and ask for an explanation. Probably the departure from the statutory rule was due to the fact that one Judge examined the accused while another summed up. But it deprives of any force the suggestion that the doctor's (accused's) omission to explain what he was never asked to explain supplied evidence.'

Applying the principles thus laid down to the facts of this case, it can be urged, with great force, on behalf of the applicant, that he makes a serious grievance of the departure of the elementary principle of a criminal trial consisting in the trial Judge's failure to ask him to explain the incriminating circumstances which looked so fatal to the accused's plea of innocence. I quite appreciate that this circumstance has been focused on account of the findings recorded in this Court in the criminal revision. But such findings shall be deemed to be findings in the case and the accused's guilt or innocence must be determined in the setting of such findings.

16. In my judgment, the accused can justly complain that, in this trial, the principles of natural justice have been disregarded, that there had been a departure from statutory rule of a basic character and non-compliance with the requirements of such fundamental procedure as ace imperative in a criminal trial for the purpose of ensuring substance of fair trial. It would not be out of place to say that the accused had, at last, been driven to meet a case with which he was never confronted in the course of the trial, It shall be noted also that none of the circumstances relied upon in this Court, as tending to corroborate the retracted confession, had ever been made to appear to the accused in his examination as incriminating circumstances appearing in the evidence on record and requiring an explanation from him. Some of the circumstances either do not find any support from the evidence or find too slender a support which can hardly be sufficient to base a conviction upon. In the contest that the applicant weaved oat a false story to implicate P. J. Patnaik at the instance of P. W. 1, a non-incriminating circumstance can be easily conceived, in which the accused might have come by a part of the stolen goods without the necessary guilty knowledge and his conduct in concealing some under the bush might have been motivated for reasons explainable on hypothesis other than that of his guilt. This, if not anything else, makes it all the more imperative that he should have been given an opportunity to explain his conduct as it appears in his possession and production of stolen goods.

17. The question that next arises for consideration is how to judge the fitness standard. The Judicial Committee of the Privy Council was not an appellate Court in criminal cases. They used to exercise the prerogative of His Majesty the King Emperor in matters criminal when there was miscarriage of justice brought about by disregard of the principles of natural justice, denial of substantial trial, and infringement of essential principles of justice and the like. In the case of Muhammad Nawaz v. Emperor, AIR (28) 1941 P.C. 132 : (43 Cr. L. J. 1) it had been laid down :

'The Judicial Committee is not a revising Court of criminal appeal : that is to say, it is not prepared or required to re-try a criminal case, and does not concern itself with the weight of evidence, of the conflict of evidence or with inferences drawn from evidence, or with questions as to corroboration or contradiction of testimony, or as to whether there was sufficient evidence to satisfy the burden of proof. Neither is it concerned to review the exercise by the previous tribunal of its discretion as to permitting cross-examination as a hostile witness or in awarding particular punishments.'

The earliest dictum of the Board pronounced was that of Lord Watson in the case of In re Abraham Mallory Dillet, (1887) 12 A. C. 459 ; (56 L. T. 615), his Lordship said :

'The rule has been repeatedly laid down and has been invariably followed, that Her Majesty will not review, or interfere with, the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial or grave injustice has been done.'

In the case of Mohindar Singh v. Emperor, 69 I. A. 233 : (AIR (19) 1932 P. C 234 : 34 Cr. L. J. 18) Lord Dunedin delivering the judgment of the Board laid down the limitations upon the interference of the Judicial Committee with convictions arrived at by tribunals charged with criminal jurisdiction, in the following words :

'There must be something so irregular, or so outrageous, as to shake the very basis of justice.'

Lord Porter, in the case of Malak Khan v. Emperor, AIR (33) 1946 P. C. 16 : (47 Cr. L. J. 489), relying on Lord Watson's words in delivering the opinion of their Lordships in In re Abraham Mallory Dillet, (1887) 12 A. C. 459 : (56 L. T. 615) made it clear that the Privy Council would not review or interfere with the course of criminal proceedings, unless it was shown that, by a disregard of forms of legal process, or otherwise, substantial or grave injustice had been done. When neither of these things are present, the Privy Council will not interfere on the ground that the evidence was wrongly valued or was not sufficient to justify the conclusion reached. It requires more than an allegation or even proof that a Court might take a different view of the compelling, force of the evidence given.

