TMI Blog1963 (4) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... ther hand preferred an application for revision under s. 439, Cr. P.C. for the enhancement of the sentences passed on the respondents. The High Court allowed the two appeals, acquitted the respondents and dismissed the application for revision preferred by the State. The State of Andhra Pradesh has come up before this Court in appeal by obtaining special leave under Art. 136 of the Constitution. The prosecution case in so far as it is material for the decision of this appeal is as follows : In the year 1929 the Andhra Engineering Co., which was originally a partnership firm formed by one D.L.N. Raju was converted into a private limited, company with its headquarters at Visakhapatnam. (We shall refer to this company throughout as the AECO). It obtained licences from the Government under the Electricity Act for supply of electrical energy to Visakhapatnam, Anakapalli and some other places. As the AECO did not have the necessary capital to undertake the work Raju floated in the year 1933 a public limited company called Visakhapatnam Electric Supply Corporation Ltd., (referred hereafter as VESCO) and another in the year 1936 called the Anakapalli Electric Supply Corporation Ltd. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointments and started his own business in radio and electrical goods in the name of D. Brothers. He was succeeded by T. Visweswara Rao, P.W. 6, an employee of the AECO. The respondent No. 1, Ganeswara Rao was also an old employee of AECO, having been appointed a stenotypist in the year 1923 on an initial salary of ₹ 40/- p.m. Eventually he became the Head Clerk therein. He pressed his claim for appointment as Secretary of VESCO and representative of the Managing Agents at Visakhapatnam and R .H.G. Raju appointed him to that post. All this is not disputed. The respondent No. 1, even after his appointment on two posts connected with VESCO, continued to work with the AECO also whose business had by then been confined only to that of Managing Agents of the four companies floated by D.L.N. Raju. It is the prosecution case that as Secretary of VESCO and the resident representative of the Managing Agents, the respondent No. I was attending to the day to day affairs of VESCO, which included the receiving of all sums of money due to VESCO, spending money for the purpose of VESCO attending to the appointment, supervision and control of the staff of VESCO, purchasing materials requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred from the post of Stores Clerk to the general department and K.S.N. Murty, the discharged accused, was appointed Stores Clerk in his place. Later, however, Murty was also got transferred to the general section and replaced by P. W. 18, Srinivasa Rao originally a stores boy. The approver who was originally an Accounts clerk with the AECO was, it may be mentioned, appointed a cashier in VESCO in 1946 at the instance of the respondent No. I and was thus beholden to him. He was later promoted as Senior Accountant and in his place the respondent No. 2 Laksbminarayana Rao was appointed the Cashier. According to the prosecution the respondent No. I took both the approver and Lakshminarayana Rao in his confidence as also some other persons known and unknown for carrying out his nefarious purpose, namely, the misappropriation of the funds of VESCO during the subsistence of AECO's managing agency of VESCO. The conspiracy is said to have been hatched in the year 1947 and falsification of accounts and misappropriation of funds of VESCO went on till the end of the accounting year. The term of the managing agency was renewed in 1943 and AECO con- tinued to be managing agents until ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, though in fact it was not. On the basis of the entries in the Handover Book the final accounts were written up. The respondent No. I opened four personal accounts in different banks, including the Imperial Bank of India (as the State Bank then was). When the respondent No. I had to issue a personal cheque on any of these Banks he used to ask the second respondent to send an equivalent amount to the Bank concerned for being credited to his account. These amounts also used to be noted in the private note book and entered by safe' in the Handover Book. Another thing which the respondent No. I initiated was opening a heading in the ledger called advance purchase of materials. Amounts which had been misappropriated used to be posted therein though in fact no orders were placed for any material. It may be mentioned that Subba Raju used to visit Visakhapatnam twice a month and check up the account books. At that time it used to be represented to him that the amounts which were shown to be in the safe and not found therein (but which were actually misappropriated) had been sent to the Bank for being deposited. Apparently Subba Raju was fully satisfied with this and other expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who was Chairman of the meeting after seeing Ex. P. 234 said that the report seemed to be a genuine one. S. G. Krishna Aiyar after his appointment in January, 1952, made close enquiry and submitted an interim report. That report showed that during the period 1948-49 ₹ 33,271-10-0 shown as paid to the Andhra Power System were in fact not paid. The respondent No. 1 on being asked to explain said that he would give his explanation to the Managing Director. The Interim Report showed that there was a shortage of about ₹ 90,000/- for this period. On February 12, 1952 the respondent No. I wrote to the Managing Director admitting his responsibility and agreed to make good the amounts found short or such other amounts as would be found short up to the end of March, 1952. Further scrutiny of the accounts was being carried out by Krishna Aiyar and in his subsequent report he pointed out that ₹ 2,38,000/- which were shown as having been paid to the Andhra Power System had actually not been paid. In fact