Nilmadhab Chowdhry And Ors.

vs Emperor on 23 July, 1925

Patna High Court

Nilmadhab Chowdhry And Ors. vs Emperor on 23 July, 1925
Equivalent citations: 96 Ind Cas 509
Author: Adami
Bench: Adami, Bucknill
JUDGMENT Adami, J.
1. The three appellants have, been found guilty of the offence of criminal conspiracy and have been
sentenced to three years' rigorous imprisonment and a fine, of Rs. 50 each" under Section 120 B
of-the Indian Penal Code, the appellant Nilamadhab has been sentenced to six years' rigorous
imprisonment and a fine of Rs. 100 under Section 457 and to three years and a fine of Rs. 50 under
Section 420; the other two appellants have received like sentences under Sections 467 and 420 read
with Section 34 of the Indian Penal Code. Nilmadhab Chowdhry has also been sentenced to one
year's rigorous imprisonment under Section 419.
2. The case for the prosecution has been set out in a very careful judgment by the learned Assistant
Sessions Judge in great detail and with much care. It is not necessary, therefore, to state here more
than a short story of the circumstances.
3. The appellants, Nilmadhab Chowdhry, Haripado Mukerjee and Sudhir Kumar Bannerji, in 1921
were residing in Calcutta. The first named kept a baker's shop, the third named a tobacconist shop,
and Haripado Mukerjee was employed as a telegraphist at the Central Telegraph Office. Haripado
and Sudhir used to meet at Sudhir's shop and talk over their straitened; circumstances. Haripado
was a relation of Sudhir and one day told him that he had hit on a plan forgetting money. He said
that it would be easy to obtain money by means of bogus telegraphic money orders; it would only be
necessary to forge telegraphic money order forms and place them in the clip in the Telegraph Office
and then arrange for some one to be at the office of receipt to take over the money covered by the
telegraphic money order. Sudhir told Nilmadhab of this plan and they asked Haripado to come and
see them. He, however, did not come at first for he had gone away, so a telegram was sent to a man
in Chittagong to find out what his address was Haripado saw this telegram in the Telegraph Office,
and came to see Sudhir and Nilmadhab, and plans were then made. It was arranged that telegraphic
money orders should be forged and that one or two of the conspirators should go to Bombay,
Allahabad, Benares, Chapra and other places to make plans for the receipt of the money when
telegraphic money orders arrived. Haripado at first was unwilling to take any steps, but, it was
represented to him that money had been spent and that his two companions would be losers if he
resiled from the plan. Accordingly, Haripado supplied Nilmadhab with telegraphic money order
forms and showed him how to fill them in with bogus names. After attempts at some other places,
Sudhir and Nilmadhab came to Chapra in March 1921. They went to the firm of one Sahebjan Suray
Hussain, and there Nilmadhab stated that his name was Bhabani Charan Rai; he came from
Rangoon to buy ghee and to' ascertain the market rates. After finding out the rates Nilmadhab said
he was going to Patna and other places to find out the local rates there for ghee, and that he would
come back to Chapra later on. He came back on the 5th June, 1921, and took quotations for ghee,
then left stating that he was going to Hathras and Cawnpur. He asked that, if any telegraphic money
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Nilmadhab Chowdhry And Ors. vs Emperor on 23 July, 1925

orders came during his absence, the firm of Sahebjan would keep them until he came back again. On
the 10th of June, ha telegraphed to Sahebjan that he had sent for the money and would be coming
soon to Chapra. On the 14th June, the Chapra Post Office received 11 money orders amounting
altogether to Rs. 6,500, purporting to have been sent by one Nalini Mohan Ghosh from Rangoon,
the payee being described as Bhabani Charan Rai care of Sahebjan Suray Hussain. The Post Master
sent the money through his three postal overseers to Sahebjan's shop but they found that Bhabani
Charan had not yet arrived. On the 17th June, 1921, Nilmadhab posing as Bhabani Charan arrived at
Chapra, and on the 18th the postal overseers took Rs. 6,500 to Sahebjan's shop with the 11 money
orders and enquired where Bhabani Charan Rai was. Nilmadhab said he was Bhabani Charan, Rai.
Thereupon the money was handed to Nilmadhab who signed the money order receipts, and
Sahebjan also signed them. Nilmadhab deposited the money with Sahebjan who entered it in his
books in the name of Bhabani Charan Rai. Then, Nilmadhab said he had to go to Darhhanga to buy
ghee and required Rs. 6,000 to pay for it, but Sahebjan paid only Rs. 5,011 to him because he had
already paid certain sums to ghee merchants on behalf of Nilmadhab. Nilmadhab did not come back
to Chapra so Sahebjan sent a wire to him in the name of Bhabani Charan Rai to the shop of Ram
Rameswar in Darbhanga, whither Nilmadhab had said he was going. That was on the 22nd June. No
reply came, nor was a second telegram answered. On the 27th June and on the 4th July Sahebjan
wrote two letters to Rameswar asking where Bhabani Charan Rai had gone to. Eventually Rameswar
replied that Bhabani Charan Rai had never been to his shop and was not known to him.
4. On the 6th June, 1921, the appellant Sudhir Kumar Bannerjee went to the shop of this Rameswar
at Darbhanga and represented that his toaster was a ghee merchant of Rangoon and had come to
buy ghee and he himself was going to Cawnpur to get ghee and would come back if he found the
Darbhanga rates less.
5. On the 10th June, Rameswar received a wire from. Sudhir to the effect that he had wired to
Rangoon for money and his master Nandlal Das was going to visit Rameswar.
