1. In this case the accused, Bhagabaticharan Patra, who was a despatcher in the Registered Letters Sorting Branch of the Calcutta General Post Office, was convicted by the Chief Presidency Magistrate, Calcutta, on charges relating to two postal packets. He was originally charged in respect of three packets. The first charge related to a registered letter No. E-l 35, containing two currency notes of Rs. 100 each, which was for despatch to Bombay. The charge was that he had abstracted from that packet both the notes. That is alleged to have taken place on 2nd December 1931. The second charge related to a registered letter No. 617, from which he is said to have abstracted three currency notes of Rs. 10 each on 7th December 1931, and the last charge related to a registered letter No. 590, from which he is said to have abstracted ten currency notes of Rs. 10 each on 26th December 1931, He was convicted in respect of the first and the third charges and acquitted with regard to the second charge, no evidence having been put before the Court in respect of the package, to which that charge related, that the money said to be the contents thereof was in fact despatched in that letter.
2. The evidence before the learned Presidency Magistrate was to the effect that the two packages, in respect of which the accused was convicted passed through the hands of the accused in his capacity as despatcher. After the accused had made an entry with regard to those packages, they passed through the hands of the Supervisor, Registered Letters Sorting Department of the Post Office, and it was his duty apparently to check the number of the registered packages in the bag, which was sent to him by the accused, before the bag was despatched.
3. The allegation against the accused was that he had abstracted money from the two postal packages in question by slitting the end of the registered covers and then concealing what he had done by affixing a slip of paper, which has been referred to as 'acknowledgement due slip.' As these packages in question had not been insured, there was no question that any acknowledgment was required. In the ordinary way, registered packages of this character would not bear slips of that nature. It has been suggested by Mr. B.C. Chatterjee for the accused, that something is to be said on behalf of the accused by reason of the fact that the last person, handling the packages before they were despatched, saw nothing wrong with them.
4. The learned Chief Presidency Magistrate has really based the conviction upon the fact that the accused is said to have made a confession of guilt. The question of that confession depends upon the evidence of two witnesses. The first of these is Niladrinath Mukherji, who was an Inspector charged with the duty of investigating certain complaints, which were sent to the post office with regard to the packages in question. It appears that the addressees of the letters wrote to the post office complaining that they arrived with the contents as regards the money missing and an investigation was accordingly set on foot. Mr. Mukherji made an investigation and ultimately he called upon Bhagabaticharan Patra for an explanation with regard to certain discrepancies, which were found in one of the lists. It appears, as a matter of fact, that these discrepancies related to the second charge-the charge in respect of which the accused had been acquitted. When the accused was called upon for an explanation, according to the evidence of Mr. Mukherji, he failed to give any explanation and according to that evidence the accused fell at the Inspector's feet. The actual words with regard to this incident are these:
He fell at my feet on 14th March 1932, in the office of the Presidency Postmaster and begged for mercy and to be saved. I asked him to put it in black and white. He then made a statement, which I recorded in the presence of witnesses. The accused signed it as a result of his statement.
5. Now, in cross-examination that witness said:
At accused's request I went out of the correspondence room to the verandah and accused spoke to me there. Then he made his confession. The accused was the despatcher of the three letters in question. The fact alone was not the cause of suspicion against him. It is not true that I threatened accused with a criminal prosecution. It is not true that I told accused that, if he confessed, he would be made approver and I would do my best to save him. What I said was this-after his confession accused begged me to help him. I said I would request the Presidency Postmaster and the Postmaster-General to deal with him leniently. That was on the verandah. That was after accused's statement had been recorded.
6. Now, had the whole of the evidence before the learned Magistrate with regard to the alleged confession consisted of the testimony of this particular witness, it might be that no criticism could have been made as to the validity of the confession. But another officer of the, post office, who was present at the time when the accused was interrogated by the investigating Postal Inspector, namely, another Mr. Mukherji-H.K. Mukherji-who was a clerk in the Correspondence Department of the Calcutta General Post Office, said this:
On 14th March 1932, the accused's statement was recorded in my presence in the Correspondence Department of the Calcutta G.P.O. It was recorded by Mr. N.N. Mukherji. Nobody else was present at the time. Mr. Mukherji asked accused to reconcile certain discrepancies in his registered list that day. The accused could give no explanation and fell at his feet and begged of him to save him and then admitted his guilt. It was then that Mr. Mukherji recorded his statement.
