Surendra Prasad Verma Vs. State of Bihar - Court Judgment

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criminal - criminal breach of trust by public servant - section 409 of indian penal code, 1860 - appellant was a cashier in a engineering school - the cash of the school used to be kept in iron safe - appellant was entrusted with key of the outer door of safe - the two duplicate keys of the outer door and the duplicate key of the drawer used to be kept in a sealed envelope within the drawer - one particular day cash was found missing from the safe - appellant who was in charge of safe was convicted for offence of criminal conspiracy and criminal breach of trust in respect of certain amount which had been entrusted to him - hence, present appeal - the appellant was the cashier and he used to maintain the register of cash - when he took over charge the duplicate keys were inside the safe - his liability as cashier to account for the contents of the safe cannot be disputed - in the absence of evidence to show that he had parted with the keys of the outer door he was under a duty to account for the contents of the safe including the cash - held, conviction of appellant for offence under section 409 justified - appeal dismissed - [a.k. sarkar, c.j.,; j.m. shelat,; j.r. mudholkar,; m. hidayatullah, jj.] the respondents were arrested by the police for the offence of trespass and were released on bail. they were tried and sentenced to pay a fine by the nyaya panchayat, a court established under the madhya bharat panchayat act, 1949, with powers to impose only a sentence of fine. the conviction was set aside by the high court on the ground that s. 63 of the act, which provides that no legal practi- tioner shall appear on behalf of any party in a proceeding before the nyaya panchayat, violated art. 22(1) of the constitution and was therefore void. held:(per sarkar c.j., and mudholkar, j.): the high court was in error in setting aside the conviction. under art. 22(1) a person arrested has the constitutional right to consult a legal practitioner concerning his arrest; and, a person who has been arrested as well as one who though not arrested runs the risk of loss of personal liberty as a result of a trial, have the constitutional right to be defended by an advocate of their choice. but in a trial under a law which does not provide for an order resulting in the loss of his personal liberty, he is not entitled to the constitutional right, because, the article is concerned only with giving protection to personal liberty. [241 h-242 c, 244 b-c]. the act does not give any power to deprive any one of his personal liberty either by way of arrest before the trial or by way of sentence of imprisonment as a result of the trial; nor does it deprive an arrested person of his constitutional right to take steps against the arrest or to defend himself at a trial which might occasion the loss of his personal liberty. the fact that the respondents were arrested under another statute, namely, the criminal procedure code cannot make either the section or the act void. [242 g-h; 243 c-d; 244 d-e] state of bombay v. atma ram sridhar vaidya, [1951] s.c.r. 167..204, followed. quaere:...whether respondents were not entitled to the constitutional right because, at the trial they were on bail. [244 e] per bachawat and shelat jj.: section 63 of the act is violative of art. 22(1) and is void to the extent that it denies any person who is arrested the right to be defended by a legal practitioner of his choice in any trial for the crime for which he is arrested. but, the order of the high court, quashing the conviction, should be set aside, because, the respondents did not claim that they should be defended at the trial by counsel, and the circumstances of the case, the existence of s. 63 on the statute book did not cause them any prejudice. [257 g; 258 b-c] as soon as the respondents were arrested without warrants issued by a court, they acquired the rights guaranteed by art. 22(1), and they continued to have those rights though they were released on bail at the time of trial. the rights include the right to be defended even in a trial in which they were in jeopardy of only being sentenced to a fine. because, the pronoun "he" in the second part of art. 22(1) refers to "any person who is arrested'-. if in the exercise of the general powers under the criminal procedure code, the police arrest a person on the accusation of a crime for which he is liable to be tried before a special criminal court, the arrested person has the constitutional right to be defended by counsel at the trial before the special criminal court in respect of the offence for which he was arrested. even if the word "he" means "any person" there is no warrant for giving a restricted interpretation and limiting the right to be defended by counsel to a trial in which the arrested person is in jeopardy of being sentenced to death or to a term of imprisonment. [256 a-d, f-g; 257 a- b] state of punjab v. ajaib singh, [1953] s.c.r. 254, referred to. quaere:whether the tests of an arrest" laid down in ajaib singh's case are exhaustive. [257 c]. per hidayatullah j. (dissenting): the appeal should be dismissed. under art. 22, a person who is arrested for whatever reason, gets three independent rights. the first is the right to be told the reasons for the arrest as soon as an arrest is made, the second is the right to be produced before a magistrate within 24 hours and the third is the right to be defended by an advocate of his choice. when the constitution lays down in absolute terms a right to be defended by one's own counsel, it cannot be taken away by ordinary law, and. it is not sufficient to say that the accused who was so deprived, of the right, did not stand in danger of losing his personal liberty. the words "nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice," in art. 22(1), refer to a person who is arrested. personal liberty is invaded by arrest and continues to be restrained during the, period a person is on bail and, it is not sufficient to say that the accused who was so deprived prisonment. before his release on bail he defends himself against his arrest and the charge for which he is arrested, and after his release on bail, against the charge he is to answer and for answering which, the bail