BAIDYA NATH PRASAD SRIVASTAVA versus STATE OF BIHAR

Citation: [1969] 1 S.C.R. 172 · Decided: 30-04-1968 · Supreme Court of India · Bench: V. RAMASWAMI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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 appel-
lant 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 thc1n-
sel»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 
B 
c 
D 
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F 
G 
H 
Vaidialingam, J. On behalf of ~e sixth-accused, the appel-
lant 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 im-
prisomnent. 
For the relief and rehabilitation, of people who had suffer-
ed, 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 ap-
plicant 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 Divi-
sional Officer, Sitamarhi. A

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