H.N.Kapoor - (1.) THIS appeall has been filed by Tejpal Singh against the order and judgment dated 15-9-1976 of the Special Judge, Meerut convicting him under section 165-A IPC and sentencing him to three months' RI..
(2.) A preliminary objection was raised by the learned Deputy Government Advocate that the appeal is barred under section 376 CrPC as the sentence is only for three months' RI and under Sec. 9 of the Criminal Law (Amendment) Act No. XLVI of 1952 for purposes of appeal or revision the Special Judge would be deemed to be a court of session. There appears to be force in this argument. Learned counsel for the appellant, however, prayed that this appeal may be treated as a revision and it be disposed of accordingly. His main contention is that section 165-A IPC did not exist on the date when the offence was said to have been committed and as such the conviction is illegal. I consider it a fit case for treating it as a revision and for interference under there visional jurisdiction. The prosecution case briefly stated is as follows. Tejpal Singh had gone to the Military Recruitment Office at Meerut for being recruited as a sepoy in the Army on 29-9-1974. Devi Datt (PW 5) who was a peon there was working as recruiting assistant. There were two other such assistants. As stated by (sic) there for getting themselves recruited to fall in a queue for the purpose of examination by the recruiting officer Lt. Col. N. S. Chandhoke (PW 1). Sometime, the recruiting assistant used to take measurements and weight also when directed by the recruiting officer. He himself has no power to recruit any person. It is said that the appellant took Devi Datt aside in room and requested him to get recruited. So he offered to pay Rs. 80/- to Devi Datt for this purpose. Devi Datt stated that no money for recruitment was taken. Even then he put bundle containing Rs. 80/- in the pocket of the pant of Devi Dartt. Devi Datt at once took him to the room of the recruiting officer Lt. Col. N. S. Chandhoke (PW 1) and narrated the facts to him. He also produced the sum of Rs. 80/- before him. The appellant was then detained in the room of Lt. Col. N. S. Chandhoke. He is said to have a talk on phone with the S. P. and at the suggestion of the S. P. he talked to the station officer Sadar Bazar who at once arrived there in a jeep. In the meantime Lt. Col. N. S. Chandhoke asked the appellant to state the facts and threatened that otherwise he would call the police. The appellant is then said to have made an extra judicial confession before him. It was not reduced in writing. Lt. Col. Chandhoke then asked Devi Datt to give a written report which he forwarded with his endorsement and handed it over to S. I. Raghubir Singh (PW 2) who had arrived there. The accused along with the eight ten rupees notes were handed over to the police officer. The Sub-Inspector then took the appellant with him to the police station where a case under section 165-A IPC was registered against him. S. I. Sohanlal (PW 6) took up the investigation of the case and after completing the investigation, he submitted the chargesheet against the appellant who was duly tried. In his earlier statement the accused had denied the prosecution allegations and stated that he had not given Devi Datt Rs. 80/- nor had made any such confession before the police officer. In a subsequent statement, he however, stated that he stood in a queue. Devi Datt, however, took him aside and asked him to pay Rs. 200/- for getting him recruited. As he avoided paying anything Devi Datt then threatened that he would otherwise take him to Col. Sahib and did take him to Col. Sahib. He did not adduce any evidence in defence.
(3.) THE learned Special Judge did not plaice any reliance on the extra judicial confession said to have been made before Lt. Cel. N. S. Chandhoke (PW 1) because in his opinion it was hit by Sec. 24 of the Indian Evidence Act because such a confession was extracted under threat that police could be called otherwise. It was obviously meant that inducement was given that he would not be handed over to the police in case he had made such a statement. THE conviction is thus based on the solitary testimony of Devi Datt (PW 5). Nayab Risal Dar Mahendra Singh (PW 3) head clerk of that office was also examined. He stated that he did not hear any talk between the appellant and Devi Datt) who were in the other room. He stated that he was called by Col. Sahib. At his dictation he prepared the FIR. He had also prepared the details of eight ten rupee notes which were lying on the table of Col. Sahib. The first point to be considered is whether section 165-A IPC was on the statute book on the date when the offence was said to have been committed. This section was inserted by Sec. 3 of Act No. XLVI of 1952 Criminal Law (Amendment) Act of 1952. This section was then repealed by Repealing and Amending Act No. XXXVI of 1957 section 2 the first Schedule. According to the First Schedule, sections 2, 3, 4 and 5 of Act No. XLVI of 1952 were repealed. The obvious conclusion would be that this section does not exist any more on the statute-book after the Repealing and Amending Act. It is surprising that in the latest edition Indian Penal Code by Chitaley (1974 Edition), it is still shown to be existing. There could thus be no convictions under section 165-A of the IPC.;