H.R. Khanna, J.
Four persons. F.X. Jacobs (hereinafter referred to as Jacobs), Davinder Pal Chadha (hereinafter referred to as Chadha), Nand Lal More (hereinafter referred to as More) and Hira Lal Kothari (hereinafter referred to as Kothari) were tried in the Court of the Additional Sessions judge, Delhi, under Section 120B, Indian Penal Code, for, along with A.L. Mehra (P.W.), entering into an agreement during the period between February, 1955, and February, 1956, to wilfully communicate and voluntarily receive the budget proposals of the Union of India for the year 1956-57 in contravention of the Indian Official Secrets Act, 1923 (Act No. XIX of 1923). Jacobs was further charged under Section 5(4) of the Indian Official Secrets Act for having wilfully communicated the budget proposals; which had been entrusted to him as a government official to Chadha Chadha was also charged under Section 3(4) read with Section 5(2) of the aforesaid Act for having voluntarily received from Jacobs the budget proposals for the year 1956-57 knowing that the said proposals were being communicated in contravention of the aforesaid Act. Chadha was further charged under Section 5(4) read with Section 5(1)(c) of the above Act for having in his possession secret information regarding budget proposals for the year 1956-57 which had been obtained by him in contravention of that Act. Another charge under Section 5(4) read with Section 5(4)(a) of the above-mentioned Act was framed against Chadha for having wilfully communicated the budget proposals of the Union of India for 1956-57 which he had voluntarily received from Jacobs in contravention of the Act. Kothari and More were also charged under Section 5(4) of the Indian Official Secrets Act for having voluntarily received from Chadha the budget proposals of the Union of India for the year 1956-57 knowing that the said proposals were being communicated in contravention of the Indian Official Secrets Act. They were further charged : under Section 5(4) read with Section 5(1)(c) of the above Act for having in their possession the secret information regarding the budget proposals.
2. The learned Additional Sessions Judge, Delhi, convicted all the four accused under Section 120B of the Indian Penal Code and sentenced each of them to rigorous imprisonment for a period of one year. Kothari and More accused were further ordered to pay a fine of Rs. 25,000/- each or in default to undergo rigorous imprisonment for: a further period of three months. Jacobs was also convicted under Section 5(4) of the Indian Official Secrets Act read1 with Section 5(1)(a) of the said Act and was sentenced to undergo rigorous imprisonment for a period of two years. Chadha Accused was also convicted under Section 5(4) read with Section 5(2) of the above-mentioned Act and was sentenced to undergo rigorous imprisonment for a period of two years. The other offences, for which Chadjia, Kothari and More had been charged, were held not to have been established. The substantive sentences of imprisonment awarded to Jacobs and Chadha were directed to run concurrently.
3. More, Chadha, Kothari and Jacobs have filed criminal appeals Nos. 87-D, 90-D, 91-D and 97D of 1961 respectively against their conviction. The State too has filed criminal appeal No. 104D of 1961 against the acquittal of More and Kothari for the Chadha sent greeting card (Exhibit P.O./20) to and Section 5(1)(c) of the Indian Official Secrets Act, 1923. This judgment would dispose of all the appeals.
4. The prosecution case is that during the years 1955 and 1956 the annual budget proposals of the Central Government used to be printed' is Rashtrapati Bhavan and was situated in the President's Estate, New Delhi. Jacobs accused was the General Foreman of the Press. Jacobs has a daughter whose name is Miss Yvonne Jacobs. She lised previously to work at a, skating rink in New Delhi, Chadha accused started visiting that rink in the end of 1954 along with his friend Satish Nagpal. Salish Nagpal then introduced Miss Jacobs to Chadha. Through Miss Jacobs, Chadha came to know her father namely, Jacobs accused. Chadha also started visiting the residential quarter of Jacobs accused which was situated in President's Estate. Chadha accused in those days was the Assistant Secretary General of the Indian Council of Youth and was also working as a Public Relations Officer of Auto India Co-operative Supply Society Limited, New Delhi, K.S. Sobti (P.W.) was the General Manager of the aforesaid Company as well as of Auto India Travels, which seems to have been subsidiary concern of this Company. On the suggestion of Chadha, K.S. Sobti employed Miss Jacobs as a Receptionist in Auto India Travels on a monthly salary of Rs. 100/-/-. Jacobs accused felt obliged to Cbadha on that account and in the middle of February, 1955, Chadha was invited to the residence of Jacobs on the occasion of the birthday party of Miss Jacobs. Chadha then made a present of a saree and a bottle of whisky.
5. Near about the third week of February, 1955, it is alleged, printing of the budget proposals for the year 1955-56 was in progress under the supervision of Jacobs and consequently he had to work for longer hours. One such evening when he reached home late, Jacobs told Chadha that ha had been busy in the printing of budget proposals. Chadha then suggested to Jacobs that the latter could be handsomely compensated if he made the information regarding the budget proposals available for being communicated to big business-men of Bombay. By that time the printing had virtually reached its final stages. Accordingly, oil February 26, 1955, Jacobs supplied Chadha information regarding the excise duties of some commodities on the basis of his memory and notes. Chadha then promised to pay a minimum amount of Rs. 300/- or 50 per cent of the profits which would be fetched as a result of the exploitation of that information.
6. Chadha flew to Bombay on February, 26, 1955 and arrived there the same-night. He stayed in Bombay with J.K. Kapur (P.W.) and on the following day requested the latter for introduction to some business-man to whom he (Chadha) could give the information which he had brought from Delhi. J.K. Kapur then telephoned to Aschara Lal Mehra (hereinafter referred to as Mehra P.W.) Manager of Mercury Paints and Varnishes, Bombay and called him to his (Kapur's) residence. Kapur then introduced Chadha to Mehra Chadha then told Mehra that he had brought information regarding the impending budget proposals from an official source at Delhi and that it could be profitably exploited. Mehra noted down the proposals in his diary and a bargain was struck between Chadhaand Mehra that Chadha would be paid 60 per cent and Mehra 40 per cent of the profits which would be made by the exploitation of that information, Mehra then made a telephonic call to Kothari accused who is doing stock and share business at Bombay. Mehra had been previously in the employ of Kothari's firm. Kothari then sent his car and in that car both Mehra and Chadha wont to Kothari's residence. At that place Mehra told Kothari that his companion Chadha had brought information regarding the budget proposals from an official source at Delhi. The information was also passed on to Kothari and he promised suitable compensation it any profits were made on the basis of that information.
7. Thereafter, Chadha and Mehra established contact with More. More was told that Chadha had information regarding the budget proposals from an official source at Delhi and that the information could be made available to him if he agreed to share the profits made on the basis of that information. More told them that he would give them something if he made profit by the use of that information. The information was then pass-Mi on to More accused also.
8. Announcement of the budget proposals was made in the Parliament by the Finance Minister on February, 28, 1955. The announcement showed that the information brought by Chadha to Bombay was correct. On the following day Mehra and Chadha went to Kuthari who gave them Rs. 3000/-, as compensation for the information supplied to him. Kothari also suggested that efforts should be made to get such information for the succeeding year a little earlier. Cbadha gave Rs. 800/- at of Rs. 2000/- to Mehra. Thereafter, Mehra and Chadha contacted More who gave them Rs. 500/- to cover the travelling expenses. It was stated by More that the information had been sup-plied very late and as such was not of much use. More also suggested that information for the next year should be brought a little earlier.
9. From Bombay, Chadha sent instructions to his friend Satish Nagpal to pay Rs. 200/- to Jacobs. The amount was, accordingly, paid to Jacobs. On return to Delhi, Chadha took in April 1935 Jacobs to 36 South Avenue, New Delhi, where Chadha used to reside with his brother Jai Pal who is a Public Relations Officer of the Congress Party in the Indian Parliament, Chadha then told Jacobs that the information had not been supplied well in time. Chadha also then gave a suit length of sharkskin cloth, one bow tie, two cigarette cases and three pairs of socks to Jacobs.
