http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: BAIDYA NATH PRASAD  SRIVASTAVA

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 30/04/1968

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. RAMASWAMI, V. MITTER, G.K.

CITATION:  1968 AIR 1393            1969 SCR  (1) 172

ACT: Evidence--Failure of accused to produce evidence in  support of  his  plea cannot be made basis of conviction-It  is  for prosecution to prove its case. Code  of Criminal Procedure, s. 342A-Failure of  accused  to examine himself-Court must not comment on it.

HEADNOTE: The appellant was a Mukhtear practising in Bihar.  He  along with  ,some others attested the identity of certain  persons on applications for loans under the Agriculturists Loan Act, 1884.   It  was found that the applications  had  been  made under false names and the appellant along with other accused was  tried  for  an offence under s. 467 read  with  s.  109 I.P.C.  The  appellant’s  plea  was that  he  had  made  the endorsements  on the assurance of a co-accused -and in  view of  the fact that another Mukhtear, D had also attested  the loan  applications.  D’s plea as an accused was that he  had made the attestation on the assurance of one R. The Sessions Judge  acquitted  all  the  accused.   The  State  of  Bihar appealed  to  the High Court.  During the  pendency  of  the appeal  D died.  The High Court set aside the  acquittal  of the  appellant and convicted him on two grounds namely,  (i) that though he had raised a defence that he had attested the applications  on  the assurance of S, no evidence  had  been produced  to support this defence,, (ii) that D  with  whose case  the  appellant’s case was closely  connected  had  not examined  himself  under s. 342A of the  Criminal  Procedure Code  in  support of his plea, and  the  same  consideration applied  to the appellant also.  On appeal to this Court  by special leave. HELD : The order of the High Court could not be sustained. (i)  In requiring evidence in support of the plea raised  by the  appellant  the High Court really threw  the  burden  of proof on him instead of finding out whether the  prosecution had  proved its case and whether the order of acquittal  was erroneous. [174 F] (ii) In commenting on the failure of the accused to  examine them,selves  on oath under s. 342A Cr.  P.C. the High  Court committed  a  breach of the proviso to  that  section  which specifically states that the failure of  an accused to  give

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

evidence shall not be made the subject of comment by any  of the  parties, or the court, or give rise to any  presumption against  himself or any other person charged  together  with him at the same time. [175 B]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 47  of 1966. Appeal  by special leave from the judgment and  order  dated September  6,  1965 of the Patna High  Court  in  Government Appeal No. 23 of 1962. B.   P. Singh and D. N. Misra, for the appellant. D.   P. Singh and K. M. K. Nair, for the respondent. 173 The Judgment of the Court was delivered by Vaidialingam, J. On behalf of the sixth-accused, the  appel- lant  herein,  in this appeal, by special leave, Mr.  B.  P. Singh,  learned counsel, challenges the order of  the  Patna High Court, dated September 6, 1965, setting aside the order of  acquittal,  passed  by the  Second  Additional  Sessions Judge, Muzaffarpur and convicting him for an offence,  under s.  467, read with s. 109, IPC., and passing a  sentence  of three months’ rigorous imprisonment. For the relief and rehabilitation, of people who had suffer- ed, in 1954, by the heavy floods in Sitamarhi  Sub-Division, the  Government  of Bihar was granting loans  to  needy  and suitable persons, under the Agriculturist’s Loan Act,  1884. The  appellant  was  a Mukhtear,  practising  at  Sitamarhi. There  are certain formalities, to be gone through,  in  the matter  of obtaining the loans, under that Act.  One of  the requirements was that an applicant had to put his signature, on an agreement form and, that he should be identified, by a lawyer,  who  should  also attest  his  signature.   Several officers, connected with this Loan Department, including the Mukhtears  practising  at  Sitamarhi, one of  whom  was  the appellant,  were alleged to have entered into a  conspiracy, between  November 19, 1955 and December 22, 1955,  to  cheat the Government, by inducing it to grant loans, in the  names of fictitious persons, and, in pursuance of that conspiracy, two  applications, for loans in the names of two  fictitious persons,  Durga  Singh and Hari Shankar  Singh,  were  filed before the Sub Divisional Officer, Sitamarhi.  According  to the   prosecution,  the  appellant  and  another   Mukhtear. Devendra Prasad, had certified, in the loan applications  of Durga  Singh  and Hari Shankar Singh, that they  knew  those parties  and that they had signed, in their  presence.   The amounts were drawn, in the usual course, from the  treasury, by  the said two persons; and, ultimately, it came to  light that the two persons were fictitious persons, got up by  the several accused.  The appellant admitted having attested, in the loan applications of the two individuals concerned,  but he  stated that he did so, on the assurance of  one  Sheojee Prasad Karpardaj.  It may be stated that this Sheojee Prasad Karpardaj   was  also  charge-sheeted,  but  he   has   been discharged, even by the committal Court. The  learned  Sessions Judge found, on the  evidence,,  that Durga  Singh and Hari Shankar Singh were fictitious  persons and  a fraud was committed, on the Sub  Divisional  Officer, Sitamarhi,  and the Sub-treasury, as a result of  which  the Government  sustained  a loss of Rs. 1,000/-.   The  learned Sessions  Judge  accepted the appellant’s plea that  he  had made the endorsement on the 174

