minal Appeal No 156 of 1960
Appeal by special leave from the judgment and order dated August 1 1958 of the Rajasthan High Court at Jodhpur in Criminal Appeal Nos 98 and 155 of 1957 and Criminal Revision No 116 of 1957
Jai Gopal Sethi C L Sareen and R L Kohli for the appellant
H J Umrigar H R Khanna Bipin Behari Lal R H Dhebar and D Gupta for the respondent
663 1961
March 30
The Judgment of the Court was delivered by SUBBA RAO J
This is an appeal by special leave against the judgment of the High Court of Judicature for Rajasthan dated August 1 1958 confirming the Judgment of the Additional Sessions Judge Churu dated May 3 1957 in so far as he convicted the appellant under sections 347 365 and 386 Indian Penal Code and setting aside his order acquitting the appellant under section 458 Indian Penal Code and convicting the appellant under section 452 Indian Penal Code
The learned Additional Sessions Judge sentenced the appellant for the offences under sections 347 365 and 386 Indian Penal Code to undergo rigorous imprisonment for I year 2 years and 3 12 years respectively
Tile High Court enhanced the sentences in respect of the offences under so
347 and 386 Indian Penal Code to 3 years and 8 years respectively and also imposed a fine of Rs 20000 on the appellant the sentence in regard to the offence under section 365 Indian Penal Code was confirmed
The High Court further found that the appellant was guilty under section 352 Indian Penal Code also and for that offence it sentenced him to undergo rigorous imprisonment for 7 years
At the outset it would be convenient to state briefly the case of the prosecution
One Kashiram a prosperous businessman was residing at Sidhmugh
His only son Suraj Bhan was living at Rajgarh where lie was carrying on an independent business of his own
On November 121954 when Suraj Bhan was at his desk in his house somebody made an enquiry whether one Rameshwar was there to which Suraj Bhan replied in the negative
A few minutes thereafter two men with masks entered the room and one of them was armed with a revolver
The said two persons threatened to shoot Suraj Bhan if he made any noise and then took him outside the house where two camels were kept waiting attended by two other persons similarly masked
After covering the face of Suraj Bhan by tying a cloth round his neck he was made to mount one of the camels
The two persons who pulled Suraj Bhan out of his house also 664 mounted the same camel one in front of Suraj Bhan and the other behind him
After firing some shots in the air presumably to prevent pursuit the said per sons along with Suraj Bhan left the place
After riding for 3 or 4 hours the camels were made to stop on a railway line the said persons got down from the camel Suraj Bhan was also made to get down and all of them went along the railway line for 3 or 4 furlongs
Thereafter Suraj Bhan was taken to the house of Dee Chand the appellant in village Kalari and was kept there in confinement in a small room for 17 days
During the entire period he was kept blindfolded
Two or three days after the abduction Suraj Bhan was made to write three letters to his father and put down his father s address on the envelopes
He was made to write these letters under the cover of a blanket after his bandage was removed temporarily
In the first letter he was made to write that if his father reported the matter to the police he would not see his son again in the second letter he was made to inform his father that in view of the attempts made by his father to trace him his abductors had made up their minds not to release him but in view of his entreaties they had agreed to release him on payment of a ransom of Rs 60000 and in the third letter he was made to write that the money should be handed over to the bearer of the letter and that he would be released on such payment
After the receipt of the first two letters by Kashi Ram the abductors entered on the second stage of negotiations
Meanwhile to facilitate the smooth conduct of the negotiations on November 29 1954 Suraj Bhan was removed to the house of one Lachhman and was confined there till his release
Kashi Ram has a son in law by name Shiv Bhagwan the son of one Durga Parshad
Dhannaram and Shiv Bhagwan knew each other
Dhannaram offered to help Kashi Ram to get the release of his son
Dhannaram gave a letter addressed to Deep Chand to Durga Parshad wherein Deep Chand was requested to render his help in the matter of the release of Suraj Blian
On the basis of the letter Durga Parshad contacted Deep Chand who promised 665 to do his best in the matter
After further talks Dhannaram met Shiv Bhagwan and told him that Suraj Bhan was alive but a large sum would be required as ransom to get his release
