STATE OF GUJARAT v. KAMALSHANKER BHULESHWAR — 1963 DIGILAW 44 (GUJ)

B. J. DIVAN, J. ( 1 ) IN support of its case against accused No. 1 the prosecution led the evidence of Mr. J. C. Trivedi Inquiry Officer; and the prosecution relied upon the two statements made by accused No. 1 before Mr. Trivedi. The first statement was made on February 9 1958 and that statement is Ex. 43 on the record. The other statement was made on February 22 1958 and that statement is Ex. 42 on the record. According to the prosecution Ex. 43 contained certain statements of self-inculpatory nature and amounted to a confession on the part of accused No. 1. It was urged before us that Ex. 42 was made by accused No. 1 in the course of the inquiry conducted by Mr. J. C. Trivedi when the evidence was recorded on oath and therefore this statement Ex. 42 was hit by the provisions of Article 20 (3) of the Constitution of India. We will first deal with the legal aspect of this matter before considering the contents of Ex. 42 As is well-known Article 20 (3) provides against testimonial compulsion and lays down that no person accused of any offence shall be compelled to be a witness against himself. It was urged before us that looking to the nature of the inquiry before Mr. J. C. Trivedi there was a compulsion on accused No. 1 to make that statement before Mr. J. C. Trivedi and therefore we cannot take the contents of Ex. 42 into consideration as that document was the result of something which was done contrary to the provisions of Article 20 (3) of the Constitution of India. ( 2 ) IN order to appreciate this argument it is necessary to bear in mind that the inquiry before Mr. Trivedi was under sec. 43 (1) of the Bombay Cooperative Societies Act 1925 That section provides as follows :-43 (1) The Registrar may of his own motion by himself or by a person duly authorised by him in writing in this behalf hold an enquiry into the constitution working and financial condition of a society. ( 3 ) THE original order appointing either Mr. J. P. Parikh or Mr. ( 3 ) THE original order appointing either Mr. J. P. Parikh or Mr. J. C. Trivedi as the Inquiry Officer was not on record but at the request of the learned counsel for the appellant we have allowed the original order dated June 22 1957 and the subsequent order dated September 11 1957 appointing Mr. J. P. Parikh to be brought of record and the copies of these orders have been kept on the record of this case. The order dated June 22 1957 mentions that the appointing authority viz. the Assistant Registrar for Industrial Cooperatives Baroda had read the confidential letter of the Special Auditor Cooperative Societies regarding the working of this Society and also the letter of the Deputy Registrar for Industrial Cooperatives Ahmedabad; and after setting out various details the order says as follows :-THE above happenings call for an exhaustive inquiry and a detailed investigation into the affairs of the Haveli Vibhag Co-operative Forest Labourers Society Ltd. Taluka Lunawada. Under the circumstances I Shri N. R. Kolhe Assistant Director of Small Industries and Assistant Registrar for Industrial Cooperatives Baroda hereby order an inquiry into the constitution working and financial position of the Haveli Vibhag Cooperative Forest Labourers Society Ltd. under sec. 43 (1) of the Bombay Cooperative Societies Act (VII of 1925) with special reference to the points noted above and others that may come to notice of the Inquiry Officer during the course of inquiry and on such other points which he deems necessary to investigate with a view to bring to light the gross irregularities etc. if any and also report cases of responsible persons which might be noticed by him. ( 4 ) THEN the order proceeds to appoint Mr. J. B. Parikh as the Inquiry Officer. The order dated September 11 1957 merely says that in partial modification of the earlier order Mr. J. C. Trivedi was appointed Inquiry Officer vice Mr. J. P. Parikh to conduct the inquiry; and some directions were given to Mr. J. C. Trivedi in connection with the inquiry. Thus the inquiry which was to be conducted by Mr. J. C. Trivedi was under the provisions of sec. 43 (1) of the Bombay Cooperative Societies Act and was not an inquiry into the offences alleged against accused No. 1. It was urged before us that in the inquiry before Mr. J. C. Trivedi in connection with the inquiry. Thus the inquiry which was to be conducted by Mr. J. C. Trivedi was under the provisions of sec. 43 (1) of the Bombay Cooperative Societies Act and was not an inquiry into the offences alleged against accused No. 1. It was urged before us that in the inquiry before Mr. Trivedi the accused was treated as a person against whom charges of criminal breach of trust and various other offences were made and therefore the inquiry before Mr. Trivedi was hit by the provisions of Article 20 (3) of the Constitution. Mr. Bhatt on behalf of accused No. 1 orally applied before us that we should exercise the powers under sec. 428 Cr. P. C. and that additional evidence should be recorded regarding what transpired in the course of the inquiry before Mr. Trivedi. We rejected that application because in our opinion no useful purpose would have been served by having fresh evidence recorded in connection with what transpired before Mr. Trivedi in course of the inquiry. The scope of the inquiry before Mr. Trivedi was registered to the provisions of sec. 43 (1) of the Bombay Co-operative Societies Act 1925 as shown by the order appointing him. If the order appointing Mr. Trivedi had purported to say anything more than what was warranted by the language of sec. 43 (1) of the said Act then the appointment of Mr. Trivedi and his conduct of the inquiry would have been open to challenge. But as the language of the order as we have set out above indicates the inquiry to be conducted by Mr. Trivedi was within the four corners of sec. 43 (1) of the said Act and. Therefore there was no point in allowing additional evidence to be led as regards this particular aspect. ( 5 ) WHAT is meant by testimonial compulsion in Article 20 (3) of the Constitution has now been settled by an authoritative pronouncement of the Supreme Court in the case of State of Bombay v. Kathi Kalu A. I. R. . 