Baidya Nath Prasad Srivastava Vs.
State of Bihar  INSC 128 (30 April 1968)
30/04/1968 VAIDYIALINGAM, C.A.
CITATION: 1968 AIR 1393 1969 SCR (1) 172
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.
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
HELD : The order of the High Court could not
(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 themselves 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 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]
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
D. P. Singh and K. M. K. Nair, for the
173 The Judgment of the Court was delivered
by Vaidialingam, J. On behalf of the sixth-accused, the appellant 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 suffered, 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
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 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
non-examination of Devendra Prasad, that he has not examined himself, as a
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
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.
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.