6. On the 13th June, 11 money orders to the amount altogether, of Rs. 6,500 arrived at Darbhanga
purporting to have been sent by one Ramesh Chander Sen from Rangoon to Nandlal Das, care of
Kalu Ram Rameswar at Darbhanga. Nilmadhab came to Rameswar at Darbhanga and represented
that he was Nandlal Das about whom Sudhir had spoken. He went with Rameswar's gomashta to the
post office and was paid Rs. 6,500 on the money orders, giving out his name to be Nandlal Das. He
handed the money to Rameswar to be kept in deposit and then afterwards asked Rameswar to give
him the money back but Rameswar refused to do so paying he was going to use it for buying ghee for
Nilmadhab he only gave Nilmadhab Rs. 25.
7. As no confirmation of the telegraphic money order came from Rangoon to the Post Master of
Darbhanga, the latter began to make enquiries and found from the Rangoon office that no such
telegraphic money orders had been sent from there. He made inquiries, and then Rameswar told the
Post Master of the telegrams he had received from Sahebjan. So the Post Master made inquiry from
the Post Master at Chapra and the latter too found out that no telegraphic money orders had been
sent from Rangoon to Chapra. Then information was given to the Magistrate and a Police
investigation followed, but it failed to disclose the culprits. A final Police report was drawn up on the
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1st September, 1921.

8. More than two years later, on the 1st December, 1923, while the Inspector of Police in Calcutta
was investigating a case of forgery of currency-notes, he raided certain places in Calcutta and
arrested four men, Nilmadhab was arrested on the 3rd December, one Lalit on the 4th December
and also Haripado and a man called Jiban Sudhir was arrested on the 12th December. All these
arrests were in connection with the note forgery case.
9. On the 13th of December, Nilmadhab was produced before an Honorary Presidency Magistrate in
Calcutta and made a confession, and Haripado and Sudhir also made confessions. The confessions
were so long in each case that they covered more than one day. Each of the three appellants made
his confession to a different Presidency Magistrate.
10. In those confessions each of the three appellants started by giving details of the bogus
telegraphic money order conspiracy and their operations; they then went on to tell how later on a
plan had been devised for tapping the telegraph wires and obtaining money through bogus
telegrams, and lastly Haripado arid Nilmadhab told how they, with others, had joined together and
forged Government currency-notes.
11. Investigation was made into the statements in these confessions and an inquiry began before the
Magistrate.
12. On the 10th of March, 1924, a petition was put before the Additional Chief Presidency Magistrate
to the following effect:
In the above case which is now under enquiry before your Worship; it is necessary to examine some
of the accused person, or persons directly concerned in the conspiracy with a view to obtaining his
or their evidence in the case and in order that the whole plot may be brought to light, and that the
material facts disclosed by such; person or persons may be corroborated by other independent
evidence in support of the disclosures made by such person or persons. The facts disclosed by such
person or persons would appear from the statement or statements voluntarily made by such person
or persons to the Magistrate before whom he or they were placed after arrest. As it will appear that
Nilmadhab Chowdhury has made a full, disclosure of the whole conspiracy fully implicating himself
and the other accused persons concerned in the conspiracy, I pray that the said Nilmadhab
Chowdhury be tendered pardon, under Section 337, Cr. P.C., and examined as an approver in the
Case.
13. The order passed on this application was to the following effect:
Perused the application of the Public Prosecutor and heard him. It is a case of a big and widespread
conspiracy to forge and utter Government Currency notes and all the facts of the conspiracy cannot
be obtained unless pardon is tendered to some of the accused. So under Section 337, Cr. P. Code, I
tender pardon to Nilmadhab Chowdhury, one of the accused, on condition of his making a full and
true disclosure of the whole of the circumstances within his knowledge relative to the offence, and
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Nilmadhab Chowdhry And Ors. vs Emperor on 23 July, 1925

order that he be examined as a witness in the case.

14. Nilmadhab accepted the pardon and gave evidence before the Committing Magistrate, and in his
deposition made a full statement of what had happened in 1921 in connection with the telegraphic
money orders to Chapra, as also of the tapping of the telegraph wires and of the forgery of the
Government. Currency-notes in 1923 Haripado and others were committed to the Criminal' Sessions
of the Calcutta High Court and there again Nilmadhab gave evidence, but at the Sessions his
evidence related only to the note-forgery case and he was not allowed to make statements as to the
previous events. The result of the tria-1 was that Haripado and his fellow accused were, acquitted by
Mukerjee, J., and the Jury.
15. Thereafter, on the strength of the previous investigation in 1921 and the confessions of the three
appellants, they were put on trial before the assistant Sessions Judge of Saran and have been
convicted as, stated at the beginning of this judgment.
16. Each of the appellants has lodged a separate appeal but the three have been heard together.
17. Before the Committing Magistrate and also before the Assistant Sessions Judge, the appellant
Nilmadhab claimed that the pardon tendered to him in Calcutta in the note-forgery case absolved
him from prosecution with regard to the present case in Chapra; but the Courts have overruled the
objection. On his behalf Sir Ali Imam now claims before us, that, having been tendered the pardon
in the note-forgery case, which is known as the Masjidbari case Emperor v. Panchkori Dutt 86 Ind.
Cas. 414 : 52 C. 67 : 29 C.W.N. 300 : A.I.R. 1925 Cal. 587 : 26 Cr. L.J. 782, the prosecution of
Nilmadhab is unwarranted, and that he ought to be granted the protection of the Crown.
