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PETITIONER: MAULUD AHMAD

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 13/11/1962

BENCH:

ACT: Criminal   Trial-Framing  incorrect  record-Head   Constable making  false entry to save another person-Acquittal of  the other  person-Conviction of Head Constable, if  sustainable- Limitation-Prosecution after 3 months of offence-If  barred- Indian  Penal  Code, 1860 (Act XLV of 1860),  s.  218-Police Act, 1861 (V of 1861), ss. 36; 42.

HEADNOTE: C and some other persons went on a shoot with guns where two persons were shot dead.  In order to create evidence in  his favour C got a false report entered by the appellant, a Head constable, in the General Diary purporting to have been made on  the previous day to the effect that 0 had deposited  his gun.   C  and the appellant and the others  were  tried  for various  offences  including offences under  ss.  304-A  and 218/109 Indian Penal Code.  All the accussed were  acquitted but the appellant was convicted under s. 218.  The appellant contended  that  after the acquittal of  C,  his  conviction under  s.  218  couple not be sustained and  (ii)  that  the prosecution  having  been launched more than  three’  months after  the entry was made was barred by limitation under  s. 42 Police Act. 39 Held,  that the appellant was rightly convicted.  Whether  C was guilty or not, at the time the entry was made there  Was every  likelihood  of C being prosecuted,  for  causing  the death of two persons.  The acquittal of C did not affect the finding that the false entry was made with the intention  to save  or  knowing  it  to be likely to  save  C  from  legal punishment.   The  acquittal of C under s. 218/109  did  not exonerate  the  appellant as it had been found that  he  had made the false entry with a view to save C. Held, further, that the prosecution was- not barred by s. 42 of the Police Act.  Sections 36 and 42 read together  showed that s. 42 was applicable only to prosecutions for  offences under the Police Act and not to prosecutions under the Penal Code or other Acts.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: ’Criminal Appeal No. 97  of 1961. Appeal  by special leave from the judgment and  order  dated February  1,  1961,  of the Allahabad  High  Court  (Lucknow Bench) Lucknow in Criminal Appeal No. 403 of 1960. S.   P. Sinha and Saukat Hussain, for the appellant. G.   C. Mathur and C. P. Lal. for the respondent.

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1962.  November 13.  The judgment of the Court was delivered by SUBBA RAO, J.-This is an appeal by Special leave against the judgment  and  order of the Allahabad  High  Court,  Lucknow Bench,  confirming  that of the Additional  Sessions  judge, Kheri,  convicting the appellant under s. 218 of the  Indian Penal  Code and sentencing him to two, years’  rigorous  im- prisonment.  The prosecution case may be briefly stated :- Some  Railway  officers and others, including  one  Chauhan, Railway  Guard,  went on two trollies towards Bhitra  for  a shoot.  Chauhan had with him a 40 double  barrelled gun of twelve bore bearing No. 23727.   On either  side of the Railway line there were reserve  forests of the State.  Some of the group got down from the trollies, flashed  a search-light and fired their guns.   Two  persons were shot dead.  Chauhan in order to create evidence in  his favour got a report entered by the appellant, a Police Head- constable..  in  the  General diary of  the  Police  Station purporting to have been taken on December 13, 1956, at  6.45 P.M.  to the effect that Chauhan had deposited the said  gun in the Police Station.  ’Many other manipulations were  made by  the  appellant  in  the Police record  to  bring  it  in conformity  with  the said false  entry.   Several  persons, including  Chauhan and the appellant were  prosecuted  under ss.  304-A, 201/109, 120-B and 218/109 of the  Indian  Penal Code,  as.  well under s. 26 of the Indian Forest  Act,  and they  were  tried by the Additional Sessions  Judge,  Kheri. The  appellant was also charged under s. 218 of  the  Indian Penal  Code.   All  the accused were  acquitted  except  the appellant who was convicted under s. 218 of the Indian Penal Code and sentenced to two years’ rigorous imprisonment.  The appeal filed by him to the High Court was dismissed.   Hence this present appeal. The  learned counsel for the appellant raised two  questions before  us.  The first was-that as Chauhan was acquitted  of all  the  offences  with which he was  charged,  the  charge against  the  appellant under. s. 218,  Indian  Penal  Code, should  fall  with it and the second  that  the  prosecution against  the  appellant having been  launched  three  months after  the entry is alleged to have been made by him in  the Police  diary  was barred by limitation under s. 42  of  the Police Act.               Section 218 of the Indian Penal Code reads               "Whoever, being a public servant, and being as               such  public servant, charged with the  prepa-               ration of any record or other writing frames               41               that  record or writing in a manner  which  he               knows  to be incorrect, with intent to  cause,               or  knowing  it  to be  likely  that  he  will               thereby cause, x x x x with intent thereby  to               save, or knowing it to be likely that he  will               thereby save any person from legal punishment,               or with intent to save, or knowing that he  is               likely  thereby  to save x x x x  x  shall  be               punished  with imprisonment of either  descri-               ption  for  a term which may extend  to  three               years, or with fine or with both." The  crux  of the section so far as it is  relevant  to  the present inquiry is that the public servant should have acted in  the manner contemplated by this section with  an  intent thereby  to  save or knowing it to be likely  that  he  will thereby save any person from legal, punishment. The  argument of the learned counsel under the,  first  head

