# BAIDYA NATH PRASAD SRIVASTAVA v. STATE OF RIBAR

- **Citation:** [1969] 1 S.C.R. 172
- **Court:** Supreme Court of India
- **Decided:** 1968-04-30
- **Case number:** Criminal Appeal No. 47 of 1966
- **Bench:** V. Ramaswami, G. K. Mitter, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baidya-nath-prasad-srivastava-v-state-of-ribar-4365
- **Pages:** 4

## Headnote

8
Evidence-Failure of accused to produu evidence in support of his
plea cannot be 1nade basis of conviction-It is for prosecution to prove
its case.
Code of Criminal Procedure, s. 342A-Failure of accu:nd to examine
himself--Court must 1101 co1nnten1 on it.
The appellant was a Mukhtear practising in Bihar. He along with
some others attested ·the identity of certain persons on applications fer
loans under the Agriculturists Loan Act, 1884. It was found that the
applications had been made under false names and the appellant along
with other accused was tried for an offence under s. 467 read with s. 109
l.P .C. The appellant's plea was that he had made the endorsements on
the assurance of a co-accused and in view of the fact that
another
~ukhtear, D had also attested the loan applications. D's plea as an
accused was that he had made the attestation on the assuranee of one
R.
The Sessions Judge acquitted all the accused.
The State of Bihar
appealed to the High Court. Durio~ the pendency
of the appeal D
died. The High Coun set aside the
acquittal of the
appellant and
convicted him on two grounds namcly, (i) iliat though he had raised
a defence that he had attested the applications on the assurance of S,
no evidence had been produced to support this defence; (ii) that D with
whose case the appella!\l's case was closely connected had not examined
him"'lf under s. 342A of the Criminal Prooedure Code in support of
his plea, and the same consideration applied to the appellant also.
On
appeal to this Court by special leave.
HELD : The order of the High Court could not be sustained.
(i) Jn requiring evidence in support of the plea raised by :he appellant the High Coun really threw the burden of proof on him instead
of finding out whether the prosecution had proved its ~
and whether
the order of acquittal was erroneous. [ 174 Fl
(ii) In commenting on the failure of the accused to examine thc1nsel»cs on oath under s. 342A Cr. P.C. the Hi~h Coun committed a breach
of the proviso to that section which specifically states that the failure of
an accused to give evidence sh31l not be made the subject of comment
by any of the parties, or the court, or give rise to n~Y pr_esumptioo
a<?ainst himself or any other person charged together with btm at the
same time. [175 Bl