10. There was quiescence after that except for some occasional telephonic calls made by Chadha from Delhi to Kothari and More at Bombay. These calls were made during the period from March to August, 1955. There was also a meeting between Kothari and Chadha in Delhi when the former came to Delhi in connection with the Indian Industries Fair. Kothari then promised to give a substantial sum to Chadha if the latter gave the requisite information well in time of the budget for the next financial year. In the end of 1955, Chadha sent greeting card (Exhibit P.O./20) to Jacobs and instead of mentioning his own name wrote the words on the card "from a friend". During the course of Chadha's visit to Bombay in the first half of February, 1956, Mehra again reminded Chadha to obtain the budget information including its income-tax portion as had been done on the previous occasion.
11. On the evening of February 15, Jacobs went to Chadha's residence in response to a telephonic call from the latter. Chadha then told Jacobs that he would try to obtain a job for Jacobs on his retirement in some big press concern. Chadha also gave Rs. 100/- as the unpaid balance, of the sum of Rs. 300/- as well as a calendar to Jacobs. Chadha also asked Jacobs to give him the information regarding the budget proposals for the year 1956-57 and promised to pay him Rs. 1000/- on that account. Jacobs then told Chadha that he (Jacobs) would bring the Reader's proof copy of the budget proposals as soon as it was received by him.
12. On February 20, 1956, Shri H.S. Negi, (P.W.) Joint Secretary in charge of Budget, Ministry of Finance, sent in a sealed cover part 'B' of the budget, speech, which contained the taxation proposals regarding customs, excise duties and income-tax, to Shri V.J. Moore, Under Secretary, President's Secretariat, for getting them printed in the Rashtrapati Bhawan Printing Press-The sealed cover containing those proposals was opened by Shri Moore in the presence of Shri Malhotra, Superintendent of the Press, and delivered to Jacobs, accused for printing. After composition, a Reader's proof copy was prepared under the supervision of Jacobs. The copy was then corrected and thereafter four proof copies were printed from the Reader's proof copy. Jacobs also sent a telephonic message on February 20, 1956, to Chadha that he (Jacobs) would see Chadha on the evening of the following day. Four proof copies along with the manuscript were sent by Shri Moore to Shri Negi on February 21, 1956. The Reader's proof copy, which should have been destroyed by Jacobs immediately after the preparation of the four proof copies, however, continued to remain with Jacobs. On the evening of that day at ab5ut 6 P.M., Jacobs took a taxi of Amar Singh (P.W.) and went to the residence of Chadha at 36 South Avenue. Chadha then copied the budget proposals from the Reader's proof copy with-Jacobs and paid the latter Rs. 750/-. Chadha also told Jacobs that the balance of Rs. 250/- would be paid later. After that was-done, Chadha saw Jacobs off and also paid the taxi fare and gave a tip to Amar Singh taxi driver.
13. Chadha got Ms first class seat booked on February 21, 1956, for travelling from Delhi to Bombay by Frontier Mail on the following day. Chadha reached Bombay on the morning of February 23, 1956, and stayed there at the office of D.K. Mehra (P.W.) on Kalbadevi Road. The office has also got a residential apartment. From that place, Chadaa informed Mehra (P.W.) about his arrival. Chadha also prepared two copies of the budget proposals with a typewriter obtained from thi office where he was staying. Mehra then name to Chadha and was told by the latter that ho had paid Rs. 5000/- for obtaining the budget information and that amount should be appropriated out of the gross profits to be derived from the exploitation of the information. Chadha and Mehra then went to Master Ram (P.W.) who is Proprietor of Veera West Tailors in Astoria Hotel, Church Gate, Bombay, and who was previously known to Chadha. Mehra then prepared notes (Exhibits P. 2) on the basis of information regarding the budget proposals in possession of Chadha. Chadha and Mehra then jointly as well individually contacted a number of persons in Bombay for Sale of information about budget proposals.
14. On February 24, 1956, Chadha, rang up More arid went to the latter's residence in his car and passed on the budget information to More. On February 27, 1956, Chadha fixed an appointment on telephone with Kothari. Chadha and Kothari thereafter met at 9 P. M. that day at the residence of Kothari. Kothari then typed out the budget information in possession of. Chadha and promised to pay substantial amount to Chadha after the announcement of the budget.
15. The budget proposals were announced in Parliament on 29.2.1956, and were broadcast on the evening of that day. The information brought by Chadha was then found to be correct. On 1st and 2nd March, 1956, Chadha met Mehra and asked the latter to give him his share out of the money which Mehra had received. Mehra then told Chadha that he had not received any money at all. As Chadha was insisting that he needed the money badly, Mehra drew Rs. 2000/- from his account with the bank and gave it to Chadha. Chadha then gave that money to Master Ram in part payment of a loan which was due from Chadha to Master Ram.
16. Chadha during the course of his stay at Bombay sent a draft of Rs. 1500/,- to his finances Miss Asha Devashar at Delhi.
17. On March 4, 1956, Chadha told Mehra that he had collected money from Kothari and More accused. Mehra then did not ask for settlement of account because by that time criticism regarding the leakage of the budget proposals had mounted considerably both in the Press and Parliament, and Mehra had got scared of that. Chadha left Bombay for Delhi by train on March 6, 1956. After breaking journey at Ratlam for a visit to Indore, Chadha arrived in Delhi on the evening of March 8, 1956. Chadha was arrested that very night. Report (Exhibit P. 103) was made on that night, that is on the night between 8th and 9th March, 1956, at I.A.M. by Superintendent of Police Bishambar Nath. The report was to the following effect:
There are reasonable grounds to believe that persons having in their possession or control the Union Government's Budget Proposals for the year 1956-57 in, their capacity as Government officials have wrongfully communicated the same to unauthorized persons which is a cognizable offence under Section 5 of the Prevention of Corruption Act No. IX of 1947 and of the Official Secrets Act No. XIX of 1923. A case is being registered and investigation started.
A case was registered upon the basis of that report at Parliament Street Police Station and a formal first information report (Exhibit P.117) was prepared. Investigation of the case was taken over by Deputy Superintendent of Police Surrinder Nath Chopra, who has since been promoted as Superintendent of Police. Jacobs accused was arrested at 2-30 P. M. on March 9, 1956. Mehra (P.W.) was arrested at Bombay on March 10, 1956, and his house was also searched on that day. Notes (Exhibit P. 2) with regard to the budget proposals, which had been prepared by Mehra, were then recovered by Inspector Hans Raj (P.W.), who has since been promoted as Superintendent of Police, from the top of a steel cupboard. On March 11, 1936, D.S.P. Chopra recovered five currency notes of Rs. 100/.- each, a cigarette case, a bow tier a pair of socks, a sharkskin suit, a calendar and a saree from the house of Jacobs accused is pursuance of his statement made during the course o investigation. On March 14, 1956, Jacobs was produced before Shri P.L. Sondhi, Magistrate, before whom Jacobs made confessional statement (Exhibit P. 55) about the communication of budget proposals to Chadha, as stated above. Chadha accused also expressed his willingness to make a statement on the evening of March 16, 1956, before a Magistrate. Accordingly, Chadha was produced before Shri P.L. Sondhi, Magistrate, on March 17, 1956. Chadha then made a confessional statement (Exhibit P. 56) admitting his complicity in the matter and the part played by him.
18. On March 23, 1956, Jacobs sent application (Exhibit P. 114) from the Central Jail to the District Magistrate, Delhi, expressing regret for leaking out the budget proposals for monetary gain. In this application Jacobs also affirmed the confession already made by him. The same day, i.e., on March 23, 1956, Mehra was granted pardon and made statement (Ext. P. 6) before Shri M.R. Vaid. On March 24, 1956, an identification parade was held wherein P.W. Amar Singh taxi driver identified Jacobs accused as the person whom he had taken from near the President's Estate to 36 South Avenue, Amar Singh also identified Chadha accused as the person whom Jacobs had met at 36 South Avenue. Amar Singh, according to the prosecution case, contacted the police after handbill (Exhibit P. 115) had been circulated at the different taxi stands asking the taxi drivers, who had taken a person on the evening of February 21, 1956. from the President's Estate to 30 South Avenue, to appear before the police.
