Subba Rao, C.J.
1. The appellants are the accused in Sessions Case No. 12/8/56 on the file of the Court of the Sessions Judge, Mahabubnagar. They were convicted under Section 395, IPC and accused 1 was sentenced to rigorous imprisonment for life and the rest to 10 years' rigorous imprisonment and to a fine of Rs. 500/- each.
2. Shortly stated, the prosecution case is as follows: The accused, along with three others, committed dacoity in the house of Billa kanti Lingayya of Bondalapalli en the intervening night of 1st and 2nd March 1956 between 11 P. M. and 12 mid-night. That day, the said Lingayya had gone to some other village and the women-folk of the house had gone to see some dramatic performance.
During their absence, after inflicting injuries on the inmates, they took away cash, currency notes, gold and silver ornaments and other articles worth about Rs. 50,000/-. The learned Sessions Judge, after carefully considering the evidence, held that the accused committed, dacoity in the house of Lingayya on the intervening night of 1st and 2nd of. March 1956 and convicted them as aforesaid.
3. The evidence was considered by the learned Judge under the following heads : (i) eye witnesses, who were present in the house at the time of the occurrence, (ii) recovery of property from the possession of the accused, (iii) identification of the property, the subject matter of the dacoity, (iv) possession and ownership of the property, (v) evidence of the approver who was present at the time of the dacoity and (vi) identification of the accused by the eye witnesses in the identification parade. The learned Judge practically accepted the entire evidence produced by the prosecution and rejected that adduced by the defence under the various heads.
4. learned Counsel appearing for the accused contended that the eye-witnesses cannot be believed or, at any rate, they were not in a position to identify the accused, that the parades wherein the accused are alleged to have been identified were a mockery inasmuch as the witnesses had every opportunity to see the accused beforehand and indeed, as a matter of fact, they saw them before they actually identified them in the parade, that the discovery of the various articles in the house of the different accused was brought about by the police by implanting some of the articles in their houses, that the identification of the articles so discovered as those of Lingayya was irregular as the jewels etc., were shown to the witnesses for identification instead of mixing them with other similar articles and asking the witnesses to identify those of Lingayya and that the approver's evidence was inadmissible as the pardon was given to him in direct contravention of the provisions of Section 337 of, the Criminal Procedure Code.
5. We shall first consider the evidence of the witnesses who are alleged to have been present in the house of Lingayya at the time the dacoity was committed. P.W. 14 is one Veerayya. Lingayya's daughter is married to his son. He speaks to the prosecution version in detail. He describes the incident thus : Narayana and Butchayya slept in the bunk and Lakshmaiah, Nariga and the witness were in the central hall.
As the door of the hall was chained inside and as they did not open the door, the accused took out the planks of the door and entered the hall. After entering the hall, they beat the witness, Lakshmaiah and Nariga. When questioned, the witness and others also stated that they did not know where the iron safe was. Thereafter, they opened the door of the room where the iron safe was kept. There were two or three yekkas and the accused lighted them.
They made the witness, Lakshmaiah and Nariga to sit in the central hall near the door of the room where the iron safe was kept and brought Nariga and Butchayya into the room near the safe. After breaking open the safe with a crow-bar, the various ornaments and cash were put in the several bags carried by the accused. The accused searched the trunks and also broke open some of the trunks. P.W. 14 identifies accused 4, 8, 3, 7, 12, 6 and 13.
He also identifies the various articles discovered in the possession of the accused as belonging to Lingayya or to his daughter-in-law. learned Counsel contends that this witness was not in the house that night and that on account of his relationship, his services were utilised to speak to a false case. Reliance is placed on the fact that, in the First Information Report Ex. P-l issued on. 2-3-56, his name was not mentioned.
