(1) The petitioner Radha Kishan son of Mohan Lal, aged about 38 years, Brahman of Bazar Tahli Sahib, Amritsar, was convicted by Shri M. L. Grover, Magistrate 1st Class, Amritsar, for an offence under S. 408, Indian Penal Code, and was sentenced to undergo rigorous imprisonment of two years and to pay a fine of Rs. 500/-. In default of payment of fine the accused was ordered to undergo further rigorous imprisonment for six months. The amount of Rs. 14,350/- recovered from the accused was ordered to be paid to Shri K. C. Bahl complainant after the result of the appeal, if any. Radha Kishan then filed an appeal in the Sessions Court, Amritsar, which was dismissed by Shri Jasmer Singh, 2nd Additional Sessions Judge, Amritsar, on 17-1-1959. Feeling aggrieved agains the decision of the two Courts below Radha Kishan has now come up to this Court under S. 439 of the Code of Criminal Procedure.
(2) The prosecution version in brief is as follows. Kishan Chand Bahl P.W. 4 also known as K. C. Bahi is running his business in Majith Mandi, Amritar, as a clearing agent and a deals on behalf of his constituents with the Customs authorities in the matter or import and export. The railway receipts and other documents are delivered by the customers to his firm and after paying the necessry custom dues the goods are got cleared from the Customs Department by his firm. The petitioner was admittedly employed in the aforesaid firm known as Messrs. K. C. Bahl, Land Customs Clearing Agents, on a monthly salary of Rs. 28/- for about 2 1/2 years prior to 9-6-1958. The main duty of the petitioner was to collect monies on behalf of the firm from the customers to receive payments from banks and also to deposit amounts in banks on behalf of the firm.
On different occasions, huge amounts used to be entrusted to the petitioner for being deposited in the banks. On 7-6-1958, the firm received an advice from Ranjit Singh P.W. 3 regarding his having remitted Rs. 21,000/- to the Punjab National Bank for payment of custom dues in respect of certain consignments. Shri K. C. Bahl P.W. issued a cheque for Rs. 21,000/- on the Punjab National Bank, Limited, Akali Market, Amritsar, in favour of Piare Lal P.W. This amount was collected by Piare Lal on Monday 9-6-1958, as he could not collect the same on Saturday 7-6-1958.
The money was counted by Piare lal in the presence of the petitioner, Rajinder, Sardari Lal and K. C. Bahl and was entrusted to the petitioner with the direction that he should deposit this amount in Account No. 40 in the State Bank of India, and thereafter take the treasury challan to the Customs Office. Two challans--one for Rs. 20,000/- and the other for Rs. 1,000/- -were prepared and handed over to the petitioner along with a sum of Rs. 30/- -which also had to be deposited along with the challans. The petitioner did not reach the Customs Office even till 4-30 p.m. and Om Parkash sent a telephonic message to Shri. K. C. Bahl about this matter.
Thereafter an inquiry was made from the State Bank of India and it was found that Rs. 30/- only had been deposited there and the balance amount of Rs. 21,000/- -had not been deposited. First information report was lodged at the police station on the morning of 10-6-1958. The petitioner absconded and had to be declared a proclaimed offender. He surrendered himself in Court on 7-7-1958, and on the next day he gave an information contained in Exhibit P.A. and led the police party to Jandiala where Krishan Mohan P.W. produced Rs. 5,950/-. On the next day the police went to Rajpura where Raj Mohan produced a sum of Rs. 8,400/-. These amounts were represented to be part of the embezzled amount of Rs. 21,000/-.
The prosecution examined as many as 15 witnesses including K. C. Bahl, proprietor of the firm. Shri Sardari Lal Gupta, Manager of the firm, Shri Piare Lal, Accountant of the firm, Rajinder, an employee of the firm, and Parkash Chand, Cashier of the State Bank of India, Amritsar. The accused was examined under S. 342 Criminal Procedure Code, and he made a curious statement alleging that he was addicted to gambling and had made huge amounts from the same and that the amounts recovered represented the deposits made by him out of his gambling transactions. The learned trial Magistrate believed the prosecution version and found the accused guilty under S. 408, Indian Penal Code. The learned Additional Sessions Judge, after going very carefully through the whole case, agreed with appreciation of the evidence made by the trial Magistrate and upheld that conviction.
(3) Mr. Moti Ram Aggrawal argued the petitioner's case at length before me, but he was not able to show any reason at all why the evidence of Mr. K. C. Bahl, Piare Lal and Sardari Lal Gupta should not be believed. It was suggested that the dastkhati bahi maintained by the firm had not been produced and that an adverse inference must therefore be raised that the same would not have supported the prosecution case. It is, however, clear the dastkhati bahi was not maintained on the date of the occurrence but came into existence at some later time probably because of the experience gained by the proprietor of the firm.
It is common knowledge that the employees of firms are not asked to sign when they are handed over amounts for being deposited in banks or when they are asked to collect amounts from the customers or from the banks. It cannot possibly be expected that the proprietor of the firm would obtain signatures of his Munim when he handed over the amount of Rs 21,000/- to him for deposit in the bank, more especially when it is in evidence that much bigger amounts were on previous occasions handed over to the Munim in similar circumstances for being deposited in banks.