18. I have cited above the application for tender of pardon and the order granted by the Magistrate
in Calcutta, From the order it is clear that the pardon related to the case of a big and widespread
conspiracy to forge and utter Government Currency-notes and Nilmadhab was required to make a
full and true disclosure of the whole of the circumstances within his knowledge relative to the
offence. It can be argued, as it has been argued, that the order shows clearly that the pardon was
intended to extend only to the case then on inquiry, and also it is reasonable to argue that the
conspiracy for the forging of the Government currency-notes was an absolutely distinct conspiracy
from that which had as its object the obtaining of money by bogus telegraphic money orders; two
years elapsed between the two conspiracies. Strictly speaking, I think, there would be good ground
for holding that the conspiracies were different and the cases also were separate. But there are
several considerations which lead one to think that Nilmadhab, at the time he accepted the pardon
and undertook to make a full discovery of all the circumstances, conceived that the pardon covered
all the events which were disclosed by him in his confession and his statement before the
Committing Magistrate. Nilmadhab had made a confession which showed the connection of the
appellants with one another right from' March 1921 and he gave a connected narrative of events
since then, leading up to the forgery of the currency-notes. The inquiring Magistrate allowed him to
make a statement in his deposition of all those occurrences, and in fact two witnesses were called
from the Telegraph Department to give evidence as to the telegraphic money order fraud, which had
really nothing to do with the Masjidbari case 86 Ind. Cas. 414 : 52 C. 67 : 29 C.W.N. 300 : A.I.R.
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Nilmadhab Chowdhry And Ors. vs Emperor on 23 July, 1925

1925 Cal. 587 : 26 Cr. L.J. 782,... Had it been the intention to confine the pardon only to the forgery
case, it would* have been the duty of the Magistrate to, warn Nilmadhab against making any
incriminating statements in, his evidence which were not relevant to the forgery case, but no such
warning was given. Nilmadhab had made a full confession and it is likely that he considered it
incumbent upon him, under his promise to make "a full and true disclosure of the whole of the
circumstances within his knowledge relative to the offence," to include in his, evidence a narration
of the part he and his associates-had played in the fraud at Chapra. The fact that the inquiring
Magistrate allowed him to give evidence of these previous activities shows, I think, that he
considered that, his inquiry covered them, and the prosecution also called witnesses who had
nothing to do with the note-forgery case, but deposed with regard to the bogus telegraphic money
orders.
19. Sir Ali Imam has relied on the case of Queen-Empress v. Ganga Charan 11 A. 79 : A.W.N. (1888)
289 : 13 Ind. Jur. 193 : 6 Ind. Dec. (N.S.) 478, There a person was charged before a Magistrate, at
Benares with offences punishable under Sections 471, 472 and 474 of the Penal Code having made a
confession to a Magistrate in respect of those offences. In that confession he mentioned that part of
the forgery had been committed in Calcutta and he was sent down to Calcutta and there; charged
before a Magistrate with offence punishable under Sections 467, 473 and 475. The Magistrate at
Calcutta tendered him a pardon and it was accepted, and the approver gave evidence for the
prosecution. The ' prosecution failed but the pardon was not withdrawn. Subsequently the
Magistrate at Benares continued the trial there under Sections 471, 472 and 474. Ganga Charan
pleaded not guilty, but he did not specifically plead his pardon as a bar It was held in that case by
Straight, J., that the terms of the pardon granted to the accused by the Calcutta Magistrate protected
the accused from trial at Benares. That case was somewhat different to the present one, because
there the offence at Calcutta was mixed up with the offence at. Benares and they were cognate cases.
In the present case the offence with which Nilamadhab is now charged cannot be aid to be an
offence cognate with his offence in the Masjidbari case 86 Ind. Cas. 414 : 52 C. 67 : 29 C.W.N. 300 :
A.I.R. 1925 Cal. 587 : 26 Cr. L.J. 782, a long interval of time separated the two; still the remarks
made by Straight, J., in his judgment have application to the present case. He said:
Though approvers may be infamous persons,, they are nevertheless entitled to have faith kept with
them by the Courts, and in dealing with the question as to what a pardon is to cover, and how far it
is to extend, I should not be inclined to apply too technical tests, and should rather look to substance
than mere matters of form.
20. He referred to the wording of Section 339, Cr. P.C, as to' the consequences that follow on a
non-compliance by an approver with the conditions of his pardon and its withdrawal, and said: "He
may be tried for the offence in respect of which the pardon was tendered, or for any other offence of
which he appears to have been guilty in connection with the same matter....It must be borne in mind
that in countenancing these pardons to accomplices the law dose not invite a cramped and
constrained statement by the approver, on the contrary it requires a thorough and complete
disclosure of all the facts within his knowledge bearing upon the offence, or offences, as to which he
gives evidence, and when he has given his evidence, I do not think that the question of how far it is
to protect him, and what portion of it should not protect him, ought to be treated in a narrow spirit.
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Nilmadhab Chowdhry And Ors. vs Emperor on 23 July, 1925

In a note by Mr. Greavea to the 4th Edition of Russell on Crimes, Vol. Ill, page 597, it is said: "If,
however, the prisoner, having been admitted as an accomplice to one felony, be thereby induced to
suppose that he has freed himself from the consequences of another felony, the Judge will
recommend the indictment for such other felony to be abandoned. Where an accomplice made a
disclosure of property which was the subject-matter of a different robbery by the same parties,
under the impression that by the information he had given previously as to the robbery of other
property he had delivered himself from the consequences of having the property he so disclosed in
his possession, Coleridge, J,, recommended the Counsel for the prosecution not to proceed against
the accomplice for feloniously receiving such property.'"
21. Then again the learned Judge says: "I need not point out the importance, when a pardon is
tendered, of encouraging the approver to give the fullest details, so that points may be found in his
evidence, which may be capable of corroboration, and this is what I understand the Cr. P.C. to mean
when it speaks of a 'full and true disclosure of the whole of the circumstances within his knowledge.'
"
22. I agree with the learned Government Advocate that this case, I have cited, is not altogether on all
fours with the present case, but I do think that the appellant, Nilmadhab, understood that in order
to carry out his promise he had to make a full disclosure of everything he knew and, therefore, told
about the proceedings at Chapra in 1921.