1961 SC. ( 5 ) WHAT is meant by testimonial compulsion in Article 20 (3) of the Constitution has now been settled by an authoritative pronouncement of the Supreme Court in the case of State of Bombay v. Kathi Kalu A. I. R. . 1961 SC. 1809 There a Bench of 11 Judges of the Supreme Court considered the scope of Article 20 (3) in all its various aspects and the majority judgment was delivered by Sinha C. J. on behalf of himself Imam Gajendragadkar Subba Rao Wanchoo Raghubar Dayal Rajagopala Ayyangar and Mudholkar JJ whereas the minority judgment was delivered by Vas Gupta J on behalf of himself S. K. Das and A. K. Sarkar JJ. At page 1816 in para 16 after considering the various authorities the majority judgment laid down certain conclusions seriatim and in conclusion No. (7) it was laid down as follows:- (6) To bring the statement in question within the prohibition of Art. X0 (3) the person accused must have stood in character of an accused person at the time he made the statement. It is not enough that he should become an accused any time after the statement has been made. ( 6 ) MR. Bhatt relied upon an earlier judgment of the Calcutta High Court in the case of Collector of Customs v. Calcutta Motor and Cycle Co. A. I. R. 1958 Calcutta 682 and there it was held as follows -EVEN if a man has been named as a person who has committed an offence particularly by officials who are competent to launch a prosecution against him he has been accused of an offence within the meaning of Art. 20 (3) and a situation has arisen in which he can claim protection against being compelled by a coercive process to furnish evidence against himself ( 7 ) THERE what happened was that notices were issued under sec. 171 A of the Sea Customs Act to certain persons to appear before certain customs officials and to produce certain documents. It appeared from the accusations made in the search warrants at the instance of the Customs authorities and those made in one of the notices by the Customs authorities themselves that the accusations of criminal offences could not be excluded; and it was held that the protection under Article 20 (3) was available to the persons concerned. It appeared from the accusations made in the search warrants at the instance of the Customs authorities and those made in one of the notices by the Customs authorities themselves that the accusations of criminal offences could not be excluded; and it was held that the protection under Article 20 (3) was available to the persons concerned. It was urged before us that the decision in A. I. R. 1958 682 was not overruled by the decision of the Supreme Court in A. I. R. 1961 S. C. 1808. However in each of such cases it is necessary to find out the scope of the proceedings in the course of which the statement was made in order to find out whether the protection of Art. 20 (3) is available to the person concerned when subsequently put up as an accused before a Court of law. ( 8 ) A similar point arose in the case of Narayanlal Bansilal v. M. P. Mistry 61 Bom. L. R. 220 in connection with certain. inquiries which were instituted against one Narayanlal under the provisions of the Indian Companies Act. Narayanlal was looking after the business of M/s Narayanlal Bansilal who were the Managing Agents of Harinagar Sugar Mills Ltd. the company concerned; and an Inspector was appointed under the provisions of sec 138 (iv) of the Indian Companies Act 1913 to investigate into the affairs of the Company from the date of its incorporation and point out all irregularities and contraventions in respect of the provisions of the Indian Companies Act 1913 or any other law. In connection With this inquiry a petition under the provisions of Article 226 of the Constitution of India for the writs of Mandamus Certiorari etc was made by Narayanlal to the High Court of Bombay and the petition was heard in the first instance by K. T. Desai J. (as he then was ). In the course of that judgment the provisions of the Indian Companies Act were considered and it was held that the inquiry before the Inspector was not hit by Article 2013 ). In the course of that judgment the provisions of the Indian Companies Act were considered and it was held that the inquiry before the Inspector was not hit by Article 2013 ). At page 237 T. Desai J. (as he then was) distinguished another case of Calcutta High Court in A. I. R. 1956 Calcutta 253; and the view was expressed by him that he was unable to agree with the reasoning of the Calcutta High Court on the scope and object of Article 20 of the Constitution. Reliance was placed by him on the judgment of Bhagwati J. in Maqbool Hussain v. The State of Bombay (1953) S. C. R. 730 and the observations of Mukherjee J. in the case of S. A. Venkataraman v. The Union of India (1954) S. C. R. 1150. In Venkataramans case a distinction was pointed out between a fact finding inquiry and an investigation into an offence. There was an appeal against the decision of K. T. Desai J. and the appeal was heard by Chagla C. J. and S. T. Desai J. ( as he then was ) and the Appeal Court held as follows:-THE accusation