TMI Blog1936 (4) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... uded the three appellants, as they were entitled, reserved their cross-examination until a charge had been framed. Nalini's evidence, although against the accused, amounted to very little. 3. Then the Public Prosecutor, evidently of the opinion that Nalini had not told all he knew and was hostile to the prosecution, applied to the District Magistrate to have Nalini re-committed to take his trial along with the accused. 4. Nalini was thereupon re-committed by the District Magistrate to take his trial with the other accused against whom he had given evidence. Next the Special Magistrate tendered a conditional pardon to the accused Gouranga under Section 337, Criminal P. C., and Gouranga was taken out of the dock, put into the witness box, and he gave evidence in the trial. 5. Nalini thereupon moved a Bench of this Court to have the proceedings against him stayed, and a stay was ordered as against Nalini. The trial against the remaining accused, the three present appellants went on, the evidence against the appellants given by Nalini remained on the record for what it was worth, but the appellants never had the opportunity of cross-examining Nalini. 6. The Special Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, the provision that he shall be discharged in respect of such offence or offences has no real effect. 9. In my view the words in question mean shall be discharged from those proceedings and not put back into them. He may be tried again in other proceedings on the same charge, but not in those proceedings. The Advocate-General has stated that he cannot support the convictions on the evidence given, apart from the irregularities mentioned. These convictions clearly cannot stand, That would be sufficient to dispose of this appeal without going into the questions of law which have been formulated for our answer. However in view of the doubt that has been cast by the referring Judges on the cases of Raman v. Emperor 1929 Cal 319 Abdul Majid v. Emperor 1933 Cal 537 and Mohammad Saleudin v. Emperor 1935 Cal 281and the likelihood of that doubt giving rise to difficulty in other cases, we have thought fit to go into the questions raised. As regards questions (1) and (2), I see nothing in Section 494 which prevents a Public Prosecutor if he thinks it is in the interests of the administration of justice, from withdrawing the case as against one of the accused for the purpose of call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arranted the exercise of judicial discretion. Judgment must be for the Grown. 11. Blackburn, J., at p. 320, said: I may however observe, although the matter does not come before us, I do not think Harris was an inadmissible witness, but being inadmissible she was completely within the category of accomplices. It would be right to tell the jury to look at her evidence with great caution. I do not doubt that the judge did carefully caution the jury, nor do I doubt there was ample confirmatory evidence. I agree that it would be judicious as a general rule, where the accomplice is indicted that the indictment as to her should be disposed of before she is called as witness, so that the temptation to strain the truth should be as slight as possible. I do not think that this is an obstruction as to the legality of the evidence but is a matter which affects the degree of credit which ought to be given to her testimony. 12. Meller, J. at p. 324, said: On an application made on the part of the Crown, the prisoner was tried by herself, and Harris, although she had not pleaded guilty, and although no verdict of acquittal was taken was called as a witness. She was, therefore liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orth, J., differed from Candy, J., but Ranade, J., to whom the case was referred for final decision, agreed on the whole with Candy, J. That question does not arise because there is no evidence here that influence by means of any promise or threat or otherwise was used to the accused person to induce him to disclose or withhold any matter within his knowledge. In Bann Singh v. Emperor (1906) 33 Cal 1353 Mitra, and Holmwood, JJ., delivered a joint judgment in which at p. 1357 they said that: Section 494 of the Code authorizes the Public Prosecutor as representing a Local Government in this country to withdraw a prosecution against anyone of a number of accused, and thus obtain a verdict of discharge or acquittal so far as such person is concerned. On such a discharge or acquittal he becomes a competent witness against other persons accused of the same offence. The disability to be examined as a witness on oath against the persons who are brought before the Court on the same indictment may thus cease on the withdrawal of the indictment against him. 18. In Emperor v. Har Prosad 1923 All 91 Mears, C. J., said: There is no provision of Indian statute law nor is there any pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such open to suspicion. I will now deal with questions Nos. 3 and 4. Under the Bengal Suppression of Terrorist Outrages Act, 1932, it is provided in Section 26 (1). In the trial of any case under this Act, a Special Magistrate shall follow the procedure prescribed by the Code for the trial of warrant cases by Magistrates: Provided that the Special. Magistrate shall not be bound to adjourn any trial for any purpose unless such adjournment is, in his opinion, necessary in the interests of justice. (2) In matters not coming within the scope of Sub-section (1), the provisions of the Code, so far as they are not inconsistent with this Chapter, shall apply to the proceedings of a special Magistrate ; and for the purposes of the said provisions the special Magistrate shall be deemed to be a Magistrate of the first class. 21. Section 34 reads as follows: The provisions of the Code and of any other law for the time being in force, in so far as they may be applicable and in so far as they are not inconsistent with the provisions of this Chapter, shall apply to all matters connected with, arising from or consequent upon a trial by special Magistrates. 