1. [His Lordship after setting out facts of the case proceeded :] The first question which it is necessary to deal with is whether Aziz, who has been examined as the principal witness for the prosecution, is a competent witness and whether his evidence is admissible. The facts to be noted in this connection are these. The charge-sheet was placed before the Court on September 14 and on the same date the prosecution made an application to the Magistrate to make Aziz an approver under Section 337 of the Criminal Procedure Code. The Magistrate declined to entertain this application and no pardon could have been legally tendered as Section 337 does not apply to the facts of the case. The hearing of the case was postponed to September 21, and on that date the prosecution applied that Aziz should be tried separately from the other accused. It was stated in the application that the prosecution desired that Aziz should be examined as a witness and it was prayed therefore that in order that he should be so examined his name should be deleted from the charge-sheet and placed on a separate charge-sheet. The application was opposed on behalf of the other accused, but the Magistrate held that there was no objection and allowed it.
2. The argument that he is not a competent witness is based principally on the case of Reg. v. Hanmanta I.L.R. (1877) 1 Bom. 610. That was a case in which a pardon had been tendered to an accused person but illegally tendered. The Court held that it is not competent to a Magistrate to convert an accused person into a witness except when a pardon has been lawfully granted under Section 347 corresponding to the present Section 337 of the Code of Criminal Procedure. The decision was principally based on Sections 344 and 345 of the old Code of Criminal Procedure. Old Section 344, which corresponds to the present Section 343, provides that except where a pardon is tendered no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge, and Section 345, which is now part of Section 342, prescribes that no oath or affirmation shall be administered to an accused person. This case was followed in Queen-Empress v. Lilladhur (1889) Unrep. Cr. C. 461, in Empress of India v. Asghar Ali I.L.R. (1879) All. 260, and in other cases.
3. But in Queen-Empress v. Mona Puna I.L.R. (1892) 16 Bom. 661, Reg. v. Hanmanta was considered and explained and it was held that when Section 342 of the present Code says that no oath is to be administered to the accused, it means by ' the accused ' a person over whom the Court is exercising jurisdiction, and that therefore a person concerned in an offence and illegally discharged by the police in order that he might give evidence was a competent witness. He had never been brought before the Court as an accused person and for that reason it may be said that that case is distinguishable both from Reg. v. Hanmanta and the present case.
4. However, in Empress v. Durant I.L.R. (1898) 23 Bom. 213, Mr, Justice Candy, after an elaborate discussion of the authorities both Indian and English, went further and held that ' accused' in Section 342 means the accused then under trial and under examination by the Court and cannot include an accused over whom the Court is exercising jurisdiction in another trial. He pointed out that the decision in Hanmanta's case refers solely to the evidence of an illegally pardoned accomplice and is based on the combined effect of Sections 344 and 345 of the then Code of Criminal Procedure.
The provision in Section 345 stood by itself as a separate section, and was not, as it now is in the present Code of Criminal Procedure, part of Section 342, which deals with the examination of an accused person at the trial of that accused person, and provides that for the purpose of that examination in the trial no oath shall be administered to that accused person. Their Lordships in Hammanta's case did not profess to deal with the case of an accused person, who has been indicted jointly, but is to be tried separately by a different jury or by different assessors, being called as a witness for his co-accused' (p. 218).
5. Empress v. Duraant was considered by a bench consisting of Candy and Fulton JJ. in King-Emperor v. Annya (1901) 3 Bom. L. R. 437. Fulton J. appears to have felt some doubt about it but he did not dissent from it. It was followed by a bench in Emperor v. Govind Balvant Laghate (1916) 18 Bom. L. R. 266 and by Mr. Justice Taraporewala in Emperor v. Dawood Kazi I.L.R. (1925) 50 Bom. 56 : 28 Bom. L. R. 79. In all these cases it has been held that ' accused ' in Section 342 means the accused under trial at the time and no other. I may also refer in this connection to Emperor v. Keshav Kortikar (1934) 37 Bom. L. R. 179, Queen-Empress v. Tirbeni Sahai I.L.R. (1898) All. 426, Emperor v. Har Prasad Bhargava I.L.R. (1922) All. 226, Banu Singh v. Emperor I.L.R. (1906) Cal. 1353, and Akhoy Kumar Mookerjee v. Emperor I.L.R. (1917) Cal. 720. In the latter case the Court said that the law must be regarded as settled in this sense.
6. In view of these authorities we are satisfied that Aziz was a competent witness. He was not an accused for the purposes of Section 342 of the Code nor for the purposes of Section 343. In any case as regards the latter section there is no evidence of any promise or inducement having been made to him which would render his evidence inadmissible. Whether it is desirable that a separate trial should be ordered of one of several persons alleged to have committed the same offence, simply in order that his evidence may be available against the others, is a different question. I think it certainly would be undesirable if there were any alternative satisfactory to all concerned, for instance, if a pardon could be tendered or if it were a suitable case for withdrawing the prosecution under Section 494. But it may well be that the prosecution were not prepared in the present case to take the risk of withdrawing the prosecution. It would have been possible to try Aziz first, but. in that case he might not have been willing to give evidence. Section 239 of the Criminal Procedure Code is an enabling section. The Magistrate has a discretion to order a separate trial. I am not prepared to say that in the present case he acted unjudicially in ordering a separate trial of Aziz even though the avowed object of the prosecution was to enable him to give evidence. It is necessary to bear in mind in this connection, as the Court said in Queen-Empress v. Mona Puna I.L.R. (1892) 16 Bom. 661, that one great end of criminal procedure is the prevention and punishment of crime.
