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PETITIONER: PYARE LAL BHARGAVA

       Vs.

RESPONDENT: STATE OF  RAJASTHAN

DATE OF JUDGMENT: 22/10/1962

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. IMAM, SYED JAFFER AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1963 AIR 1094            1963 SCR  Supl. (1) 689  CITATOR INFO :  RF         1967 SC 349  (11)  F          1973 SC 264  (5)

ACT: Criminal  Law-Theft-Temporary  deprivation of  property,  if wrongful    loss-Retracted   confession-Evidentary    value- Corroboration-Rule of practice-Indian Penal Code, 1860  (Act 45  of 1860), ss. 378, 379-Indian Evidence Act, 1872  (1  of 1872), ss. 3, 24.

HEADNOTE: The appellant was convicted under s. 379 of the Indian Penal Code.   He  was  a Superintendent in  the  Chief  Engineer’s office and got a file removed from the Secretariat through a clerk, took it home and made it available to his friend, the co-accused,  who removed certain documents  by  substituting others.  The appellant returned the file to the office  that next  day.   He made a confession when  the  Chief  Engineer threatened that if he did not disclose the truth the  matter would be placed in the hands of the Police.  That confession was  later  retracted.  The three courts below were  of  the opinion  that  the statement of the Chief Engineer  did  not amount to a threat in the circumstances of the case. Held,  that s. 24 of the evidence Act waives  the  stringent rule  of proof as laid down by s. 3 of the Act and  requires the court to form a prima facie opinion on the evidence  and circumstances  of the particular case whether  a  confession should  or should not be excluded as being involuntary.   It is not possible to lay down any inflexible standard and  the Supreme  Court  acting under Art. 136  of  the  Constitution would  not  ordinarily differ from the  concurrent  findings arrived at by the courts below. A  retracted confession may form the legal basis of  a  con- viction  if  the  court is satisfied that it  was  true  and voluntarily  made.  As a general rule of practice,  however, it  is  unsafe  to  rely upon  a  confession,  much  less  a retracted confession, unless the court is satisfied that the retracted   confession  was  true,  voluntarily   made   and corroborated in material particulars. In  the  present  case  there could be  no  doubt  that  the

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necessary ingredients constituting the offence of theft were mad 690 To  constitute theft the loss caused need not  be  permanent Even  temporary dispossession, though the person taking  the property  intended  to  restore it,  may  constitute  theft. Illustrations (b) and (1) of s. 378 of the Indian Penal Code clearly show that a temporary deprivation of another  person of his property may cause wrongful loss to him.

JUDGMENT: CRIMINAL  APPELLATE, JURISDICTION: Criminal Appeal No. 2  of 1962. Appeal  by special leave from the judgment and  order  dated April  25,  1953 of the Rajasthan High Court  Jaipur  Bench, Jaipur in Criminal Revision No. 237 of 1956. S.   P. Varma, for the appellant. S.   K. Kapur and P. D. Menon, for the respondent. 1962.  October 22.  The judgment of the Court was  delivered by SUBBA  RAO,  J. This appeal by special  leave  is  directed against  the  decision  of the High Court  of  Rajasthan  in Criminal  Revision  No. 237 of 1956 confirming that  of  the Sessions judge, Alwar, convicting the appellant under s. 379 of the Indian Penal Code and sentencing him to a fine of Rs. 200/-. To  appreciate  the  questions raised  in  this  appeal  the following facts, either admitted or found by the High Court, may  be  stated.  On November 24, 1945, one  Ram  Kumar  Ram obtained  permission, Ex.  PB, from the Government  of  tile former Alwar State to supply electricity at Rajgarh, Khertal and Kherli.  Thereafter, he entered into partnership with  4 others  with  an  understanding that the  licence  would  be transferred  to a company that would be floated by the  said partnership.   After  the company was formed, it put  in  an application to the Government through  691 its  managing  agents  for the issue of  a  licence  in  its favour.  Ex.  P. W. 15/B is that application.  On the advice given  by the Government Advocate, the  Government  required Ram Kumar Ram to file a declaration attested by a Magistrate with regard to the transfer of his rights and the licence to the  company.   On  April 8, 1948, Ram  Kumar  Ram  filed  a declaration to that effect.  The case of the prosecution  is that Ram Kumar Ram was a friend of the appellant.   Pyarelal Bhargava,  who was a Superintendent in the Chief  Engineer’s Office,  Alwar.  At the instance of Ram Kumar Ram,  Pyarelal Bhargava  got  the  file Ex.  PA/  1  from  the  Secretariat through  Bishan Swarup, a clerk, before December  16,  1948, took the file to his house sometime between December 15  and 16,1948,  made it available to Ram Kumar Ram  for  ’removing the  affidavit  filed  by  him on April  9,  1948,  and  the application, Ex.  P. W. 15/B from the file and  substituting in   their  place  another  letter  Ex.   PC   and   another application  Ex.  PB.  After replacing the  said  documents, Ram  Kumar Ram made an application to the Chief Engineer  on December 24, 1948, that the licence should not be issued  in the  name  of  the  company.  After  the  discovery  of  the tampering of the said documents, Pyarelal and Ram Kumar were prosecuted before the Sub-Divisional Magistrate,  Alwar--the former for an offence under s. 379 and s. 465, read with  s. 109,  of  the.   Indian Penal Code, and the  latter  for  an offence  under  ss.  465 and 379, read with s.  109  of  the

