Citation Codes

Equivalent Citations

citation codes

Case Number

Criminal Ref. No. 48 of 1919

Judges

Shamsul Huda
Rankin, JJ.

Acts

See more information ...

Smart Summary

Structured Summary of the Opinion (Reference under Section 307, CrPC)

Factual and Procedural Background

This is a reference under Section 307 of the Criminal Procedure Code. On 11 October 1918 a fire occurred in the out-offices of the Post Master's house at Rajhari; the fire was soon extinguished. Twelve registered articles were said to have been on the Post Master's table when he left the office. The Post Master's case was that he asked the accused Promotho, a probationer, to take care of those articles; Promotho left the place where the fire had occurred and on return the registered articles were missing. Promotho denied knowledge and the Post Master reported the matter to the Thana.

Hemanta was seen in the Post Office verandah shortly before the fire; Hemanta and Promotho were friends and lived together. On investigation by the Sub-Inspector of Police, Hemanta made statements that led to recovery from Shyama Charan's shop of five of the missing letters (unopened) and three bundles of currency notes with certain letters in them (without envelopes). Four registered articles remained untraced.

Hemanta was taken to a Sub-Deputy Magistrate at about 11:30 p.m. and is said to have made a confession recorded by that officer. Promotho was taken later (about 12:30 a.m.) and also made a confession after initially refusing; the Sub-Deputy Magistrate had called his orderly to fetch a constable and, on hearing this, Promotho agreed to make a confession which was then recorded.

The principal prosecution witnesses included the Post Master Amritalal Mukerji, investigating Police Officer Bazlur Rashid, head postman Guru Charan, mail peon Bonomali Pal and second clerk Hiralal. The evidence also included material relating to the discovery of the articles at Shyama Charan's shop.

Charges: Promotho was charged under Section 52 of the Post Office Act for alleged misappropriation of six insured and registered letters (containing currency notes and stamps) and six uninsured registered letters in the course of transit, and with theft under Section 360, I.P.C. Hemanta was charged under Section 52 of the Post Office Act read with Section 70 (abetment of postal offences), and under Section 380 read with Section 114, I.P.C., in respect of the same twelve articles.

At trial the learned Judge expressed a strong view favouring conviction, but the jury returned a unanimous verdict of not guilty for both accused. The case was then referred under Section 307 CrPC.

Legal Issues Presented

Whether the confessions made by Hemanta and Promotho were voluntary and admissible for proving guilt, particularly in light of Section 21 of the Evidence Act and the circumstances in which the confessions were recorded.
Whether, on the totality of the evidence (including discovery at Shyama Charan's shop and witness depositions), the prosecution proved beyond reasonable doubt that Promotho or Hemanta committed or abetted the alleged offence(s).
Whether the Court should interfere with a unanimous jury verdict of acquittal given the evidence and the conduct of the trial judge's charge.

Arguments of the Parties

Prosecution's Case

The Post Master asserted that he left twelve registered articles on his table and asked Promotho to take charge; after a short absence the articles were missing and Promotho denied knowledge.
Police evidence and depositions (Post Master Amritalal Mukerji, P.O. Bazlur Rashid, head postman Guru Charan, mail peon Bonomali Pal, and second clerk Hiralal) supported the prosecution narrative that the articles were in the post office and later found (partly) in Shyama Charan's shop.
Hemanta and Promotho gave recorded confessions at the Sub-Deputy Magistrate's office implicating themselves in the removal and concealment of articles; Hemanta led police to the recovered items.

Defence's Case

The defence contended (or suggested) that the fire was accidental and that the Post Master hurried to the scene (his wife and children being in the house), possibly leaving the registered articles unguarded; the Post Master may not have actually left Promotho in charge at the relevant time.
Some prosecution witnesses who purported to support the Post Master's account were shown to be unreliable or unable to have direct knowledge (for example, discrepancies in Guru Charan's account and the absence of the Post Master's daughter's evidence in the present trial).
The confessions were said to be involuntary: Hemanta was questioned for hours and "broke down"; Promotho initially refused and only confessed after hearing the Sub-Deputy Magistrate call for a constable, fearing ill-treatment if returned to police custody.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court reviewed the facts set out in the charge and proceeded first to examine Hemanta's case. It evaluated the circumstances in which Hemanta's confession was made and concluded that the confession was not voluntary. The opinion notes Hemanta was kept at a distance under the charge of a head constable and questioned by the Sub-Inspector for three to four hours until he "broke down." This, the Court held, brought the confession within the ambit of Section 21 of the Evidence Act (i.e., a confession made under inducement, threat or promise or not wholly voluntary).