22. Section 337, Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the pardoned person on or in respect of his trial for giving false evidence. In the present case after Nalini, was put back into the dock, Gouranga was tendered a pardon by the Special Magistrate under the provisions of Section 337 and his evidence was received against the three appellants. It is said that the Special Magistrate had no power to tender a conditional pardon under Section 337 to Gouranga because the duty of the Special Magistrate was to try Gouranga and not to pardon him. I cannot accept that view. The Special Magistrate was charged with the duty of trying the appellants together with Nalini and Gouranga. It not infrequently happens in a trial that the only way in which justice can be done is through one of the accused giving evidence on behalf of the Crown, and if this evidence is given according to law, there is nothing wrong in it though as the evidence of an accomplice it is open to suspicion. Section 337 provides the terms on and the machinery by which the pardon, for the purpose of giving evidence, can be granted by the Magistrate, and in my view the Magistrate was acting within his powers in granting the conditional pardon. 25. It was next contended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inconsistent with the provisions of this Ordinance, shall apply to all matters connected with, arising from or consequent upon a trial by special criminal Courts constituted under this Ordinance. 29. It will be noticed that Sub-section 37 and 52 of the Ordinance are respectively essentially the same as Sub-section 26 and 34, Bengal Suppression of Terrorist Outrages Act, 1932. In Abdul Majid v. Emperor 1933 Cal 537 one of the accused was granted a conditional pardon under Section 337 by the Special Magistrate and he then proceeded to give evidence against his co-accused before the Special Magistrate who dealt with the case and sentenced the prisoners. It was objected on appeal that the Special Magistrate had no power to tender a conditional pardon and afterwards dispose of the case himself, instead of sending it to the Sessions or the High Court. The appeal from the conviction was dismissed. Rankin, C, J., at p. 654 said It is right to notice the contention that was put forward to the effect that the proceedings before the Special Magistrate were bad. It is aid that his having tendered pardon to the approver, Sub-section 2-A, Section 337, Criminal P. C., made it obligatory upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, such as there is in the other evidence and circumstances of the case, fails to reach the requisite standard, either in quality or in quantity. On the question of procedure, there was in the trial one irregularity far more serious than others, if any, to which my Lord has referred in his judgment, and which in its character is so fundamental that it is impossible to uphold the result in which the trial ended: I mean the illegality of putting Nalini back into the dock as a co-accused with the prisoners and so depriving them of the opportunity of cross examining him after he had been examined as a witness for the prosecution. It did not matter in the least, so far as this part of the procedure is concerned, that Nalini's evidence, as against the prisoners, amounted to very little; he had been examined as a witness against them and they had an undoubted right to get from him such evidence as they could, by questioning him by way of cross-examination. The adoption of a procedure which put it beyond the power of the prosecution to tender Nalini for such purpose and thus depriving the prisoners of a right which they never lose under the law except under certain specified conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strate may be directed to do by the Local Government or the District Magistrate, as the case may be, is that a person who comes within the purview of the section shall be tried by him. What is the meaning of the word trial' used in connexion with a proceeding in Court? The word is not defined in the Act or in the Code of Criminal Procedure, parts of which have been incorporated into the Act by the Act itself. The word therefore has to be understood in the ordinary lexicographical meaning. 'Trial' is; the hearing of a cause, civil or criminal, before a Judge according to the laws of the land. Trial is to find out by due examination the truth of the point in issue or question between the parties, whereupon judgment may be given: Wharton's Law Lexicon quoting Co. Litt. 1246. 35. In the Oxford Dictionary the meanings of the word given under the heading 'Law' are: 1. The examination and determination of a cause by a judicial tribunal; determination of the guilt or innocence of an accused person by a Court. 2, The determination of a person's guilt or innocence, or the righteousness of his cause by a combat between the accuser and the accused, etc., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequent upon a trial by a Special Magistrate. 39. On a reference to these two sections of the Act and especially to the latter, it has been contended on behalf of the Crown that there is no reason why the provisions contained in Section 337, Criminal P. C., should not apply to a trial by a Special Magistrate to the extent that it is not inconsistent with the provisions of Chap. 2 of the Act, in which Sub-section 24, 25, 26 and 34 occur. Now it is agreed on all hands that a Special Magistrate has no power to make an order of commitment to the Court of Session. But it will be seen that that is so, not because of any express provision contained in the Act but only because such Magistrate is only authorised by the provision which lays down his jurisdiction, namely Section 25 of the Act, to try the accused, and for no other reason. To deprive him of his jurisdiction to commit, which as a Magistrate of the First Class trying a warrant case he undoubtedly has under proper circumstances, it is the meaning of the word trial' I have referred to above that is assumed. There it is his duty to try as distinguished from his power to commit for trial, that is relied upon. Why should not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating to the offences which are committed to the Sessions and so on. The position is very different under the Act, for under the Act the direction is that it is the person who shall be tried. But be that as it may, an investigation into the history of Section 337 of the Code, tracing its origin to the Code of 1861, and noting the successive changes that it underwent in the Codes of 1872 and 1882 and then in the present Code, has convinced me that the provision first got into the Code as one particular incident in the trial, and that the mere fact that in the Code of 1872 that provision was divided into several paragraphs and later on in the Codes of 1882 and in the present Code the same provision was divided into several Sub-sections would not justify us in reading that one provision as consisting of a group of provisions, separate and separable from one another. For over sixty years, since 1872, every Magistrate tendering a pardon has known that by doing so he is taking a step which, if it succeeds, will deprive him of jurisdiction to try the accused persons other than the accused person who is pardoned and it is only if the step fails that he would be able to proceed with the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it does not appear that any ground for that supposition was at all put forward for the consideration of the Court. So far therefore as the second group of questions is concerned, my answers are the following: 44. Question 3.--No. 45. Question 4.--The case of Abdul Majid v. Emperor 1933 Cal 537, if it meant to decide to the contrary, and the other cases referred to in the question, in so far as they did so decide, were wrongly decided. I now take up the first group of questions. So far as this part of the reference is .concerned, I cannot help thinking-and I say this with the utmost deference to the referring Judges-that it discloses some misconception as regards the law such as it undoubtedly is. The proposition contended for is that Section 494 of the Code is not intended to and may not be used for the purpose of obtaining the evidence of an accused. This proposition has been sought to be supported by the following process of reasoning: 46. Firstly, there is Section 337 which makes special provisions for this purpose and contains proper precautions and safeguards under which tainted evidence of accomplices and approvers may be made available; and therefore, it is said- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thdrawing a prosecution as against an accused person who is being jointly tried with others, there would be no means left to examine him as a witness against the others in a case in which Section 337 is not applicable. And if it be permissible to examine an accomplice as such witness when he is not to be tried or has been already tried, whatever the result of such trial may have been, there is hardly any reason apparent why by simply putting him forward as a co-accused for a time the prosecution is precluded from using him as such witness. The existence of Section 337 therefore to my mind does not necessarily exclude the idea of Section 494 being used for a similar purpose. 51. As regards the second reason, it should not be overlooked that the Code only deals with such matters as have a direct bearing upon the procedure which obtains in it. Section 337, with its provision for tendering pardon, examining the pardoned accused as a witness if he accepts the pardon, and so on, lays down the procedure for these purposes; and such procedure appropriately finds mention in Ch. 24, headed General Provisions as to enquiries and trials in Part 6, Proceedings in Prosecution. Section 494 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case: inexpediency of a prosecution for reasons of State, necessity to drop the case on the ground of public policy, credible information having reached the Government as to the falsity of the evidence by which the prosecution is supported and other matters of that description. 52. I adhere to the view that I thus expressed of the general scope of Section 494. If the prosecution, in order to avail of the evidence of an accused as against his co-accused, consider it necessary to withdraw from the prosecution as against him the section, in my opinion, would warrant such a course on the ground of public policy. But the withdrawal is dependent on the consent of the Court; and therefore the Court in order to see whether it should consent or not will have to enquire into the reasons which prompt the withdrawal. And if the Court finds that Section 337 with its statutory safeguards is open to be availed of it will be a sound exercise of its discretion to withhold consent. So also I should think the Court would be justified in withholding consent if it finds that the expected evidence will not be relevant or material or necessary. Similarly perhaps would the Court be right in ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s duty to respect. And a course of that kind, though there is nothing expressly said against it anywhere in the law, would produce what in my view would be a most unseemly spectacle. Unfortunately such treatment was meted out to Nalini in the present case. 54. My answers to the first group of question are the following : 55. Q. 1. Yes, but not in a case in which Section 337 of the Code may be availed of. 56. Q. 2. Yes, because Raman v. Emperor 1929 Cal 319 was a case in which Section 337 of the Code was not applicable. 