in April, 1952 the Collector attached VESCO properties for realising this amount. On April 30, 1952 the respondent No. 1, by selling some of his property, himself paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted and not with conspiracy to commit those offences. Charge of conspiracy, according to the High Court, can be validly made only when the prosecution establishes that every conspirator expected to receive a personal benefit from it and that the prosecution has not been able to establish that the respondent No. 2 or the approver evidently had any such expectations since they did not in fact receive any corresponding benefit. In so far as the respondent No. 2 is concerned the High Court has held that since he was charged with a specific offence under s.409 I.P.C. he could not be convicted of mere abetment of an offence. The approver's evidence was held by the High Court to be inadmissible because the pardon granted to him was illegal. The High Court has also held that his evidence is unreliable and further that the Additional Sessions judge was in error in allowing him to refresh his memory by referring to various documents in a manner not permitted by s. 159 of the Evidence Act. The High Court has further stated that inadmissible evidence was taken on record by the Additional Sessions judge, namely, account books of Billimoria Brothers, maintained in Gujrati and further that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n offence of criminal breach of trust punishable under s. 409 and the accusation therein is that the two respondents along with Ramana, misappropriated 69 items aggregating to a little over ₹ 3,20,000/-. It is clear from the charge that some of the amounts were misappropriated between April, 1947 and March, 1950, some between April, 1947 and March, 1949, some between April, 1947 and March, 1951 and quite a large number between September, 1947 and March, 1950 and a still large number between April, 1951 and March, 1952. It is thus apparent that offences committed within a space of 12 months were tried along with offences committed beyond that period. Unless, therefore, the provisions of s. 239 are applicable it would follow that there was a misjoinder of charges. The third charge is that the two respondents, along with the approver Ramana made false entries on seven different dates in the account books between September 19, 1947 and March 18, 1952 and thus committed an offence under s. 477-A, I.P.C. The fourth charge is that the two respondents, along with the approver Ramana forged six documents on different dates between March 28, 1949 and November 12, 1951 and thus committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge is found to be defective or there is no charge or where a new charge is to be framed. Section 232 deals with the power of the. appellate court or the High Court when it discovers that there is material error in the charge. Then we come to the other sub-head of this chapter. Section 233 provides that for every distinct offence of which any person is accused there shall be a. separate charge. It thus lays down the normal rule to be followed in every case. But it also provides that this will be subject to the exceptions contained in SS. 234, 235, 236 and 239. The first three provisions relate to the framing of charges against a single accused person. Section 234 (1) deals with the trial of a person for offences of the same kind not exceeding three committed within the space of 12 months from the first to the last of such offences and s. 231 (2) what is meant by the expression 'offences of' the same kind'. This provision lifts partially the ban on the trial of a person for more than one offence at the same trial. Section 235(1), however, goes a step further and permits the trial of a person for more offences than one if they are so connected together as to form the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnection with one another is obvious. The only provision in the Code which permits the joint trial of more than one person is s. 239 and what we have to see is whether under that provision the two respondents could have been jointly tried for the offences with which they were charged. Let us, therefore, examine closely the provisions of s. 239. It will be useful to set out the provisions of that section which run thus : The following persons may be charged and tried together, namely:- (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and per- sons accused of abetment, or of an attempt to commit such offence; (e) persons accused of more than one offence of the same kind within the meaning of section 234 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have been the intention of the Legislature to create such a situation. Again, as already stated, s. 234(1) does not override the provisions of s. 235(1) which permits trial of a person for more offences than one committed during any period provided they are so connected together as to form one transaction. Unless we read s. 234(1) as not enacting a fetter on s. 235(1), it may not be possible to give full effect to the latter. Now, since s. 234(1) cannot be properly read a,,; overriding s. 235(1) there is no valid reason for construing it as overriding the provisions of s. 239 either. There are also other reasons which point to this conclusion which we will set out while considering the argument advanced by Mr. Bhimasankaram. Mr. Bhimasankaram contended that s, 239 must be read at least subject to ss. 234(1) and 235(1) on the ground that if there are certain restrictions with respect to the trial of a single accused there is no reason why those restrictions will disappear if an accused person is tried along with several other persons. Thus he points out that where several persons are accused of more offences than one of the same kind committed by them jointly within a period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different offences were committed jointly by a group of persons from cases where any number