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    PETITIONER:
PYARE LAL BHARGAVA

	Vs.

RESPONDENT:
STATE OF  RAJASTHAN

DATE OF JUDGMENT:
22/10/1962

BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
IMAM, SYED JAFFER
AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.

CITATION:
 1963 AIR 1094		  1963 SCR  Supl. (1) 689
 CITATOR INFO :
 RF	    1967 SC 349	 (11)
 F	    1973 SC 264	 (5)


ACT:
Criminal  Law-Theft-Temporary  deprivation of  property,  if
wrongful    loss-Retracted   confession-Evidentary    value-
Corroboration-Rule of practice-Indian Penal Code, 1860	(Act
45  of 1860), ss. 378, 379-Indian Evidence Act, 1872  (1  of
1872), ss. 3, 24.



HEADNOTE:
The appellant was convicted under s. 379 of the Indian Penal
Code.	He  was	 a Superintendent in  the  Chief  Engineer's
office and got a file removed from the Secretariat through a
clerk, took it home and made it available to his friend, the
co-accused,  who removed certain documents  by	substituting
others.	 The appellant returned the file to the office	that
next  day.   He made a confession when	the  Chief  Engineer
threatened that if he did not disclose the truth the  matter
would be placed in the hands of the Police.  That confession
was  later  retracted.	The three courts below were  of	 the
opinion	 that  the statement of the Chief Engineer  did	 not
amount to a threat in the circumstances of the case.
Held,  that s. 24 of the evidence Act waives  the  stringent
rule  of proof as laid down by s. 3 of the Act and  requires
the court to form a prima facie opinion on the evidence	 and
circumstances  of the particular case whether  a  confession
should	or should not be excluded as being involuntary.	  It
is not possible to lay down any inflexible standard and	 the
Supreme	 Court	acting under Art. 136  of  the	Constitution
would  not  ordinarily differ from the	concurrent  findings
arrived at by the courts below.
A  retracted confession may form the legal basis of  a	con-
viction	 if  the  court is satisfied that it  was  true	 and
voluntarily  made.  As a general rule of practice,  however,
it  is	unsafe	to  rely upon  a  confession,  much  less  a
retracted confession, unless the court is satisfied that the
retracted   confession	was  true,  voluntarily	  made	 and
corroborated in material particulars.
In  the	 present  case	there could be	no  doubt  that	 the
necessary ingredients constituting the offence of theft were
mad
690
To  constitute theft the loss caused need not  be  permanent
Even  temporary dispossession, though the person taking	 the
property  intended  to	restore it,  may  constitute  theft.
Illustrations (b) and (1) of s. 378 of the Indian Penal Code
clearly show that a temporary deprivation of another  person
of his property may cause wrongful loss to him.



JUDGMENT:
CRIMINAL  APPELLATE, JURISDICTION: Criminal Appeal No. 2  of
1962.
Appeal	by special leave from the judgment and	order  dated
April  25,  1953 of the Rajasthan High Court  Jaipur  Bench,
Jaipur in Criminal Revision No. 237 of 1956.
S.   P. Varma, for the appellant.
S.   K. Kapur and P. D. Menon, for the respondent.
1962.  October 22.  The judgment of the Court was  delivered
by
SUBBA  RAO,  J. This appeal by special	leave  is  directed
against	 the  decision	of the High Court  of  Rajasthan  in
Criminal  Revision  No. 237 of 1956 confirming that  of	 the
Sessions judge, Alwar, convicting the appellant under s. 379
of the Indian Penal Code and sentencing him to a fine of Rs.
200/-.