The Court also observed that the Sub-Inspector nevertheless took Hemanta to the Sub-Deputy Magistrate at about 11 p.m., despite a recent circular from the Court advising that confessions should generally be recorded in open Court; the timing was treated as an indication that the police believed the confession would be retracted once the suspect's immediate police influence was removed. The Sub-Deputy Magistrate was criticized for recording the confession at that hour and for failing to exercise proper discretion.

Although the Court considered the recorded confession as part of the statements before the committing Magistrate, it found that the content of Hemanta's confession did not amount to an admission of guilt for the substantive offence charged. At most, Hemanta's statements suggested he could be an accessory after the fact, not that he actively abetted a theft. The Court noted the absence of evidence of any conspiracy between Hemanta and Promotho and expressed a firm view that the fire was accidental. Because no evidence supported an inference that Hemanta intended to assist in the commission of theft, and because the trial judge had deliberately not charged Hemanta under Section 411, I.P.C. (the appropriate provision for receiving stolen property), the Court held the abetment charges against Hemanta could not be sustained.

Turning to Promotho, the Court scrutinized the Post Master's account that Promotho was left in charge of the registered articles. The Court found this account improbable given Promotho's youth and probationer status (about 20–21 years old), and noted inconsistencies and weaknesses in the evidence used to support that account: some witnesses could not reliably have observed the purported instruction, and a key witness (the Post Master's daughter) had not been examined in the present trial (the trial judge properly advised the jury to ignore her earlier testimony).

The Court held Promotho's confession likewise to be involuntary. It found persuasive the circumstances in which he first refused to confess but then, on the Sub-Deputy Magistrate's ordering of a constable, acquiesced—apparently out of fear of ill treatment if returned to police custody. The Court expressly rejected the Sub-Deputy Magistrate's denial that the calling of the constable frightened Promotho.

On the remaining evidence, the Court accepted that a strong suspicion attached to Promotho because of opportunity, but emphasized that suspicion alone is insufficient to sustain conviction for a serious offence. Hemanta's statement was largely self-exculpatory and could not be used to prove Promotho's guilt. The discovery evidence at Shyama Charan's shop implicated Hemanta (and related to recovery of some items) but did not directly implicate Promotho. Accordingly, the Court concluded that the prosecution had not proved Promotho's guilt beyond reasonable doubt.

Finally, the Court addressed the propriety of interfering with a unanimous jury acquittal. It reiterated reluctance to disturb such a verdict unless it was unreasonable; because the verdict could be supported on the evidence and in light of the involuntariness of the confessions and weaknesses in other evidence, the Court declined to disturb the unanimous acquittal. The Court nevertheless observed that the trial judge had reasonable grounds to refer the case but had adopted a tone and tenor in his charge that was stronger than appropriate.

Holding and Implications

Holding: Both accused (Promotho and Hemanta) are acquitted and directed to be set at liberty.

Implications:

Direct effect on the parties: The two accused are acquitted of the charges and ordered to be released.
Reasoning basis: The acquittals rest on (a) the Court's finding that both confessions were not voluntary and thus could not be relied upon as proof of guilt, (b) significant weaknesses and inconsistencies in the prosecution's non-confessional evidence, and (c) the principle that suspicion alone is insufficient to sustain conviction beyond reasonable doubt for serious offences.
Broader precedent: The opinion contains no citation of prior cases as binding authority in the text. The Court declined to disturb a unanimous jury acquittal where the evidence permitted the verdict; it did not purport to lay down new legal doctrine beyond the specific application of established principles (voluntariness of confessions and standard of proof beyond reasonable doubt).

Final notation from the opinion: "Accused acquitted." (V.B/R.K recorded in the opinion; formal order of acquittal follows.)

Show full summary ...

Emperor v. Pramatha Nath Bagchi And Another Accused.