of offences of the same kind were committed by a group of persons. According to Mr. Chari s. 235(1) cannot be construed as having an overriding effect on s. 239 because whereas it contemplates acts so connected together as to form the same transaction resulting in more offences than one, s. 239(d) contemplates offences committed in the course of the same transaction and nothing more. The question is whether for the purposes of s. 239(d) it is necessary to ascertain any- thing more than this that the different offences were committed in the course of the same transaction or whether it must further be ascertained whether the acts are intrinsically connected with one another. Under s. 235(1) what has to be ascertained is whether the offences arise out of acts so connected together as to form the same transaction, but the words so connected together as to form are not repeated after the words 'same transaction in s. 239. What has to be ascertained then is whether these words are also to be read in all the clauses of s. 239 which refer to the same transaction. Section 235(1), while pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, it is pointless to inquire further whether the provisions of s. 239 are subject to those of s. 236(1). The provisions of sub-s. (2) and (3) of s. 235 are enabling provisions and quite plainly can have no overriding effect. But it would be open to the court to resort to those provisions even in the case of a joint trial of several persons permissible under s. 239. Section 236 is also an enabling provision to be availed of in case of doubt and it is meaningless to say that s. 239 is subject to s. 236. ]Bearing in mind the fact that the provisions in the former part of Chapter XIX are applicable to charges made with the aid of s. 239 only so far as may be it would not be right to construe s. 239 as being subject to the provisions of ss. 233 to 236. It was contended by Mr. Chari that the expression former part would apply to the first sub- division of chapter XIX which deals with the form and content of the charges and the powers of the court with regard to the absence of charge and alteration of charge. We cannot, however, give the expression such a restricted meaning. For, even in the absence of those words, the earlier provisions could not have been ignored. For, it is a ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njudicious to try all the several persons separately. This would lead to unnecessary multiplicity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money. No corresponding advantage can be gained by the accused persons by following the procedure of separate trials. Where, however, several offences are alleged to have been committed by several accused persons it may be more reasonable to follow the normal rule of separate trials. But here, again, if those offences are alleged not to be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves. We entirely agree with the High Court that joint trial should be founded on some 'principle'. But we find it difficult to appreciate what seems to be the view of the High Court that because each `clause of s. 239 enunciates a separate principle those principles are, so to speak, mutually' exclusive and cannot be cumulatively resorted to for trying several persons jointly in respect of several offences even though they form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be ridiculous to say that they cannot be tried together for jointly committing the murder of the man and the wife because cl. (a) and (c) cannot be combined. For, without combining these two clauses their joint trial for the two offences in each of which both have participated would be impermissible. Then take s. (a) and (d). Under cl. (d) persons accused of different offences committed in the course of the same transaction can be tried together. Let us suppose that a group of persons are accused of having been members of an unlawful assembly the common object of which was to overawe by sheer force another group of persons and take forcible possession of a piece of land. Some of the members of the unlawful assembly carried axes with them while some others carried lathis and attacked the other group. During the course of the attack one person from the second group was killed, as a rest of blows with an axe inflicted by the aggressors A, B and C. Two persons of the second group sustained grievous hurt as a result of lathi blows and one person sustained simple hurt. Let us say that the grievous hurt was caused as a result of lathi blows given by X and Y, simple hurt was caused by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What was held there was that ss. 235 (1) and s. 236 are mutually exclusive and if a case is covered by one of them it cannot be covered by the other. In that case the question was whether a person who was first tried for an offence under s. 380, I.P.C. for stealing a blank second class railway ticket from the booking office, tried, for it and acquitted, could not be tried subsequently for the offence of forgery by making entries in that ticket and using it. The acquittal in the previous case was urged as a bar under s. 403(1) of the Code to the trial for an offence under s. 467, I.P.C. The contention apparently was that this was a case which fell under s. 236, Cr. P.C. and that if he had been tried alternatively for both the offences at the same trial the Court could have dealt with him under s. 237, Cr. P.C. The High Court, however, held that to be a kind of case which fell under s. 235(1) of the Code and that since that was so, the provisions of s. 236 were excluded. It is difficult to appreciate how this case assists the conclusion arrived at by the High Court. In D.K. Chandra's Case (A. I.R. 1952 Bom. 177, F. B.) it was held that the provisions of ss. 234, 235 and 236 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. 