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Indian Penal Code.  The Sub-Divisional Magistrate  convicted both the accused under the said sections and sentenced  them on both the counts.  On appeal the Sessions judge set  aside the  Conviction under s. 465, but maintained the  conviction and  sentence  of Pyarelal Bhargava under s.  379,  and  Ram Kumar  Ram  under s. 379, read with s. 109,  of  the  Indian Penal  Code.  Ram Kumar Ram was sentenced to pay a  fine  of Rs. 500/- and Pyarelal Bhargava to pay a fine of Rs.  200/-. Against these convictions both the accused 692 filed  revisions  to the High Court and the High  Court  set aside  the  conviction  and sentence of Ram  Kumar  Ram  but confirmed those of Pyarelal Bhargava.  Pyarelal Bhargava has preferred the present appeal. Learned  counsel  for the appellant raised before  us  three points,  namely, (1) the High Court has wrongly relied  upon the  confession  made  by  the accused  before  Shri  P.  N. Singhal,   Officiating   Chief  Secretary  to   the   Matsya Government  at  that time, as that confession was  not  made voluntarily  and, therefore, irrelevant under s. 24  of  the Evidence Act; (2) the said confession having been  retracted by the appellant, the High Court should not have relied upon it  as it was not corroborated in material particulars;  and (3)  on the facts found ’the offence of theft has not  been made  out within the meaning of s. 379 of the  Indian  Penal Code.  Another argument, namely, that the statement made  by Pyarelal  Bhargava  before  the Chief Secretary  was  not  a confession  in  law,  was suggested  but  not  pursued  and, therefore, nothing need be said about it. The  first  question turns upon the  interpretation  of  the provisions’ of s. 24 of the Evidence Act and its application to the facts found in this case.  Section 24 of the Evidence Act lays down that a confession caused by inducement, threat or  promise  is  irrelevant in  criminal  proceedings  under certain  circumstances.   Under that  section  a  confession would  be  irrelevant  if  the  following  conditions   were satisfied:  (1) it should appear to the court to  have  been caused  by any inducement, threat or promise; (2)  the  said threat,  inducement  or promise must have reference  to  the charge against the accused person; (3) it shall proceed from a  personal  authority; and (4) the court shall  be  of  the opinion  that  the  said inducement, threat  or  promise  is sufficient  to give the accused per-son grounds which  would appear to him reasonable in supposing that he would gain  an advantage or avoid any 693 evil  of a temporal nature in reference to  the  proceedings against  him.  The crucial word in the first  ingredient  is the  expression " appears".  The appropriate meaning of  the word  "appears" is "seems".  It imports a lesser  degree  of probability than proof.  Section 3 of the Evidence Act says:               "A  fact  is said to be  ’proved’  when  after               considering  the matters before it, the  Court               either believes it to exist, or considers  its               existence  so  probable  that  a  prudent  man               ought,   under   the  circumstances   of   the               particular  case, to act upon the  supposition               that it exists. Therefore,  the test of proof is that there is such  a  high degree  of probability that a prudent man would act  on  the assumption  that the thing is true.  But under s. 24 of  the Evidence  Act such a stringent rule is waived but  a  lesser degree  of  assurance is laid down as  the  criterion.   The standard  of a prudent man is not completely displaced,  but the stringent rule of proof is relaxed.  Even so, the laxity