To  appreciate	the  questions raised  in  this	 appeal	 the
following facts, either admitted or found by the High Court,
may  be	 stated.  On November 24, 1945, one  Ram  Kumar	 Ram
obtained  permission, Ex.  PB, from the Government  of	tile
former Alwar State to supply electricity at Rajgarh, Khertal
and Kherli.  Thereafter, he entered into partnership with  4
others	with  an  understanding that the  licence  would  be
transferred  to a company that would be floated by the	said
partnership.   After  the company was formed, it put  in  an
application to the Government through
 691
its  managing  agents  for the issue of	 a  licence  in	 its
favour.	 Ex.  P. W. 15/B is that application.  On the advice
given  by the Government Advocate, the	Government  required
Ram Kumar Ram to file a declaration attested by a Magistrate
with regard to the transfer of his rights and the licence to
the  company.	On  April 8, 1948, Ram	Kumar  Ram  filed  a
declaration to that effect.  The case of the prosecution  is
that Ram Kumar Ram was a friend of the appellant.   Pyarelal
Bhargava,  who was a Superintendent in the Chief  Engineer's
Office,	 Alwar.	 At the instance of Ram Kumar Ram,  Pyarelal
Bhargava  got  the  file Ex.  PA/  1  from  the	 Secretariat
through	 Bishan Swarup, a clerk, before December  16,  1948,
took the file to his house sometime between December 15	 and
16,1948,  made it available to Ram Kumar Ram  for  'removing
the  affidavit	filed  by  him on April	 9,  1948,  and	 the
application, Ex.  P. W. 15/B from the file and	substituting
in   their  place  another  letter  Ex.	  PC   and   another
application  Ex.  PB.  After replacing the  said  documents,
Ram  Kumar Ram made an application to the Chief Engineer  on
December 24, 1948, that the licence should not be issued  in
the  name  of  the  company.  After  the  discovery  of	 the
tampering of the said documents, Pyarelal and Ram Kumar were
prosecuted before the Sub-Divisional Magistrate,  Alwar--the
former for an offence under s. 379 and s. 465, read with  s.
109,  of  the.	 Indian Penal Code, and the  latter  for  an
offence	 under	ss.  465 and 379, read with s.	109  of	 the
Indian Penal Code.  The Sub-Divisional Magistrate  convicted
both the accused under the said sections and sentenced	them
on both the counts.  On appeal the Sessions judge set  aside
the  Conviction under s. 465, but maintained the  conviction
and  sentence  of Pyarelal Bhargava under s.  379,  and	 Ram
Kumar  Ram  under s. 379, read with s. 109,  of	 the  Indian
Penal  Code.  Ram Kumar Ram was sentenced to pay a  fine  of
Rs. 500/- and Pyarelal Bhargava to pay a fine of Rs.  200/-.
Against these convictions both the accused
692
filed  revisions  to the High Court and the High  Court	 set
aside  the  conviction	and sentence of Ram  Kumar  Ram	 but
confirmed those of Pyarelal Bhargava.  Pyarelal Bhargava has
preferred the present appeal.
Learned	 counsel  for the appellant raised before  us  three
points,	 namely, (1) the High Court has wrongly relied	upon
the  confession	 made  by  the accused	before	Shri  P.  N.
Singhal,   Officiating	 Chief	Secretary  to	the   Matsya
Government  at	that time, as that confession was  not	made
voluntarily  and, therefore, irrelevant under s. 24  of	 the
Evidence Act; (2) the said confession having been  retracted
by the appellant, the High Court should not have relied upon
it  as it was not corroborated in material particulars;	 and
(3)  on the facts found 'the offence of theft has not  been
made  out within the meaning of s. 379 of the  Indian  Penal
Code.  Another argument, namely, that the statement made  by
Pyarelal  Bhargava  before  the Chief Secretary	 was  not  a
confession  in	law,  was suggested  but  not  pursued	and,
therefore, nothing need be said about it.
