1. These are three criminal appeals Nos. 43 of 1950, 45 of 1950 & 46 of 1950 arising out of a trial of five accused persons — Nirmal Prosad Barua, Pulin Chandra Das, Chandra Kanta Bhandar Kayastha, Anilesh Chandra Ghose, & Jyotsna Chakravarty — who were convicted & sentenced to various terms of imprisonment by the learned Ses. J., L. A. Districts, at a trial held with the aid of a Jury. Under Section 477A, I. P.C. the applt. Chandra Kanta Bhandar Kayastha was sentenced to R. I. for one year, & Under Section 120B & Section 420, I. P.C. he was sentenced to R. I. for four years. The remaining 4 applts., namely, Nirmal Prosad Barua, Pulin Ch. Das, Anilesh Chandra Ghose, & Jyotsna Chakravarty, were each sentenced to R. I, for four years Under Sections 420 & 120B, I. P.C. the sentences being ordered to run concurrently. The sentence of the applt., Chandra Kanta Bhandar Kayastha, Under Section 477A, I. P.C. was ordered to run consecutively with the sentences passed upon him Under Sections 420 & 120B, I, P.C. Appeal No. 43/50 is by Anilesh Chandra Ghose, Appeal No. 45 of 1950 is by Nirmal Prosad Barua, & Appeal No. 46 of 1950 by the remaining 3 accused persons. All the 5 applts. were sent up under a Charge-sheet filed before the Committing Mag. Under Sections 420, 120B, 477A & 408, I. P.C. While the case was pending before the Committing Mag., an appln. was made by the learned Govt. Advocate for the grant of pardon to one Bhudhar Gogol, Cashier of the Gauhati Bank, Ltd. The Committing Mag. granted pardon to Bhudhar Gogol & ultimately committed the case to the Ct. of Session Under Sections 120B & 420, I. P.C.
2. As we propose to order a retrial it is not necessary to set out the facts of this case.
3. The grounds upon which the applts. seek an acquittal or, in the alternative, a re-trial, are these:
1. That the pardon tendered to the Approver was not granted in accordance with law.
2. That the offence of cheating, if any, fell within the purview of Section 417, I. P.C. & not Section 420, I. P.C. & as an offence Under Section 417, I. P.C. is punishable with less than 2 years' R. 1, sanction was a condition precedent under the provisions of S 196B sic; Section 198 A ?, Cr. P.C. for the prosecution of the applts.
3. That the joint trial of the 5 applts. for the various offences was in contravention of the provisions of Section 239, Cr. P.C.
4. That the Jury had not been empanelled in accordance with law.
5. That the learned Judge has misdirected the Jury on questions of law & fact — a misdirection which has resulted in an erroneous verdict.
In view of our decision to order a re-trial it is unnecessary to deal with the question of the applicability of Section 239, Cr. P.C. nor is it necessary to deal with' the question as to whether or not the Jury were properly empanelled. We will confine our decision to the remaining 3 points.
4. The provisions relating to pardon are contained in Sections 337 to 399, Cr. P.C. It was contended on behalf of the applts. that as the applts. were committed to the Ct. of Session Under Sections 420 & 120B, I. P.C. & not Under Section 477A, I. P.C. the Committing Mag. acted without jurisdiction in tendering pardon to the approver. The plain answer to this contention is that the question of tender of pardon is not to be decided with reference to the charges under which an accused person is committed to the Ct. of Session. It depends upon the question as to whether or not the offence alleged against an accused person or persons is one which is mentioned in Section 337, Cr. P.C. As we have observed, the Police sent up a Charge-Sheet against the applts. Under Section 477A, Penal Code, in addition to other offences, & S 477A, I. P.C. is expressly refd. to in Section 337, Cr. P.C. under which section a Dist. Mag., a Presidency Mag., a sub-divisional Mag. or any Mag. of the First Class may, at any stage of the investigation or inquiry into, or the trial of the offence, tender a pardon to an accused person. The Committing Mag. in this case was undoubtedly a Mag. of the First Class & had, therefore, jurisdiction to tender pardon under the provisions of Section 337, Cr. P.C. to the Approver.
5. From the language of Sub-section (2 A) of Section 337 Cr. P.C. it is clear that a Committing Mag, who has tendered pardon to an accused person in accordance with Section 337, Cr. P.C. is not bound to commit an accused person for the trial of an offence mentioned in Section 337, Cr. P.C. by a Ct. of Session or H. C. He is competent to commit the case to a Ct. of Session or H. C. for any offence in respect of which he finds a, 'prima facie' case has been made out, — not necessarily an offence mentioned in Section 337, Cr. P.C. We are satisfied that pardon in this case was validly tendered.
6. As to the necessity or otherwise for sanction under the provisions of Section 196 B sic; Section 196 A ?, Cr. P.C., it was conceded on behalf of the applts. that if the offence of the accused persons fell within the ambit of Section 420, I. P.C. sanction would not be required, the offence Under Section 420, I. P.C. being punishable with 2 years or more. It was, however, contended that the offence of the accused fell Under Section 417,1. P.C. & not Under Section 420,1. P.C. We are unable to accept the contention. Prom the facts alleged by the prosecution it appears that in pursuance of the deception alleged to have been practised, property was delivered to the accused. The difference between Section 417, I. P.C. & Section 420, I. P.C. is this. Where in pursuance of the deception, no property passes, the offence is one of cheating punishable Under Section 417, I. P.C. but where, in pursuance of the deception, property is delivered, the offence is punishable Under Section 420,1. P.C.