He also warned him not to divulge the secret for if he did so not only the life of Suraj Bhan but also of other relations would be in danger
He demanded Rs 70000 as ransom but after some higgling it was fixed at Rs 50000
The third letter written by Suraj Bhan at the instance of Deep Chand was shown to Shiv Bhagwan and to his father Durga Parshad to assure them that Suraj Bhan was alive
After satisfying themselves  of the bona fides of the negotiations conducted by Dhannaram Shiv Bhagwan and Durga Parshad went to the house of Dhannaram where they found Deep Chand
The sum of Rs 50000 was paid to Dhannaram and Deep Chand and both of them counted the money
The money was paid on December 171954 and Suraj Bhan was released on December 20 1954
Five persons namely Deep Chand Sisram Jiwan Ram Dhannaram and Ramji Lal were prosecuted in the Sessions Court for the aforesaid offences
The learned Sessions Judge acquitted Ramji Lal Dhannaram and Jiwan Ram and convicted Sisram under sections 347 and 365 Indian Penal Code and Deep Chand as aforesaid
Nothing more need be said about the conviction of Sisram as on appeal he was acquitted by the High Court and no appeal was preferred by the State against his acquittal
The learned Sessions Judge on a consideration of the entire evidence placed before him held that there was overwhelming evidence to show that Deep Chand detained Suraj Bhan in his house for sometime and thereafter in Lachhman s house and released him on payment of a ransom
But he held that there was not sufficient evidence to find definitely that Deep Chand participated in the abduction of Suraj Bhan on November 12 1954 from the latter s house
On these findings he convicted Deep Chand under sections 347 365 and 386 Indian Penal Code
Deep Chand preferred an appeal against his conviction and the State filed an appeal 84 666 against the judgment of the learned Sessions Judge in so far as he acquitted Deep Chand of the offence under section 458 Indian Penal Code
The State also preferred a revision for enhancing the sentences passed on Deep Chand
All the matters were heard together by the High Court and on a resurvey of the entire evidence it agreed with the Sessions Judge that Suraj Bhan was confined in the house of Deep Chand and later on in the house of Lachhman and that he extorted money from Kashi Ram by putting him under fear of death of his son Suraj Bhan
Disagreeing with the Sessions Judge the High Court further held that it had been established on the evidence that Deep Chand was one of the persons who abducted Suraj Bhan from his house on November 12 1954
In the result the High Court convicted the appellant not only under sections 347 365 and 386 Indian Penal Code but also under section 452 thereof
In the matter of enhancement of the sentences it was of the view that the case deserved an exemplary punishment and therefore it enhanced the sentences as aforesaid
Deep Chand preferred the present appeal by special leave
Learned counsel for the appellant in an attempt to dislodge the findings arrived at by the High Court raised the following points before us 1 The High Court erred in relying upon the statement made by Suraj Bhan before the Magistrate at the time of verification proceedings though it was not recorded in compliance with the provisions of section 164 of the Code of Criminal Procedure and if the said statement and the verification proceedings based on that statement were excluded it is not possible to predicate that the High Court would have accepted the evidence of Suraj Bhan in respect of his version that he was confined in the house of Deep Chand
2 The High Court also went wrong in upholding the privilege claimed by Shri section Gajender Singh the District Magistrate in respect of important questions put to him in the cross examination and if the claim of privilege had not been upheld answers would have been elicited from him which might have established that Suraj Bhan was lying in the witness stand and that his previous 667 statements represented the truth
3 The High Court erred also in setting aside the order acquitting the appellant under section 458 Indian Penal Code without sufficient and compelling reasons and in convicting him under section 452 Indian Penal Code
To appreciate the said questions it is necessary to notice briefly the facts found by the courts below
On the first part of the episode that is the abduction of Suraj Bhan the High Court accepted the evidence of Suraj Bhan
Suraj Bhan stated in his evidence that when he was writing his accounts at about 7 15 pm in his house on November 12 1954 two persons with their faces covered with masks entered his house and by threatening to shoot him forcibly took him away on one of the two camels brought by them