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hinges upon the alleged inconsistency and’ conflict  between the  acquittal  of  Chauhan  and  the,  conviction  of   the appellant.   Chauhan  had  been’  charged  along  with   the appellant  for offences under SS. 304-A, 120-B, 201/109  and 218/109  of the Indian, Penal Code and s. 26 of  the  Indian Forest Act.  He was acquitted.  Omitting for the time  being s. 218/109 Indian Penal Code., let us see on what grounds he was  so  acquitted.  The learned Additional  Sessions  judge found that the following facts had been established :-               (1)   That  there  were three  guns  with  the               party, including Chauhan’s gun;                (2)  That  between miles 8 and 9  after  the’               trollies  were stopped and were placed by  the               side  of’,  the track, Ramdeo trolly  man  and               Lala  went  away and shortly after  that  four               gun-shots  were heard and shortly        after               that     Lala    returned alone and  then  all               the  members  of the  party  excepting  Ramdeo               returned to Mailani by the Cane Special, 42 (3)  That  at the time when the four gun-shots  were  heard, Chauhan  and  Gupta were standing just near the  track  with their  guns in their hands and, Dilawar, Amin and Hira  also remained standing by the side of the track. (4)  The  medical evidence does not’ say about the  duration of the gun shot injuries of Ramdeo and Chhotey but from  the above noted discussion of the evidence it would appear  that Ramdeo  and  Chhotey were likely to have  received  gun-shot injuries  between  7-20 to 7-40 P.M. in  the  night  between December, 14 and 15, 1956. From the foregoing facts found the learned Judge came to the conclusion that there was no direct or substantial  evidence of  any kind connecting any of the five  accused,  including Chauhan, with the death of Ramdeo and Chhotey.  It would  be seen  from  the   said   finding   that  the  learned  judge accepted the evidence that Chauhan was in the shooting party that’ day, that he carried a gun with him, that two  persons were  killed  with gun shots but for some  reason  with  the correctness of which we are not concerned here he  acquitted Chauhan.   It is, therefore, manifest that  whether  Chauhan was  guilty or not, at the time the false entries were  made in  the  case diary there was every  likelihood  of  Chauhan being prosecuted along with others for causing the death  of Ramdeo  and Chotey.  Indeed as expected Chauhan  and  others were  prosecuted  though they were acquitted.  On  the  said facts  the  mere acquittal of Chauhan  cannot  displace  the finding of the learned Judge that the appellant  manipulated the  record with an intent thereby to save or knowing it  to be  likely  that he would ’thereby save Chauhan  from  legal punishment.   If the appellant had made the false  entry  in the diary and manipulated other records with a view to  _ave Chauhan  from the leggal punishment that might be  inflicted upon him, the mere fact that he 43 was subsequently acquitted of the offence could not make  it anytheless  an  offence  under s. 218 of  the  Indian  Penal Code-.  Nor can we accept the contention that the  acquittal of  Chauhan for the abetment of the offence under s. 218  of the Indian Penal Code committed by,the appellant affects the conviction of the appellant under s. 218 of the Indian Penal Code.   The gravamen of that charge against Chauhan is  that he  abetted  the appellant in making a false  entry  in  the diary and manipulating the record to fit in with that  false entry’   The  Additional  Sessions  judge   considered   the following three points in connection with the said offence