19. Kothari and More accused were arrested on April a, 1956, at Bombay.
20. On June 29, 1956, sanction (Exhibit P. 105) was given by the Chief Commissioner, Delhi, under Section 196-A(2) of the Code of Criminal Procedure for initiation of the proceedings under Section 120B of the Indian Penal Code. Shri M.L. Nanda, Senior Superintendent of Police, we also authorized by the Chief Commissioner under Section 13(3) of the Indian Official Secrets Act as per order (Exhibit P.106) dated June 29, 1956, to file complaint against the accused m respect of the offences for which they were charged. Accordingly, complaint (Exhibit P.104) was filed by Shri M.L. Nanda in the Court of the District Magistrate, Delhi. The case was committed to the Court of Sessions in view of an application tiled by Jacobs accused under Section 13(2) of the Indian Official Secrets Act that the casts should be tried, by the Court of Sessions.
21. At the trial, the prosecution examined 68 witnesses, including Mehra (P. W. 1) in support of its case.
22. Jacobs accused in his statement tinder Section 342 of the Code of Criminal Procedure admitted that he was the General Foreman of the Rashtrapati Bhavan Printing Press and was responsible for having the budget proposals printed under his supervision. Jacobs also admitted that the budget proposals for the year 1956-57 were banded over to him on February 20, 1956, for printing of the proof copies. Jacobs, however denied the other allegations against him. According to Jacobs, he did not know Chadha and had never met him. Regarding the confessional statement (Exhibit P. 55) the plea of Jacobs accused was as under:
I was taken by a number of police officers in m pick up van in a confused state of mind without my glasses to as officer who was accompanied by another Sub-Inspector. That police officer was dictating to the gentleman to whom the police had taken me, who later on asked me to sign that writing which I did without being able to read because I had no reading glasses. That officer told me that I should not mind and I should sign that writing anywhere.
As regards confessional statement (Exhibit P. 114) sent by Jacobs from Jail to the District Magistrate, (Jacobs stated that the same was written by him at the asking of Harijit Singh, a jail official, and some police officers. Asked about the identification parade in which Amar Singh had identified him Jacobs admitted that someone had identified him in that parade. According to Jacobs, he was wearing western clothes at the time of the parade while the other person had no such clothes. Jacobs also added that the police was in possession of his identification card which contained his photographs. Chadha accused in his statement under Section 342 of the Code of Criminal Procedure admitted having travelled' to Bombay by air on February 26, 1955 and about his having stayed at the house of J.K. Kapur (P. W.). Chadha also admitted haying sent a draft of Rs. 1500/- from Bombay to Miss Asha Devashar on February 27, 1956. The other allegations against him were. however, denied by Chadha. According to him he never visited the house of Jacobs and never met Mehra (P. W.). As regards the confessional statement (Exhibit P.56) made by Chadha to Shri P.L. Sondhi, the plea of Chadha was to the following effect:
I never made any statement before Shri P.L. Sondhi. One police officer, Mr. Jiwan Dass Uagga, P.S. I., was dictating something to Shri Sondhi and Shri Sondhi was writing it and as I was seriously sick for the last few days having. dysentery and passing mucus and stools at the rate of 15 to 16 a day, D.S.P. Shri Chopra never produced me before the doctor in spite of the Magistrate's order dated 15.3.1956. It was not possible for me to even talk before Mr. Sondhi. It was a holiday that day and at that time Inspector of Police Shri Bhagwan Dass Jain and two constables were also present in the room of Shri P.L. Sondhi. Shri Chopra, D.S.P. was sending typed chits through a Sikh to Shri P.L. Sondhi. I was reclining in an easy chair because of my illness, and after Shri P.L. Sondhi had written something ho required me to sign that writing, which I did. Shri Sondhi told me that he was sending me to my home telling Shri Bhagwan Dass that he should take me to my home. In the evening I was sent to the jail, I produce certified copies (Exhibit D-9 and D-10).
About the identification. by Amar Singh in the identification parade, the plea of Chadha was that he and Jacobs were the only two persons who were dressed in western style. According to Chadha, he was the Secretary of the Socialist Party for many years and was also associated with the Delhi Road Courtesy Squad Organization set up by the traffic police and as such Amar Singh taxi driver could have seen him.
23. Kothari and More accused in their statements denied all the allegations against them.
24. Six witnesses were produced in defence, the purport of whose evidence was that nothing incriminating was recovered from the quarter of Jacobs accused when a search was made of that quarter on the night between 8th and 9th March, 1956,, and that Chadha, during the days he was in police custody and even after being sent to jail, was suffering from dyspepsia and dysentery. Evidence was also led to show that the relative of one prosecution witness Om Parkash, had been involved in a kidnapping case and Jagtar Singh, another witness of the prosecution, had engaged in share speculation business at Bombay.
25 In appeal it has been argued on behalf of the accused-appellants that they have been falsely involved, in this case. In this connection I am on the view that it would be convenient to first take-up the appeals filed by More and Kothari accused. The conviction of these two accused is based upon the evidence of Mehra (P. W. 1) and the evidence of the telephonic calls from Delhi to Bombay as well as the confession of the co-accused Chadha. According to Mehra (P. W.), after he had been introduced to Chadha accused and had been told by the latter that he had brought information regarding budget proposals on February 27, 1955, they contacted Kothari accused on that day and told him that Chadha had budget proposals in his possession. Kothari was then told of those proposals and was asked to pay something out of the profits made on the basis of information given to him. Thereafter, Mehra and Chadha contacted More accused and the information was passed on to him on the understanding that More-would give something to Mehra and Chadha, if he made profit by the use of that information. Announcement of the budget proposals made in Preferment by Finance Minister on February 28, 1955, showed that the information brought by Chadha was correct. On March 1, 1955 Mehra and Chadha went to Kothari and More and realised Rs. 2,000/- and Rs. 500/- respectively from them. It is alleged that both Kothari and More then requested hat the information for the following year should be brought a little earlier. It is further in the evidence Of Mehra that after Chadha accused had brought the information about the budget proposals for the year 1950-57, Chadha accused went to More on February 24, 1956, and after meeting the latter told Mehra that More had agreed to pay Rs. 5000/- if the information turned out to be correct. Thereafter, on the evening of February 27, 1956, Chadha accused went to Kothari accused and after his return told Mehra that he had passed on the: information to Kothari accused who had promised to give him a fat amount. It is further deposed by Mehra that on March 4, 1956, Chadha accused told Mehra that he had collected Rs. 10,000/- from Kothari and Rs. 5000/- from More.
26. The above evidence of Mehra (P.W.) no doubt incriminates Kothari and More accused but before acting upon it, it has to be borne in mind that Mehra (P.W.) is admittedly an accomplice in the conspiracy and the commission of the different offences. According to Section 133 of the Indian Evidence Act, an accomplice shall be competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Illustration (b) to Section 114 of the above Act, however, provides that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Taking the above two provisions together, it has now been well established, that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice, prudence dictates that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material particulars with respect to the crime as well as the identity of the accused in relation to the crime. This rule of prudence has been so universally followed that it has almost become a rule of law. The law was laid] down in England in The King v. Baskerville 1916-2 KB 658 which has rightly been considered as the locus classics of the law of the approver's evidence and has been followed by the Courts in India. In that case Lord Reading, dealing with the evidence needed to corroborate the statement of an accomplice, observed:
We hold that evidence in corroboration must use independent testimony which affects the accused by connecting or tending to connect him with the crappie. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.
In Bhuboni Sahu v. The King AIR 1949 PC 257 it was observed:
Reading these two enactments (Section 133 and illustration (b) to Section 114 together) the Courts in Indian have held that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it 19 corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The law in India, therefore, is substantially the same on the subject as the law in England, though the rule of prudence may be said to be based upon the interpretation placed by the Courts on the phrase "corroborated in material particulars" in illustration (b) to Section 114." It was further observed in the above case:
Courts should be slow to depart from the rule of prudence, based on long experience, which, requires some independent evidence, implicating the particular accused. The danger of acting upon accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and1 who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that lie is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue.