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of proof permitted does not warrant a court’s opinion  based on  pure surmise.  A prima facie opinion based  on  evidence and circumstances may be adopted as the standard laid  down. To  put  it  in  other  words,  on  the  evidence  and   the circumstances  in  a particular case it may  appear  to  the court that there was a threat, inducement or promise, though the  said fact is not strictly proved.  This deviation  from the strict standards ,of proof has been designedly  accepted by the Legislature with a. view to exclude forced or induced confessions  which  sometimes are extorted and put  in  when there  is a lack of direct evidence.  It is not possible  or advisable  to lay down an, inflexible standard for  guidance of  courts,  for in the ultimate analysis it  is  the  court which  is called upon to exclude a confession by holding  in the  circumstances of a particular case that the  confession was not made voluntarily. The threat, inducement or promise must proceed from a person in authority and it is a question 694 of  fact in each case whether the person concerned is a  man of  authority  or not.  What is more important is  that  the mere  existence of the threat, inducement or promise is  not enough,  but  in the opinion of the court the  said  threat, inducement  or  promise  shall  be  sufficient  to  cause  a reasonable belief in the mind of accused that by  confessing he  would get an advantage or avoid any evil of  a  temporal nature  in reference to the proceedings against  him:  while the  opinion  is  that of the court, the  criterion  is  the reasonable  belief of the accused.  The section,  therefore, makes  it  clear that it is the duty of the court  to  place itself in the position of the accused and to form an opinion as to the state of his mind in the circumstances of a case. In  the present case it was found that certain documents  in the  Chief Enginecr’s Office were tampered with and  certain papers   were   substituted.    The   appellant   was    the Superintendent in the Chief Engineer’s Office.  On April 11, 1949, Shri P. N. Singhal, Officiating Chief Secretary to the Matsya  Government,  was making a  departmental  inquiry  in respect  of  the missing documents.   The  appellant,  among others,  was  questioned  about  the  said  documents.   The appellant  first  made  a statement, Ex.  PL,  in  which  he stated that he neither asked Bishan Swarup to bring file No. 127,  nor  did he recollect any cause for calling  for  that file on or about that date.  As Shri Singhal was not able to find  out the culprit, he expresser his opinion that if  the whole truth did not come out, he would hand over the inquiry to the police.  Thereafter, the appellant made a  statement, Ex. P.L. 1, wherein, in clear terms, he admitted that  about the middle of December 1948 Ram Kumar Ram took file No. 127- P.    W./48  regarding  issue  of  licence  to  the   Bharat Electrical and Industrial Corporation Ltd., Alwar, from  his residence  to show it to his lawyers, and that he  took  the file  more than once for that purpose.  He also  added  that this was  695 a  voluntary statement.  Learned counsel for  the  appellant argued that the Chief Secretary gave the threat that, if the appellant  did  not disclose the truth he  would  place  the matter  in  the  hands of the police  and  that  the  threat induced  the  appellant to make the disclosure in  the  hope that he would be excused by the authority concerned.   There is no doubt that the Chief Secretary is an authority  within the  meaning  of s. 24 of the Evidence Act, but  the  simple question  is  whether  the alleged  statement  by  the  said authority  reappears"  to  the court to  be  a  threat  with

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reference  to  the charge against the accused.  As  we  have said,  under  particular circumstances whether  a  statement appears to the court to be a threat or not is a question  of fact.  In this case the three lower courts concurrently held that in the circumstances of the case the statement did  not appear  to  be a threat within the meaning of s. 24  of  The Evidence  Act., but that was only a general statement  which any  person who lost his property and was not able  to  find out the culprit would make.  It may be that such a statement under  different circumstances may amount to a threat or  it may  also  be that another court may take a  different  view even  in  the  present circumstances of  the  case,  but  in exercising the powers under Art. 136 of the Constitution  we are not prepared to differ from the concurrent finding given by the three courts that in the circumstances of the present case that the said statement did not appear to them to be  a threat. The  second  argument  also  has  no  merits.   A  retracted confession  may form the legal basis of a conviction if  the court is satisfied that it was true and was voluntarily made But  it  has   been  held that a  court  shall  not  base  a conviction  on such a confession without corroboration.   It is  not  a rule of law, but is only rule  of  prudence.   It cannot  even be laid down as an inflexible rule of  practice or  prudence that under no circumstances such  a  conviction can be 696 made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted  confession is  true and voluntarily made and has been  corroborated  in material  particulars., The High Court having regard to  the said principles looked for corroboration and found it in the evidence of Bishan Swaroop, P.W-7, and the entry in the  Dak Book, Ex.  PA. 4, and accepted the confession in view of the said  pieces of corroboration.  The finding is one  of  fact and there is no permissible ground for disturbing it in this appeal. The  last point is that on the facts found no case of  theft has been made out.  The facts found were that the  appellant got  the  file  between December 15 and 16,  1948, to  his house,  made it available to Ram Kumar Ram and  on  December 16,  1948, returned it to the office.  On these facts it  is contended  that  the prosecution has not made out  that  the appellant  dishonestly took any movable property within  the meaning  of  s.  378 of the Indian  Penal  Code.   The  said section reads :               "Whoever,  intending to take  dishonestly  any               movable property out of the possession of  any               person  without that person’s  consent,  moves               that property in order to such taking, is said               to commit theft. The section may be dissected into its component parts thus : a person will be guilty of the offence of theft, (1) if he.- intends  to  cause  a wrongful gain or a  wrongful  loss  by unlawful means of Property to which the person gaming is not legally  entitled or to which the person losing  is  legally entitled, as the case may be:  697 see  ss.23  and 24 of the Indian Penal Code;  (2)  the  said intention  to  act  dishonestly is  in  respect  of  movable property;  (3) the said property shall be taken out  of  the