200 : No doubt, sub-s. (1) of s. 234 provides that not more than three offences of the same kind committed by an accused person within the space of 12 months can be tried at the same trial. But then s. 235 (1) provides that if in any one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. Therefore, where the alleged offences have been committed in the course of the same transaction the limitation placed by s. 234 (1) cannot operate. No doubt, the offence mentioned in charge No. I is alleged to have been committed not by just one person but by all the accused and the question is whether all these persons can be jointly tried in respect of all these offences. To this kind of charges. 239 would apply. This section provides that the following persons may be charged and tried together, namely : (1) persons accused of the same offence committed in the course of the same transaction; (2) persons accused of abetment or an attempt to commit such an offence; (3) persons accused of different offences committed in the course of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces committed by a single person or several persons. If the joinder of charges was contrary to the provisions of the Code it would be a misjoinder of charges. Section 537 prohibits the revisional or the appellate court from setting aside a finding, sentence or order passed by a court of competent jurisdiction on the ground of such a misjoinder unless it has occasioned a failure of justice. Even if we were to assume that there has been a misjoinder of charges in violation of the provisions of ss. 233 to 239 of the Code, the High Court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that misjoinder had occasioned failure of justice. This decision completely meets the argument based upon Dawson's Case (1960)1 All, E. R. 558). Merely because the accused persons are charged with a large number of offences and convicted at the trial the conviction cannot be set aside by the appellate court unless it in fact came to the conclusion that the accused persons were embarrassed in their defence with the result that there was a failure of injustice. For all these reasons we cannot accept the argument of learned counsel on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect of splitting the conspiracy into several conspiracies. that the several instances of cheating being alleged to be in pursuance of that conspiracy were parts of the same transaction and, therefore, the joint trial of the accused persons for the different offences was not vitiated. No doubt, there is no discussion there as to the question whether the various clauses of s. 239 could be combined or as to the impact of the provisions of S. 233 to 236 on those of s. 239. The actual decision of the case is, however, directly opposed to the contention now put forward before us. This decision has been followed in Natwarlal Sakarlal Mody v. The State of Bombay (Crl. A. No. III of 1959 decided on January 19, 1961). In that case the impact of s. 120-B, I.P.C. on ss. 233 and 239 of the Code of Criminal Procedure was considered by this Court and this Court observed: The combined effect of the three provisions (ss. 235, 236 and 239) is that if there is a criminal conspiracy to commit different offences, the persons who are members of that conspiracy may be charged and tried together but the necessary condition for invoking the provisions of s. 239 (d) is that the offence should ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, his first objection was that the charge comprises within it not merely the conspiracy but also what was in fact done in pursuance of the conspiracy. His next objection was that it brought within its purview all the various offences which were alleged to have been committed by the respondents. The third objection was that no charge of conspiracy could have been framed after the conspiracy had borne its fruits. The last objection was that the charge of conspiracy was added to the charge sheet very late. We shall first deal with the third point. The offence of conspiracy is an entirely independent offence and though other offences are committed in pursuance of the conspiracy the liability of the conspirators for the conspiracy itself cannot disappear. In the Indian Penal Code, as originally enacted, conspiracy was not an offence. Section 120 -B which makes criminal conspiracy punishable was added by the Indian Criminal Law Amendment Act, 1913 (8 of 1913) along with s. 120-A. Section 120-A defines conspiracy and s. 120- B provides for the punishment for the offence of conspiracy. Criminal conspiracy as defined in s. 120-A and consists of an agreement to do an illegal act or an ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to answer and nothing more. Even assuming for a moment that this charge is cumbersome in the absence of any objection by the respondents at the proper time and in the absence of any material from which we could infer prejudice, they are precluded by the provisions of s. 225 from complaining about it at any rate after their conviction by the trial court. Coming to the next point of Mr.. Bhimsankaram regarding the abuse of powers under s. 342 his first contention was that long and involved questions were put to the respondents. His second contention was that reference was made to a number of documents in some of these questions and those documents were not made available to the respondents for answering those questions. The third contention was that the questions were involved, confusing and bordered on cross-examination. Finally he said that the court did not perform its duty under s. 342 (4) of the Code as amended as it failed to bring to the notice of the respondents that they may, if they chose, give evidence in their defence. In support of his first contention he referred to questions Nos. 4, 8, 9, 10 and 20 put to the respondent No. I and question No. 12 put to the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Undoubtedly the learned Additional Sessions judge has questioned the respondents very fully and elaborately but to say that this bordered on cross- examination is wholly unjustifiable. The object