He further alleged that he recognized one of the abductors who threatened him with a revolver as Deep Chand as he was a local Congressman known to Suraj Bhan from before
This identification of Deep Chand as one of the accused was not accepted by the Sessions Judge but the High Court accepted it for the reason given in its judgment
As regards the second stage namely the confinement of Suraj Bhan in Deep Chand s house the High Court accepted the evidence of Suraj Bhan identifying the said house by giving particulars thereof
Suraj Bhan s version was as follows During his confinement in the house he used to loosen the bandage and see through the chinks in the wall of the room in which he was interned
He was in that house for 17 days and he had heard the voice of Deep Chand whom he knew before
During his confinement there he also heard a lady enquiring whether Deep Chand had gone out and another lady answering the query
He had also given in detail the landmarks he gathered in the course of his journey from his house to the house of Deep Chand which substantially tallied with those leading to Deep Chand s house
This evidence of Suraj Bhan was corroborated by the evidence of Devisingh the Magistrate Randhawa and Ratan Singh
The Magistrate took Suraj Bhan along with him to the house of Deep Chand
He inspected the house and got the plan exhibit P 28 prepared under his 668 supervision by PW 25 the Reserve Inspector Churu
He also recorded the memorandum exhibit P 27 in which his observations and the statements made by Suraj Bhan were noted down  The Magistrate gave evidence as PW 21 and in his evidence he described the building of Deep Chand and also proved the memorandum prepared by him
His evidence is further corroborated by the evidence of two witnesses PW 25 Randhawa and PW 39
The memorandum prepared by the Magistrate his evidence and the evidence of PWs 25 and 39 establish that there used to be chinks in the wall through which Suraj Bhan used to see a tree and that these chinks had been recently closed by pointing the room from inside and that two new rooms were constructed towards the north of the house
PW 27 deposed that these two new constructions were made about the beginning of the year 1955
This evidence which was accepted by the courts below supported the evidence of Suraj Bhan in regard to the condition of the building at the time he was interned therein
On the basis of the said evidence both the courts concurrently held that the house in which Suraj Bhan was interned for 17 days was the house of Deep Chand
Now coming to the third stage of the journey that is the confinement of Suraj Bhan in Lachhman s house Lachhman as PW 3 deposed that on a request made by Jiwan Ram on behalf of Deep Chand he agreed to keep a lady whom Jiwan Ram and Deep Chand would bring to his house for a few days and on the next day Deep Chand and Sisram brought in the midnight Suraj Bhan instead of a lady
He also described in detail the instructions given to him by Deep Chand and the manner in which he attended on Suraj Bhan during his stay of 21 days in his house
This house was also identified by Suraj Bhan
Suraj Bhan further gave some details of the surroundings of the house and also the name of the son of Lachhman
This evidence proves that Suraj Bhan was shifted by Deep Chand to the house of Lachhman on the eve of the negotiations
The High Court held against the appellant even without calling in aid the evidence of Lachhman on the basis of other facts
669 Then there is the evidence of Shiv Bhagwan and Durga Parshad who actually paid the ransom
These witnesses spoke about the negotiations and also the actual payment of Rs 50000 to Deep Chand
This evidence was again accepted by both the courts
Then there was the evidence of Lachi Ram and Amar Singh who carried on negotiations with Deep Chand for the return of the ransom in the presence of Chowdhuri Kumbbaram the then Home Minister of Rajasthan
This evidence was also accepted by both the courts
The aforesaid evidence along with other circumstances according to the High Court brought home the guilt to the appellant on all charges
It is the usual practice of this Court to accept the concurrent findings of fact arrived at by the courts below and there are no exceptional circumstances in this case to depart from the usual practice
We shall now proceed to consider the arguments of learned counsel for the appellant seriatim
His first criticism is directed against the verification proceedings conducted by the Magistrate at the house of Deep Chand
On the basis of the statement made by Suraj Bhan giving the particulars of the building the Magistrate got a plan exhibit P 28 prepared and also a memorandum exhibit P 27