23. Sir Ali Imam has pointed but, too, that it would be most unsafe that there should be any
impression allowed to gain ground that a promise of pardon once tendered can be broken by the
Crown. There ate indications throughout the inquiry before the Magistrate in Calcutta that the
Chapra case was held to be in some way connected with the Masjidbari case 86 Ind. Cas. 414 : 52 C.
67 : 29 C.W.N. 300 : A.I.R. 1925 Cal. 587 : 26 Cr. L.J. 782, Had it been the intention to confine the
pardon only to the Masjidbari case 86 Ind. Cas. 414 : 52 C. 67 : 29 C.W.N. 300 : A.I.R. 1925 Cal. 587
: 26 Cr. L.J. 782, the-appellant should not have been allowed to make any statements in his
deposition with regard to the earlier occurrences.,
24. Though technically the contention of the Crown is correct, I think that in this case it is right to
give Nilmadhab the benefit of any doubt there may be as to his understanding of the pardon and to
hold that the pardon granted in Calcutta should excuse him from prosecution in the present case.
On those grounds I would acquit the appellant Nilmadhab.
25. On behalf of the appellant Haripado, his Counsel, Mr. Bose, contends in the first place that the
confession made by Haripado was, not a confession covered by Sections 164 and 364 of the Cr. 'P.C;
and, even assuming that the confession could be recorded under those sections, there were such
grave irregularities, and such disregard of the provisions of the Code with regard to the manner in
which the confession should be recorded that Haripado'a confession should be held to be
inadmissible. He urges that the evidence to prove that the confession was made voluntarily is
wanting and that without the confession there is little or no evidence to prove the charges against
Haripado.

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26. Mr. Bose has relied chiefly on the judgment of Mukerjee, J., in Masjidbari case Emperor v.
Panchkari Dutt 86 Ind. Cas. 414 : 52 C. 67 : 29 C.W.N. 300 : A.I.R. 1925 Cal. 587 : 26 Cr. L.J. 782,
This judgment is reported at page 67 of Vol. 52 of the Calcutta Series of the Indian Law Reports, and
I may say that Mr. Bose has adopted all the arguments used by the learned Judge in that case.
27. The point taken is that, under Section 1 of the Cr. P.C, the Code does not apply to the Police in
the towns of Calcutta and Bombay, and as Section 164 lies within Chap. XIV of the Code which is
headed "Information to the Police and their powers of investigation," an investigation by the Police
in Calcutta is not made under the Code. It is argued that the confessions were made in the course of
an investigation by the Police and, therefore, the Code does not apply. The learned Judge, as also the
learned Counsel, rely on the case of Queen-Empress v. Nilmadhab Mitter 15 C. 595 : 7 Ind. Dec.
(N.S.) 980. It was there held that Section 164 does not apply to a confession made before a
Presidency Magistrate. That decision was Come to before the amendment of the section in 1923.
Before the amendment, the section began "Every Magistrate not being a Police Officer may", but in
1923 before those words, the words "Any Presidency Magistrate, any Magistrate of the First Class
and any Magistrate of the Second Class especially empowered in this behalf by the Local
Government may if he is not a Police Officer" were substituted. It is quite obvious that the change
was made to allow a Presidency Magistrate to record a confession in Calcutta in the course of a
Police investigation otherwise the amendment seems altogether meaningless. Section 1 bars the
application of the Code to the Police; it does not bar an application of the Code to a Magistrate or
any Magistrate not being a Police Officer. We cannot believe that the amendment was made without
the intention of giving a Presidency Magistrate power to record a confession. It is sought to be
explained that the addition of the words "Any Presidency Magistrate" has been made in order to
allow such a Magistrate to record confessions where the Police have conducted an investigation
outside Calcutta. The Assistant Sessions Judge has decided the point, which he fully considered, by
finding that as a matter of fact the investigation into the present case was made in Chapra and had
concluded in September 1921.
28. Section 164 allows the recording of a confession by a Presidency Magistrate to be made at any
time after a Police investigation has' closed so long as it is before the commencement of the inquiry
or trial. In the present case the investigation at Chapra had closed and the confession was recorded
before the commencement of the trial. If the confession was not made under the Cr. P.C. then the
rest of the arguments by Mr. Bose regarding" irregularities and contraventions of the provisions of
the Cr. P.C. will have little or no force.
Mukerjee, J.,
29. In his judgment, having found that the confession was not recorded under the Code, comes to
the conclusion that Section 80 of the Evidence Act will not apply to the confession which came
before the Court without any presumptive force of its own, and its admissibility must, be judged as
that of any other evidence and, after citing the rules drawn up by the Government of Bengal for the
recording of confessions and noticing that some of those rules had not been observed by the
Presidency. Magistrate who recorded Haripado's, confession, states: "The position would have been
quite different if the confessions did not stand before me divested of the presumption under Section
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Nilmadhab Chowdhry And Ors. vs Emperor on 23 July, 1925

80 of the Evidence Act, and had been duly recorded under some provisions of the law, or at any rate
if I was able to hold that all proper precautions had been taken in recording them."
30. The learned Counsel, following Mukerjee, J.'s judgment, contends that the confession is bad
because Haripado was arrested on the 4th December and was kept in custody of the Police until he
made his confession before the Magistrate on the 13th.
31. Elsewhere in his judgment Mukerjee, J,, stated that he absolutely disbelieved the allegations
made by Haripado that he had been tortured or ill-treated or induced by the Police to make his
confession, but yet he thinks that the custody of the accused by the Police was against the rules and
had an effect on his decision as to the voluntary-character of the confession. As a matter of fact the
rules of the Calcutta Police are not the same as the provisions of the Code as to the detention of the,
accused persons. It appears that, according to the custom of the Calcutta Police, the accused are kept
in custody by the Police during an investigation but are produced every day before the Deputy
Commissioner who sees them and questions them as to whether they have been ill treated by the
Police or whether any inducement has been held out to them; and in this case we have evidence that
this custom was observed and no complaints were made to the Deputy Commissioner by Haripado
or Sudhir.