## Text

BAIDYA NATH PRASAD SRIVASTAVA
v.
STATE OF RIBAR
April 30, 1968
A
[V. RAMASWAMI, G. K. MITTER AND C. A. VAIDIALINGAM, JJ.]
8
Evidence-Failure of accused to produu evidence in support of his
plea cannot be 1nade basis of conviction-It is for prosecution to prove
its case.
Code of Criminal Procedure, s. 342A-Failure of accu:nd to examine
himself--Court must 1101 co1nnten1 on it.
The appellant was a Mukhtear practising in Bihar. He along with
some others attested ·the identity of certain persons on applications fer
loans under the Agriculturists Loan Act, 1884. It was found that the
applications had been made under false names and the appellant along
with other accused was tried for an offence under s. 467 read with s. 109
l.P .C. The appellant's plea was that he had made the endorsements on
the assurance of a co-accused and in view of the fact that
another
~ukhtear, D had also attested the loan applications. D's plea as an
accused was that he had made the attestation on the assuranee of one
R.
The Sessions Judge acquitted all the accused.
The State of Bihar
appealed to the High Court. Durio~ the pendency
of the appeal D
died. The High Coun set aside the
acquittal of the
appellant and
convicted him on two grounds namcly, (i) iliat though he had raised
a defence that he had attested the applications on the assurance of S,
no evidence had been produced to support this defence; (ii) that D with
whose case the appella!\l's case was closely connected had not examined
him"'lf under s. 342A of the Criminal Prooedure Code in support of
his plea, and the same consideration applied to the appellant also.
On
appeal to this Court by special leave.
HELD : The order of the High Court could not be sustained.
(i) Jn requiring evidence in support of the plea raised by :he appellant the High Coun really threw the burden of proof on him instead
of finding out whether the prosecution had proved its ~
and whether
the order of acquittal was erroneous. [ 174 Fl
(ii) In commenting on the failure of the accused to examine thc1nsel»cs on oath under s. 342A Cr. P.C. the Hi~h Coun committed a breach
of the proviso to that section which specifically states that the failure of
an accused to give evidence sh31l not be made the subject of comment
by any of the parties, or the court, or give rise to n~Y pr_esumptioo
a<?ainst himself or any other person charged together with btm at the
same time. [175 Bl
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
47 of 1966.
Appeal by special leave from the judgment and order dated
September 6. 1965
of the Patna High Court in Government
Appeal No. 23 of 1962.
B. P. Singh and D. N. Misra, for the appellant.
D. P. Singh and K. M. K. Nair, for the respondent.
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BAIDYA NATH v. BlliAR STATE (Vaidialinlfam, I.)
173
A
The Judgment of the Court was delivered by
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Vaidialingam, J. On behalf of ~e sixth-accused, the appellant herein· in this appeal, by special leave, Mr. B. P. Smgh,
learned co~nsel, challenges the order of the Patna High Court,
dated September 6, 1965, setting aside the order of acquittal,
passed by the Second Additional Sessions Judge, Muzaff3:1'pur,
and convicting hinl for an offence, under s. 467, read with s.
109, IPC., and passing a sentence of three months' rigoroUs imprisomnent.
For the relief and rehabilitation, of people who had suffered, in 1954, by the heavy floods in Sitamarhi Sub-Division, the
Government of Bihar was granting loans to needy and suitable
persons, under the Agriculturist's lpan Act, 1884. The appeJc
!ant was a Mukhtear, practising at Sitamarhi. There are certain
formalities, to be gone through, in the matter of obtaining the
loans, under that Act. One of the requirements was that an applicant had to put his signature, on an agreement form and, that
he should be identified, by a lawyer, who should also attest his
signature. Several officers, connected with this Loan Department,
including the Mukhtears practising at Sitamarhi, one of whom
was the appellant, were alleged to have entered into a conspiracy,
between November 19, 1955 and December 22, 1955, to cheat
the Govermnent, by inducing it to grant loans, iri the names of
fictitious persons, and, in pursuance . of that conspiracy,
two
applications, for loans in the names of two fictitious persons, Durga
Singh and Hari Shankar Singh, were filed before the Sub Divisional Officer, Sitamarhi. According to the prosecution, the appellant and another Mukhtear. Devendra Prasad, had certified,
in the loan applications of Durga Singh arid Hari Shankar Singh,
that they knew those parties and that they had signed, in their
presence. The amounts were drawn, in the usual course, from
the .treasury, by the said two persons; and, ultimately, it came
to light that the two persons were fictitious persons, got up by
the several accused.
The appellant admitted having attested, in
the loan applications of the two individuals concerned
but he
stated that he did so, on the assurance of one Sheoj~ Prasad
Karpardaj. It may be stated that this Sheojee Prasad Karpardaj
was also ~barge-sheeted, but he has been discharged, even by
the cotmruttal Court.
The . learned Sessions Judge found, on the evidence, that
Durga Smgh and Hari Shanl;;ar Singh were fictitious persons and
a fraud was committed, on the Sub Divisional Officer, Sitamarhi,
and the Sub-treasury, as a result of which the Government sustained a loss of Rs. 1,000/-. The learned Sessions Judge accepted the appellant's plea that he1 had made the endorsement on the
174
s1;rRBIE COlJRT REPORTS
[1969) I S.Cll..
assurance of Sheojce Prasad Karpardaj and, in view of the fact
that other Mukhtiar, Devendra Prasad, had also attested the loan
applications, and acquitted him. This Devendra Prasad had also
been charged, for the same offence.
While admitting, having
anestcd the signatures of the ;tpplieants for the lo:m, Devendra
Prasad had set up a plea that he did so, on the assurance, given
by one R.udradeo Singh.
This explanation has been accepted,
by the trial Coun and Devendra Prasad was acquitted. But, when
the State appeal, against acquittal, was pending in the High
Coun, Dcvendra Prasad died.
But. we have to refer to certain
observalions. made by the High Court, regarding this Devendra
Prasad, which have. more or less, fonncd the grounds. for setting aside 1hc order of acquittal of the appellant also. The High
Court, on appeal. by the State Government, has set aside the
order of acquittal of the appdlant.
Two reasons, so _far as we
could sec, haw been given, by the High Court, for interfering
with the order of acquittal, viz. : (i) that. though the appellant
raised a defence that he attested lhe loan applications. on the
representation and assurance of Sheojee Prasad Karpardaj, oo
evidence has been let in, by the appellant. to support this defence;
and (ii) Devcmlra Prasad, with whose case t~e appellant's also
"as closely coru1ected, had raised a plea that he attested the loan
applications. on the assurance and representation of Rudradeo
Singh and that Devendra Pras:u! has not examined himself as a
witness. under s. 342A, Cr.P.C, nor did he adduce any other
evidence. in support of his claim. It is really, on these grounds,
that the appellant has been convicted, for the offence under s.
467 read with s. I 09. IPC., and sentenced to undergo rigorous
imprisonment. for a period of three months.
We arc satisfied that the order of the High Court cannot be
sustained. Regarding the first point, mentioned above, the High
Court has really thrown the burden of proof on the appellant,
instead of finding out whether the prosecution has proved its case
and whether the order of acquittal is erroneous.
Regarding the
second point the High Court has really committed a breach of
the proviso to s. 342A, when it has commented upon the noncxamination of Devcndra Prasad, that he has not examined himself, as a defence witness.
Under cl. (b). of the proviso to
s. 342A, Cr.P.C., it is specifically provided that the failure of
an accused to give evidence, shall not be made the subject of
any comment, by any of the parties, or the Court, or give rise
to any presumption against himself, or any person charged, toocther with him. at the same time. The High Court has stated
that the case of the appellant is closely connected with that of
Dcvendra Prasad.
In fact. the appellant had pleaded that he
had attested the signatures of the applicants, for the loans, 00.
cause Dcvendra Prasad. another Mukhtear, had attested the same
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BAIDYA NATH V, B!HAR STATE (Vaidialingam, J.)
17 5
and also on the assurance of one Sheojee Prasad Karpardaj.
Devendra Prasad had taken a plea that he had attested the signatures of the applicants, on the a5surance of one Rudradeo Singh,
a class-mate of his. It is in considering this plea that the High
Court has commented upon the failure of Devendra Prasad to give
evidence under s. 342A, and the High Court has also taken the
view that the same reasons will apply to the appellant's defence
also. That is, the failure of the appellant, to give evidence, has.
been commented upon, by the High Court, and it has also drawn
a presumption, against him, both of which are illegal, under
clause (b) of the proviso to s. 342A, Cr.P.C.
In view of this serious infirmity, in the judgment of the
High Court, the order, under attack, is set aside, and the order
of the Second Additional Sessions Jndge, Muzaffarpur,_ acquitting the appellant, will stand restored. In the result, the appeal
is allowed.
G.C.
Appeal allowed.