1. This is a reference under Section 307 of the Cr PC.

2. The facts of the case are shortly these on 11th October 1918 there was a fire in the out-offices of the house of the Post Master of the Sub Post Office at Rajhari. The fire was very soon extinguished. The Post Master's case is that at the time when the fire broke out, he was ??? his office and there were on his table 12 registered articles, that when he ??? the office, he asked the accused Promotho who was a probationer in his office ??? take care of these articles and that ??? went to the place where the fire had ??? curred and came back within a very ??? minutes and found that the registered articles were all missing. He asked Prmotho, who denied any knowledge them. He then sent Promotho to lods information at the Thana, though ??? says that he had his suspicions that Promotho had taken possession of those ???. As against the accused Heman it is said that he was in the Post Office verandah shortly before the fire. The was nothing unusual, as Hemanta ??? Pvomotho live together and were friends. On receipt of the information from Promotho, the Sub-Inspector of Police took up the inquiry. Hemanta made to him certain statements upon which he went to the shop of one Shyama Charan and through an opening in the that wall, Hemanta brought out five of the missing letters which were unopened and three bundles of currency notes with certain letters in them, but without the envelopes. The other four registered articles were not found and have not been traced since. At about 11-30 p.m, Hemanta was taken to a Sub-Deputy Magistrate, where he is said to have made a confession which was duly recorded by that officer. After that Promotho was also taken there at about 12.80 a.m, and he also made a confession. It appears that Promotho, when he was asked whether he would make a confession, answered in the negative, whereupon the Sub-Deputy Magistrate asked his orderly to call the constable and hearing this Promotho at once changed his mind and agreed to make a confession, and the confession was recorded. Hemanta in his confession admitted that he had gone to the Post Office in the evening, that when he was returning the fire broke out and hearing the cry he went back towards the Post Office, that he was called by Promotho who handed over to him certain registered articles with the direction that he should open them and take care of the contents, that he put them insite Shyama Charan's shop through an opening, that shortly after he was arrested and he brought out the articles from Shyama Charan's shop. Promotho in his confession stated that when the fire broke out he was present in the Post office sorting some letters that he and there all went out, that the Post Master asked him to guard the office room and that he made over a bundle of insured for registered letters to Hemanta, He laid that when the Post Master came jack and asked him about these articles, to at first denied all knowledge of them but afterwards gave out all the facts to be Police Sub-Inspector and the Post Master.

3. The principal evidence against the ac-used consists of the depositions of the cost Master Amritalal Mukerji, the investigating Police Officer Bazlur Rashid, head postman Guru Charan, Bonomali Pal, the mail peon and the second clerk Hiralal. There is also a considerable body of other evidence about the discovery of the articles from Shyama Charan's shop.

4. The charges framed against the accused, were these: Promotho was charged under Section 52 of the Post Office Act, for having dishonestly misappropriated six insured and registered letters containing currency notes and stamps and six uninsured registered letters while in the coarse of transit. He was also charged with theft under S. 360, I.P.C Hemanta was charged under Section 52 of the Post Office Act, read with S. 70, which refers to abetment of postal offences, and was also charged under S. 380 read with S. 114, I.P.C, in respect of the said 12 articles. The learned Judge was apparently strongly impressed by the evidence in the case and his charge was a strongly-worded one for a conviction.

5. The jury however unanimously brought, a verdict of not guilty against both the accused.

6. In cases of this nature we are generally reluctant to interfere with a unanimous verdict and if that verdict is not unreasonable and can upon the evidence be supported we think we ought to accept it, even though we may not wholly agree with it.

7. We propose to deal with the case, briefly as the facts are all set out in the charge. We will consider the case of Hemanta first.

8. His confession in our opinion cannot upon the case made by the prosecution, be said to be voluntary. The evidence is that he was kept at a little distance from the post office in charge of a head constable and was being questioned by the Sub-Inspector and that after being in that condition for three or four hours, to use the words of the learned Judge, “under the continued questioning to which he was subjected he finally broke down.”