32. The next contention is that under the rules the confession should have been recorded in open
Court, whereas the evidence shows that the Presidency Magistrate on subsequent days had
Haripado brought to his house where a statement of his confession was continued. The Code itself
contains no provision as to the confession being made in open Court. On the first date the
Magistrate recorded the confession in Court, after taking every precaution to sea that no Police were
present. It is complained that the confessions were recorded piecemeal, but it was unavoidable
owing to their length. It would have been better perhaps if during the period of the confession the
accused had not been returned to the custody of the Police at night; but there is nothing to show in
this case that Haripado was in any way tampered with.
33. The next objection is that the Presidency Magistrate did not properly warn Haripado and did not
tell him Chat he was a Magistrate. The Magistrate was called as a witness and stated that, to the best
of his memory, he did warn Haripado that he was a Magistrate, and he has also given full evidence
that he was quite satisfied that the confessions were made voluntarily.
34. I have read through the confession and the warnings given by the Magistrate to Haripado, and,
in my opinion, they fully meet the requirements of the law. The Magistrate states that before he
recorded the confession, he took the precaution that he was satisfied that there was no Police Officer
in Court and that he questioned Haripado as to that time during Which, and the places where, he
had be to under the control of the Police. Haripado told him that he was arrested at 4 A.m. on the
4th December and was taken to the Bartola Thana on a Saturday and was sent from Lai Bazar Police
Office at 2 p.M. on the 13th December to have his confession recorded. It may be that the Magistrate
might have obtained more details as to the Police custody but I think-there was sufficient
compliance with the law. Haripado was asked whether he wished to make a statement voluntarily
and he replied that he did, and then he was warned that any statement he might make would be
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used as evidence against him, but Haripado replied that he was willing to make a statement.
35. It was next contended that the confession is bad because it is recorded in English. Haripado is a
Bengali and so was the Magistrate, but it appears that he made his confession partly in English and
partly in Bengali, a mixture of both. Under the circumstances I hold that in recording the confession
in English the provisions of Section 384 were complied with. Haripado knows English well and he
read through his statement and corrected it, showing that he fully understood it.
36. It is hinted that Haripado made his confession under the impression that, if ha confessed, he
would be made an approver, and, therefore, the confession is bad. It may be that he did hope to be
made an approver but, unless this inducement was held out to him by some person in authority, the
thought in his own mind will not affect the admissibility of the confession. There is no sign of this
inducement having been held out to him. He made a very full and convincing confession which
bears every sign of being-voluntary and has no traces in it of being tutored or invented. As a matter
of fact Haripado was kept in custody with Nilmadhab and Lalit, who had also confessed, and when it
was proposed to segregate the men, they expressed ' their desire to remain together.
37. Haripado retracted his confession by a petition, dated the 23rd December, which was filed in
Court on the 27th. It is stated that the retraction was made besause Haripado saw that he was not
going to be made an approver. The hope of being made an approver dose not show that the
confession was not voluntary.
38. It was lastly urged that as the confession was retracted, it can only be acted upon if there is
strong corroboration, and it is contended that in the present case corroboration is wanting; for
instance the evidence that Haripado had consorted with Sudhir and Nilmadhab is scanty and the
Assistant Sessions Judge has relied on certain evidence to prove association which really carries no
proof. It was pointed out that the fact that Haripado and Nilmadhab both dealt with the same
Kabulis in borrowing money can have little effect in the present case, since the evidence shows that
the borrowing was in 1923, whereas the present offence was committed in 1921. But the confessions
show that these men joined in borrowing money from Kabulis from the start, and the evidence that
afterwards in 19^3 they were still borrowing together is corroborative. Prosecution witness No. 26
says that he never heard Haripado and Nilmadhab, talking together in the baker's shop, but he saw
them together.
39. Then Mr. Bose dealt with the point, that the learned Assistant Sessions Judge had drawn,
inferences against Haripado from the evidence that he had taken leave from the Telegraph Office on
several occasions. He was present on the two days when telegraphic money orders in this case were
despatched from Calcutta. He contends that no inference should be drawn from this. But it is
striking that Haripado was present on those days and had been absent both before and afterwards.
The confession of Haripado, though retracted, is strongly corroborated by the confessions of
Nilmadhab and Sudhir and those two confessions are strongly corroborated by the mass of evidence
which has been recorded in this case. Haripado is an intelligent man and was a telegraphist and
would be able to act, as he is said to have done by Nilmadhab and Sudhir, showing the other two
how to prepare bogus money orders while he himself would have the opportunity to place them in
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the clip.
40. In my opinion, the confession of Haripado was made voluntarily and is corroborated, and I have
no doubt in my mind that his conviction was correct.
41. With regard to Sudhir, the learned Vakil who appears for him has stated that his arguments are
the same as those of Mr. Bose on behalf of Haripado. But the case against Sudhir is supported also
by the evidence of witnesses who saw him at Chapra as well as by the other confessions.
42. In each of these confessions the accused implicates himself to the same degree as he implicates
the other accused. Even were there no confession by Sudhir, the oral evidence on the record is fully
sufficient to prove his guilt for he has been fully. identified by Sahebjan and the witnesses from
Darbhanga. I have no doubt about his guilt.
43. It has been contended that the sentences passed on these appellants are too severe. But
considering the seriousness of the offence and the amount of which they have cheated the
Government and the public, I do not think that the sentence of six years' imprisonment which they
are called upon to undergo is by any means, too severe. I am not inclined to reduce it.
