Find a Lawyer

Criminal Revision No. 528 of 1968, decided on 17th April 1968.

S. 26‑Confession recorded in presence of Police Officer‑Extent of inadmissibility.

There is no direct authority in support of the theory that the confession recorded in presence of a police officer is not admis sible in evidence on the contrary the case of Barnabas Charistaian v. Emperor A I R 1934 Pat. 586 laid down that the mere fact that the Court Constable was allowed to remain present while the co- accused were making their confessions does not involve the total exclusion of the confessions from evidence. It may be said that when police officers are present or are within sight and hearing of the place where the accused is kept during the time allowed for reflection or at the time of recording of the confession the possib ility of the accused being influenced by threat by gesture from the police cannot altogether be eliminated. The confession recorded under such circumstances cannot but be viewed with some amount of suspicion that the accused might have been influenced by the police to make the confession.

Barnabas Charistaian v. Emperor A I R 1934 Pat. 586 rel.

S. 24‑Retracted confession-- Admissible to be used against maker, if voluntary and substantially true.

It is true that a retracted confession should be looked upon with suspicion, but if it is considered by the Court to have been a voluntary confession and is substantially true it can be admitted and used against its maker.

Barnabas Charistaian v. Emperor A I R 1934 Pat. 586 rel.

S. 342(1)-- Examination of accused ‑‑Purpose : "Enabling accused to explain any circumstances appearing in evidence against him"-‑Circum stances on evidence not put to accused‑Serious defect‑Trial under Ss. 468 & 471, P. P. C.‑‑Neither confession nor opinion of hand writing expert put to accused at time of examination under S. 342‑‑ Accused prejudiced in defence‑Conviction, in circumstances, set aside.

, S. 45-‑Handwriting expert, opinion of‑‑Liable to error and very weak kind of evidence.

The opinion of handwriting expert with regard to questioned writing and signature is not infallible but liable to error and it is a very weak kind of evidence. The opinion of handwriting expert does not conclusively prove forgery when it is to the effect that the questioned writing and signature are not those of the person whose writings and signatures they purport to be. It is, however, one of the modes of proof of handwriting and signature but its evidentiary value is slender. In the instant case, the handwriting expert was not himself definite that the petitioner was the author of the impugned signature and writing appearing in the cheque in question. This considerably reduced the value of the evidence that it was the petitioner who wrote and signed the cheque.

Moinul Huq for Petitioner.

Nemo for the State.

The petitioner Jafar Alam Chowdhury was convicted under sections 381, 468 and 471 of the Pakistan Penal Code and sentenc ed to regorous imprisonment for one year and to pay a fine of Rs. 50 or in default to suffer rigorous imprisonment for a further period of three months under section 381, no separate sentence having been passed under sections 468 and 471. The order of conviction and sentence passed by the learned Magistrate was upheld in appeal by the Additional Sessions Judge, Chitta gong. The present Rule was obtained by the petitioner to show cause why the order of conviction and sentence aforesaid should not be set aide.

2. The prosecution case briefly was that the petitioner Jafar Alam Chowdhury was a typist clerk in the office of the Divisional Forest Officer, Chittagong from July 1960 up to 10th March 1961. On 14‑3‑61 it was detected the cheque No. 027010 was missing from the cheque book. It was then ascertained from the State Bank of Pakistan, Chittagong that the said cheque was encashed for Re. 700 in favour of one Nazir Ahmed Forester. The cheque was not issued by the Divisional Forest Officer and his signature therein was forged, and there was no Forester named Nazir Ahmed at that time. A complaint was lodged with Officer -in‑Charge Kotwali Police Station, Chittagong. The Head Clerk produced two slips containing four forged signatures of the Divisional Forest Officer which were recovered from the waste paper basket used by the petitioner Jafar Alam Chowdhury. A letter recovered from the drawer of the petitioner purported to contain signatures of the Divisional Forest Officer. It has also transpired that Jafar Alam Chowdhury was practising to forge signature of the Divisional Forest Officer. The petitioner was absent from office on 13‑3‑61 and on 14‑3‑61, he came to office and left with permission. On the following day, he applied for leave. The police investigated the case and eventually submitted charge‑sheet against the petitioner.