The  first  question turns upon the  interpretation  of	 the
provisions' of s. 24 of the Evidence Act and its application
to the facts found in this case.  Section 24 of the Evidence
Act lays down that a confession caused by inducement, threat
or  promise  is	 irrelevant in	criminal  proceedings  under
certain	 circumstances.	  Under that  section  a  confession
would  be  irrelevant  if  the	following  conditions	were
satisfied:  (1) it should appear to the court to  have	been
caused	by any inducement, threat or promise; (2)  the	said
threat,	 inducement  or promise must have reference  to	 the
charge against the accused person; (3) it shall proceed from
a  personal  authority; and (4) the court shall	 be  of	 the
opinion	 that  the  said inducement, threat  or	 promise  is
sufficient  to give the accused per-son grounds which  would
appear to him reasonable in supposing that he would gain  an
advantage or avoid any
693
evil  of a temporal nature in reference to  the	 proceedings
against	 him.  The crucial word in the first  ingredient  is
the  expression " appears".  The appropriate meaning of	 the
word  "appears" is "seems".  It imports a lesser  degree  of
probability than proof.	 Section 3 of the Evidence Act says:
	      "A  fact	is said to be  'proved'	 when  after
	      considering  the matters before it, the  Court
	      either believes it to exist, or considers	 its
	      existence	 so  probable  that  a	prudent	 man
	      ought,   under   the  circumstances   of	 the
	      particular  case, to act upon the	 supposition
	      that it exists.
Therefore,  the test of proof is that there is such  a	high
degree	of probability that a prudent man would act  on	 the
assumption  that the thing is true.  But under s. 24 of	 the
Evidence  Act such a stringent rule is waived but  a  lesser
degree	of  assurance is laid down as  the  criterion.	 The
standard  of a prudent man is not completely displaced,	 but
the stringent rule of proof is relaxed.	 Even so, the laxity
of proof permitted does not warrant a court's opinion  based
on  pure surmise.  A prima facie opinion based	on  evidence
and circumstances may be adopted as the standard laid  down.
To  put	 it  in	 other	words,	on  the	 evidence  and	 the
circumstances  in  a particular case it may  appear  to	 the
court that there was a threat, inducement or promise, though
the  said fact is not strictly proved.	This deviation	from
the strict standards ,of proof has been designedly  accepted
by the Legislature with a. view to exclude forced or induced
confessions  which  sometimes are extorted and put  in	when
there  is a lack of direct evidence.  It is not possible  or
advisable  to lay down an, inflexible standard for  guidance
of  courts,  for in the ultimate analysis it  is  the  court
which  is called upon to exclude a confession by holding  in
the  circumstances of a particular case that the  confession
was not made voluntarily.
The threat, inducement or promise must proceed from a person
in authority and it is a question
694
of  fact in each case whether the person concerned is a	 man
of  authority  or not.	What is more important is  that	 the
mere  existence of the threat, inducement or promise is	 not
enough,	 but  in the opinion of the court the  said  threat,
inducement  or	promise	 shall	be  sufficient	to  cause  a
reasonable belief in the mind of accused that by  confessing
he  would get an advantage or avoid any evil of	 a  temporal
nature	in reference to the proceedings against	 him:  while
the  opinion  is  that of the court, the  criterion  is	 the
reasonable  belief of the accused.  The section,  therefore,
makes  it  clear that it is the duty of the court  to  place
itself in the position of the accused and to form an opinion
as to the state of his mind in the circumstances of a case.
In  the present case it was found that certain documents  in
the  Chief Enginecr's Office were tampered with and  certain
papers	 were	substituted.	The   appellant	  was	 the
Superintendent in the Chief Engineer's Office.	On April 11,
1949, Shri P. N. Singhal, Officiating Chief Secretary to the
Matsya	Government,  was making a  departmental	 inquiry  in
respect	 of  the missing documents.   The  appellant,  among
others,	 was  questioned  about	 the  said  documents.	 The
appellant  first  made	a statement, Ex.  PL,  in  which  he
stated that he neither asked Bishan Swarup to bring file No.
