Maulud Ahmad Vs. State Of Uttar
Pradesh [1962] Insc 309 (13 November 1962)
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 sustainableLimitation-Prosecution after
3 months of offence-If barredIndian 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 wasnot
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.
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.
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 imprisonment.
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 Headconstable..
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 preparation 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
description 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 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 (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.
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 there under. 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 there under, 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.
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