He also gave evidence in the court
It is said that the High Court went wrong in acting upon the said memorandum by the Magistrate
The relevant provisions are section 164 of the Code of Criminal Procedure and section 9 of the Evidence Act
The material part of section 164 of the Code of Criminal Procedure reads 1 Any Presidency Magistrate any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the State Government may if he is not a police officer record any statement or confession made to him in the course of an investigation under this Chapter or under any other law for the time being in force or at any time afterwards before the commencement of the inquiry or trial
2 Such statements shall be recorded in such of the manners hereinafter prescribed for recording 670 evidence as is in his opinion best fitted for the circumstances of the case
Such confessions shall be recorded and signed in the manner provided in section 364 and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried
 Section 9 of the Evidence Act says that facts which
establish the identity of any thing or person whose identity is relevant are relevant in so far as they are necessary for that purpose
These two sections deal with different situations section 164 of the Code of Criminal Procedure prescribes a procedure for the Magistrate recording statements made by a person during investigation or before trial section 9 of the Evidence Act on the other hand makes certain facts which establish the identity of a thing as relevant evidence for the purpose of identifying that thing
If a statement of a witness recorded by a Magistrate in derogation of the provisions of section 164 will go in as evidence under section 9 of the Evidence Act the object of section 164 of the said Code will be defeated
It is therefore necessary to resort to the rule of harmonious construction so as to give full effect to both the provisions
If a Magistrate speaks to facts which establish the identity of any thing the said facts would be relevant within the meaning of s 9 of the Evidence Act but if the Magistrate seeks to prove statements of a person not recorded in compliance with the mandatory provisions of section 164 of the Code of Criminal Procedure such part of the evidence though it may be relevant within the meaning of section 9 of the Evidence  Act will have to be excluded 
By such a construction of the provisions a satisfactory solution could be evolved
The decision of the Judicial Committee in Nazir Ahmad vs The King Emperor 1 is rather instructive
There a Magistrate gave evidence in court on the strength of a confession made to him which was not recorded under section 164 of the Code of Criminal Procedure
The question was whether the said evidence was admissible against the accused
The Judicial Committee quoted and approved the well recognized rule that 1 Lahore 629
671 where power is given to do a certain thing in a certain way the thing must be done in that way or not at all and other methods of performance are necessarily forbidden
Adverting to section 164 of the Code of Criminal Procedure the Judicial Committee proceeded to state at p 642 thus It is also to be observed that if the construction contended for by the Crown be correct all the precautions and safeguards laid down by sections 164 and 364 would be of such trifling value as to be almost idle The Judicial Committee also stated the policy underlying the section thus at p 643 In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever
 These are weighty observations and we respectfully adopt them
But this decision does not preclude a Magistrate from deposing to relevant facts if no statute precludes him from doing so either expressly or impliedly
Neither the Evidence Act nor the Code of Criminal Procedure prohibits a Magistrate from deposing to relevant facts within the meaning of section 9 of the Evidence Act
In Legal Remembrancer vs Lalit Mohan Singh Roy 1 a Magistrate sought to give evidence of an unrecorded statement made to him by the accused
The court rightly held that it was not permissible
The same remarks we made in regard to the decision of the Privy Council would apply to this case
In this context a few relevant decisions bearing on the admissibility in evidence of verification proceedings could conveniently be noticed
In Amiruddin Ahmed vs Emperor 2 a Magistrate conducted verification proceedings with a view to test the truth of a confession made by the accused
Teunon J made the following observations at p 564 They are undertaken it would seem with a view 1 Cal 167
2 Cal 557
672 to testing the truth of a confession and to obtain evidence either corroborating the confession or indicating its falsity
