A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession.

Judgment

HIDAYATULLAH, J. : The appellant, Om Prakash, was tried on two charges respectively under S. 165-A and S. 468/109 I. P. C., before the Special Judge, Bulandshahar empowered under S. 6 of the Prevention of Corruption Act, 1947. He was convicted under S. 165-A, I. P. C. and sentenced to rigorous imprisonment for 1 year. He was acquitted of the second charge. He appealed to the High Court of Allahabad against his sentence, and contended, inter alia, that his conviction under S. 165-A, I. P. C. was against the provisions of Art. 20 of the Constitution, because the offence was alleged to have been committed by him on December 4, 1948, whereas the said offence was first created on July 28, 1952, when S. 165-A was first enacted and introduced in the Indian Penal Code by S. 3 of the Criminal Law Amendment Act (No. 46 of 1952). This contention was accepted by the High Court, and the conviction was changed to one under S. 161 read with S. 109, I. P. C., but the sentence was maintained. The appellant applied for a certificate of fitness under Art. 134 (1) (c) of the Constitution, and the High Court having refused it, he was granted special leave by this Court.

2. The two charges on which he was tried, disclose the facts sufficiently for the purpose of this appeal, and may be quoted here :

"Firstly :-That you paid Rs. 300 on or about 4th December, 1948, to Roshan Lal Gupta, unit clerk in M. I. s office Bulandshahar to issue to you fictitious permits for bricks and which were issued to you, to wit permits Nos. 19, 23, 24, 25 and 26 of Indent Book No. 59, which were later on detected and order was issued for not crediting them and they were cancelled and thereby committed an offence punishable under section 165-A of the I. P. C., and within my cognizance as Special Judge.

Secondly :- That you abetted the forging of permits Nos. 19, 23, 24, 25 and 26 of Indent Book No. 29 by Roshan Lal in fictitious names and you took them from Roshan Lal intending that these permits shall be used for cheating the department and the cultivators in general and thereby committed an offence punishable under section 468/109 of the Indian Penal Code and within my cognizance as a Special Judge, and I thereby direct you be tried be this Court on the said charges."

3. In this appeal, the appellant has urged only two points. The first is that the High Court acted without jurisdiction in altering the conviction to one under S. 161/109, I. P. C., or, at any rate, acted illegally in doing so; and the other is that the High Court was in error in relying upon Exs. P-3 and P-4 (two statements made by him) as confessions of the offence with which he was charged, in the absence of any other or even corroborating evidence to bring home the accusation.

4. As regards the first contention, it is sufficient to say that the effect in law of S. 161/109, I. P. C., is precisely the same as that of S. 165-A, at least in so far as the abetment of an offence actually committed, is concerned. There were no further facts needed to be brought to the notice of the appellant by the amended charge, and the punishment both under S. 161/109 and S. 165-A is the same. In fact, if S. 165-A could be regarded as a freshly created offence, it did nothing more than provide expressly what was already provided by the Code by the two other sections. The change was in respect of abetment of offences not committed, that is to say, S. 161 read with S. 116. In view of the provisions of Ss. 225 and 537 of the Code of Criminal Procedure, this error in the charge cannot be taken note of, particularly as the appellant himself could have raised this objection at a much earlier stage during the trial, and also as no prejudice has been suggested nor could be found by us. This contention, therefore, is rejected.

5. The next contention needs a closer examination. The evidence in the case showed that Roshan Lal Gupta was Unit Clerk of the office of the Mechanical Inspector, Agricultural Department, Bulandshahar. Ros