But a perusal of Ex. P-l shows that the names of Butchayya and Nariga were also not mentioned. Lingayya, after his return from Gdulanerva, communicated briefly and generally the facts pertaining to the dacoity to the Sub-Inspector of Police. He did not give the names of any persons who were in the house but only gave the names of the two persons who gave him the information. It cannot, therefore, be said that in the Ex. P-l the names of all the witnesses to the incident were given and that the exclusion of the name of P.W. 14 therefrom would indicate that he was not in the house when the dacoity was committed.
6. Similar comment is made in regard to the panchanama Ex. P-16 of the scene of occurrence. In the Panchanama, the panchas say that, on enquiry, Narayana and his sons Rangayya and Lakshmayya stated that on 1st March 1956 at 11 P.M. Narayana, Lakshmaiah, Narsa and Lachmiah were sleeping in the house. It is, therefore, contended that, if Veerayya was also sleeping in the house that night, they would have been- informed of that fact also. There is a mistake in the printed record. Reference to the original shows that the name of Veeraiah also is mentioned.
7. Similar comment also is made on their basis of the plan of the scene of offence Ex. P-23, wherein the places where some of the occupants of the house were sleeping are marked' but the place where Verayya, if he was in the house that might, must have slept is not marked. But in the plan the places where Narayana and Lakshmaiah were sleeping are marked.
It does not purport to show the place where all the persons in the house were sleeping for it does not also indicate where Butchayya and Nariga were sleeping that night. The details given in the plan which are not exhaustive, do-not indicate that there were no others in the house on the date of the occurrence.
8. Stress is laid on the fact that no-attempt was made by the Police to get at this witness for about a week. But the witness explains that, by the time the Police arrived, he-was not in the village and that, five or six days ' after the occurrence he had gone to Nager-kurnool on some work and there, he met the-Sub-Inspector. The explanation is acceptable in the circumstances of the case. This delay may have some significance, if there are other suspicious circumstances bearing on his evidence.
This witness took part in the identification parade and identified some of the accused. We shall deal with the legality and the regularity of the identification parades separately. Being' a sambandi of Lingayya, there is nothing improbable in his coming to Lingayya's house for taking his daughter-in-law. His description of the incident appears natural and straightforward. Nothing serious has been elicited in his cross-examination to discredit his evidence.
9. P.W. 13 the servant corroborates P.W. 14 in all material particulars. He identifies-accused 8, 10, 3, 7, 13, 4, 2, 6, 12, 5 and 9 and P.W. 16 the approver. The non-inclusion of his name in Ex. P-l is emphasised upon but for the reasons we have given in the case off P, W. 14, that fact is not of such significance. In Ex. P-16, his name was mentioned. This: witness is an unsophisticated man and he gives his evidence in a simple and straightforward/ manner.
It is contended that this witness's name also-was not mentioned in Ex. P-l. But P.W. 1 did not give the names of those who informed him of the dacoity. In Ex. P-16, the panchanama of the scene, of occurrence, the name off this witness was mentioned. It is contended that the learned Judge had illegally refused to allow the learned advocate to cross-examine him once again after he was questioned by the Judge. Section 165 of the Evidence Act, which enables a party to cross-examine a witness on the answers elicited to the question put by the Judge reads:
The Judge may in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order nor without the leave of the Court to cross-examine any witness upon any answer given in reply to any such question.
This section enables a Judge to ask the witness any question, in any manner, the answer to which in his opinion would aid in the discovery of truth. But the parties have no right to cross-examine any witness except with the permission of the Court. No doubt, the discretion will have to be exercised judicially and ordinarily the Judge would give the requisite permission if the answers given are adverse to the party who seeks the said permission.
In this case, though the learned Counsel for the accused says that the learned Judge has taken over the role of the cross-examining advocate and elicited answers unfavourable to 4he accused, we do not think there is any justification for the comment. Indeed, a perusal of the deposition shows that the Judge had only put a few questions and he has refused (the permission as the advocate refused to disclose or even indicate the matters in respect of which he intended to further cross-examine the witness. In the circumstances we cannot say that the Judges exercised his discretion perversely or unreasonably in refusing the permission. We accept the evidence of this witness.