127,  nor  did he recollect any cause for calling  for	that
file on or about that date.  As Shri Singhal was not able to
find  out the culprit, he expresser his opinion that if	 the
whole truth did not come out, he would hand over the inquiry
to the police.	Thereafter, the appellant made a  statement,
Ex. P.L. 1, wherein, in clear terms, he admitted that  about
the middle of December 1948 Ram Kumar Ram took file No. 127-
P.    W./48  regarding	issue  of  licence  to	the   Bharat
Electrical and Industrial Corporation Ltd., Alwar, from	 his
residence  to show it to his lawyers, and that he  took	 the
file  more than once for that purpose.	He also	 added	that
this was
 695
a  voluntary statement.	 Learned counsel for  the  appellant
argued that the Chief Secretary gave the threat that, if the
appellant  did	not disclose the truth he  would  place	 the
matter	in  the	 hands of the police  and  that	 the  threat
induced	 the  appellant to make the disclosure in  the	hope
that he would be excused by the authority concerned.   There
is no doubt that the Chief Secretary is an authority  within
the  meaning  of s. 24 of the Evidence Act, but	 the  simple
question  is  whether  the alleged  statement  by  the	said
authority  reappears"  to  the court to	 be  a	threat	with
reference  to  the charge against the accused.	As  we	have
said,  under  particular circumstances whether	a  statement
appears to the court to be a threat or not is a question  of
fact.  In this case the three lower courts concurrently held
that in the circumstances of the case the statement did	 not
appear	to  be a threat within the meaning of s. 24  of	 The
Evidence  Act., but that was only a general statement  which
any  person who lost his property and was not able  to	find
out the culprit would make.  It may be that such a statement
under  different circumstances may amount to a threat or  it
may  also  be that another court may take a  different	view
even  in  the  present circumstances of	 the  case,  but  in
exercising the powers under Art. 136 of the Constitution  we
are not prepared to differ from the concurrent finding given
by the three courts that in the circumstances of the present
case that the said statement did not appear to them to be  a
threat.
The  second  argument  also  has  no  merits.	A  retracted
confession  may form the legal basis of a conviction if	 the
court is satisfied that it was true and was voluntarily made
But  it	 has   been  held that a  court	 shall	not  base  a
conviction  on such a confession without corroboration.	  It
is  not	 a rule of law, but is only rule  of  prudence.	  It
cannot	even be laid down as an inflexible rule of  practice
or  prudence that under no circumstances such  a  conviction
can be
696
made without corroboration, for a court may, in a particular
case, be convinced of the absolute truth of a confession and
prepared to act upon it without corroboration; but it may be
laid down as a general rule of practice that it is unsafe to
rely upon a confession, much less on a retracted confession,
unless the court is satisfied that the retracted  confession
is  true and voluntarily made and has been  corroborated  in
material  particulars., The High Court having regard to	 the
said principles looked for corroboration and found it in the
evidence of Bishan Swaroop, P.W-7, and the entry in the	 Dak
Book, Ex.  PA. 4, and accepted the confession in view of the
said  pieces of corroboration.	The finding is one  of	fact
and there is no permissible ground for disturbing it in this
appeal.
The  last point is that on the facts found no case of  theft
has been made out.  The facts found were that the  appellant
got  the  file	between December 15 and 16,  1948, to  his
house,	made it available to Ram Kumar Ram and	on  December
16,  1948, returned it to the office.  On these facts it  is
contended  that	 the prosecution has not made out  that	 the
appellant  dishonestly took any movable property within	 the
meaning	 of  s.	 378 of the Indian  Penal  Code.   The	said
section reads :
	      "Whoever,	 intending to take  dishonestly	 any
	      movable property out of the possession of	 any
	      person  without that person's  consent,  moves
	      that property in order to such taking, is said
	      to commit theft.