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

assurance  of Sheojee Prasad Karpardaj and, in view  of  the fact that other Mukhtiar, Devendra Prasad, had also attested the  loan  applications, and acquitted him.   This  Devendra Prasad  had  also   charged, for the  same  offence.   While admitting, having attested the signatures of the  applicants for the loan, Devendra Prasad had set up a plea that he  did so,  on  the assurance, given by one Rudradeo  Singh.   This explanation  has  been  accepted, by  the  trial  Court  and Devendra Prasad was acquitted.  But, when the State  appeal, against  acquittal, was pending in the High Court,  Devendra Prasad died.  But, we have to refer to certain observations, made  by  the High Court, regarding  this  Devendra  Prasad, which  have, more or less, formed the grounds,  for  setting aside  the  order of acquittal of the appellant  also.   The High  Court,  on appeal, by the State  Government,  has  set aside the order of acquittal of the appellant.  Two  reasons so -far as we could see, have been given, by the High Court, for interfering with the order of acquittal, viz. : (i) that though  the appellant raised a defence that he attested  the loan  applications, on the representation and  assurance  of Sheojee  Prasad Karpardaj, no evidence has been let  in,  by the  appellant, to support this defence: and  (ii)  Devendra Prasad,  with  whose case the appellant’s also  was  closely connected,  had  raised  a plea that he  attested  the  loan applications,   on  the  assurance  and  representation   of Rudradeo  Singh  and that Devendra Prasad has  not  examined himself  as  a witness, under s. 342A, Cr.P.C., nor  did  he adduce  any other evidence, in support of his claim.  It  is really,  on  these  grounds, that  the  appellant  has  been convicted,  for the offence under S. 467 read with  s.  109, IPC., and sentenced to undergo rigorous imprisonment, for  a period of three months. We are satisfied that the order of the High Court cannot  be sustained.  Regarding the first point, mentioned above,  the High  Court  has really thrown the burden of  proof  on  the appellant,  instead of finding out whether  the  prosecution has  proved its case and whether the order of  acquittal  is erroneous.   Regarding the second point the High  Court  has really committed a breach of the proviso to S. 342A, when it has  commented upon the nonexamination of  Devendra  Prasad, that  he  has not examined himself, as  a  defence  witness. Under  cl.  (b), of the proviso to s. 342A, Cr.P.C.,  it  is specifically provided that the failure of an accused to give evidence,  shall not be made the subject of any comment,  by any  of  the  parties, or the Court, or  give  rise  to  any presumption against himself, or any person charged, together with him, at the same time.  The High Court has stated  that the case of the appellant is closely connected with that  of Devendra Prasad.  In fact, the appellant had pleaded that he had  attested  the  signatures of the  applicants,  for  the loans,  because  Devendra  Prasad,  another  Mukhtear,   had attested the same 175 and  also on the assurance of one Sheojee Prasad  Karpardaj. Devendra  Prasad had taken a plea that he had  attested  the signatures  of  the  applicants, on  the  assurance  of  one Rudradeo  Singh, a class-mate of his.  It is in  considering this plea that the High Court has commented upon the failure of  Devendra Prasad to give evidence under s. 342A, and  the High  Court  has also taken the view that the  same  reasons will  apply to the appellant’s defence also.  That  is,  the failure  of  the  appellant,  to  give  evidence,  has  been commented  upon, by the High Court, and it has also drawn  a presumption, against him., both of which are illegal,  under clause (b) of the proviso to s. 342A, Cr.P.C.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

In  view of this serious infirmity, in the judgment  of  the High  Court, the order, under attack, is set aside, and  the order of the Second Additional Sessions Judge,  Muzaffarpur, acquitting  the  appellant,, will stand  restored.   In  the result, the appeal is allowed. G.C.             Appeal allowed. 176