Similar view was expressed in Sarwan Singh Rattan Singh v. State of Punjab (S) ; E.G. Barsay v. State of Bombay
and Bhiva Doulti Patil v. State of Maharashtra
27. The prosecution has sought corroboration; of the evidence of Mehra (P.W.), so far as Kothari and More accused are concerned, from the evidence of N.C. Sarkar (P.W. 41) and R.M. Mahimkar (P. W. 67) which goes to show that personal telephonic calls were booked from the residence of Chadha accused, where telephone had been installed in the name of his brother, to More and Kothari accused at Bombay. There were two trunk-calls to More accused. The first one was on March 28, 1955 and the person for whom the call was booked was More accused or Kanshi Parshad. Exhibit P-73 is the trunk-call ticket with respect to this call. The second call which was booked to More accused was on August 19, 1955 and Exhibit P-86 is its trunk-call ticket. Likewise, there were five trunk-calls booked from the residence of Chadha accused to Kothari accused. The dates of those calls are: March 18, 1955, March 28, 1955, April 10, 1955, July 14, 1955 and August 19, 1955 and their corresponding trunk-call tickets are Exhibits P-70, P-74, P.75, P.82 and P.85.
28. On behalf of the accused-appellants a, twofold argument has been advanced with respect to the above-mentioned trunk-call tickets. It is urged in the first instance that the above-mentioned tickets are not relevant and admissible in evidence especially in view of the fact that the persons who made entries in those tickets have not been examined as witnesses. The other contention is that the above-mentioned trunk-calls tickets do not afford any corroboration of the evidence of Mehra to connect Kothari and More accused with the crime.
29. So far as the first contention is concerned about the trunk-call tickets being not relevant and admissible in evidence, I am of the view that be contention is not well founded for those tickets are relevant under Section 35 of the Indian Evidence Act, which reads as under:
An entry in any public or other official book, register, or record stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record is kept, is itself a relevant fact.
The above tickets were prepared under Rule 49 and 50 of the Posts and Telegraphs Financial Rules Handbook (Volume V). The evidence of Sarkar (P.W.) shows that whenever a telephone subscriber wants to book a call ho gives his number to the trunk-call operator and also the telephone number that he wants at the other end with a request far! booking the call. He has also to mention the name of the person for whom the call is required to be rebooked. The trunk operator then completes that trunk-call ticket on which the incoming and outgoing telephone numbers are recorded together with the name of the person for whom the call is to be booked. It would, thus appear from the above evidence that the trunk-call tickets are official records and the entries therein are made; by public servants in the discharge of their official duties. As those entries relate to a relevant fact, namely, whether trunk-calls were booked from the residence of Chadha accused to Kothari and More accused at Bombay, the entries them selves become relevant piece of evidence under the above provision of law.
30. On behalf of the accused-appellants it is urged that the book, register or record in which the entry is made should not only be official but should also be a public document which is open, to Inspection by the general public. Documents, which are official but not accessible to the general public, are according to the learned Counsel, not relevant under Section 35 of tile Indian Evidence Act. Reliance has been placed upon an English Authority Pettit v. Lilley 1946 1 All ER 593 wherein it was held that regimental records were not admissible in evidence as public documents because the public could not have access to them and they were not kept for the use and information of the public. Not much assistance, in my opinion, can be derived from that authority because the observations of Field in his book on the Indian Evidence Act go to show that Section 35 somewhat, extends the English Law on the subject. Bare reading of Section 35 makes it clear that the entry should be made either in a public book, register or record. In the latter category, it would not also be essential to show that official book, register or record is public document which should be open to inspection by the general public. There is also no force in the contention that the above-mentioned trunk-call tickets are not admissible in evidence because their writers were not called as witnesses. There is a presumption about there genuineness because those tickets purport to be documents kept under Rule 49 of the Posts and Tele graphs Financial Rules Handbook and were produced from proper custody, vide Section 81 of the I Indian Evidence Act. Courts, as observed under Section 81 of the Law of Evidence by Woodruff, 10th Edition, have reposed great confidence on the fidelity and accuracy of official documents kept it due course, properly and regularly. In D'Cruz, F.A.v. D'Cruz, Mrs. W.E. AIR 1927 Oudh 310, it was held that the entries in a prescription register maintained by a Government compounded in a Government dispensary were admissible under Section 35, although the particular compounder who made the entries had not been called as a witness. In K. Rama Rao v. Emperor AIR 1943 Oudh 1, jail registers were held to be official records and as such admissible in evidence under Section 35. In Public Prosecutor v. Sadagopan , files of papers containing official communications maintained according to practice were held to be documents relevant under Section 35 of the Act. In view of the above I have no doubt in my mind that the trunk-call tickets, referred to above, were relevant and advisable of evidence in the present case.
31. There is, however, force in the other contention of the learned Counsel for More and Kothari that the above-mentioned trunk-call tickets hardly constitute corroboration of the evidence of Mehra about the participation of the above-mentioned two accused in the crime. All that the above-mentioned trunk-call tickets show is that the personal telephonic calls were booked in the name of the above-mentioned two accused from the residence of Chadha where a telephone had been installed in the name of Jai Pal brother of Chadha. The evidence of Sarkar (P.W.) shows that he could not say as to who made the call and the department took it that it was the subscriber, namely, Jai Pal, who himself was booking the call. We also do not know as to what was the subject matter of the talks which took place when those no-calls were booked from Delhi to Bombay. It is significant that the above telephonic talks took place in the months of March to August 1955, more than six months before the next budget. Offences relating to budget leakage are what may be called seasonal offences which can take place in the month of February, on the eye of the presentation of the budget proposals, and as such it is not clear as to what was the hurry or urgency to book trunk-calls more than six months before the formulation or presentation of the budget proposals.
32. Another noteworthy fact, which emerges on the record, is that though there were telephonic calls from Delhi to Bombay, the prosecution has led no evidence to show that any call wag booked by Kothari or More accused from Bombay to Chahda accused at Delhi. If Kothari and Morf accused were parties to the conspiracy, the telephonic calls would not have been a unilateral and one-sided affair from Delhi to Bombay but there would have also been some calls from Kothari and More to Chadha.
33. Kothari and More are doing business is the course of which large number of telephonic calls are received from different persons. There is nothing to rule out the possibility of the above calls having been received in ordinary course of business.
34. Ii therefore, am of the view that the above-mentioned trunk-call tickets relating to the telephonic calls from the telephone installed in the name of Chadha's brother do not provide any material corroboration of the evidence of Alehra to connect Kothari and More accused with the conspiracy.
35. The other circumstance, which is relied upon by the prosecution as corroboration pf Mehra's evidence against Kothari and More accused, is the confession of the co-accused Chadha. According to Section 30 of the Indian Evidence Act, when more persons than one are being tidied jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. This section was introduced for the first time in the Evidence Act of 1872 and marked a departure from the common law of England, according to which the confession of a co-accused could not be used in evidence against another accused. The confession of a co-accused is a very weak type of evidence and the reason for that is obvious. The confession of an accused is not taken in the presence of the other accused against whom it is sought to be used and the latter has not even the right or opportunity of testing the truth of the confession of co-accused by cross-examining him. The evidence of confession of a co-accused being by its very nature effete and tainted, the Courts have been reluctant to look to that evidence in order to seek corroboration of the tainted evidence of an accomplice. In AIR 1949 PC 257 the conviction of the appellant by the lower Courts was based upon the evidence of the approver and the confession of a co-accused. There was also some other evidence but we are not concerned with that. It was held that the aforesaid evidence was not sufficient to sustain the conviction of the appellant.
36. The question as to whether the confession of a co-accused can be used for corroborating the evidence of an accomplice was also considered in Kashmira Singh v. State of Madhya Pradesh and it was observed as under:
Then, as regards its use in the corroboration of accomplices and approvers. A co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the "evidence" is not on oath and cannot be tested by cross-examination. Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the Judge as having no greater probative value. But all these are only rules of prudence. So far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the Judge has the rule of caution, which, experience dictates; in mind and gives reasons why he thinks it would be safe in a given case to disregard it. Two of us had occasion to examine this recently In Rameshwar v. State of Rajasthan Criminal Appeal No. 2 of 1951 : AIR 1953 SC 54. It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons discussed.
What then is the value of the confession of a co-accused and what is the use to which it can be put The consensus of authorities shows that the confession of a co-accused can be used to lend assurance to the other evidence on record. Concession of a co-accused cannot form the basis of a conviction but if there is other evidence, it can also be put into the scale and weighed with that evidence. Dealing with this aspect of the matter it was observed by their Lordships of the Privy Council in AIR 1949 PC 257 as under:
It (confession of a co-accused) is a much weaker type of evidence than the evidence of an. approver which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt makes it evidence on which., the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element m the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. Their Lordships think that the view which has prevailed. in most of the High Courts in India, namely that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction, is correct.