referred to in Art. 20 (3) of the Constitution of India is an accusation with reference to a criminal proceeding and therefore as an investigation held by an inspector appointed under the Companies Act 1956 to investigate the affairs of a company is not a criminal proceeding Art. 20 (3) of the Constitution is not applicable to the provisions of section 240 (5) of the companies Act 1956 under which there is an obligation upon the person examined to answer questions put to him and the possibility of those answers being used in evidence against him although the answer may be of an incriminating nature ( 9 ) THE decision of the appellate Court is also reported at 61 Bom. L. R. 220 Against the decision of the Court of Appeal there was a further appeal to the Supreme Court; and the decision of the Supreme Court is reported at A. I. R. 1961 SC. 29. L. R. 220 Against the decision of the Court of Appeal there was a further appeal to the Supreme Court; and the decision of the Supreme Court is reported at A. I. R. 1961 SC. 29. There the Supreme Court confirmed the decision of the Court of Appeal of the High Court of Bombay and it was held as follows:-WHERE a person is called upon under section 240 of the Companies Act to give evidence and to produce documents he cannot be said to be a person who is accused of any offence as required by Art. 20 (3) and therefore the provisions of section 240 do not offend against the fundamental rights guaranteed by Art. 20 (3 ). ( 10 ) AT the commencement of the enquiry and indeed throughout its proceedings there is no accused person no accuser and no accusation against anyone that he has committed an offence. A general enquiry and investigation into the affairs of the company contemplated cannot be regarded as an investigation which starts with an accusation contemplated in Art. 20 (3) of the Constitution. ( 11 ) APPLYING the principles of Narayanlals case to the facts of the present case it is clear that when the Assistant Register of Co-operative Societies directed an inquiry under sec. 43 of the Co-operative Societies Act there was no accuser and no accused person but there was merely a general inquiry and investigation into the affairs of the Co-operative Society. In view of the decision in Narayanlals case and also in view of the decision in A. I. R. . 1961 S. C. 1808 we are unable to accept the contention of Mr. Bhatt that the decision in A. I. R. 1958 Calcutta 682 should be followed In each case the Court before which this question arises has to consider the provisions of the statute under which the inquiry or investigation is held or is proposed to be held and then consider whether there was an accused person or whether there was an investigation into the affairs and administration or financial condition of the particular body concerned. In our opinion sec. 43 of the Co-operative Societies Act does not contemplate any accuser or any accused person and therefore it cannot beside that the statement made by accused No. 1 in the course of the inquiry before Mr. In our opinion sec. 43 of the Co-operative Societies Act does not contemplate any accuser or any accused person and therefore it cannot beside that the statement made by accused No. 1 in the course of the inquiry before Mr. Trivedi would be affected by the provision of Article 20 (J) of the Constitution of India. ( 12 ) [ His Lordship after discussing the evidence further stated:- ]it was urged before us that if the contents of Ex. 42 are to be construed as materials against the accused then the Court should read the document as a whole and not merely that portion of it which was self - inculpatory; and if Ex. 42 is read as a whole then the effect of the admission in the earlier part of Ex. 42 is wiped out by the latter portion where accused No. 1 told Mr. Trivedi that the sum of Rs. 80/had in fact been paid to Rama Bhagji in accordance with Ex. 8 and as shown in the books of account of the Co-operative Society. It is true that there are several decisions both of the Privy Council and of the Supreme Court which state that whenever there is a statement amounting to an admission or to a confession then the statement should be read as a whole. In this connection taking up some of the authorities in a chronological order as far back as in 1915 it was held by the Privy Council in the case of M. M. Essabhoy v. M. Haridas A. I. R. 1915 P. C. 2 that it was permissible for a tribunal to accept part and reject the rest of any witness testimony. But an admission in a pleading cannot be so dissected and if it is made subject to a condition it must either be accepted subject to the condition or not accepted at all. Again in the case of Jwala Das v. Pir Sant Das A. I. R. 1930 P. C. 245 it was held by the Privy Council that if a statement is to be relied upon as an admission the whole statement must be taken and merely a portion of the statement could not utilized as constituting an admission. Again in the case of Jwala Das v. Pir Sant Das A. I. R. 1930 P. C. 245 it was held by the Privy Council that if a statement is to be relied upon as an admission the whole statement must be taken and merely a portion of the statement could not utilized as constituting an admission. In the case of Hanumant v. State of M. P. A. I. R. 1952 S. C. 343 it was held by the Supreme Court that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission must be used either as a whole or not at all. At page 350 Mahajan J. ( as he then was ) who delivered the judgment of the Supreme Court put the proposition in these words:-IT is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission must be used either as a whole or not at all. ( 13 ) HOWEVER in the