requires him to be present. therefore. s. 63 of the act, being inconsistent with the article, is void. though the contention was raised for the first time in the high court, since it is a question of fundamental right it must be upheld. [248 h; 249 d-f; 251 a-b, f-h; 252 b]. state of punjab v. aiaib singh. [1953] s.c.r. 254 and state of uttar pradesh v. abdul samad [1962]. s.c.r. 915. referred to. - it was shifted from there in part to zila school in august 1961. even after such shifting asad manzil continued to be in the occupation of the school and an iron safe embedded in a wall of the office room and some old papers remained there. the cash of the school used to be kept in that iron safe, besides moneys belonging to what is described as the students' fund. the safe had a double locking system. the cash however used to be kept in a drawer within the safe of which the key was originally in charge of ramchander lal. in order to enable anybody to take out any money from the safe it was necessary to have all three keys to be put into use. there used to be periodical verification of the contents of the safe. the evidence further showed that on september 30, 1961 arvind kumar did not verify the cash physically as he had done in august 1961. on october 9, 1961 the appellant went to open the safe to take out some cash accompanied by ramchander lal. according to the report the safe which was locked was opened by the appellant with the two outer keys. the sessions judge arrived at the following findings :1. the arrangement regarding the custody of the keys was as regards the outer door one was kept by the principal and the other by the appellant while ramchander lal had the custody of the key of the drawer, duplicates of all three keys being kept in the safe itself. october 9, 1961, the two keys of the outer door were with the appellant surendra prasad verma and the keys of the drawer was with the accused ramchander, the duplicates being in the drawer of the iron safe. 5. nobody had opened the safe between 1st october 1961 and 8th october 1961. the possibility of the loss having taken place even before 30-9-1961 could not be ruled out. 6. the keys of the iron safe were no doubt in the custody of the accused persons but they individually or collectively could have misappropriated the amount but in that respect it is difficult to say which one alone could have done it. 4. the high court proceeded on the basis that even if there was no document showing that the appellant had taken charge from ramchander lal after coming back from leave, it was his duty to report to the principal whether the duplicate keys were inside the safe or not at the time. on october 9, 1961 the duplicate keys were found about the safe while the envelope supposed to contain them was lying torn inside the safe. 5. in our view the evidence makes it clear that the contents of the safe were intact on 31st august 1961 when the monthly verification by arvind kumar took place. when he took over charge the duplicate keys were inside the safe. even if ramchaderlal ever came to have possession of the key of the inner drawer at any time after 31st august, 1961, the safe could not have been opened by any body unless the keys of the outer door were made over by the appellant to the person wishing to open the same. his liability as cashier to account for the contents of the safe cannot be disputed. he was either a party of privy to the extraction of the cash from the safe. in the absence of evidence to show that he had parted with the keys of the outer door between 31st august 1961 and 9th october 1961, he was under a duty to account for the contents of the safe including the cash.mitter, j.1. this appeal by special leave is from a judgment of the patna high court accepting the state's appeal against acquittal by the sessions judge and convicting the appellant of an offence under section 409 of the indian penal code.2. the appellant who was the cashier and one ram chander lal, a lower division clerk in the engineering school of the government of bihar at purnea were prosecuted for offences of criminal conspiracy and criminal breach of trust in respect of rs. 11,021-35 alleged to have been entrusted to them and over which they had dominion. the engineering school was at first located in a building known as asad manzil in purnea city. it was shifted from there in part to zila school in august 1961. even after such shifting asad manzil continued to be in the occupation of the school and an iron safe embedded in a wall of the office room and some old papers remained there. the cash of the school used to be kept in that iron safe, besides moneys belonging to what is described as the students' fund. the safe had a double locking system. there were two keys to the outer door both of which had to be operated to open the said door. at first one of these keys used to be with the appellant and the other used to be with the principal of the school. the cash however used to be kept in a drawer within the safe of which the key was originally in charge of ramchander lal. in order to enable anybody to take out any money from the safe it was necessary to have all three keys to be put into use. the evidence is that after the school shifted from asad manzil the principal entrusted his key of the outer door to the appellant. the two duplicate keys of the outer door and the duplicate key of the drawer used to be kept in a sealed envelope within the drawer. the appellant had gone on leave from 15th may 1961 to 3rd or 4th june, 1961 during which time ramchander lal was in charge of the work of the cashier and had all the three keys in his possession. the documents show that at the time when he went on leave the appellant made over the keys of the outer door to ramchander lal. there are no corresponding documents to show that he had taken charge after coming back from leave but the facts make it abundantly clear that he had assumed such charge after he joined duty. it was he who used to maintain the cash book and was in charge of the cash. there used to be periodical verification of the contents of the safe. the evidence shows that there was one such verification on august 31, 1961. according to arvind kumar, an assistant professor who had been entrusted by the principal to verify the actual cash in hand with the cash