The matter was also dealt with by their Lordships of the Supreme Court in and\it was observed as under:
In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor v. Lalit Mohan ILR 38 Cal 559 at p. 588 where he said that such a confession can only be used to "lend assurance to other evidence against a co-accused" or to put it in another way as Reilly, J., in Pariyaswami Moopan v. Emperor ILR 54 Mad 75 at p. 77 : AIR 3931 Mad 177 at p. 178.
The provision goes no further than this - where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence.
Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first to roar shall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify him self in believing what without the aid of the confession he would not be prepared to accept.
, it was observed that the value of the confession of a co-accused was extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars. In that case the conviction of the appellant on a charge of murder was upheld because apart from the confession of the co-accused, the ornaments, which the deceased woman was wearing at the time of the murder, were recovered from the mistress, of the appellant in pursuance of his statement that he had kept them with his mistress. Besides that, a bloodstained dagger was recovered from the belongings of the appellant and his conduct after the murder pointed to his guilt.
38. The prosecution also alleged that there was a meeting at Delhi between Kothari and Chadha accused when Kothari came to Delhi in connection with the Indian Industries fair. Kothari is then alleged to have promised to give a substantial sum to Chadha in case the latter gave him information about the coming budget. The only evidence on that point consists of the confession of Chadha co-accused and in the absence of any corroboration it cannot be used against Kothari.
39. I would, therefore, hold that the con-fiction of Kothari and More accused cannot be sustained on the evidence adduced against them in this case.
40. There are some other infirmities also in so far as the prosecution case against Kothari and More accused is concerned, which lender it unsafe to maintain their conviction. According to Mebra (P.W.), Kothari accused asked Chadha accused on March 1, 1955 to try to get the budget proposals for the next year much earlier. The prosecution relied on this piece of evidence in order to show that Kothari accused had also instigated Chadha to get the budget information for the coming year. Mehra was, however, confronted with his statement (Exhibit P-6) which was made by him before the Magistrate after he had been tendered pardon. Mehra admitted that he did not state before the Magistrate that Kothari accused had asked him to try to get the budget proposals for the next year much earlier. More accused was also alleged/according to Mehra (P.W.), to have made a similar statement as the one made by Kothari accused on March 1, 1955. There is, however, no mention of such a statement having been made by More in the confession of Chadha accused.
41. Further, though according to Mehra (P. W.), Kothari accused' suggested on March 1, 1955 that the budget information for the coming year should be brought to him earlier, the information was taken by Chadha accused to Kothari only on the night of February 27, 1956. The delay in supplying the above information to Kothari, in spite of his request, is inexplicable.
42. According to the case of the prosecution, Kothari and More accused paid Rs. 10,000/- and Rs. 5000/- respectively to Chadha accused in the beginning of March 1956 as compensation for the information supplied by him of the budget proposals. The above amount could have been paid by Kothari and More only if they had utilised the information passed on to them and had made some profits on the basis of that information. In order to utilise that information, one would expect Kothari and More accused to indulge in hectic share speculation business on the eve of the presentation of the budget but there is no evidence to show that they indulged in any such business. It is also not clear as to why the arrest1 of these two accused was deferred till April 2, 1956 and why these two accused were allowed such a long interval of time to do away with, if they so chose, their account books which might have furnished evidence about their share speculation business on the eve of the presentation of the budget as well as about the payment of money to Chadha. It may be that better evidence might have been secured if the police had taken prompt action against Kothari and More accused immediately after recording the statements of Mehra (P.W.) and Chadha accused, but in the absence of such an evidence, the conviction of Kothari and More accused cannot be sustained, I would, accordingly set aside their conviction and acquit them.
43. The trial Court acquitted Kothari and More accused for the offences under Section 5(4) read with Sections 5(2) and 5(1)(c) of the Indian Official Secrets Act because in the view of the trial Court every successive communication of information, after it has been disseminated by an official source, cannot be deemed to be in contravention of the Indian Official Secrets Act, It has, accordingly, been held that the communication of information regarding the budget proposals by Chadha to Kothari and More accused and the receipt of that information by those two accused did not fall within the mischief of Section 5 of the Act. The State has filed an appeal against the acquittal on that score of Kothari and More. It has been argued by the learned Solicitor General that every successive communication of information, after it has been leaked out from an official source, should also be deemed to be in contravention of the above Act and that any other view would lead to defeating the very object of the Act in a very large number of cases. Although the above contention does not appear to be devoid of force, it is not, in my opinion, necessary for the purpose of the present case to go into it because of the finding given earlier that the participation of Kothari, and More accused in the conspiracy and the various other acts attributed to them have not been proved1. There is also another difficulty in accepting the appeal against Kothari and More accused under Section 5(4) of the Indian Official Secrets Act. The charge against them in this respect was to the effect that they received the information about the budget proposals from Chadha accused knowing that the said proposals were being communicated to them in contravention of the above Act. Chadha accused was also charged under Section 5(4) read with Section 5(1)(a) of the Indian Official Secrets Act for having communicated the above information in contravention of the above mentioned Act. Chadha vase acquitted on that score and no appeal has been filed by the State against that acquittal of Chadha. It is, in the circumstances, not open to the State to argue that the communication of the information of budget proposals by Chadha to Kothari and I More accused was in contravention of the Indian j Official Secrets Act.
44-45. So far as Chadha accused-appellant is concerned, his conviction is based upon the evidence of Mehra (P.W.), confession of Chadha accused himself, the evidence of witnesses at Bombay about the association of Mehra and Chadha as well as the attempt made by Cbadha to sell the budget information, the evidence about the association of Chadha with Jacobs and a number of other circumstances. Mehra (P.W.) has deposed in support of the prosecution case as given above.
46. (After discussion of some evidence His Lordship proceeded:) The strongest piece of evidence, which corroborates the statement of Mehra (P.W.) regarding the complicity of Chadha accused, is the confession of Chadha himself. This confessional statement, which has been marked Exhibit P. 56, was recorded by Shri P.L. Sondhi, Magistrate (P.W. 24) on March 17, 1956. In this statement Chadha made a clean breast of the matter and admitted his complicity in the matter in securing budget information from Jacobs accused and passing it on to the different people at Bombay as stated above. Attempt has been made to show that the above confessional statement was not voluntary. In this respect I find that the evidence of Shri Sondhi (P. W.) shows that Chadha accused was produced before him by the police on March 17, 1956 at 11 A.M. in his Court. Shri Sondhi then got the handcuffs of Chadha removed and explained to Chadha that, after his statement was recorded, he would be remanded to the judicial lock-up and would not be handed over to the police custody, Shri Sondhi also told Chadha that he was a Magistrate and that in case he made any statement it was likely to be used as evidence against him. Chadha was also told that he was not bound to make a statement. Chadha was thereafter given an interval of about an hour and a half to. think over the matter. After that when Shri Sondhi was satisfied that Chadha was making the statement voluntarily and of his own accord, Shri Sondhi recorded statement. After having been taken through the evidence and after having heard the learned Counsel, I am of the view that the confessional statement of Chadha was made voluntarily by him and the trial Court was justified in taking it into consideration.
47. It has been argued on behalf of Chadha accused-appellant that he was not given at least 24 hours time to decide whether or not he should make a confession, but was given only 1 hours time for this purpose. It is urged that this fact would go to show that the confession was not made voluntarily. Reliance in this connection is placed upon the following observations in (S) :
It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case.
However, speaking generally, it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may fee reason; to suspect that the accused has been persuaded or coerced to make a confession, every, longer period may have to be given to him before his statement is recorded. In our opinion, is the circumstances of this case, it is impossible to accept the view that enough time was given to the accused to think over the matter.