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(1)  Whether  Chauhan abetted Maulud Ahmad in  making  false entries in the General Diary of Police Station Mailani ? (2)  Whether  Chauhan  deposited his gun at  Police  Station Mailani  in the night between Dccember 14 and 15, 1956,  and got the entry of the deposit in the General Diary antedated, i.  e.  according  to  the entry the gun  was  shown  to  be deposited  on December 13, 1956, at 18-45 hours and  whether Chauhan did it after consultation with Dilawar ? (3)  Whether  Maulud  Ahmad (accused) made false entries  in the  General  Diary  of  Police  Station  Mailani  with  the intention to save or knowing it likely that he would thereby save  the offenders from legal punishment and by that  false entry  he  was trying to get the evidence  of  the  offences under  ss.  304-A  of the Indian Penal Code and  26  of  the Indian Forest Act to disappear ? The  learned  Judge  found  on  the  third  point  that  the appellant intentionally falsified the official record with a view to save Chauhan but he acquitted Chauhan by giving  him the  benefit of doubt on the ground that his  signature  was not found against the 44 entry  of deposit of the gun on December 13, 1956, and  also against  the entry of the return of the gun on December  18, 1956.   In  the  view  of  the  learned  judge  it  was  not established conclusively that Chauhan abetted the  appellant in manipulating the record but that could not exonerate  the appellant  for  it had been held on the  evidence  that  the false  entries had been made in the record by the  appellant with  a  view  to save Chauhan.  Whether  the  acquittal  of Chauhan was correct or not, the conviction of the  appellant is  not inconsistent with that of the acquittal of  Chauban. That  apart  it  appears  to us from  the  record  that  the acquittal  of Chauhan is not justified in the  circumstances of the case.  Though we cannot convict him as the State  has not  preferred  an  appeal to the  High  Court  against  his acquittal, we cannot rely upon that. acquittal to acquit the appellant against whom the case has been proved to the hilt. We,, therefore, hold that the conviction of the appellant is not inconsistent with the acquittal of Chauhan. The  second  question  that is the  question  of  limitation depends  upon  the provisions of S. 42 of  the  Police  Act. Section 42 reads               "All x x x x prosecutions against any. person,               which  may  be lawfully brought  for  anything               done  or  intended, to be; done  under  the  ’               provisions  of this Act, or under the  general               police powers hereby given shall be  commenced               within  three months after the act  complained               of   shall  have  been  committed,  and   not,               otherwise, x x x x x X." The  period  of  three months prescribed  for  Commencing  a prosecution  under  this section is, only  with  respect  to prosecution of a person for something done or intended to be done by him under the provisions of the Police Act or  under general Police powers given by the Act, Section 42 does  not apply to prosecution 45 against any person for anything done under the provisions of any  other  Act or under Police powers conferred  under  any other Act.  Under s. 36 nothing contained in the Police, Act shall  be  construed  to  prevent  any  per-son  from  being prosecuted under any Regulation or Act for any offence  made punishable  by this Act or for being liable under any  other Regulation  or  Act  or  any  other  or  higher   penalty-or punishment  than is provided for such offence by  this  Act.

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This  section makes it clear that the provisions of the  Act including  s.  42  do  not preclude  a  person  from.  being prosecuted  for an offence under any other Act.  A  combined reading of these provisions leads to the conclusion that  s. 42  only applies to a prosecution against a per-son  for  an offence committed under the Police Act. Under  s.  29  of the Police Act a Police  officer,  who  is guilty  of  any  violation of a duty,  shall  be  liable  on conviction  before  a  Magistrate to  a  penalty  Prescribed thereunder.   Section  44 thereof imposes a  duty  on  every officer  in-charge  of a Police Station to  keep  a  General Diary in such form as prescribed.  If the appellant did  not discharge his duty in the matter of keeping a regular diary, he  had committed an offence under s. 29 of the Act.  If  he was prosecuted for such an offence under s. 42, it should be done   within  the  time  laid  down  thereunder,  but   the prosecution in the ’present case was for an offence under s. 218  of the Indian, Penal Code which is an offence  under  a different  act  and for which a much  higher  punishment  is prescribed.   By reason of s. 36 of the Police Act,  section 42 thereof cannot apply to such a, prosecution. An  appeal is made for the reduction of the sentence on  the ground that the Head Conatable was only a tool in the  hands of  a  superior officer who might have  been  approached  by Chauhan.   There is nothing on the record to  disclose  that Chauhan 46 approached any superior officer in the Police Department and that’  the  appellant  had manipulated the  records  on  the dictation’ of such an officer.  This is a pure surmise based upon  an observation made by the learned judge of  the  High Court  in  the  judgment.  There is  nothing  improbable  in Chauhan  or  some other person interested  in  him  directly approaching,  the appellant and the appellant acting in  the manner. he did for consideration or otherwise.  If a  police officer manipulates the record such as police diary etc., it will  be  the end of honest criminal  investigation  in  our country,  Such offences shall receive deterrent  punishment. The  punishment  awarded errs more on the side  of  leniency than otherwise. For  the aforesaid reasons we hold that the decision of  the High Court is correct.  The appeal fails and is dismissed. Appeal dismissed.