3. His defence was that he was falsely entangled in the case to save the Head Clerk from the prosecution.

4. It is worth‑while noting here that a handwriting expert examined the questioned signature in the cheque in question by comparison with the specimen signatures of the petitioner and opined that the author of full signature was probably the author of the specimen before Mr. Md. Mohsin, Magistrate, 1st Class.

5. Mr. Moinul Huq, learned Advocate for the petitioner has assailed the conviction on a variety of grounds. The first contention is that that confession which was a retracted one was trade at a time when the petitioner was in police custody. He has next urged that the confession was not put to the petitioner at all during his examination under section 342, Cr. P. C. ; for these two reasons he has submitted that the conviction on the basis of such confession is untenable in law. The learned Additional Sessions Judge observed in his Judgment as follows :‑

"P. W. 17, Mr. Mohsin is the Magistrate, 1st Class, in whose presence the accused made the confessional statement implicating him in the case. He, of course, has retracted from that confession, and the confession so recorded by the learned Magistrate was found to be voluntary. It appears that the accused was on bail and at the time of his confession, he was not in police custody, so that it could be said that under the pressure from the police he had to make such confession."

6. I have been referred to the evidence of P.W. 13 Nekbar Ali, Officer‑in‑Charge, Rangunia Police Station who forwarded the petitioner to the Magistrate for recording his confession. This witness stated that he forwarded the accused in custody with a prayer to record his confessional statement judicially in both the cases. It may be mentioned here that the petitioner was an accused in another case also. The petitioner was no doubt on bail in this case, but by was in police custody in connection with another case. The question is whether simply because he was in police custody, his confession is inadmissible in evidence and whether it should be thrown out on that ground. It appears from the evidence of P. W. 17 Mr. Md. Mohsin that he administered due caution and warning and gave him three hours time for reflection daring which period the petitioner was kept seated near his desk out of touch with the police or any body else and after the time allowed for reflection he repeated the caution and warning and questioning him again he was satisfied that the petitioner was willing to make a voluntary confession and then he proceeded recording the same.

7. In cross‑examination, Mr. Md. Mohsin stated that lie could not say if any police officer passed (appeared before me) and that he could not say whether he tried any police case then.

Mr. Mohsin goes to show that he could not deny the presence of police officer during the tune allowed for reflection or at the time of recording of the confession and that a confession recorded in the presence of police officer is not admission evidence. He could not furnish any direct authority in support of the theory that the confession recorded in presence of a police officer is not admissible in evidence. On the contrary, the case of Barnabas Charistaian v. Emperor (A I R 1934 Pat. 586) laid down that the mere fact that the Court Constable was allowed to remain present while the co‑accused were making their confessions does not involve the total exclusion of the confessions from evidence. On the authority of this case, Mr. Moinul Haq has indirectly argued that a confession made in presence of a police officer should be excluded from evidence. There is no doubt, some force in his argument that when police officers are present or are within sight and hearing of the place where the accused is kept during the time allowed for reflection or at the time of recording of the confession the possibility of the accused being influenced by threat by way of gesture from the police cannot altogether be eliminated. The confession recorded under such circumstances cannot but be viewed with some amount of suspicion that the accused might have been influenced by the police to make the confession. On point of fact, however, I am not satisfied that there was any police officer present when the petitioner was kept seated near the Magistrate who recorded the confession or when the confession was being recorded. A general question was put to Mr. Mohsin and he answered saying that he could not say whether any police officer appeared before him during that time. It was not directly put to hint that in fact there were one or more police officers present when the petitioner was under caution or when he was making the confession. The evidence of Mr. Mohsin read as a whole leaves hardly any scope for doubt that there was no police officer present and that the confession was voluntary. The petitioner was cautioned and warned twice and still he wanted to make the confession which was considered by Mr. Mohsin as voluntary and on being satisfied lit that effect he proceeded to write down the confession. It is true that a retracted confession should be looked upon with suspicion, but if it is considered by the Court to have been a voluntary confession and is substantially true it can be admitted and used against its maker. This view is supported by the case reported in A I R 1964 Pat. 586. In the present case, not only the Magistrate recording the confession held that the confession was voluntary but the Courts below also found the confession voluntary and substantially true. In these circum stances, the confession is admissible in evidence.