The above observations were considered by the it Lordships of the Supreme Court in Criminal Appeal No. 208 of 1959, State of Bombay v. Kutubuddin Abdulkarim decided on April 20 1961 (SC), and it was observed as under:
It is quite clear that this Court did not seek, to specify in Sarwan Singh's case, (S) any number of hours as the
minimum period which must be given to an accused person for reflecting whether he would confess or not, before the confession could be regarded as voluntary. What it emphasized was that in each case the-Court must satisfy itself that sufficient time has been given to enable the accused person to free his. mind from any possible influence of the police-and that, "speaking generally", it would be reasonable to think that at least 24 hours should be given.
It would follow from the above that the Supreme Court did not seek to lay down an absolute rule that unless 24 hours time was given the confession should be held to be not voluntary. The main purpose of the observation was only to emphasize the necessity of giving a sufficient time for reflection to the accused person making the confession. I may also mention that in the accused, on whose
confessional statement reliance was placed and whose confession. was held to be voluntary, had been given only an hour's time for reflection. In Mohd. Ishaq, Ahmad Din v. The State AIR 1959 Punj no, it was held that there was no universal mandatory rule of law that a confession recorded after about an hour or so of the willingness shown by the-accused must be declared as inadmissible or untrustworthy.
48. Looking to the facts of the present case, I am of the view that sufficient time was given to Chadha to reflect and to free his mind from any w possible influence of the police.
49. Reference has also been made to the fact that Chadha was suffering from dyspepsia and dysentery during the days he made the confession to show its involuntariness. In this respect, I find that the statement of Dr. Ved Parkash (D.W. 4) shows that Chadha. was suffering from dyspepsia and was treated on that account by the doctor on March 9, 1956. Chadha was there-after again treated by the doctor on 12th, 14th.and 16th of March 1956. The evidence of Dr. Ved Parkash thus goes to show that requisite medical aid was given to Chadha because of his dyspepsia during the days he was in police custody before the making of the confession. There is nothing to show that the above physical ailment in anyway affected the mental faculties of Chadha and it is difficult to hold that the confession made by him was not voluntary because of the above ailment. On the contrary the readiness of the police to get Chadha examined from the doctor during the day preceding the making of the confession would go to show that Chadha was not subjected to any torture. Another point on which emphasis has been laid on behalf of Chadha is that he was in police custody for about 8 days before he made the confession. In this respect I find that the evidence of S.P. Surrinder Nath (P. W.), who investigated the case, shows that Chadha accused was not unduly kept in police custody and that during the days from March 9, 1956 till the day on which Chadha's confession was recorded, the investigating officer was taking various steps in connection with the investigation of this case. He has also been contended that Chadha made a con. fission because he was told that he would be turned an approver. Apart from the bare statement of Chadha in this connection, there is nothing to show that such a promise was made to him and I have no doubt that Chadha's statement in this respect is not correct.
It is, however, possible that Chadha might have made a mental calculation that he would got some benefit if he made a confession but in the absence of anything to show that there was any inducement or promise made to Chadha by someone in authority, the confession could not be struck down because of that mental calculation made by Chadha. I may, in this connection, refer to the observations of the Supreme Court in R.K. Dalmia v. Delhi Administration , which are to the following effect:
His making the confession with a view to benefit himself would not make the confession not voluntary. A confession will not be voluntary only when it is made under some threat or inducement or promise, from a person in authority. Nothing of the kind happened in this case.
Reference has also been made to the fact that the confession was retracted by Chadha on March 20, 10.56 as per application (Exhibit D. 9) as well as on April 3, 1956 as per application (Exhibit D. 10). This no doubt is true that Chadha retracted his confession through the above two applications which were filed by him. through his counsel, but, in my opinion, these applications would not go to show that the original confession was not voluntary. Indeed I find that Chadha has been taking different positions with regard to the circumstances under which he made the confession. The stand taken by Chadha in Exhibit D. 9 was that the confession was not voluntary and was secured by the police by inducement, threats and physical torture. As against that in Exhibit D.1o the position of Chadha was that he was threatened with dire consequences to the other members of the family and was given a promise that he would be made an approver in this case. In his statement under Section 342 of the Code of Criminal Procedure, however, the plea taken by Chadha was that he never made any statement before Shri P.I. Sondhi and that the same was dictated by the Prosecuting Sub-inspector to Shri Sondhi. The suggestion, which seems to have been made to Shri Sondhi in cross-examination, however, was that Chadha had made the confession from a prepared statement. The fact that Chadha has been shifting his position with regard to the confession made by him clearly goes to show that the stand taken by him is untenable, Chadha is a literate person and on his own showing he had been the Secretary of the Socialist Party for many years and was also associated with the Delhi, Road Courtesy Squad Organization. It is difficult to believe that a man of his position would be coerced into making a confession.
50-53. Apart from the confession, there are a number of other circumstances and pieces of evidence which point to the guilt of Chadha. (After discussion of evidence His Lordship proceeded:) It would appear from the above that there is overwhelming evidence against Chadha and I have no doubt in my mind that Chadha was a party to the conspiracy with which he has been charged. The evidence further shows that Chadha, having voluntarily received the budget secrets from Jacobs, fully exploited them for monetary gain in Bombay.
54. So far as Jacobs accused is concerned, he admits that he was the General Foreman of the Rashtrapati Bhavan Printing Press and was responsible for having the budget proposals printed under his supervision. Jacobs also admits that the budget proposals for the year 1956-57 were handed over to him on February 20, 1956 for printing of the proof copies. Jacobs has, however, denied the other allegations against him. His conviction has been based upon confession (Exhibit P. 55) made by him before Shri P.L. Sondhi, Magistrate. On March 14, 1956, the reiteration of that confession by Jacobs in his application (Exhibit P.11. 4) sent to the District Magistrate, Delhi on March 23, 1956, the compact of Jacobs with Chadha and the fact that he went to Chadha's residence on the evening of February 21, 1956. Besides that, the prosecution has relied upon the recovery of different articles from the residence of Jacobs.
55. As regards the confessional statement (Exhibit P. 55), Shri P.L. Sondhi, Magistrate, has deposed that Jacobs accused was produced before him on March 14, 1956. Shri Sondhi then got the handcuffs of Jacobs removed and allowed him to sit for an hour in his retiring room where none else was present. Shri Sondhi also told Jacobs that he was a Magistrate and that if Jacobs made any confession it was likely to be used as evidence against him. Jacobs was also told that he would be sent to Judicial custody after he had made the statement. After Jacobs had sat for about an hour in the retiring room of Shri Sondhi, the latter again questioned Jacobs to make sure that he was making voluntary statement and! understood the implications of making that statement. After putting those questions to Jacobs, Shri Sondhi was satisfied that he was making the statement of his own accord without being under any pressure, inducement, or promise. Shri Sondhi thereafter recorded the confessional statement of Jacobs in the course of which Jacobs admitted his contacts with Chadha and about his having passed on the budget information to Chadha in February 1955 and February 1956 as alleged by the prosecution. The trial Court held that the above statement made by Jacobs was a voluntary statement and, in my opinion, the finding of the trial Court in this respect is well founded. Most of the arguments, which have been advanced to challenge the voluntaries of the confessional statement of Jacobs, are the same as have been advanced with respect to the confessional statement of Chadha and need not be repeated over again.
According to the statement made under Section 342 of the Code of Criminal Procedure by Jacobs, the above statement was dictated to Shri Sondhi by a police-officer who later on asked Jacobs to sign that statement. The stand taken by Jacobs in his application dated April 4, 1956, which was sent by him after being released on bail, was that he did make the above statement but it was done under the threat and fear of the police which had coerced him to make it according to its wishes. I thus find that Jacobs accused has also been shifting his position with regard to the circumstances under which he made the above statement. A very important piece of evidence, which goes to show that the confessional statement made by Jacobs to Shri Sondhi was voluntary, is the application (Exhibit P. 114) sent by Jacobs to District Magistrate, Delhi, on March 23, 1956. In the course of this application Jacobs admitted having made a clean breast of the matter and further wrote as under:
I do not want to be known as a traitor to the country as never for a moment dreamt that this exposure would be used by some interested parties as a political maneuver. This crime was done; by me for purely gaining something materially for myself due to temptation offered to me at a time when I was about to retire after a most disappointed Government career of 35 years. By my quick and spontaneous admission of my guilt after a few days in the papers about the leakage,' I feel that I have received the unpleasant situation of doubt raised against our genuine and noble ministers at the help of Government, thus protecting their integrity.