In so far at least as such evidence may be obtained for instance in ascertaining that the prisoner is familiar with or wholly ignorant of the localities of which he has spoken or in furnishing clues to further enquiry such proceedings may be useful
In connection with such proceeding the main concern of the Court would seem to be to ensure that evidence not strictly admissible is not admitted
In the present case that precaution has not been taken for we find that the verifying Magistrate has been permitted to speak to statements said to have been made to him in the course of his proceedings
Such additional statements being statements made in the course of an investigation when not recorded in the manner provided in section 164 of the Code of Criminal Procedure are in my opinion inadmissible The other learned Judge Shamsul Huda J made the following statement at p 572 I think verification  under conditions such as these lends itself to very great abuses and should be avoided
There is perhaps nothing objectionable in a verification made independently of the confessing accused and unaided by him
We are not concerned in this case with the propriety of verification proceedings in regard to a confession made by an accused
This decision is an authority for the position that the evidence given by a Magistrate on the basis of the verification proceedings conducted by him is relevant evidence  though he could not speak of statements made by the accused or a witness recorded by him in contravention of section 164 of the Code of Criminal Procedure
The same distinction was pointed out by the Special Bench of the Calcutta High Court in Jitendra Nath vs Emperor 1
In that case the learned Judges observed at p 110 thus In one case there was a verification report so far as the confessional statement of an accused person was concerned which it would appear was fairly 1 AIR 1937 Cal
673 supported by other evidence bearing on matters covered by the said report by the Magistrate by whom it was recorded and which cannot be ruled out on the ground that it was inadmissible in evidence seeing that the Magistrate himself was examined as a witness in the case and spoke to the contents of the report made by him which is placed on record as evidence in support of the confessional statement of Sudhir Bbattacharjya
 Then the learned Judges proceeded to state Statements made by the accused to the verifying Magistrates in the course of the proceedings if they are not recorded in the manner provided in section 164 Criminal Procedure Code are however inadmissible
 It is therefore clear that the memorandum prepared by the Magistrate describing the present condition of the house and the evidence given by him on the basis of that memorandum would be relevant evidence under section 9 of the Evidence Act but he statements made by Suraj Bhan to the Magistrate said to be not recorded in the manner prescribed by section 164 of the Code of Criminal Procedure would be inadmissible
We are proceeding on the basis that the said statements were not recorded in compliance with the provisions of section 164 of the Code of Criminal Procedure and we should not be understood to have expressed any opinion on the question whether they have been so recorded or not or whether mere irregularities if any committed in the manner of recording such statements by Magistrates under section 164 of the Code of Criminal Procedure would make such statements inadmissible
That apart exhibit P 27 and the evidence given by the Magis trate were only used by the court as corroborating the evidence of Suraj Bhan in regard to his evidence describing the house of Deep Chand
Apart from the Magistrate s evidence there is also other
evidence in the case in regard to the original condition of the building and the subsequent additional structures put up by Deep Chand
As the High Court accepted that evidence even if the evidence of the Magistrate was excluded it would not have made any difference in the result
We therefore hold that the evidence of the 85 674 Magistrate excluding that part pertaining to the statements made to him by Suraj Bhan was relevant evidence in the case
The second contention turns upon the claim of privilege raised by witness Gajender Singh and allowed by the learned Sessions Judge
Some of the relevant facts may now be stated
Suraj Bhan was released on December 20 1954
On February 14 1955 one Shiv Dutt made a statement before the District Magistrate section Gajendar Singh and the said Magistrate recorded the same under section 164 of the Code of Criminal Procedure
In that statement Shiv Dutt stated that Suraj Bhan told him the present version of the prosecution
On March 12 1955 Suraj Bhan was examined by the police and he made a statement exhibit D 8