44. The learned Assistant Sessions Judge has written an exceedingly good and careful judgment
which meets every one of the arguments put forward on appeal before us fully and completely. He
has shown the greatest care in dealing with the documentary evidence and in explaining the
methods which are followed in despatching telegraphic money orders through the Calcutta
Telegraph Office. He has taken the greatest pains over the case and shown that he has fully
understood and considered every point in it.
45. The result of the appeal is that the appellant Nilamadhab Chowdhury will be acquitted and set at
liberty, and the appeals of Sudhir and Haripado are dismissed.
Bucknill, J.
46. The learned Counsel, Sir Ali Imam, who has appeared for the appellant, Nilmadhab Chowdhry,
has only raised before us one point upon his client's behalf. It is simply that he was granted a pardon
in a criminal case the circumstances in which were relative to the offence of which he has been
convicted in the present proceedings which are now before this Court; and that in view of this
pardon he cannot properly be convicted of the offence of which he has actually been convicted. In
order to appreciate this plea, it is necessary to ascertain exactly what took place. Sometime ago it
was discovered in Calcutta that extensive forgeries of Government notes were taking place. Certain
persons were detained by the Police in connection therewith and amongst them was the appellant,
On the 13th December, 1923, the appellant made a long confession (which occupied more than one
day) before a Magistrate of the First Class. This confession disclosed the association of the appellant
with a number of other persons including the two other appellants in the present case in a series of
crimes. Those included the swindling of the Post Office over money orders which is the
subject-matter of the present case, the forgery of notes and the tapping of the Government telegraph
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wires, so as to be able to send bogus telegrams. In connection with these offences the appellant
Haripado Mukherji was throughout one of the associates but not so the appellant Sudhir Kumar
Banerji who was principally only concerned with the money order fraud. In his confession the
appellant spoke first of the money, order swindle, then of the telegraph tapping and lastly of the
note forgery. Besides the other two appellants, other persons were also implicated by the appellant
in his confession. At this date there had apparently been no suggestion made that the services of the
appellant might be utilized as an approver and no inducement of any kind had been held out to the
appellant, of a nature which would have persuaded him to make this confession. At that time indeed
it was only the note-forgery matter which was being investigated and it certainly seems somewhat
strange that the Magistrate should, without any specific warning to the appellant that by his
confession he was involving himself in responsibility for crimes other than that in connection with
which he had been under detention, have permitted him to confess to the commission of those other
offences, unless indeed the Magistrate thought that the history which was being unfolded by the
appellant constituted a connected series of organized, malpractices carried out by a body of
conspirators; the personnel, however, of which may not always have been constant or identical. On
the other hand, the Magistrate may hare thought that what the appellant detailed with regard to the
money order frauds was introduced to indicate the way in which that offence led up through the
telegraph tapping operations to the association of the appellant with those with whom the
note-forgery was undertaken. It may at once be said that, as a result of the appellant's remarkable
disclosures, enquiries were put on foot with reference to these other crimes as to the commission of
which he had given details. The primary upshot, however, was that the appellant and others were
charged in connection with the note-forgery offence which is usually referred to as the Masjidbari
Note-Forgery Case 86 Ind. Cas. 414 : 52 C. 67 : 29 C.W.N. 300 : A.I.R. 1925 Cal. 587 : 26 Cr. L.J.
782, It would seem, however, that it was difficult to obtain evidence of a convincing character
against the accused; for, on the 10th March. 1924, it is found that the Public Prosecutor in the
Presidency Police Court at Calcutta writes to the Additional Chief Presidency Magistrate to the
following effect:
Emperor v. Panchkori Dutt 86 Ind. Cas. 414 : 52 C. 67 : 29 C.W.N. 300 : A.I.R. 1925 Cal. 587 : 26 Cr.
L.J. 782. Sections 489A, 489B, 489C, 489D and 120B; Indian Penal Code.
In the above case which is now under enquiry before your Worship, it is necessary to examine some
of the accused person or persons directly concerned in the conspiracy, with a view to obtaining his
or their evidence in the case, and in order that the whole plot may be brought to light and that the
material facts disclosed by such person or persons may be corroborated by other independent
evidence in support of the' disclosures made by such person or persons; The facts disclosed by such
person or persons would appear from the statement or statements voluntarily made by such person
or persons to the Magistrate before whom he or they were placed after arrest. As it;, will appear that
Nilmadhab Chowdhry; has made a, full disclosure of the whole conspiracy fully implicating himself
and the other,, accused persons concerned in the conspiracy, I pray that the said Nilmadhab
Chowdhry, be tendered pardon under Section 337, Cr. P.C., and examined as an approver in the
case. "The material portions of Section 337 are that a, competent Tribunal may at any stage of the
investigation or enquiry into, or the trial of, any of the offences specified in the section, with a view
to obtaining the evidence of any person supposed to have been directly or indirectly' concerned in or
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privy to the offence, tender a pardon to such person, on condition of his, making a full and true
disclosure of the whole of the circumstances relative to the offence and to every other person
concerned, whether as principal or abettor, in the commission thereof.