The task of coming out with the truth was no easy one as it had exacted every spark of energy in me when I have six small school going children and a weak wife who are dependent on me. I have thrown them also in my disgraceful plight for the sake of truth. If I have to pay the cost of penalty due to this admission, I shall take it willing, kind Sir.
The writing of this application is proved by the evidence of Harjit Singh Sahney (P.W. 57) who was in those days Assistant Superintendent of Tail at Delhi. Jacobs also admits having written Exhibit P. 114 but according to him he did so under the dictation of Harjit Singh. I, however, see no reason as to why Harjit Singh should put pressure on Jacobs to write the aforesaid application. It has been suggested that Harjit Singh pot that application written in order to save Section Section Walhotra, Superintendent of the Rashtrapati Bhavan Printing Press whose hour was also searched by a police party, because S.S. Malhotra's coversine was a colleague of Harjit Singh. The suggestion is rather far-fetched and I find it difficult to believe that Harjit Singh could coerce Jacobs to making a self-incriminatory statement.
56. Reference has also been made on behalf of Jacobs to some discrepancies between the confessional statement of Jacobs and that of Chadha accused. For example, it is pointed out that according to Jacobs it was Chadha who offered him handsome compensation if prior information regarding budget proposals was made available to him. Chadha accused, however, stated in his confessional statement that Jacobs had convinced him that the budget proposals which were under print could not used in different ways. Again, according to Jacobs, Chadha also associated his brother in copying out the budget proposals, while Chadhai made no mention of his brother in that context. These discrepancies are, in my opinion, minor and not of much significance and might have crept in on account of the desire to throw greater blame on the other accused. They do not, however, affect the broad features of the prosecution case. This aspect of the matter was dealt with by the Supreme Court in Balbir Singh v. State of Punjab (S) , the relevant part of tile head note which is based upon the observations in the body of the judgment, reads as under:
But because there are differences between his confession and the confessional statement of the other accused, the confessional statements cannot be condemned out of hand or in liming as untrue where some of the differences are immaterial, some others are due to the desire of the accused to throw the blame on the other and the rest stand clearly resolved by other evidence in the case.
57. So far as the contact of Jacobs with Chadha accused is concerned as well as the fact that Jacobs went to the residence of Chadha accused on the evening of February 21, 1056, in the taxi of Amar Singh (P.W.), I have already held, while dealing with the case against Chadha, that the evidence adduced by the prosecution in this respect is convincing. I need not consequently go into the matter over again.
58. In addition to the above, Jacob's confessional statement also shows that he was presented with a suit length of sharkskin cloth, a bow tie, two cigarette cases and three pairs of socks by Chadha. Chadha also gave Rs. 750/- to Jacobs when the latter supplied the information of the budget proposals to Chadha on the evening of February 21, 1956. The evidence of Superintendent of Police Chopra shows that he recovered five currency notes of Rs. 100/- each, one cigarette case, one bow tie, one pair of socks and a sharkskin suit from the residential quarter of Jacobs in pursuance of the latter's statement. Banta Singh (P.W. 2) and Priti Bhushan (P.W. 3) are the witnesses with regard to the above statement made by Jacobs, Those witnesses as well as Om Parkash (P.W. 51) witnesses the recovery of those articles from the house of Jacobs. Om Parkash is a livery contractor and his residence is in a quarter in the estate of Rashtrapati Bhavan. After haying been taken through the evidence of the above witnesses, I see no sufficient ground to disbelieve the same. The fact that those articles were recovered from his house is also not denied by Jacobs, though he had added that the currency notes were handed over by his wife to the police. The recovery of those articles lends corroboration to the confessional statement made by Jacobs. I thus find that there is sufficient corroboration Of the confessional statement of Jacobs. The extent of corroboration needed to a retracted confession was discussed by the Supreme Court in Subramania Goundan v. State of Madras , and it was
observed as under:
Not frequently one is apt to fall in error in equating a retracted confession with the evidence of an accomplice and, therefore, it is advisable to dearly understand the distinction between the two. The standards of corroboration in the two are quite different. In the case of the person confessing who has resiled from his statement, general corroboration is sufficient while an accomplice's evidence should be corroborated in material particulars. In addition the Court must feel that the reasons given for the retraction in the case of a confession are untrue.
Keeping the above observations in view, I find that there is sufficient corroboration of the confessional statement of Jacobs. I also find that the reasons for retraction of confession given by Jacobs are not correct. The confession made by Chadha accused can also be used to lend assurance to the other evidence against Jacobs. In view of all these circumstances I am of the opinion that the prosecution case against Jacobs about his being party to the conspiracy and about his having communicated the budget proposals to Chadha, has been fully proved.
59. It has been pointed out on behalf of the accused appellants that full facts with regard to the present case were not given in the first information report (Exhibit P. 103) on the basis of which the present case was registered at Parliament Street Police Station in the early hours of March 9, 1956. In this respect I am of the view that the full facts were not given in the first information report because the facts, as ultimately revealed as a result of the investigation, were not known to Superintendent of Police Bishambar Nath at the time he lodged the report. The absence of the detailed facts in the first information report, however, does not in any way materially affect the prosecution case as made out at the trial. Stress has also been laid on the fact that in the first information report there is reference to Government officials having wrongfully communicated the information, about the budget proposals while at the trial only one Government official, i.e., Jacobs, is alleged to have communicated the aforesaid information. This circumstance would also, in my opinion, not make any material difference because' the first information report itself shows that it was lodged at a time when full facts had' not been ascertained. It is only as a result of the investigation that It came to light that Jacobs accused had been responsible for communicating the budget information and if the facts about his complicity are fully established, the reference to Government officials in the first information report would not in any way affect the case against Jacobs.
60. It has also been argued that some guilty persons have been spared by the police and Jacobs mud Chadha, who are innocent, have been falsely involved in this case. In my opinion, this contemnor is altogether devoid of force for no one had any animus to foist a false case on these two accused.
61. Argument has then been advanced that the consent (Exhibit P. 105), which was given by the Chief Commissioner on June 29., 1956, under Section 10, 6-A, Criminal Procedure Code for the prosecution of the accused for the offence of conspiracy under Section 120B, Indian Penal Code, was not valid as the object of conspiracy was merely mentioned to be to unauthorizedly obtain and collect information derived from secret official documents viz., budget proposals of the Union of India for the year 1956-57. It is urged that the consent is vitiated by the fact that the communication of the aforesaid information was not mentioned as part of the conspiracy. In my opinion, this contention is not well founded because it is distinctly stated in Exhibit P. 105 that at the time the above information was received the accused knew and had reasonable grounds to believe that the said documents had been communicated in contravention of the provisions of the Official Secrets Act. It would thus apepar that the Chief Commissioner while giving the consent was fully cognizant of the fact that the information from the secret documents had been communicated in contravention of the provisions of the Official Secrets Act and he bore those facts in view while giving the consent. Indeed, it is expressly stated in the order giving the consent that the Chief Commissioner fully and carefully examined the facts of this case and the entire material available, before giving his consent. I, therefore, am of the view that the objection about the validity of the above consent is not well-founded.
62. Argument has next been advanced that Mehra (P.W. 1) was not a competent witness it this case. Mehra was granted pardon on March 23, 1956, by the Additional District Magistrate under Section 337 of the Code of Criminal Procedure. The prosecution in the course of proceedings before the Magistrate wanted to examine Mehra as an approver. Thereupon, the accused persons objected that as the proceedings before the Magistrate were only under Section 5 of the Official Secrets Act and Section 120B of the Indian Penal Code, Mehra could not be examined as an approver. The Magistrate held that Mehra could be treated as an approver. Thereupon, there was & revision to the learned Sessions Judge who took the view that as the proceedings before the Magistrate were under Section 5 of the Official Secrets Act read with Section 120B of the Indian Penal Coda and as no pardon could be tendered under Section 337 of the Code of Criminal Procedure for those offences, Mehra could not be treated as an approver and, had to be examined as an ordinary wideness. The learned Sessions Judge, accordingly, recommended to the High Court that the order of the Magistrate be set aside.. The High Court agreed with the learned Sessions Judge and ordered accordingly. The judgment of the High Court is reported in A.L. Mehra v. The State 1957-59 Pun LR 482 : AIR 1958 Punj 72. The State filed an appeal by special leave against the judgment of the High Court to the Supreme Court but the same was dismissed by their Lordships of the Supreme Court. The judgment of the Supreme Court is reported in case The State v. Hiralal Girdharilal Kothari . It would appear from the above resume of
facts that the learned Sessions Judge, while recommending that Mehra could not be examined as an approver in this case, expressly stated that he could be examined as an ordinary witness. The same view was taken by a Division Bench of this Court while disposing of the revision petition and it was observed as under:
As the offences in respect of which the prisoners are being prosecuted are not offences in respect of which pardon has been given under Sub-section (1), no duty is imposed upon the State to examine Mehra, or upon Mehra to give evidence, in his; capacity as an approver. He can give evidence only in his capacity as a witness.