Therein he gave an altogether different version contradicting the statement of Shiv Dutt On April 29 1955 Suraj Bhan filed an affidavit exhibit P 5 in the Court of the Additional District Magistrate Ganganagar stating that Deep Chand had nothing to do with the offence  On May 5 1955 the prosecution got five copies of the said affidavit made and attested
On May 23 1956 for the first time Suraj Bhan implicated Deep Chand in the crime
Regarding the question whether Shiv Dutt made such a statement on February 141955 Gajender Singh and Shiv Dutt were examined and both of them spoke to that fact
The argument is that important questions put to Gajender Singh were illegally disallowed and if they had not been disallowed the accused would have been in a position to establish that Gajender Singh was not speaking the truth and that if that evidence was eliminated the High Court might not have accepted the reasons advanced by the prosecution explaining away the inconsistent versions given by Suraj Bhan
At the outset it may be stated that it is not quite correct to state that the High Court explained away the earlier versions given by Suraj Bhan on the basis of the evidence given by Gajender Singh
On the other hand both the courts have given convincing reason why Suraj Bhan and the members of his family did not come forward immediately with the true version of the incident for at one stage they were anxious to 675 save the life of Suraj Bhan and at a later stage they were equally anxious to get back the money paid as ransom by Suraj Bhan s father
The courts have also accepted the evidence of Shiv Dutt
That apart the question of privilege was not raised before the High Court
In the circumstances we would not be justified in allowing the appellant to raise before us the question of privilege based upon  the disallowance of a few questions put to one of the witnesses
This objection is therefore rejected
The third argument has no merits either
The High Court considered and in our view rightly that there was no reason to disbelieve the evidence of Suraj Bhan when he identified Deep Chand at the time of abduction
Suraj Bhan knew the accused before and he also knew his stature and voice
Suraj Bhan was in the company of Deep Chand from the time of his abduction till he was finally released
When Suraj Bhan in the circumstances stated that he identified Deep Chand there is no valid reason to reject his evidence
In the circumstances the High Court was quite justified in setting aside the order of acquittal under section 458 Indian Penal Code and convicting him for the offence under section 452 there of Finally learned counsel for the appellant made an impassioned appeal on the question of sentence
He said that the learned Sessions Judge had awarded a reasonable sentence to the accused and the High Court was not justified in enhancing the said sentence
The Sessions Judge held that the accused was guilty of a grave and heinous crime and we are surprised that he should have sentenced the accused to undergo rigorous imprisonment for one year under section 347 2 years under section 365 and 3 12 years under section 386 Indian Penal Code and direct the sentences to run concurrently
When the Sessions Judge gave such a disproportionately lenient sentences it was the duty of the High Court to rectify such an obvious error
In our view the learned Judges of the High Court rightly enhanced the sentence imposed on the appellant
In the result the appeal fails and is dismissed
Appeal dismissed


Summary:
In a verification proceeding held by him the Magistrate
prepared a memorandum recording his own observations as also the statements made to him by a prosecution witness but not in the manner prescribed by section 164 Of the Code of Criminal Procedure
He proved the memorandum in court and gave his evidence
It was contended that the High Court was wrong in acting upon the said memorandum
Held that although section 164 Of the Code of Criminal Procedure and section 9 of the deal with two different matters they must be read together and harmoniously con strued so as to give full effect to both of them
So construed there could be no doubt that the evidence of the Magistrate himself on the basis of the memorandum would be relevant under section 9 of the Evidence Act and as such admissible in evidence but the statements made to him by the prosecution witness having been recorded in contravention of the mandatory provisions of section 164 Of the Code must be excluded as inadmissible  on evidence
Nazir Ahmad vs The King Emperor Lah
620 Legal Remembrancer vs Lalit Mohan Singh Roy 192I ILR considered
Amiruddin Ahmed vs Emperor Cal
557 and jitendra Nath vs Emperor AIR 1937 Cal
99 referred to