7. On the question of misdirection, however, we think the applts' contentions must prevail. On the question of misdirection in law, the main point taken by the applts' advocate is that the learned Judge misdirected the Jury in regard to Section 133, Evidence Act, & Section 120B, Penal Code. It is alleged that the learned Judge read out passage after passage from Sarcar's Law of Evidence & Ratanlal's Law of Crimes without any reference to the facts of the case. It is pointed out that the learned Judge's summing up on the law involved in Section 120B, I. P.C. as laid before this Ct., is not the summing up which he addressed to the Jury in Assamese; that what has been placed before this Ct. as a translation of the supposed summing up to the Jury is verbatim re-production of the language used in text books. For instance, the learned Judge's summing up appearing at pp. 165 & 166 of the Paper-Book is to be found in identical language at pp. 268, 269 & 270 of Ratanlal's 'Law of Crimes'.
8. We have satisfied ourselves by a comparison of the language used in the summing up with the language used in Ratanlal's 'Law of Crimes' in his commentary on Section 120B, I. P.C. that it is improbable in the extreme that what has been placed before us as the summing up of the learned Judge, was, in fact, the summing up addressed to the Jury. On this ground alone we would be Justified in setting aside the convictions & sentences.
9. Apart from his obvious plagiarism, which might well be characterised as a species of indirect misdirection, there is direct misdirection in the learned Judge's summing up on the value of an Approver's evidence. Once again the language used in the supposed translation is identical to that used in certain text books & decided cases. Moreover, we think the learned Judge clearly erred in directing the Jury to the effect that a conviction can be based upon the uncorroborated testimony of an accomplice. At pp. 173 & 174 of the Paper Book appear the following passages:
The rule that an accomplice must be corroborated in material particulars is mere rule of general & usual practice, the appln. of which is for the discretion of the Ct. by which the case is tried. This Section 133, Evidence Act, in unmistakable terms lays it down that a conviction is not illegal because it proceeds upon the uncorroborated testimony of an accomplice, & to hold that corroboration is necessary is to refuse to give effect to this provision, & so a Jury may, it they please, act upon the evidence of an accomplice without any confirmation of his statements....If the Ct., after making due allowance for these considerations & the probability of the story, comes to the conclusion that the evidence of the accomplice, although uncorroborated, is true, & the evidence, if believed, establishes the guilt of the prisoner, then the Ct. can convict. But it is sufficient if the evidence is confirmatory of some of the leading circumstances of the story of the Approver as against a particular prisoner, so that the Ct. may be able to presume that he has told the truth as to the rest.
Then comes a quotation from 'The Queen v. Kallachand' 11 WR (Crl.), p. 21):
The true rule on the subject of the corroboration of the evidence of the Approver probably is that if the Ct. is satisfied that the witness is speaking the truth in some material part of his testimony, in which it is seen that he is confirmed by unimpeachable evidence, there may be Just ground for believing that he also speaks the truth in other parts as to which there may be no confirmation.
10. On reading the learned Judge's summing up to the Jury on the value of an approver's evidence, it seems to us that the learned Judge himself was not Quite sure as to what the law an the subject was, a stale of mind which he has betrayed in what may be described as a see-saw performance so confusing to a Jury. In a case which came up before the Bombay H. C, & is reported in 'Mata Prasad v. Emperor' AIR (30) 1943 Bom 74 : 44 Cr LJ 411, Broomfield, J., after quoting from what the learned trial Judge had said to the Jury, observed:
The rule of practice, however, is much stronger & more definite than that, & in our opinion, the learned Judge should have impressed upon the Jury much more clearly & emphatically that it is a rule which has practically the force of law, & that they ought not to convict on the evidence of an accomplice without substantial & reliable corroboration of it.
With respect we think, the observation of Broom-field, J., constitute a correct statement of the law enacted in Section 133, I. E. A. In another case reported in 'Ambika Charan v. Emperor', 35 OWN 1270 : AIR (18) 1931 Cal 697: 33 CrLJ 19 SB Rankin, C.J., delivering the judgment of the D. B. observed in this behalf:
As an English case puts it, a man who has been guilty of a crime himself will always be able to relate the facts of the case & if the confirmation be only of the truth of that history without identifying the person, that is no corroboration at all. We have always to be careful lest the names of the individual accused are introduced into the texture of a story the outline of which is true enough.
In the case before us, the learned Judge's summing up is so inadequate on the question of the corroboration of the approver's evidence in the matter of the identity of the accused persons with the commission of the crime that it amounts to misdirection — a misdirection which has led to an erroneous verdict.
11. Accordingly we set aside the convictions & sentences & order a retrial, which must be had by a Judge competent to try the case other than the learned Ss. J., L. A. D.
12. We wish to say that at the re-trial, if the summing up is in Assamese, a true record of that summing up must be kept, & an official translation of the summing up should be submitted to the H. C. if & when the convicted persons prefer an appeal. This practice must be folld. in all cases. The learned Ses. J. who tried this case, in placing before us a translation which we do not think is a translation of what he actually said to the Jury in his summing up in Assamese, has failed to discharge his duties as a Judge. We think it is desirable that, when this case is re-tried, the conduct of the case is placed in charge of the Senior Govt. Advocate.
13. Ram Labhaya, J.: I agree.