same volume of the A. I. R. there is another judgment of the Supreme Court also delivered by Mahajan J. and about a month later than the judgment of Hanumans case in the case of Palvinder Kaur v. State of Punjab A. I. R. 1952 S. C. 354; and there the Pull Bench decision of the Allahabad High Court in the case of Emperor Balmukund (I. L. R. 52 All. 1011) was considered. In Palvinder Kaurs case the statement of the accused was the confession which was relied upon by the trial Court and the High Court; and dealing with this aspect the Supreme Court at page 357 stated as follows:- Not only was the High Court in error in treating the alleged confession of Palvinder as evidence in the case but is was further in error in accepting a part of it after finding that the rest of it was false. It said that the statement that the deceased took poison by mistake should be ruled out of consideration for the simple reason that if the deceased had taken poison by mistake the conduct of the parties would have been completely different and that she would have then run to his side and raised a hue and cry and would have sent immediately for medical aid that it was incredible that if the deceased had taken poison by mistake his wife would have stood idly by and allowed him to die. The Court thus accepted the inculpatory part of that statement and rejected the exculpatory part. In doing so it contravened the well-accepted rule regarding the use of confession and admission that this must either be accepted as a whole or rejected as a whole and that the Court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently credible. Reference in this connection may be made to the observations of the Full Bench of the Allahabad High Court in Emperor v. Balmukund 52 All. 1011 (F. B.) with which observations we fully concur. The confession there comprised of two elements (a) an account of how the accused killed the woman and (b) an account of his reasons for doing so the former element being inculpatory and the latter exculpatory and the question referred to the Full Bench was:- Can the Court if it is of opinion that the inculpatory part commends belief and the exculpatory part is inherently incredible act upon the former and refuse to act upon the latter ? The answer to the reference was that where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false the Court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible. ( 14 ) THUS this passage from Palvinder Kaurs case makes it clear that the Supreme Court fully approved of the principles laid down in Emperor v. Balmukund (52 All. ( 14 ) THUS this passage from Palvinder Kaurs case makes it clear that the Supreme Court fully approved of the principles laid down in Emperor v. Balmukund (52 All. 1011 :- F. B.) and it also by necessary implication approved of the principle that if there is other evidence on the record to show affirmatively that any portion of the exculpatory part in the confession is false the Court can accept the inculpatory part and reject the exculpatory part. ( 15 ) A reference to the original report I. L. R. 52 Allahabad 1011 (Emperor v. Balmukund) shows that the theory of inherent incredibility of the exculpatory part being a sufficient ground for rejection of the exculpatory part was rejected by the Pull Bench of the Allahabad High Court. At page 1013 the Pull Bench has stated as follows:-WE have had a large:- number of authorities quoted to us and an examination of them shows that they actually establish no more than this that (a) where there is other evidence a portion of the confession may in the light of that evidence be rejected while acting upon the remainder with the other evidence; (b) where there is no other evidence and the exculpatory element is not inherently incredible the court cannot accept the inculpatory element and reject the exculpatory element. ( 16 ) AND after further discussion at page 1014 it was held as follows:-IN view of the fact that the two rules above slated have been applied during the last hundred years without so far as the reports show any attempt to engraft on those two rules the exception in question and the view of the extreme caution with which a confession must be weighed in every case and particularly in a case where there is no other evidence to bring home guilt to the accused we do not think that it would be expedient now to introduce that exception. ( 17 ) AND the question referred to the Pull Bench was formulated as follows at page 1012:-CAN the Court if it is of opinion that the inculpatory part is inherently incredible act upon the former and refuse to act upon the latter ? ( 18 ) AND it is with reference to this question that the Pull Bench of the Allahabad High Court discussed the law as stated above. ( 18 ) AND it is with reference to this question that the Pull Bench of the Allahabad High Court discussed the law as stated above. As the Allahabad High Court itself points out in the case of Emperor v. Balmukund there was no evidence bearing on the guilt of the accused other than the confession. ( 19 ) IN our opinion in the light of the judgment in I. L. R (LII) Allahabad 1011 as approved by the Supreme Court in A. I. R. . 1952 S. C. 354 it is open to a Court of law to accept the inculpatory part and reject the exculpatory part provided (a) there is other evidence on the record to show the falsity of the exculpatory part; and (b) besides the confession there are other materials on the record establishing or indicating the guilt of the accused. Thus the inculpatory part by itself cannot from the sole basis for conviction even if there are other materials on the record to show the falsity of the exculpatory part. .