8. It is a fact that neither the confession nor the opinion and evidence of the hand‑writing expert was put to the petitioner at the time of his examination under section 342, Cr. P. C. What the learned Magistrate did was simply to repeat the accusation against the petitioner and then ask him what he had to say and the petitioner replied that he was innocent. The mandatory provision of section 342, subsection (1) of the Criminal Procedure Code is that the Court shall put questions to the accused generally on the case after the witnesses for the prosecu tion have been examined and before he is called upon to enter into defence and this must be dote for the purpose of enabling the accused to explain any circumstances appearing in the evi dence against him. The purpose of section 342, Cr. P. C. is not that the ingredients of the charge should be put to the accused. The words expressly are "for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him". Thus the question put to the accused under this section should relate to circumstances which have emerged in evidence against the accused. Apart from the evidence of witnesses generally the peculiar circumstances present in the instant case are that the accused made a confession before a competent Magistrate and that the handwriting expert opined that the im pugned signature in the relevant cheque is that of the accused. Besides, there is also some circumstantial evidence to the effect that the accused was seen imitating the signature of the Divisional Forest Officer Mr. Md. Bahajuddin before the actual date of encashment of the cheque. It was obligatory on the Court to put all these circumstances to the accused when he was under section 342, Cr. P. C., but this the Court failed to do. It can hardly be said that the serious defects in the examination under section 342, Cr. P. C. have not prejudiced the accused in this case. Had these circumstances been pointed out to him he would have given his explanation with regard to the same but he did not get that opportunity. It must be held in this context that there has been miscarriage of justice because of serious defects in recording the statement under section 342, Cr. P. C.

9. The next point urged by Mr. Moinul Huq is that the conviction in this case has been based on the opinion of the handwriting expert which is of a shaky character and which is at best a very weak evidence. It is well settled that the opinion of handwriting expert with regard to questioned writing and signature is not infallible but liable to error and it is a very weak kind of evidence. The opinion of handwriting expert does not conclusively prove forgery when it is to the effect that the questioned writing and signature are not those of the person whose writing and signatures they purport to be. It is however one of the modes of proof of handwriting arid signature, but its evidentiary value is slender. In the instant case, the It handwriting expert was not himself definite that the petitioner was the author of the impugned signature and handwriting appearing in the cheque in question. This has considerably reduced the value of the evidence that it was the petitioner who wrote and signed the cheque.

10. It is not, however, correct to say that the conviction, in the present case has been solely based oil the, opinion of the handwriting expert. It appears from the Judgment of the Courts below that along with the handwriting expert's opinion they took into consideration the confession as well as circumstantial evidence. As regards the circumstantial evidence the correct principle of law is that in order to base a conviction on such evidence the circumstances must be incompatible with the innocence of the accused and incapable of explanation on any hypothesis other than that of the guilt of the accused. Here the circumstances are certainly not so strong as to lead to the con clusion that they are incompatible with innocence of the accused. It has not been pointed out that the conviction in this case has not, however, been based enthely on circumstantial evidence.

11. The conviction in the present case cannot be upheld, for the reason that the examination of the accused under section 342, Cr. P. C. was illegal.

12. The next question that is to be considered is whether it is a fit case where retrial should be ordered. The case was started in 1961 and it is submitted that the petitioner has beet out of job for the last 8/9 years ; besides, he had to pass through the ordeal of a protracted trial leading upto this revisional stage. He has already suffered considerably and in the fitness of things he should not be put to double jeopardy.

13. In the result, the Rule is made absolute. The conviction and sentence of the petitioner are set aside and it is directed that he be discharged from his bail bond.

Rule made absolute.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.