(4) The next contention raised by the learned counsel for the petitioner is that the evidence consisting of the disclosure statement, Ext. P. A. and the recovery of Rs. 5,950/- and Rs. 8,400/- must be held to be inadmissible in view of the fact that S. 27 of the Indian Evidence Act which permitted such evidence had now become ultra vires by reason of Art. 20(3) of the Constitution of India. It is urged that the information given by the accused with regard to the aforesaid amounts must be take to have been obtained from him by compulsion and the accused must therefore be deemed to have been deprived of the protection given by Art. 20(3) of the Constitution of India that no person accused of any offence shall be compelled to be a witness against himself. Reliance in this respect is placed on Amin v. State, AIR 1958 All 293, where a Division Bench of the Allahabad High Court held as under:
'The phrase used in Art. 20(3) is to be a witness' and not to appear as a witness. It follows that the protection afforded to an accused in so far as it is related to the phrase 'to be a witness' is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him.
Article 20(3) therefore, applies to discoveries under S. 27, Evidence Act, if these discoveries are the results of compulsion. The scope of S. 27, Evidence Act, is thus restricted by Art. 20(3) of the Constitution and the discoveries which follow a confession brought about by compelling an accused person cannot be used against him.
Where facts disclosed point to the accused having been subjected to third degree methods prior to the discovery, the genuineness of the discovery is rendered doubtful and the discovery becomes worthless as a piece of evidence'.
This ruling does not lay down that S. 27 of the Indian Evidence Act as such is ultra vires. All that the ruling lays down is that if the discovery has been made as a result of the information obtained by compelling the accused to give the said information, the said evidence will be hit by the provisions of Art. 20(3) of the Constitution of India, and that it would be inadmissible against the accused. In the present case, however, no suggestion at all was made by the accused at any stage that the information given by him was obtained form him by any compulsion or that he was subjected by the police to any third degree methods for the purposes of giving the said information. The ruling, therefore, does not support the condition of the learned counsel for the petitioner.
(5) This point was examined by a Division Bench of the Orissa High Court in State of Orissa v. Basanta Bag, AIR 1959 Orissa 33, and R. L Narasimham C. J. who delivered the judgment of the Division Bench observed at page 37 as under:
'Mr. Pasayat, however, urged that the statement made by the accused at the time of throwing this stone, which would ordinarily be admissible under S. 27 of the Indian Evidence Act should be held to be inadmissible as it contravened the right guaranteed under Art. 20(3) of the Constitution. He relied on AIR 1958 All 293, in support of his argument. It is true that after the coming into force of the Constitution, the evidence which may otherwise be admissible under S. 27 of the Evidence Act may be inadmissible by virtue of Art. 20(3), if it could be established that such evidence was obtained under compulsion.
There is, however, nothing on record to show that the accused was compelled to throw the stone at a place from where the knife was recovered. P.W. 19 does not say that any force was used. It is true that the accused was then under police custody, but mere police custody in the absence of further evidence to show that force or compulsion was used, will not suffice to show that his statement was made under compulsion so as to attract Article 20(3) of the Constitution'.
(6) Precisely, similar view was taken by a Division Bench of the Andhra Pradesh High Court in In re M. Jermiah, (S) AIR 1957 Andh Pra 611.
(7) It is quite clear to me that if a case is made out by an accused that the information leading to discovery under S. 27 of the Indian Evidence Act was obtained from him by compulsion, the evidence furnished by such discovery and the information would not be admissible against the accused because of the provisions of Art. 20(3) of the Constitution. The accused in that case would be taken to have been compelled to be a witness against himself, inasmuch as he had been compelled to furnish evidence which goes against him.
In a case, however, where there is no evidence at all of any compulsion having been resorted to for the purpose of obtaining as envisaged by S. 27 of the Indian Evidence Act, it cannot be said that the information given by the accused is hit by Article 20(3). An accused is certainly entitled to give any information or evidence against himself. Article 20(3) only lays down that he shall not be compelled to do so, and if in a case he has given the information voluntarily and has not actually been compelled to give the same, it cannot be said that the provisions of Art. 20(3) of the Constitution of India have been infringed. As pointed out above the accused in the present case never suggested during the trial or in appeal before the learned Additional Sessions Judge that he had been compelled to give information leading to the discovery of the two amounts referred to above. The evidence furnished by the disclosure statement, Exhibit P.A., and the recovery of the amounts cannot, therefore, be ruled out and held as inadmissible.
(8) Mr. Moti Ram lastly urged that the sentence of two years' rigorous imprisonment must be held to be too severe in the circumstances of this case. I do not find any force in this contention also. A sentence of two years and a fine of Rs. 500/- cannot be held to be severe in a case where the Munim of a firm has committed criminal breach of trust in respect of a huge sum of Rs. 21,000/-.
(9) In the result, the petition fails and is dismissed.
(10) Petition dismissed.