18. In my opinion, the scope of an appeal to the Supreme Court against a final order or sentence in a criminal proceeding has not at all been widened. That Court will have to interfere with convictions by local tribunals within the same bounds of limitations and restraints laid down by the Privy Council and the fitness has to be judged by the standard that that tribunal laid before it in granting special leave to appeal. The only change that the Constitution has introduced is to endow the State High Courts with powers to certify, or in other words, to grant leave to appeal.

19. The applicant of this case was accused of having done some physical acts in furtherance of the common intention he shared with P. J. Patnaik. The acts were (i) aiding by procuring the implement for breaking open the iron safe by P. J. Patnaik, (ii) standing and waiting for a watch in order that P. J. Patnaik's commission of the crime is facilitated free of any fear from external agencies, and (iii) receiving from P. J. Patnaik a share in the spoils. On the hypothesis that P. J. Patnaik did not commit the offences under Sections 457, 380 and 461, the applicant's receipt of stolen property, the only wavering balance in the case against him, would not render him liable for the said offences. To convict him of the same offences, without proving anything more against turn, appears to me so irregular and outrageous as to shake the very basis of justice. That there has been disregard of the form of legal process so vital to a criminal trial in the failure of compliance with the statutory rule of accused's examination under Section 342, Criminal P.C. admits of no doubt, I would, therefore, hold that this is a fit case for appeal, I entertain no doubt that there has been miscarriage of justice.

20. I owe a duty to my learned brother Narasimham J. who was a consenting party to the judgment, sought to be appealed against, to any that be agreed with me in the conclusion of mine after much hesitancy and reluctance. But, however, he shares my view that there has been disregard of the statutory rule of examination of accused under Section 342, Criminal P. C. to his utter prejudice in his defence. The learned Government Advocate, who represented the State, frankly conceded that this is a fit case for appeal.

21. Therefore, (to use the words of Lord Atkinson in the case of Vaithinatha Pillai v. Emperor, 21 I. C. 369: (36 Mad. 501 : 14 Cr. L. J. 577)), whatever doubts we may have of the applicant's innocence, or whatever suspicions we may entertain of his guilt or, however, great may be our reluctance that the decisions of this Court and of the Courts below shall be interfered with or overruled, we feel bound to certify that the case is a fit one for appeal to the Supreme Court within the meaning and intendment of Article 134(1)(c) of the Constitution of India.

Narasimham, J.

22. I have read with great care the reasons given by my Lord the Chief Justice while granting the certificate under Article 134(1)(c) of the Constitution. My hesitation and reluctance to grant such special leave were not so much due to my being a party to the judgment under appeal as to the doubts which I entertain regarding the fitness of this case for appeal to the Supreme Court as required by Sub-clause, (c) of Clause (1) of Article 134 of the Constitution. There was no provision similar to Article 134 in the Government of India Act, 1935, and consequently there are no decisions dealing with the question as to what may be considered 'to be a fit case for appeal to the Supreme Court' against any judgment in a criminal proceeding of a High Court. But there are some decisions explaining similar provisions in Clause (c) of Section 109, Civil P. C., which also empowered the High Court to certify a case to be a fit one for appeal to His Majesty in Council.' The tests usually applied to determine fitness for the purpose of this clause were whether the point involved is one of 'great public or private importance and whether the litigation is not oppressively expensive and the elucidation of the real issues in the case by a trial of the suit is not unduly postponed or delayed: Narsingha Charan v. Rajnity Prasad, A. I. R. (21) 1934 Pat. 564 : (152 I. C. 301) and Krishna Chandra v. Rajendra Narayan, A. I. R. (23) 1936 Pat. 465 : (15 Pat. 659).' Some of these tests are obviously inapplicable to criminal proceedings But the main test as to whether the point involved in of 'great public or private importance' if applied to the present case may not justify the granting of the certificate asked for. The only point involved in this appeal is whether when a portion of a confession in so far as it relates to the conduct of a co-accused has bean held to be false, the residue of the confession is sufficient to sustain a conviction especially when it has been subsequently retracted. It is now well settled that it is unsafe to convict a person on his retracted confession unless there is adequate corroboration. There was some evidence of a corroborative nature such as the recovery of a large amount of cash from a place pointed out by the appellant. But this piece of corroborative evidence may not be utilised against the appellant because during his examination under Section 342, Criminal P. C., he was not specifically called upon to explain the same. Even then if a Court considers that the retracted confession is voluntary and that it suffices to support the conviction of its maker it is difficult to see bow any point of 'great public or private importance' is involved.

23. However, my Lord the Chief Justice has considered this to be a fit case for granting the certificate and I do not think it necessary to express disagreement with his view.

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