9. We are satisfied that he made the confession under circumstances that bring the case within the words of Section 21 of the Evidence Act. If the confession were voluntary and if the Sub-Inspector thought that it was so, there was no reason why he should have taken him to the Sub-Deputy Magistrate at 11 o'clock at night, in spite of the recent circular issued by this Court which lays down that as a rule, confessions should be recorded in open Court. This appears to us to be a clear indication, apart from any other facts, that Hemanta's confession was not a voluntary one and that the Police Officer thought that as soon as his influence was removed, the confession would be retracted. We think the Sub-Deputy Collector was wrong in recording the confession at that hour of the night and failed to exercise a proper discretion in doing so. However, we may still take the confession into consideration as forming part of the statement of Hemanta before the committing Magistrate. It was not in our opinion a confession of guilt at all. What Hemanta said would, at the most, go to show that he was a mere accessory after the act. It does not in any way suggest that he went to the post office in order to help Promotha to commit theft, and there is no evidence from which such an inference can be drawn. The suggestion regarding a conspiracy between the two accused has failed and we have no doubt that the fire was accidental. If Promotha took out the registered letters and handed them over to Hemanta, the latter could only be charged with an offence under S. 411, I.P.C, but the learned Judge deliberately refused to charge Hemanta under that section because he thought that would complicate matters. For these reasons we think Hemanta could not be said to have abetted the commission of any offence by Promotha; and the charges against Hemanta must therefore fail.

10. As regards Promotha the case stands on a somewhat different footing; but yet we are not satisfied that even in his case we should differ from the unanimous verdict of the jury. It is difficult to believe the story told by the postmaster that he left Promotha in charge of the registered articles. If Promotha had been left in such charge, it is extremely unlikely that he, a young probationer in the post office aged about 20 or 21 years, would have dared to deny any knowledge of them or to remove them, knowing, as he did, that he would be held responsible for them. It seems more reasonable to believe that, when the fire broke out in the kitchen, the postmaster — whose wife and children were in the house—ran in haste to the place and, as suggested by the defence, Promotha also followed him and that immediately after, it occurred to the postmaster that he had left the registered articles without placing anybody in charge of them and asked Promotha to return to the post office to take care of them. It is extremely suspicious that this story of Promotha having been placed in charge of the stolen articles has been sought to be supported by evidence which cannot be relied upon. Some of the witnesses who depose to it, in our opinion, could not have any knowledge of it. One of such witnesses is Guru Charan who must have left immediately after the fire broke out (Bonomali said they all went together), and yet he says he heard the postmaster asking Promotha to take charge of the articles and the other witness is the postmaste's daughter, who in her evidence at the first trial deposed to the same fact, but was not examined in the present trial. The learned Judge rightly asked the jury to ignore her evidence.

11. Now we come to Promotha's confession. We think that confession also was not voluntary. In our opinion having at first refused to make a confession, he got frightened at the Sub-Deputy Magistrate asking his orderly to call the constable, and apprehending ill treatment if he were handed back to the police, who would naturally be annoyed at his refusal to make a confession for which he was brought to the Sub-Deputy Magistrate, he agreed to make a confession. We may here add that we are not at all satisfied with the statement made by the Sub-Deputy Magistrate in his evidence that he did not think that the calling of the constable made Promotha afraid. On this, and on some of the other grounds adverted to by us in connexion with Hemanta's confession, we think we cannot rely upon the confession of Promotha.

12. As regards the evidence, we have already said that a part of it is difficult to believe. The matter then stands thus: the registered articles were in the post office. The postmaster had left the office; Promotha had also left with him; he was sent back and then when the postmaster returned, he found the articles missing. There is no doubt a strong suspicion attaches to Promotha, as he had a better opportunity of taking possession of those articles than anyone else. It may be a strong suspicion, but it is nothing more than a suspicion. Hemanta's statement cannot be taken into account against Promotha, it being to a great extent self-exculpatory; and upon mere suspicion we are not prepared to convict him of an offence so serious as the one with which he is charged. There remains then the evidence about the discovery of the registered articles in Shyama Charan's shop. That evidence does not touch Promotha. We cannot therefore say that we are satisfied beyond reasonable doubt that it was Promotha that removed the articles from the post office and we think it would be unsafe to convict him also. For these reasons, we think that we should not disturb the unanimous verdict of the jury. We do not say that the learned Judge had no good grounds for referring the case to us; but we think that he took a stronger view of the case than he should have taken, and his charge to the jury would have conformed better to the spirit of the law if he had used less strong language. It is true that he put the facts before the jury in great detail and explained to them the law quite clearly and correctly, but our remark refers to the general tenor of his charge. For these reasons we acquit both the accused and direct that they be set at liberty.

V.B/R.K

13. Accused acquitted.

Emperor v. Pramatha Nath Bagchi And Another Accused.

Structured Summary of the Opinion (Reference under Section 307, CrPC)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Prosecution's Case

Defence's Case

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Emperor v. Pramatha Nath Bagchi And Another Accused.

Comments