In view of the above observation of the Division Bench of this Court that Mehra could give evidence in his capacity as a witness, it is, in my opinion, snot open to the accused appellants to urge in this Court that Mehra could not be examined as an ordinary witness.
63. It has also been argued that Mehra P.W. to should have been prosecuted along with the other accused in this case and the act of the complainant in prosecuting only four accused and not prosecuting Mehra violated Article 14 of the Constitution which enshrines principle of equality before law. In this respect I find that Mehra was not prosecuted in this case because the prosecution wanted to examine him as a prosecution witness after he had been granted pardon. The differentia adopted in the non-prosecution of Mehra is intelligible and relevant to the object of securing his evidence as a witness in the present case, and as such it cannot, in my opinion, be said that the non-prosecution of Mehra contravenes Article 14 of the Constitution. It may also be stated that under Sub-section (3) of Section 13 of the Indian Official Secrets Act 110 Court can take cognizance of any offence under the Act unless upon complaint made by order of, or under authority from, the appropriate Government or some officer empowered by the appropriate Government in this behalf. The Delhi Administration as per order (Exhibit P. 106) authorized Shri M.L. Nanda, Senior Superintendent of Police, Delhi, to file a complaint only against Jacobs, Chadha, More and Kothari. Shri Nanda thereafter filed a complaint against those four accused. As the Delhi Administration had not authorized the making of a complaint against Mehra (P. W.), the question of his being arraigned as an accused would not arise in the case.
64. Argument is then advanced that the information, the communication or receipt of which is made penal by the official Secrets Act, must relate or be used in a prohibited place and as the Rashtrapati Bhavan Printing Press was not a prohibited place as defined in Section 2(8) of the Act, the communication of any information derived from that place was not hit by the provisions of Section 5 of the Act, Sub-section (1) of which reads as under:
If any person having in his possession or control any secret official code or pass word or any sketch plan, 1-model, article, note, document or information which relates to or is used in a prohibited place or relates to anything in such a place, or which has been made or obtained in contravention of this, Act, or which has been entrusted in confidence to him by any person holding office under Government, or which he has obtained or to which he has had access owing to his position as a person who holds or has held office under Government or as a person who holds or has held a contract made on behalf of Government, or as a person who is or has been employed under a person who holds or has held such an office or contract-
(a) wilfully communicates the code or pass word, sketch, plan, model, article, note, document or information to any person other than a person to whom he is authorized to communicate it, or a Court of Justice or a person to whom it is, in the interests of the State, his duty to communicate it dt
(b) uses the information in his possession for the benefit of any foreign power or in any other manner prejudicial to the safety of the State; or
(c) retains the sketch, plan, model, article note or document in his possession or control when he has no right to retain it, or when it is contrary to his duty to retain it, or wilfully fails to comply with all directions issued by lawful authority with regard to the return or disposal thereof; or
(d) fails to take reasonable care of, or so conducts himself as to endanger the safety of, the sketch, plan, model, article, note, document, secret official code or pass word' or information;
he shall be guilty of an offence under this section.
According to the learned Counsel for the accused-appellants the words "which relates to or is used in a prohibited place or relates to anything in such a place" are to be included not only in the first of its provisions but also in each of its subsequent provisions beginning with the words "or which has been made or obtained." This contention, in my opinion, is devoid of force. Plain reading of the above sub-section goes to show that the secret official code or Passover or sketch, plan model, article, note, document or information contemplated by the sub-section must fall under one of the following categories:
(1) It should relate to or be used in a prohibited) place or relate to anything in such a place,
(2) or should be such as has been or obtained in contravention of the Act,
(3) or should be such as has been entrusted in/confidence to a person by anyone holding office under the Government,
(4) or should be such as has been obtained by a person who holds or has held office under the Government or a contract on behalf of the Government or as a person who is or has been employed under a person so holding office or contract.
The use of the word 'or' while dealing with different categories goes to show that the fords about the prohibited place do not qualify the cases falling under categories (2) to (4) enumerated above. I am fortified in the above conclusion by the observations of Lord Reading, while dealing with a similar provision, in The King v. Michael O'Kelly Simington 1921 1 KB 451, it was observed as under:
It has been contended that on the true construction of that clause the words "which relates to or is used in a prohibited place or anything in such a place" are to be included not only in the first of its provisions, but also in each of its subsequent provisions beginning with the words "or which", so that each of the alternative provisions of the clause applies only to a sketch, plan, etc, which relates to or is used in a prohibited place; and that as the plans in question do not relate, as is submitted, to any prohibited place within the meaning of the Act, the appellant committed no offence under the clause. That construction is no doubt ingenious, but it is impossible and indeed absurd. According to that construction it would be unnecessary to say more than is said in the first provision of the clause. If the clause meant that a person having in his possession or control and retaining any sketch, plan, etc, did not in any case commit an offence unless the sketch, plan, etc., relate to or was used in a, prohibited place, the result would be that all the provisions of the clause after the first would be superfluous. On the other hand, if the reference to a prohibited place be included in the first provision of the clause only, then none of the first provision is superfluous or unmeaning. According to that construction the clause makes it an offence for a person to have in, his possession and to retain any sketch, plan, etc., (i) which relates to a prohibited place, (ii) which has been made or obtained in contravention of the Act, (iii) which has been entrusted in confidence to him by any person holding office under His Majesty, or (iv) which he has obtained as a person who holds or has held office under His Majesty, or a contract on behalf of His Majesty, or as a person who is or has been employed under a person so holding office or a contract; and there can be no doubt or uncertainty as to the meaning of the clause and every part of it. That is the view of the clause which was taken by the learned Judge at the trial, and this Court agrees with him.
65. It has also been argued that the budget. proposals cannot be deemed to be official secret documents because they have to be made public after some time. This contention too, in my opinion, is devoid of force. The fact that on a subsequent date the budget proposals have to be made public would not detract from the secrecy of those proposals till such time as they are announced in Parliament. The observations in the book on Constitutional Law by E.C.S. Wade and G. Godfrey Phillips show that budget proposals are closely guarded secrets until the budget is opened, in order that steps may not be taken to forestall them, e.g., by dumping of goods or speculation on the stock exchange. These observations were followed by a Division Bench of Kerala High Court in case State of Kerala v. K. Balakrishna , and it was
held that Budget Papers pf "official secrets" which cannot be published until the Budget is actually presented in the Legislature and contravention of the same would amount to an offence under the Official Secrets Act.
66. In view of the above discussion, uphold the conviction of Chadha and Jacobs accused.
67. Lastly it has been argued on behalf of. Jacobs and Chadha that the sentence awarded to them is excessive and as such should be reduced. In this respect, I am of the view that the offences committed by the above mentioned two accused are very serious and call for no clemency. Inroads into the secrecy of budget proposals resulting in the premature leakage of those proposals would not only leave a trail of adverse repercussions on the fiscal measures of the Government, it would also give an undue advantage to the unscrupulous speculator, like that of a loaded dice to a gambler, as against the innocent and the unwary. I, therefore, decline to reduce the sentence.
68 As a result of the above, the appeals of More and Kothan accused are accepted. Their conviction and sentence are set aside and they are acquitted. They are discharged from their bail-bonds. The fine, if paid by them, should be refunded. The State appeal against More and Kotbari is dismissed. The appeals filed by Chadha and Jacobs accused too are dismissed and they will surrender to their bail bonds.
Shamsher Bahadur, J.
69. I agree.