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possession of another person without his consent; and (4) he shall  move that property in order to such taking.   In  the present  case  the  record  was in  the  possession  of  the Engineering  Department  under  the  control  of  the  Chief Engineer.   The  appellant was the  Superintendent  in  that office;  he  took the file out of the session  of  the  said engineer.  removed the file from  office and handed  it over to  Ram Kumar Ram.  But it is contended that the said  facts do  not constitute the offence of theft for  three  reasons, namely, (i) the Superintendent was in possession of the file and therefore he could not have taken the file from himself; (ii) there was no intention to take it dishonestly as he had taken  it only for the purpose of showing the  documents  to Ram Kumar Ram and returned it the next day to the office and therefore  he  had  not  taken the  said  file  out  of  the possession  of  any person; and (iii) he did not  intend  to take it dishonestly, as he did not receive any wrongful gain or cause any wrongful loss to any other per-son.  We  cannot agree  that the appellant was in session of the  file.   The file  was  in the Secretariat of the  Department  concerned, which  was in charge of the Chief Engineer.   The  appellant was only one of the officers working in that, department and it  cannot, therefore, be said that he was in  legal  posse- ssion  of the file.  Nor can we accept the argument that  on the assumption that the Chief Engineer was in possession  of the  said  file,  the accused had not taken it  out  of  his possession.   To  commit  theft one need  not  take  movable property  permanently out of the possession of another  with the intention not to return it to him.  It would satisfy the definition  if  he  took any movable  property  out  of  the possession of another person though he intended to return it later  on.  We cannot also agree with learned  counsel  that there is no wrongful loss in the present case. 698 Wrongful loss is loss by unlawful means of property to which the  person  losing it is legally entitled.   It  cannot  be disputed  that  the appellant unauthorisedly took  the  file from  the  office and handed it over to Ram Kumar  Ram.   He had,   therefore,  unlawfully  taken  the  file   from   the department, and for a short time he deprived the Engineering Department  of  the possession of the said file.   The  loss need  not be caused by a permanent deprivation  of  property but  may be caused even by temporary  dispossession,  though the  per-son  taking  it intended to restore  it  sooner  or later.   A temporary period of deprivation or  dispossession of the property of another causes loss to the other.  That a person- will act dishonestly if he temporarily  dispossesses another  of his property is made clear by illustrations  (b) and (1) of s.378 of the Indian penal code. They are:               (b)   A  puts a bait for dogs in  his  pocket,               and thus induces z’s dog to follow it.   Here,               if  A’s intention be dishonestly to  take  the               dog out of Z’s possession without Z’s consent,               A  has committed theft as soon as Z’s dog  has               begun to follow A.               (1).  A takes an article belonging to Z out of               Z’s  possession without Z’s consent, with  the               intention of keeping it until he obtains money               from Z as a reward for its restoration.   Here               A takes dishonestly; A has therefore committed               theft. It will be seen from the said illustrations that a temporary removal  of a dog which might ultimately be returned to  the owner  or the temporary taking of an article with a view  to return  it  after receiving some reward  constitutes  theft,

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indicating  thereby  that temporary deprivation  of  another person  of  his property causes wrongful loss to  him.   We, therefore,  hold that the facts found in this  case  clearly bring them within the four comers of s. 378 of the Indian  699 Penal Code and, therefore, the courts have rightly held that the appellant had committed the offence of theft. No other  Point  was pressed before us.  In the  result  the appeal    fails and is dismissed.                                        Appeal dismissed.