PROVINCE OF BIHAR Vs. BHAGWAT PRASAD

JUDGEMENT

(1.) This is an appeal by the Province of Bihar against an order of Mr. G.P. Varma, Deputy Magistrate of Siwan, acquitting the respondent, Bhagwat Prasad on two charges on which he was prosecuted one a charge of falsification of accounts and the other a charge of attempting to convert to his own use 80 bags of rice -which was part of the stock in a godown in which, until 21 July 1947, he was in sole charge.

(2.) On 2l July, 1947, in pursuance of orders which had been issued some considerable time previously by the Provincial Government, double locks were put on the godowns, one key being given to the respondent and the other key to the Market Inspector. Three days later, the head clerk of the Price Control Department, and another clerk, along with the Market Inspector, went to the godowns and proceeded to count the bags in them. It is said that, when they came to a small room in one of the godowns, the coolies told them that there was nothing in it sand that it was dangerous to go inside as they might come across snakes. The respondent, it is said, also assured them that this room was empty. According to the prosecution, the Market Inspector went on to count the bags in the other godowns but as his suspicion had been aroused, came back to this room and forced it open and discovered the 80 bags of rice inside. Two days later, on 26 July 1947, the respondent made a long and circumstantial statement to a Deputy Magistrate. In this he admitted that the 80 bags of rice had been put in this room in order that they might be clandestinely removed and sold to some dealer and the sale proceeds misappropriated. He asserted, however, that although he himself had been privy to this, the initiative had come not from him but from the Market Inspector himself and the head clerk and that there had been a conspiracy in which he took a very minor part. The respondent also admitted in this statement that the 80 bags of rice had been offered to a dealer, Mohan Lai, and that this man had declined to buy them. Mohan Lai gave evidence at the trial and said that it was the respondent who had offered the bags to him and implied that neither the Market Inspector nor the head, clerk had had anything whatever to do with the transaction. Mohan Lai, "however, also said that the offer had been made to him on 26 July 1947, that is, after the concealment of the bags had been discovered, and it is more than a little difficult to believe that the respondent would then have ventured to try and get rid of them on his own responsibility. The learned trying Magistrate distrusted the evidence of Mohan Lal, and I think myself, distrusted it with good reason. The most serious defect in the judgment of the Court below is that it excluded from its consideration the statement made by the respondent. That statement was clearly admissible in evidence as a piece of conduct inconsistent with the respondent's innocence. It does not, however, carry the case for the prosecution much further and shows no more than this, that the respondent had formed the intention of selling or assisting in selling these bags of rice to some dealer and so converting them to his own use. It is obviously immaterial whether he alone had formed this intention or whether others besides himself had shared in the intention and hoped to share in the profit--which was made. Shortly after 24 July 1947 the respondent made an entry in one of the registers which he had maintained, purporting to show that the reason why these 80 bags had been placed in the room in-which they were discovered was to facilitate their being issued to dealers on regular permits. It is quite clear that this, by itself, cannot possibly amount to falsification of accounts and is of significance merely as showing that the respondent had formed a criminal intention.

(3.) It was suggested more than once during the hearing of the appeal that the act of the respondent in removing these 80 bags from the part of the godown in which they had originally been kept and secreting them in the small room itself amounted to conversion. It seems to me, however, impossible to say that that was so. In Hiort V/s. Bott (1874) 9 Ex. 86 conversion was said to occur "where a man does an unauthorised act which deprives another of his property permanently or for an indefinite time." The question that really arises in the appeal is whether this act of the respondent amounted to an attempt to convert the bags of rice to his own use or was merely an act of preparation for the commission of that offence. Section 511, Indian Penal Code, states: "Whoever attempts to commit an offence...and in such attempt does any act towards the commission of the offence." The act done, by the respondent was an act towards the commission of an offence, but was it an act done in an attempt to commit that offence? An attempt to commit an offence is, as I understand it, an act, or series of acts, which leads inevitably to the commission of the offence unless something, which the doer of the act or acts neither foresaw nor intended, happens to prevent this. An act done towards the commission of an offence, which does not lead inevitably to the commission of the offence unless it is followed or, perhaps, preceded by other acts, is merely an act of preparation. This, I think, is made clear by the two illustrations to Section 511, Indian Penal Code. Now, adopting this criterion, the act of the respondent in secreting these bags of rice, either on his own initiative or with the knowledge and consent of others, was merely an act of preparation. It is not as if, when the bags were discovered, there was a line of bullock carts outside the godown waiting for the bags to be loaded on them, nor is it as if the respondent had already manipulated his registers in such a way as to make it appear that the bags in the other godowns and the other part of this godown comprised the entire stock of which he was in charge.