7. The value to be attached to the evidence of Aziz is again a question quite distinct from that of its admissibility. The Magistrate stated in his order that he was not discharged. The prosecution will not. be permitted to withdraw the case against him and he will be dealt with just as the other accused. Nevertheless I dare say he hopes to benefit in some way by the assistance he has given to the police. It may be said that his evidence is therefore less reliable or more unreliable than that of an approver. Personally, however, I doubt if there is very much in that point as an approver may have his pardon cancelled if his evidence differs materially from his proof.
8. There is one other point of law. No objection was taken to the joinder of the charges in the trial Court and no point in that connection was taken in the argument of learned Counsel for the appellants. But a doubt having arisen in our minds as to the admissibility of charges 2 to 4, which allege an indefinite number of offences of purchasing, treating and disposing of stamps during a period of three years, we put the point to the learned Govern- ( ment Pleader. He has relied on Section 239(4) of the Criminal Procedure Code and maintains that as all the offences were committed in the course of the same transaction there is no objection to the form of the charges and no objection to a separate sentence under charges 2, 3 and 4.
9. In Maung Ba Chit v. King-Emperor I.L.R. (1929) Ran. 821 it was held that a charge of conspiracy to steal Government timber during a period of two years may properly be joined with a charge of habitually receiving and dealing in such stolen timber during the same period, the latter charge being under Section 413 of the Indian Penal Code. In Harsha Nath Chatterjee v. Emperor I.L.R. (1914) Cal. 1153 it was held, following Superintendent and Remembrancer of Legal Affairs, Bengal v. Mon Mohan Roy (1914) 19 C. W. N. 672, that as long as the conspiracy continues, the transaction which began with the forming of the common intention continues, and charges of offences committed in pursuance of the conspiracy may be joined with the charge of conspiracy. But we do not think that these cases really get rid of the difficulty that charges 2 to 4 are omnibus charges relating to an indefinite number of offences alleged to have been committed within the period stated without anything to specify time, place or circumstances or even which of the accused are supposed to have committed any particular offence. There was no such difficulty in Maung Ba Chit v. King-Emperor, for there Section 413 of the Indian Penal Code could be availed of, the offence of being a habitual receiver. In Harsha Nath Chatterjee v. Emperor and also in Abdul Salirn v. Emperor I.L.R. (1921) Cal. 573, another case bearing on the point, the particular offences alleged to have been committed in furtherance of the conspiracy were all specified.
10. Section 222 of the Code requires that particulars should be given of the offence charged. Section 233 provides that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239. Section 234 provides that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, he may be charged with, and tried at one trial for, any number of them not exceeding three. Now the law is clear that Sections 235 and 239 of the Code, which deal with the joinder of charges of different offences and the joint trial of a number of accused persons, are not controlled by the latter part of Section 233 or by Section 234. If offences are committed in the course of the same transaction they may be tried together, although they are more than three in number and extending over a period of more than a year. But there is nothing in Section 235 or 239 to suggest that they are not governed by Section 222 or the first part of Section 233. On the contrary the illustrations to Section 235 make it clear that when different offences are tried together, they must be separately charged.
11. The punishment for the offence of conspiracy under Section 120 B depends upon whether the illegal act has or has not been carried out. In the former case the punishment will be in accordance with Section 109, i.e. it will be the same as for the offence itself. In the latter case it will be in accordance with Section 116. When conspiracy is charged, therefore, it is always open to the prosecution to charge further that the illegal acts which were the object of the conspiracy have been carried out. In the present case proof having been given that the illegal acts were done in furtherance of the conspiracy, the offence under Section 120 B is punishable under Section 109 and not under Section 116. But acts done in pursuance of the conspiracy cannot be separately punished unless these acts are separately charged and particularised as required by the Code, We think, therefore, that although on the finding that the accused are guilty of conspiracy, the maximum sentence under Section 263 might have been imposed, it was not legal to impose one sentence under Section 120 B and a separate sentence under Sections 263 and 109.
12. [His Lordship went into detail as to the evidence in the case and concluded as follows :] On the evidence we think it is impossible to doubt that accused. No. 5 was dealing in these doctored stamps and committing offences against Section 263 of the Indian Penal Code. But we think that there may be a reasonable doubt as to whether he was a member of any conspiracy along with accused Nos. 1 to 4 and Aziz.
13. As regards accused Nos. 1 to 4 we are satisfied that the learned trial Magistrate was right in convicting them of the offence of conspiracy. The separate sentence imposed under charges 2, 3 and 4 cannot be maintained for the reasons which I have already given.
14. The result is that we set aside the convictions and sentences imposed on all the accused under Section 263 read with Section 109. The conviction of accused Nos. 1 to 4 under Section 120 B is confirmed and the sentences under that section are also confirmed. The conviction of accused No. 5 under Section 120 B is set, aside and he is acquitted and discharged.
15. Accused Nos, 3 and 4 must surrender to their bail to complete their sentence.
16. I agree.