47. The Additional Chief Presidency Magistrate, on receiving, the application of the Public
Prosecutor, made the, following order on the same day:
Perused the application, of the Public Prosecutor and heard him. It is a case of a big and widespread
conspiracy to forge and utter Government Currency notes and all the facts of the conspiracy, cannot
be obtained unless pardon is tendered to some of ;th accused. So under Section, 337, Cr. P.C., I
tender pardon to Nilmadhab Chowdhry alias Dhanajoy Chowdhry one of the accused, on condition
of his making a full and true disclosure of the whole of the circumstances within his knowledge
relative to the offence, and order that he be examined as a witness in. the case
48. The Magisterial enquiry then proceeded; the appellant was called as a witness for the
prosecution and he was allowed substantially to give in his evidence testimony to the same effect as
were the statements contained in his confession to which I have already referred. He disclosed, as he
had done in his confession, the methods employed in connection with the money, order frauds
which are the subject-matter of his present conviction. It is difficult to understand how such matter
could have been allowed either by the Court or by the Public Prosecutor to have been introduced
into his evidence unless it was at that time thought that the incidents connected with the money
order frauds were associated with and relevant (or to use the word of Section 337 of the Cr. P.C.
relative) to the offence which was then the subject-matter of the enquiry, that is to say, to the
Masjidbari Note-Forgery. Further than that we are informed that certain witnesses were called by
the Public Prosecutor who corroborated portions of the appellant's evidence with regard to the
money order frauds, and, although it may be that their evidence may have been primarily intended
to be directed towards fixing the guilt upon the accused in the note-forgery case, there is no doubt
that their evidence was relevant to the money order frauds as well. Now, the learned Government
Advocate, who has appeared here in support of the present conviction of the appellant, suggests that
the admission at the Magisterial enquiry of all this evidence, to which I have just referred, was a
blunder; and he points to the fact, in support of his suggestion, that at the trial it was all dropped, no
questions being then asked by the Standing Counsel for the Crown of the appellant and of other
witnesses, relating to the money order fraud?. It may here be mentioned that the prosecution failed
and that the accused in the note forgery case were all acquitted. There can be no question but that
the appellant fulfilled all the conditions under which his pardon was granted.
49. Put the appellant was then proceeded against in connection with the money order frauds; he was
tried before the Assistant Sessions Judge at Saran, he at once raised the plea that in view of the
pardon which had been granted to him in the Masjidbari Note-Forgery Case 86 Ind. Cas. 414 : 52 C.
67 : 29 C.W.N. 300 : A.I.R. 1925 Cal. 587 : 26 Cr. L.J. 782, he could not be put on his trial in
connection with the money order frauds. This defence having been raised as a plea in bar was heard
by the Additional Sessions Judge, who decided the point against the appellant; against this order the
appellant appealed to this Court, the matter came before Mr. Justice Mullick and myself and we
ordered that he should be allowed definitely to take this plea at the trial. The point was heard before
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the Additional Sessions Judge at the trial and was argued at considerable length. The learned
Additional Sessions Judge came to the conclusion that the note-forgery case was in no way
associated with the money order frauds and that consequently the pardon granted to the appellant
did not extend so far as to protect him against a prosecution for his participation in the latter crime.
The matter, however, is not quite so simple as it might at first sight appear. One of the most
important considerations is as to why the appellant should have been allowed to implicate himself in
offences other than the note-forgery if it was not thought by those who represent the Crown directly
or indirectly that such other offences were associated with or relative to the note-forgery case.
Another important consideration is as to from what consequences the appellant was under the
reasonable impression that he had delivered himself when he received a pardon in consideration of
his turning approver. It is true that when he made his confession it had not apparently been then
mooted to him that he might obtain a pardon and be called as a prosecution witness, but he was
allowed without any warning to implicate himself in most serious crimes which were not then the
subject-matter even of enquiry, far less of any threatened charge against himself. Although it can be
argued that the three branches of crime in which the appellant admitted that he had taken part were
not in point of time or partly in point of character directly connected with each other, it is idle to
contend that they did not form a part of the doings of a criminal association of persons, the
membership of whose band varied to some extent but remained constant, so far as the appellant and
his co-accused, Haripado, were concerned. Then, again, with full knowledge that the appellant had
hopelessly involved himself in a series of offences, the Public Prosecutor, when suggesting that the
appellant should be allowed to become an approver, puts forward as a reason the suggestion, that
the whole plot must be brought to light and selected the appellant as the most suitable of the
accused for utilization by the Crown as a prosecution witness because of the fact that the appellant
had already made a full disclosure of the whole, conspiracy. Undoubtedly the language of the pardon
itself is restricted because it merely speaks of the case being one of a big and widespread conspiracy
to forge and utter Government Currency notes, but, on the other hand, the pardon is offered if the
appellant makes a full and true disclosure of the whole of the circumstances within his knowledge
relative to the offence. How then can one infer what were at that time thought to be the whole of the
circumstances relative to the offence? What did the appellant think they were and what did the
Public Prosecutor and the Additional Presidency Magistrate also think they were? To my mind the
fact that the whole of the incidents relating to the money order frauds and the tapping of the
telegraphs was given in evidence at the Magisterial enquiry indicates that the impression of the
appellant, the Public Prosecutor and the Additional Chief Presidency Magistrate was that those
incidents were relative to the note-forgery case. Had that impression not existed, it would indeed be
difficult to contemplate either that the appellant should have given evidence relating thereto or that
the Public Prosecutor or the Magistrate could possibly have allowed so much testimony in no way
relevant or relative to the note-forgery case to have been given.
50. The fact that later on at the trial itself, the Standing Counsel thought lit not to allow a repetition
of this evidence to be adduced, does not seem to me to affect the position. I have no doubt that, had
he been asked the necessary questions, the appellant would have re-iterated what he had said
before, but he was imply not called upon to do to. That fact cannot in the least affect the position as
it existed when he was offered and accepted the pardon nor the attitude of mind of the appellant, the
Public Prosecutor and the Magistrate when the pardon was tendered, agreed to and granted.
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51. The case known as Garside's case (1838) 2 Lew. 38 : 168 E.R. 1071,(of which report the Library of
this Court does not unfortunately contain a copy but which is quoted in Russell on Crimes, 4th
Edition, Vol. Ill, p. 597) supports my view that, where an accomplice has been allowed to turn King's
evidence (i.e., has been, as it is termed in India permitted to become an approver) and in his
confession discloses offences (in that case another robbery by the same parties but quite distinct
from the robbery the subject-matter of the charge) other than that which was the subject of the
charge against him and from liability to answer for the consequences of which he was (even
wrongly) under the impression that he had freed himself by his confession and pardon, the Crown
should not proceed against him in connection with such other offences. No question can, of course,
arise where the offence clearly pardoned and that or those further disclosed by the approver are
obviously closely linked together, such as for instance occurred in the case of Queen-Empress v.