of the learned Additional Sessions Judge quite clearly was, as already stated, to leave no loophole for a complaint to be made before the appellate court of incomplete or insufficient examination under s. 342. Finally we are clear that it was not the duty of the court to draw the pointed attention of the respondents to the provisions of sub-s. (4) of s. 342 and tell them that they may, if they chose, enter the witness box. It is true that by introducing this provision the disability placed on an accused person in respect of giving evidence on oath in his own defence has been removed and to that extent such person is placed on par with an accused person under the English law. The new provision, however, does no more than lift the ban and does not impose a duty on the court to draw the attention of an accused person to its contents. Apart from that, the respondents were represented by counsel at the trial who knew very well what the law was. No complaint was made by the respondents eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng whether the amount referred to therein was in fact paid by A to B. The entry by itself is of no help to A in his claim against B but it can be considered by the court along with the evidence of A for drawing the conclusion that the amount was paid by A to B. To this limited extent entries -in the account books are relevant and can be proved. Section 34 does not go beyond that. It says nothing about non-existence of entries in account books. We, therefore, agree with the High Court that the account books of the various concerns to whom payments are said to have been made by the respondents are not by themselves evidence of the fact that no payments were received by them. The decision in Queen Empress v. Grees Chunder Banerjee (1884) I. L. R. 10 Cal. 1024), upon which reliance is placed by the High Court in support of its view is also to that effect. Similarly in Ram prashad Singh v. Lakhpati Koer (1902) I. L. R. 30 Cal. 231, 247). Lord Robertson during the course of the hearing has observed that no inference can be drawn from the absence of any entry relating to any particular matter which observation supports the view taken in Queen Empress v. Girish Chander Banerjee (1884) I.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these receipts are forged documents and the entries in the account books of VESCO are false. One of the partners of the firm was examined by the prosecution as a witness in the case and he produced the account books of the firm. Those account books are in Gujrati and he stated in his evidence that the accounts were regularly kept and that there were no entries in them corresponding to the entries in the VESCO accounts. The High Court held that since the account books were not translated they are not admissible in evidence. The High Court was clearly wrong in so holding. In coming to this conclusion it has relied upon the provisions of s. 356 (2A) of the Code of Criminal Procedure. That section reads thus: When the evidence of such witness is given in any other language, not being English, than the language of the Court, the Magistrate or Sessions judge may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, and an authenticated translation of such evidence in the language of the Court or in English shall form part of the record. This provision relates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be expected to remember every transaction in all its details and s. 160 specifically permits a witness to testify the facts mentioned in the documents referred to in s. 159 although he has no recollection of the facts themselves if he is sure that the facts were correctly recorded in the document. That is precisely what happened in this case and we do not think that the Additional Sessions judge adopted a procedure which was either a violation of law or was an abuse of the power of the Court. The next point is a formidable one. According to Mr. Bhimasankaram, the pardon tendered to the approver was illegal and if the pardon is illegal his evidence is wholly inadmissible. Further, according to him, the evidence of the approver was found by the Additional Sessions judge to be unreliable and therefore, the first condition referred to in Sarwan Singh v. The State of Punjab ([1957] S.C. R. 953), was not satisfied. For all these reasons the evidence of the approver must be left out of account. If it is left out of account, he contends, there is nothing left in the prose- cution case, because, as pointed out by the Additional Sessions judge himself the evidence of the approver is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions and the punishment as set out in the 7th column of Schedule II, Cr. P. C. was transportation for life or imprisonment of either description for ten years and fine. He contends that since the offence is punishable with transportation for life, s. 337 (1) could not be availed of for granting pardon to the approver. It seems to us that it would not be correct to read s. 337 (1) in the way sought by learned counsel. The very object of this provision is to allow pardon to be tendered in cases where a grave offence is alleged to have been committed by several persons so that with the aid of the evidence of the person pardoned the offence could be brought home to the rest. The gravity is of course to be determined with reference to the sentence awardable with respect to that offence. On the strength of these considerations Mr. Chari for the State contends that if the words any offence punishable with imprisonment which may extend to 10 years were interpreted to mean offences which were punishable with imprinsonment of less than 10 years grave offences which are not exclusively triable by a court of Sessions will be completely out of s. 337 (1). He suggests that this provision can a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the offence under s. 409. The offence under s. 467 read with s. 471 is punishable with imprisonment for life or imprisonment of