The section may be dissected into its component parts thus :
a person will be guilty of the offence of theft, (1) if he.-
intends	 to  cause  a wrongful gain or a  wrongful  loss  by
unlawful means of Property to which the person gaming is not
legally	 entitled or to which the person losing	 is  legally
entitled, as the case may be:
 697
see  ss.23  and 24 of the Indian Penal Code;  (2)  the	said
intention  to  act  dishonestly is  in	respect	 of  movable
property;  (3) the said property shall be taken out  of	 the
possession of another person without his consent; and (4) he
shall  move that property in order to such taking.   In	 the
present	 case  the  record  was in  the	 possession  of	 the
Engineering  Department	 under	the  control  of  the  Chief
Engineer.   The	 appellant was the  Superintendent  in	that
office;	 he  took the file out of the session  of  the	said
engineer.  removed the file from  office and handed  it over
to  Ram Kumar Ram.  But it is contended that the said  facts
do  not constitute the offence of theft for  three  reasons,
namely, (i) the Superintendent was in possession of the file
and therefore he could not have taken the file from himself;
(ii) there was no intention to take it dishonestly as he had
taken  it only for the purpose of showing the  documents  to
Ram Kumar Ram and returned it the next day to the office and
therefore  he  had  not	 taken the  said  file	out  of	 the
possession  of	any person; and (iii) he did not  intend  to
take it dishonestly, as he did not receive any wrongful gain
or cause any wrongful loss to any other per-son.  We  cannot
agree  that the appellant was in session of the	 file.	 The
file  was  in the Secretariat of the  Department  concerned,
which  was in charge of the Chief Engineer.   The  appellant
was only one of the officers working in that, department and
it  cannot, therefore, be said that he was in  legal  posse-
ssion  of the file.  Nor can we accept the argument that  on
the assumption that the Chief Engineer was in possession  of
the  said  file,  the accused had not taken it	out  of	 his
possession.   To  commit  theft one need  not  take  movable
property  permanently out of the possession of another	with
the intention not to return it to him.	It would satisfy the
definition  if	he  took any movable  property	out  of	 the
possession of another person though he intended to return it
later  on.  We cannot also agree with learned  counsel	that
there is no wrongful loss in the present case.
698
Wrongful loss is loss by unlawful means of property to which
the  person  losing it is legally entitled.   It  cannot  be
disputed  that	the appellant unauthorisedly took  the	file
from  the  office and handed it over to Ram Kumar  Ram.	  He
had,   therefore,  unlawfully  taken  the  file	  from	 the
department, and for a short time he deprived the Engineering
Department  of	the possession of the said file.   The	loss
need  not be caused by a permanent deprivation	of  property
but  may be caused even by temporary  dispossession,  though
the  per-son  taking  it intended to restore  it  sooner  or
later.	 A temporary period of deprivation or  dispossession
of the property of another causes loss to the other.  That a
person- will act dishonestly if he temporarily	dispossesses
another	 of his property is made clear by illustrations	 (b)
and (1) of s.378 of the Indian penal code. They are:
	      (b)   A  puts a bait for dogs in	his  pocket,
	      and thus induces z's dog to follow it.   Here,
	      if  A's intention be dishonestly to  take	 the
	      dog out of Z's possession without Z's consent,
	      A	 has committed theft as soon as Z's dog	 has
	      begun to follow A.
	      (1).  A takes an article belonging to Z out of
	      Z's  possession without Z's consent, with	 the
	      intention of keeping it until he obtains money
	      from Z as a reward for its restoration.	Here
	      A takes dishonestly; A has therefore committed
	      theft.
It will be seen from the said illustrations that a temporary
removal	 of a dog which might ultimately be returned to	 the
owner  or the temporary taking of an article with a view  to
return	it  after receiving some reward	 constitutes  theft,
indicating  thereby  that temporary deprivation	 of  another
person	of  his property causes wrongful loss to  him.	 We,
therefore,  hold that the facts found in this  case  clearly
bring them within the four comers of s. 378 of the Indian
 699
Penal Code and, therefore, the courts have rightly held that
the appellant had committed the offence of theft.
No other  Point	 was pressed before us.	 In the	 result	 the
appeal	  fails and is dismissed.
				       Appeal dismissed.