7. Now, again, if the evidence with regard to the alleged confession had stopped at that point, very little adverse criticism might have been possible with regard to the admissibility of this confession. But this witness in his cross-examination throws altogether a different light on the matter. In his cross-examination he says this:
Inspector Niladri Babu, myself and accused were present, when accused made his statement, when accused fell at Niladri's feet and begged to be saved, if he disclosed everything. Niladri said that, if he told the truth, he would try his utmost to save him. The accused said he would tell everything to the Postmaster and Niladri Babu said he would do all he could to get him saved. I cannot remember, if Niladri Babu told accused that he was a Brahmin and would see that accused came to no harm, if he confessed. Accused himself asked Niladri Babu to go with him to a quiet place, where he could speak to him.
8. If that is a true account of what happened at the time the accused is said to have made his confession, it seems abundantly clear that some kind of inducement was held out by the investigating postal officer to this man, which had the effect of inducing him to make a confession of his guilt. The learned Chief Presidency Magistrate has not in terms made any finding as to whether he accepted the version given by the first witness for the prosecution, Mr. N.N. Mukherji, or whether on the other hand he was of opinion that the story given by the other Mr. Mukherji was the correct version of the matter; but by implication, it does appear from the judgment of the learned Chief Presidency Magistrate that he has taken the view, that there was an inducement of the kind indicated by the evidence of the second Mr. Mukherji, but that inducement was not of such a nature as would vitiate the confession and would render it inadmissible in evidence. The learned Chief Presidency Magistrate says this:
It was, on 14th March 1932, that the accused made a confessional statement (Ex. 18) under circumstances, which will appear from the evidence of P.W. 1., the postal inspector, P.W. 15, H.K. Mukherji, a clerk in the Correspondence Department of the G.P.O., and P.W. 8, J.C. Basu, Assistant Presidency Postmaster. In the course of his inquiries, the Postal Inspector had found discrepancies in the registered lists prepared by the accused. Then he refers to the number of the letter. When called on for an explanation, he fell at the Postal Inspector's feet and begged to be saved. The Postal Inspector said that, if he-accused-told the truth, he would do his best to save him. This was in the evening. After recording his statement in the presence of P.W. 15, the Postal Inspector took accused to Mr. J.C. Basu, in whose presence the statement was read out to accused and signed by him as correct. The learned Counsel for the defence contends that the accused was made to make this statement under inducement from a person in authority and hence its value is nil. The fact remains that in this statement we find a clear account of how these three letters were tampered with and money abstracted from them by the accused,
and later on he says:
The defence further contends that, when placed before a Magistrate the very next morning, accused retracted his confession. He was kept in the police lockup that night, and it is argued that no lawyer had access to him to prompt him to retract. Hence, it is urged, the confession has no value. In spite of that, I am convinced that the accused's confession was a true one and voluntarily made; when he found the net closing round him there was no way of escape except by making a clean breast and beseeching his official superior to save him. If under these circumstances, his official superior says he will try and save him, if he tells the truth, that to, my mind, does not constitute inducement or threat.
9. Now, we are of opinion that the learned Chief Presidency Magistrate has fallen into error in the way he has dealt with this confession. It is clear enough that if a superior officer holds out some inducement to a subordinate in the circumstances such as those in the present case and then any confessional statement is made by that subordinate it cannot be used against him in a subsequent prosecution. Upon the view that the version given by Mr. H.K. Mukherji in his cross examination is correct, it seems abundantly clear that the statement made by this man was made by him after he had ascertained from his superior officer that some kind of consideration or leniency would be shown to him.
10. Almost all the other evidence against the accused of any substance consists of certain entries in his Savings Bank book which seem to indicate that at or about the time the moneys were alleged to have been abstracted by him from postal packages, he paid into his Savings Bank account certain sums which tally with the sums which are said to be missing. This is of course in addition to the evidence to which I have already alluded at the outset, namely, that these packages did pass through the hands of this particular man and therefore there was an opportunity for him to tamper with them, if he was so disposed.
11. Having regard to the way this matter has been dealt with by the learned Chief Presidency Magistrate as regards the matter of the confession, we are clearly of opinion that the present conviction cannot stand, but on the other hand having regard to the other evidence in the case, to which I have referred it seems right that there should be a fresh trial. We accordingly set aside the conviction and direct that the accused be retried before the Additional Chief Presidency Magistrate and in making that order directing that this matter be retried according to law, I would draw the attention of the learned Magistrate who deals with the case, to the provisions of Section 24, Evidence Act. The accused will continue on the same bail.
12. I agree.