balance according to the registrar the iron chest and the drawer were opened on that date by the appellant when ramachander lal was not there. the verification showed that the cash and the drafts in the bank exceeding rs. 1 lakh tallied with the amounts entered in the register. the evidence further showed that on september 30, 1961 arvind kumar did not verify the cash physically as he had done in august 1961. on october 9, 1961 the appellant went to open the safe to take out some cash accompanied by ramchander lal. they then found that a large amount of cash was missing from the drawer. they reported the matter to the principal and a first information report was lodged the same night the report being written out by the principal at the dictation of the appellant. according to the report the safe which was locked was opened by the appellant with the two outer keys. when the drawer was opened no money was found inside it and the envelope containing the duplicate keys was lying torn there having no keys inside.3. after investigation the appellant and ramchander lal were committed to the sessions court to stand their trial. the prosecution examined eight witnesses, the important witnesses being pw 3, arvind kumar, assistant professor, pw 4, bhagwati saran sinha, the head-clerk, pw 6, brajnandan prasad srivastava, the principal and pw 7 salabuddin ahmad, the investigating officer. the sessions judge arrived at the following findings :-1. the arrangement regarding the custody of the keys was as regards the outer door one was kept by the principal and the other by the appellant while ramchander lal had the custody of the key of the drawer, duplicates of all three keys being kept in the safe itself. on 28th march, 1960 the principal had made over his key to the appellant.2. at the relevant time or near about i.e. october 9, 1961, the two keys of the outer door were with the appellant surendra prasad verma and the keys of the drawer was with the accused ramchander, the duplicates being in the drawer of the iron safe.3. the prosecution evidence with regard to all the three keys being in the custody of the appellant at the relevant time was 'below the mark'4. ordinarily both the accused persons used to be present at physical verification of cash. according to the principal this practice was not always followed. on august 31, 1961 prof. arvind kumar had done the physical verification but on 30th september 1961 he had given the certificate in the zilla school itself i.e. he did not go to asad manzil.5. nobody had opened the safe between 1st october 1961 and 8th october 1961. the possibility of the loss having taken place even before 30-9-1961 could not be ruled out.6. the keys of the iron safe were no doubt in the custody of the accused persons but they individually or collectively could have misappropriated the amount but in that respect it is difficult to say which one alone could have done it. the chance of some one else getting hold of the duplicate keys some how could not be ruled out. in the result he gave the accused the benefit of doubt.4. the high court proceeded on the basis that even if there was no document showing that the appellant had taken charge from ramchander lal after coming back from leave, it was his duty to report to the principal whether the duplicate keys were inside the safe or not at the time. the evidence of p.w. 3 arvind kumar established that no embezzlement or theft of the money had taken place before august 31, 1961. under rule 122 of the bihar treasury code the where abouts of the duplicate keys had to be ascertained whenever charge was transferred. this was followed when the appellant had made over charge to ramchander lal before going on leave and there was no reason to hold the same course was not adopted when the latter made over charge to the appellant again. on october 9, 1961 the duplicate keys were found about the safe while the envelope supposed to contain them was lying torn inside the safe. the high court relied on the statement of the head-clerk that when the appellant rejoined after leave in the beginning of june 1961 he took all the three keys from ramchander lal. the evidence on record went to show that there was very little amount in the students' fund account at the relevant time and it was the appellant who immediately before that date had to take out and keep money practically every day. considering the evidence as a whole, the high court took the view that when the appellant rejoined in june 1961 ramchander lal had made over the key of the inner drawer to the appellant. the high court therefore concluded that it was the appellant who had custody of all three keys between august 31, 1961 and october 9, 1961 when the loss was discovered.5. in our view the evidence makes it clear that the contents of the safe were intact on 31st august 1961 when the monthly verification by arvind kumar took place. at that time the appellant alone was present and consequently it must be held that he then had possession of all the three keys. at least the two keys of the outer door were with him ever since he re-joined duty in june 1961. whether or not ramchander lal ever had possession of the key of the inner drawer after the appellant rejoined his duly is immaterial in the circumstances of the case. the appellant was the cashier; he used to maintain the register of cash. when he took over charge the duplicate keys were inside the safe. otherwise he would have at once drawn the attention of the principal to it. even if ramchaderlal ever came to have possession of the key of the inner drawer at any time after 31st august, 1961, the safe could not have been opened by any body unless the keys of the outer door were made over by the appellant to the person wishing to open the same. his liability as cashier to account for the contents of the safe cannot be disputed. he was either a party of privy to the extraction of the cash from the safe. in the absence of evidence to show that he had parted with the keys of the outer door between 31st august 1961 and 9th october 1961, he was under a duty to account for the contents of the safe including the cash. the charge under section 409 was therefore duly brought home to him.6. in the result we dismiss the appeal and maintain the order of conviction and sentence passed by the high court.