10.' P.W. 15 is Narayana, the father of Lingayya. He broadly corroborates the version given by P.Ws. 13 and 14. He identifies accused 3, 9. 7, 4, 2, 8, 10, 12 and 3 i.e., nine out of the 13 accused. He also identifies Nos. 202, 203, 204, 205, 206, 207, 208 and 209 and says that except the sticks,, the other articles belong to them. He was interrogated by the Sub-Inspector on the day next to the day of occurrence when the panchanama was prepared. He also identified the accused in the identification parades.
This witness is an elderly inmate of the house and he gives his version in a direct manner without any attempt to exaggerate or embellish the events that took place at the time of the dacoity. Nothing has been elicited in his cross-examination to discredit his evidence. We have no hesitation to accept his evidence.
11. The next witness is the approver P.W. 16 Bal Reddi. He gives the various details unfurling the events which led up to the final act of dacoity. He describes how he came into contact with one or the other of the mem- bers of the dacoity, how he was introduced to join them with reluctance to save his own skin, how all the accused gathered before they entered the house of Lingayya, how each one of the accused took part in committing the dacoity and how the spoils were divided between them subsequently.
Though an approver is a competent witness, he being a participant in the offence and an usually interested and infamous witness, his evidence requires to be corroborated by other evidence. In this case, his evidence is amply corroborated by other oral and circumstantial evidence adduced in this case. But learned Counsel contends that the evidence of P.W. 16 is not admissible as he was given pardon without the previous sanction of the District Magistrate and also as he was let on bail contrary to the provisions of the Criminal Procedure Code. To appropriate this argument, the material portion of the relevant sections of the Criminal Procedure Code and the Indian Penal Code may be read:
CRIMINAL PROCEDURE CODE.
Section 337 : 1. In the case of any offence triable exclusively by the Court of Session, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate of first class may, at any stage of the investigation or enquiry into or trial of the offence with' a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned whether as principal or abettor in the commission thereof.
Provided that, where the offence is under enquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof.
3. Such person unless he is already on bail shall be detained in custody until the termination of the trial.
* * * * * If any Magistrate not empowered by law to do any of the following things, namely:
* * * * * g) to tender a pardon under Section 337 or Section 838.
erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being empowered.
2. Words which refer to acts done, extent also to illegal omissions; and all words and expressions used herein and defined in the Indian Penal Code, and not hereinbefore defined shall be deemed to have the meanings respectively attributed to them by that Code.
INDIAN PENAL CODE.
Nothing is to be done or believed in 'good faith' which is done or believed without due care and attention.
12. Under the proviso to Section 337, in the case of an offence triable by a Court of Session where the offence is under investigation, no Magistrate of the 1st Class can give a pardon unless he is the Magistrate having jurisdiction in a place where the offence might be enquired into or tried and the sanction of the District Magistrate has been obtained.
In the present case, it is not disputed that the pardon was tendered when the offence was under investigation by the 1st Class Magistrate without the sanction of the District Magistrate. It is, therefore, manifest that the tender of pardon without the sanction of the District Magistrate is in direct contravention of the terms of the proviso to Section 337 and was, therefore, illegal. The learned Public Prosecutor contends that the said illegality is saved by the provisions of Section 529, Cr.PC
Section 529 saves proceedings if the Magistrate not empowered by law to tender a pardon under Section 337 or Section 338 erroneously in good faith tendered pardon. The essential conditions for the application of this section are that the Magistrate who tenders the pardon has no power to do so and that he does it erroneously in good faith. The question is whether there was compliance with the aforesaid two conditions in the present case.
Under the aforesaid proviso, when the offence is under investigation the First Class Magistrate has no power to tender a pardon without the sanction of the District Magistrate. The power itself is conditioned by the section and, therefore, it may be said that where there is no such sanction, the Magistrate has no power to tender the pardon. In this view, in the instant case, the first condition is complied with.