57. It follows from the answer that I have given to the four questions referred that, if I were to decide these appeals upon the points raised in these questions, I would have held that it was illegal on the part of the Special Magistrate to examine Gouranga as a pardoned accomplice, and therefore his evidence could not be used against the appellants; and that Nalini was rightly allowed to be examined as a witness on his discharge under Section 494 of the Code. But in any case, as I have already said, Nalini not having been tendered for cross-examination, the whole trial was vitiated. Panckridge, J. 58. Since the facts have been set out in full in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused is discharged under Section 494 (a). I wish to emphasize this because the appellants have sought to establish a proposition much wider than is necessary for a negative answer to the question. It is plain that what impressed the Division Bench was that, in their opinion, no reliance can be placed upon the evidence of a witness who, being discharged and not acquitted, is still in jeopardy of again being accused and ultimately convicted of the offence in respect of which he was originally an accused. They say (pp. 117, 126): The witness would give his evidence well knowing that under Section 494 (a) he had only been discharged, and that be remained liable to be harassed with another trial unless his evidence were considered by the prosecution to be satisfactory and favourable to their case. This was what happened to Nalini in the present case. Evidence given under such an apprehension would not be likely often to be reliable. 61. The appellants however argue that at no stage of a trial before a Magistrate should the Public Prosecutor be permitted to withdraw from the prosecution of one of a group of accused for the purpose of obtaining his evidence against the others. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g its consent to withdrawal under Section 494 where the circumstances are such that the accused will be discharged and not acquitted. The discretion however is a judicial discretion, and it appears to me that in cases, where it is open to the prosecution to obtain the approver's evidence by applying for the tender of a conditional pardon under Section 337 (1), the Magistrate must keep the provisions of that section before him when he exercises his discretion. I am disposed to go further, and to say that as a general rule the discretion will be wrongly exercised in such cases if the consent is given before the charge is framed. For reasons that I shall give shortly I am of opinion that the Magistrate in this case had power to tender a conditional pardon under Section 337 (1). No grounds have been suggested why the Magistrate should not have tendered a conditional pardon to Nalini, and I am therefore of opinion that he exercised his discretion wrongly. 63. Subject to the observations I have made I would answer questions 1 and 2 in the affirmative. I would remark that the case of Raman v. Emperor 1929 Cal 319 was one to which Section 337, Criminal P. C., had no application. I w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrates. 66. What we have to decide is whether the provisions of Section 337 (1), Criminal P. C., giving a Magistrate power to tender a pardon on condition that the person to whom the pardon is tendered do make a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence, and the provisions of Section 337 (2) directing that every person accepting such a tender shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence, are inconsistent with the Bengal Suppression of Terrorist Outrages Act: for if they are not inconsistent they will apply to trials by Special Magistrates by reason of Sub-section 26-(2) and 34 of the Act. The appellants submit that a broad interpretation is to be given to the word provisions in Sub-section 26 (2) and 34. Section 337, Criminal P. C., provides a definite machinery, whereby in certain cases the prosecution may obtain the evidence of an approver against his co-accused in cases tried by a Magistrate. 67. First there is the tender of the pardon, then, if it is accepted, examination by the Magistrate, then, if a prima facie case against the accused is made out, committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial procedure prescribed by, or under the Act shall apply to the proceedings of Commissioners appointed under the Act, and such Commissioners shall have all the powers conferred by the Code on a Court of Sessions exercising original jurisdiction. Under Section 5 (1) the Commissioners have power to take cognizances of offences without the accused being committed to them for trial, and in trying accused persons they are to follow the procedure prescribed by the Code for the trial of warrant cases by Magistrates. By Section 8 (1) Commissioners are given power to tender pardon. By Sub-section (2) where the pardon has been tendered and accepted before the order for trial by Commissioners has been made, the provisions of Section 337 (2) and (3) are to apply as if the accused person had been committed for trial to the Commissioners. 68. It is argued that Sub-section 1, Section 8 shows that in the opinion of the Legislature Section 7 did not confer upon Commissioners the power to tender pardon given by Section 338, Criminal P. C. to the Court of Sessions and the High Court. I do not think any guidance can be obtained from the former Act, as the construction of the Act with which we a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consent. 72. In view of the provisions of Section 337, the evidence of an accomplice is available to the prosecution, and the Court cannot be said to make an improper use of its discretion in consenting to the discharge of an accused on the ground that it is proposed to examine him as a witness. Nothing in the Code expressly limits the discretion given by Section 494 and the position that a discharge for the purpose of obtaining the evidence of an accused is contrary to the spirit of the Legislature does not appear to me to be in the least degree a sound position. It has been said that such a procedure is by way of bargain and should not be allowed; secondly that it must tend to affect the confidence of the accused on trial in the impartiality of the Court. Now the law provides for a conditional pardon in specific cases. I do not therefore think that there is anything contrary to its spirit if the Court consents to the withdrawal of a charge in order that the accused may be put into the witness box. Further, the Court, in the exercise of its discretion, cannot refuse to consider the interests of all the parties who are before it. I agree however that in cases to which the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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