Ganga Charan 86 Ind. Cas. 414 : 52 C. 67 : 29 C.W.N. 300 : A.I.R. 1925 Cal. 587 : 26 Cr. L.J. 782, but
a remark of Straight, J., in his judgment in that case is well worthy of note; it is this, "It must be
borne in mind that in countenancing these pardons to accomplices the law does not invite a
cramped and constrained statement by the approver, on the contrary it requires a thorough and
complete disclosure of all the, facts within his knowledge bearing upon the offence or offences as to
which he gives evidence, and when he has given his evidence, I do not think that the question of how
far it is to protect him and what portion of it should not protect him, ought to be treated in a narrow
spirit."
52. I myself cannot but think that the course of events in this case, namely, the confession, the
knowledge of the Public Prosecutor of the full reference in it to the money order frauds, the wide
language used in. the Public Prosecutor's application and in part of the Magistrate's offer of pardon,
the connections (such as they were and small though they might be) between the offences disclosed,
and the admission, at the Magisterial enquiry of evidence as to the money order frauds show, that, at
the time of the pardon, it-was undoubtedly thought by all concerned that the, disclosures as to the
money order frauds were really relative to the note-forgery case.
53. In this view, therefore, the appellant's appeal must succeed.
54. It is suggested by the learned Government Advocate that the Magistrate had no power to grant
such a pardon of so wide a character, this must, of course, depend upon whether the disclosures
relating to the money order frauds were really relative to, the note-forgery case, but even if the
Magistrate was wrong in thinking that they were both relevant or even relative, it would not be, I
think, in the contemplation of the Crown that if its Court purported to grant such a pardon, such
Court's action should be jettisoned to the grave jeopardy of the subject.
55. For the above reasons I think that the appeal of the appellant, Nilmadhab Chowdhry, must be
allowed, that his conviction and sentence must be quashed and that he must forthwith be set at
liberty.
56. With regard to the appeals of the other two appellants, Haripado and Sudhir, I have had the
advantage and opportunity of reading the judgment of my learned brother with which I may say at
once that I entirely agree and to which I desire only to add a few words. With regard to the intention
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of the Legislature in amending Section 164 of the Cr. P.C. in 1923 by the introduction of the words
"Any Presidency Magistrate," an examination of what took. place in the Legislative : Assembly leaves
no doubt. On the 31st January, 1923, (see Legislative Assembly Debates, Vol. III, Part II, 1923, p.
1747) it will be found that Sir Henry Moncrieff Smith in moving the amendment said: " Sir, before
we leave Sub-clause (1) of Clause 34.I should like to invite the attention of the House to what is
obviously a somewhat serious omission in the clause as drafted by the Joint Committee. It has till
just this moment escaped the notice of the House. In the way it is drafted no Presidency Magistrate
can record a statement or a confession. I think this is a most serious defect and I should like to ask
the indulgence of the House to enable me to move an amendment which will remedy that defect.
The amendment will run as follows: "That in Sub-clause (i) of Clause 34, before the word Any
Magistrate the words Any Presidency, Magistrate be inserted.'"
57. The motion ,was adopted,
58. It may, of course, justly: be said that what the intention of the Legislature was is not really
material when a Tribunal is called upon to place a construction upon the words of a section in an
enactment, but I thought that it would be as well to dissipate any doubt there might be with regard
to what was in fact the intention of the Legislative body. It is quite true that in the case of Emperor v.
Panchkori Dutt 86 Ind. Cas. 414 : 52 C. 67 : 29 C.W.N. 300 : A.I.R. 1925 Cal. 587 : 26 Cr. L.J. 782.
Mukerji, J., has held that Section 164 of the Cr. P.C. does not apply to a confession recorded in a
Presidency town in the course of a Police investigation not held under the orders of a Presidency
Magistrate under a Section 155 and 156, Sub-section 3 of the cr. P.C. With every respect to the
opinion of that learned Judge I cannot but think that in coming to his decision he has relied upon
the case of Queen-Empress v. Nilmadhab Mitter 15 C. 595 : 7 Ind. Dec. (N.S.) 980, but that case was
decided prior to the amendment to which I have made reference above.
59. I am at a loss to understand how Section 1 of the Cr. P.C. can be regarded as preventing a
Presidency Magistrate from recording a confession in accordance with the provisions of Section 164;
he is not a Commissioner of Police or a member of the Police force. It is said that Section 164 can
only be, utilized when an investigation is being made by the Police under the provisions of Chap.
XIV of the Code or at any time afterwards before the commencement of the inquiry or trial resulting
from such an investigation, and that as in Calcutta investigations by the Police are not effected I
under the provisions of Chap. XIV the operation of Section 164 cannot be brought into play. I can
only say that in my view this is a narrow construction of the section with which I do not feel that I
can agree, although I am far from suggesting that it is not a possible construction. In my opinion
even though the Police in Calcutta may not conduct their investigations in precise accordance with
the provisions of Chap. XIV a construction of Section 164 which would exclude its utilization in
Calcutta during a Police investigation or at any time afterwards before the commencement of the
enquiry or trial is to read it in a, somewhat strained and unnatural sense.
60. As for the' remaining points raised by the learned Counsel for, these two appellants I can only
say that I could see no ground; for thinking that there was any irregularity, in the way in which the
confessions, were recorded nor the least indication that they were not entirely voluntary.. They bore
too intrinsic evidence of truth and though the appellants have now retracted them they were, in my
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