If it should be held that 1st Class Magistrate is empowered to tender a pardon, though subject to the sanction of the District Magistrate, Section 529 will not apply as it can be invoked only in a case where the Magistrate is not empowered to tender a pardon. But we would prefer to hold that the first condition is complied with, as the Magistrate has no power to tender a pardon without the sanction of the District Magistrate.
13. The second condition is complied with only if the 1st Class Magistrate, in tendering the pardon, acted erroneously in good faith. Section 52, IPC which is attracted by reason of Section 4(2) of the Criminal Procedure Code as a guide for construing the words 'good faith' in Section 52, says that nothing is said to be done in good faith which is done without due care and attention.
Can it be said that the Magistrate, in the present case, though he might have erroneously thought that he was entitled to tender the pardon without the sanction of the District Magistrate acted with due care and attention? A First Class Magistrate is an experienced officer, who is entrusted with the sacred and difficult duty of. trying cases involving liberty of a subject. He takes upon himself an office of responsibility requiring ability and knowledge of law.
The least that can be said of the Magistrate in the present case and the learned Public Prosecutor does not go beyond that is that he did not see the proviso to Section 337 of the Criminal Procedure Code or that the Prosecuting Inspector did not bring to his notice the said proviso. A Magistrate tendering a pardon without complying with the provisions of the Code acts either in gross ignorance or in conscious disregard thereof.
It is, therefore, clear that the Magistrate did not bestow due attention within the meaning of Section 52, IPC in tendering pardon and, therefore, cannot be said to have acted in good faith within the meaning of Section 529, Criminal Procedure Code. Section 529 cannot save the illegality in the present case.
We, therefore, hold that the evidence of the approver should be excluded. In this view, it is not necessary to consider the argument of the learned Counsel that non-compliance with the provisions of Section 337(3) makes the evidence of the approver inadmissible but, as it has been argued, we shall express our view thereon. Sub-section (3) reads:
Such person, unless he is already on bail, shall be detained in custody until the termination of the trial.
The word 'shall' in the Sub-section is primarily obligatory and it casts a duty on a Court to detain an accused, to whom pardon was tendered, in custody until the termination of the trial. But, it does not make such detention the condition of the validity of the pardon. It is de-signed to achieve the object for which pardon is tendered and to see that it is not frustrated.
The accused, to whom pardon is tendered being an infamous person susceptible of easy accessibility, may be tampered with or the co-accused if on bail or persons interested in them who would necessarily be infuriated by his treachery may attempt to do away with him. It may be that the provision has been enacted to protect him and to preserve his evidence un-tampered with till the termination of the trial. His release on bail in contravention of the Sub-section is illegal and may be liable to be set aside by a superior Court but does not touch the validity of the pardon.
14. The scheme of Section 337 also supports this position. Section 337 provides for the following matters (i) who can grant pardon (ii)' who is eligible for pardon (iii) the condition of the pardon (iv) the procedure to be followed for tendering the pardon and (v) the safeguards against tampering with the evidence of the approver. The pardon can be tendered only by the Magistrates specified in the section in the manner prescribed therein.
It is subject to the condition that there should be a full and true disclosure throughout the proceedings. If the person, who has accepted the tender, has not complied with the condition on which the pardon was made, he forfeits the pardon. During the trial, unless he is already on bail, he is detained in custody. H the tender of pardon is made by the Magistrate duly authorised to do so in the manner prescribed in the section, the order releasing him on bail contrary to the provisions of Sub-section (3), cannot, in our view, affect the validity of the pardon as it is neither a condition precedent nor subsequent to the tender of the pardon.
We, therefore, hold that though the approver was released illegally on bail, the tender of pardon, which if otherwise valid, would not be affected by the illegal granting of bail. But, as we have held that the tender was made by a Magistrate without complying with the provisions of Section 337, the tender of pardon was invalid and, therefore, the approver's evidence must be excluded.