either description for a period of 10 years but it is exclusively triable by a court of Session and, therefore, in so far as such offence is concerned the argument of Mr. Bhimasankaram would not even have been available. As regards the offence under s. 477-A, it is one of those sections which are specifically enumerated in s. 337 (1) and the argument advanced before us-and which we have rejected would not even be available with regard to the pardon in respect of that offence. It is true that the respondent No. I alone was convicted by the Additional Sessions judge of this offence and the offence under s. 467 read with s. 471 but the validity of a pardon is to be determined with reference to the offence alleged against the approver alone and not with reference to the offence or offences for which his associates were ultimately convicted. Coming to the next ground of attack on the validity of pardon, the argument of Mr. Bhimasankaram is that whereas s. 337 (1) speaks of pardon being granted by a District Magistrate, or Presidency Magistrate, a Sub-D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... virtue of office, will retain some of the powers of a District Magistrate and will be called the 'Additional District Magistrate. To distinguish him from his Personal Assistant, he may be called 'Additional District Magistrate (Independent)'. He will continue to be the Head of the Police. Similarly, the Revenue Divisional Officers will be exofficio First Class Magistrates, and the Tahsildars and the Deputy Tahsildars will be ex-officio Second Class Magistrates. The extent of their magisterial powers will be as indicated in the Schedule of allocation of powers. They will exercise these powers within their respective revenue jurisdictions. Para 5 provides that as officers of the Revenue Department, those magistrates would be under the control of the Government through the Board of Revenue. The Additional District Magistrates (Independent) would also be under the control of the Government through the Board of Revenue. The category of judicial Magistrates was constituted of the following: (1) District Magistrate; (2) Sub-divisional Magistrates; (3) Additional First Class Magistrates and (4) Second Class Magistrates (Sub- magistrates). The District Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has in fact been shown to have been made by the State Government conferring upon an Additional District Magistrate the power of the District Magistrate to grant pardon. In our opinion, there is no subtance in the contention. The power conferred by sub-s. (1) of s. 337 on the different clauses of Magistrates is of the same character. The power to grant pardon in a case pending before another Magistrate is no doubt conferred by the proviso only on the District Magistrate. But Entry 7 (a) in Part V of Sch. III when it refers to the power of a District Magistrate under s. 337 (1) does not exclude the power under the proviso. There is, therefore, no warrant for drawing a distinction between the powers of the District Magistrate and the powers of 'a District Magistrate. The power of a District Magistrate to grant Pardon has been specifically conferred on Additional District Magistrates as would appear from s. no. 37 of Sch. III of the Government Order, which reads thus : SI. Judl. Exec. Concurrent no. magis- magis- jurisdictrate tratetion 37 337(1) 2nd paragraph (proviso) Remarks Reference to the District Magistrate in the proviso should be construed as refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d pardon at all and not been put on trial. Learned counsel further pointed out that the decisions show that however undesirable it may be to adduce the evidence of a person jointly accused of having committed an offence along with others, his evidence is competent and admissible except when it is given in a case in which he is being actually tried. This legal position does not, according to him, offend the guarantee against testimonial compulsion and he points out that that is the reason why an accused person is not to be administered an oath when the court examines him under s. 342 (1) for enabling him to explain the circumstances appearing in evidence against him. If pardon is tendered to an accused person and eventually it is found that the pardon is illegal such person is pushed back into the rank of an accused person and being no more than an accomplice would be a competent witness. The question raised is an important one and requires a serious consideration. Mr. Chari in support of his contention has cited a large number of cases, Indian as well as English, and certain passages from Halsbury's Laws of England. But in the view we take about the legal validity of the pardon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct. Of course, the view taken by the Additional Sessions judge is not binding on the High Court. But it should remove from its mind the misconception that the Additional Sessions judge has not believed him. There is another thing which we would like to make clear. The decision in Sarwan Singh v. The State of Punjab ([1957] B. C. R. 953), on which reliance has been placed by the High Court has been explained by this Court in the case of Maj. E. G. Barsay v. The State of Bombay ([1962] 2 S.C. R. 195). This Court has pointed out in the latter decision that while it must be shown that the approver is a witness of truth, the evidence adduced in a case cannot be considered in compartments and that even for judging the credibility of, the approver the evidence led to corroborate him in material particulars would be relevant for consideration. The High Court should bear this in mind for deciding whether the evidence of the approver should be acted upon or not. Then again it would not be sufficient for the High Court to deal with the evidence in a general way. It would be necessary for it to consider for itself the evidence adduced by the prosecution on the specific charges and then to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