After discussing other prosecution and defence evidence his Lordship proceeds:)
15. The result of the aforesaid discussion of the oral and documentary evidence may be stated thus: Accused 3, 4, 6, 7, 8, 12 and 13 were identified by P.W. 14, P.W. 13 and P.W. 15 as the persons who have taken part in the dacoity. The presence of accused 3, 12 and 13 on the evening of the dacoity at the place near the village was spoken to by P.W. 12.
P.W. 21 also saw accused 12 at 9 or 10 a.m. on the date of dacoity at Yatam Gutta near the village. Some of the articles belonging to the complainant and the subject-matter of the dacoity were recovered from the house of these accused and at their instance. We have accepted the said evidence and, therefore, it followed that accused 4, 8, 3, 7, 12, 6 and 13 took part in the dacoity.
16. P.W. 13 identifies accused 5 and 9 as the persons who took part in the dacoity. Articles were recovered from their houses at their instance and they were duly identified to belong to the complainant. The case against these accused also is proved.
17. P.W. 21 saw the 11th accused along with the 12th accused at 9 or 10 a.m. at Yatam Gutta with three others on the date of the dacoity. Some of the articles lost by the complainant were found in his possession and recovered at his instance and they were identified to belong to the complainant.
The mere fact that the 11th accused was seen somewhere near the place where the dacoity was committed is in itself not sufficient to hold that he took part in the dacoity. But as the articles were found in his possession soon after the dacoity and as no acceptable explanation was given by him, we hold that he is guilty under Section 411, IPC
18. The 10th accused was identified by P.Ws. 13 and IS, as the persons who took part in the dacoity. Articles belonging to the complainant were recovered from him at his instance and were duly identified as the articles belonging to the complainant. The case has been proved against this accused also.
19. The 2nd accused is identified by P.Ws. 13 and 15 as having taken part in the dacoity. Articles belonging to the complainant have been recovered from his possession and at his instance. They were duly identified as the articles belonging to the complainant. The case against this accused also has been proved.
20. The 1st accused's part in the dacoity is spoken to only by P.W. 16, the approver, whose evidence we have rejected on the ground that the Magistrate, who tendered the pardon had not obtained the sanction of the District Magistrate. The panchanama Ex. P-7 which records the recovery of the articles from his possession at his instance has not been proved for it has not been established that Chenna Reddi, who purports to prove Ex. P-7 is not proved to the Thakarti Chintaiah, one of the four Panchas in Ex. P-7. The case against the 1st accused has, therefore, not been established.
21. In the result, we convict all the appellants, except the 1st accused and 11th accused: under Section 395, IPC and the 11th accused under Section 411, IPC It is unfortunate that the villain of the piece, accused 1, escapes from the clutches of law but that is due to the egregious error committed by the Magistrate in tendering pardon without due compliance with the mandatory provisions of the Criminal Procedure Code. We sentence all the appellants except the 1st accused and the 11th accused to rigorous imprisonment for ten years and the 11th accused to rigorous imprisonment for three years. We acquit the 1st accused.
22. We do not think in the circumstances of the ease that it is necessary to impose on any of the accused an additional sentence of fine. In Dwaraka Singh v. The King Emperor 47 Cri LJ 780 : A.I.R. 1947 Pat 107 (A), a Division Bench of the Patna High Court made the following observations, which could usefully be extracted, at p. 783 (of Cri LJ) : at p. 110 of A.I.R.:.I must point out, in the first place, that a sentence of fine is not appropriate in dacoity cases of this kind. These dacoits are generally persons of little or no means. Where there are also sentences of long term imprisonment, it simply means that the sentence of fine will cause hardship and suffering to the unfortunate members of their family, who have been deprived of their bread winner. Such sentences generally result in what small property there may be being sold up during the absence of the convict in jail, and his womenfolk being not only severely harassed1 through no fault of their own, but being left without any means of livelihood pending the return from jail of their men years hence.
The aforesaid observations are apposite to the present case. The sentence of fine is, therefore, set aside. The articles deposited in the Court may be given back to the complainant on a necessary application made by him.