1. This is a revision against an order passed by the Special Judge, Dhar on 29-11-1955.
2. The petitioner, who is under suspension, is a Sub-Divisional Officer in the Public Works Department of Madhya Bharat State. He was in charge of famine relief work on the Tanda-Zirnbad road. As Sub-Divisional Officer he was entrusted with Government funds for payment to labourers. One Jai Gopal Shukla was the Sectional Officer and Nasirali was the time-keeper, both being subordinates of the petitioner. The petitioner is being prosecuted along with Jaigopal Shukla and Nasirali for misappropriating a sum of Rs. 94-8-0 by preparation of false muster-rolls. It is said that all the three had engaged in a conspiracy to misappropriate Government funds and all of them were challanged for offences under Sections 467, 471, 477A, 120B, I. P. C., and also under Section 5 (2) of the Prevention of Corruption Act. Accused Nasirali was produced before the Special Judge who was requested for tendering pardon to him under Section 337 of the Criminal Procedure Code. The Special Judge, Dhar tendered pardon and recorded that it was tendered under Section 337 Cr. P. C. It was contended before his successor that the pardon so tendered, being under Section 337 Cr. P. C., is illegal as Section 337, Criminal P. C. does not empower a Special Judge to grant pardon, but empowers only a Magistrate to tender pardon. It was also pointed out that below the signatures of the Special Judge, the seal of the Sessions Judge was impressed and this also makes the pardon illegal. These contentions were repelled on 29-11-1955 by Shri R. N. Shingal, who succeeded Mr. Atal who had tendered pardon to Nasarali. The petitioner has come in revision to this Court against this order.
3. Mr. Bhargav, learned Counsel for the petitioner, contended that the prosecution made an application for tendering pardon under Section 337, Criminal P. C. and Mr. Atal also tendered pardon under Section 337, Criminal P. C. As the section empowers only a Magistrate and not a Special Judge, this pardon must be held to be illegal. The learned Counsel also contended that the Sessions Judge is not empowered to tender pardon, and so the other mistake of putting the seal of the Sessions Judge below his signatures also makes the pardon illegal. The learned Government Advocate, in his reply, justified the order of Mr. Shingal on the ground that Section 8 (2) of the Criminal Law Amendment Act empowers a Special Judge to tender pardon; so it should be taken that the pardon was tendered by the Special Judge, Dhar, under that section and an erroneous mention of a provision of law in the order cannot invalidate the order. He also urged that Shri Atal was also the Sessions Judge at that time when he tendered pardon, and so using the seal of the Sessions Judge will not be able to vitiate the order. The learned Government Advocate also argued that in the case law under Section 337, Criminal P. C. dealing with the Magistrates it had been held practically by every High Court that even though the, tender of pardon was illegal, an approver would be considered to be a competent witness. He, therefore, emphasised the point that inasmuch as a criminal revisional Court is not a correcting Court, the revision should be dismissed.
4. Some arguments were addressed to me on the last point : whether a revisional Court is a correcting Court or not; and I think I should at the outset make it clear what the position in law is. So far as I remember it was said only of a civil revisional Court that it is not a correcting Court, as Section 115, Civil P. C. applies to jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it, and that the section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. The same cannot be said to be true of a criminal revisional Court! which, under Section 435, Criminal P. C., has to satisfy itself as to the correctness, legality, or propriety of any finding, sentence or order, and as to the regularity of any proceedings. Under Section 435 and Section 439, Criminal P. C., the High Court has an absolute discretion to interfere in revision in any case. If it had not been a correcting Court, the word 'correctness' in Section 435, Criminal P. C. would have been redundant. 'In fact, there is no form of judicial injustice which the High Court, if need be, cannot reach. It would be unfortunate if it was otherwise' 'Lekhraj Ram v. Debi Pershad,' 12 Cal W N 678 (A), The powers conferred upon the High Court being very wide and very extensive, it has, however, imposed upon itself certain restrictions, as rules of prudence to guide it in the exercise of its powers. Though the decided cases show that no hard arid fast rule can be laid down but that when in the interests of justice High Court's intervention becomes necessary, it is not refused yet it is clear that the circumstances which will justify an interference of the High Court have not been and cannot be laid down with precision. But again and again emphasis has been laid upon 'interests of justice.' In Shrirang Jayaba v. Emperor I L R 56 Bom 554 : AIR 1932 Bom 637 (B), Sir John Beaumont C. J. deprecated the tendency of entertaining revision applications upon points of law. He conceded that under Section 435 and Section 439, Criminal P. C., a High Court has an absolute discretion to interfere in revision in any case but that discretion ought only to be exercised in order to prevent substantial injustice, or, where there is involved a point of law of general importance which may govern other cases. In 'Narsinghdas Marwari v. Emperor,' AIR 1928 Nag 113 (C) it was held that the power of interference in revision is to be used only for the purpose of correcting injustice and not mere illegality. In 'Srikishan v. Debi Dayal,' AIR 1925 Oudh 739 (D), it was laid down that an order that proceeds upon an error of law but which apart from that error is a proper order ought not to be set aside in revision. In 'Emperor v. Jafar Khan,' AIR 1935 All 814 (E), Justice Allsop observed that it is for the Court to interfere in exceptional cases where it seems that some real and substantial injustice has been done; and a revisional application is not to be regarded as in some sort a second appeal on a question of law. In another case 'Ramgir v. Ravisaransingh,' AIR 1935 All 883 (F) the same learned Judge held that technical irregularities in procedure are not sufficient grounds for interference in revision, A similar view was held in 'Gurdas Singh v. Emperor,' AIR 1938 Lah 832 (G). In 'Crown v. Uttamchand,' 48 Cri L J 298 (Lah) (H), Justice Tejasingh succinctly laid down the rule that the revisional powers are intended for the redress of genuine grievances and not for mere formal defects. So it is well settled that every irregularity or illegality does not call for the exercise of the powers of interference by the revisional Court. It must be shown that procedure adopted would lead to actual injustice.
5. It is true that Mr. Atal who was at the time of tendering pardon Special Judge, Dhar purported to tender pardon under Section 337, Criminal P. C. which empowers only a Magistrate to tender pardon and has nothing to do with the powers of a Special Judge. It is no doubt that it is a very serious blunder on his part to do so; yet, considering that he had powers to tender pardon under Section 8 12) of the Criminal Law Amendment Act (46 of 1952), the tender of pardon to Nasarali cannot be held to be invalid. Howsoever serious the mistake may be, it cannot go to the root of the case, arid, in my opinion, it cannot vitiate the trial. The Supreme Court recently observed in a Civil case Tratapsingh v. Shrikrishna Gupta' (S) A I R 1956 S C 140 (I) that the tendency of the Court towards technicality must be deprecated; it is the substance that counts and must take precedence over mere form. In another case reported in 'W. Slaney v. State of M.P. : 1956CriLJ291 it was observed that the Criminal Procedure Code is a code of procedure, and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a lull and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. If he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.
6. The learned Counsel for the petitioner in this case could not show what particular kind of prejudice will be caused to him by the error which has been committed by Mr. Atal, the then Special Judge, Dhar. In the order of his successor Shri Raj Narayan Shingal, the point has been made clear that the pardon is tendered not under Section 337 Cr. P. C., but under Section 8 (2) of the Criminal Law Amendment Act, and that the seal of the Sessions Judge below the signature of Mr. Atal is a minor mistake, I think this explanation of Mr. Atal's successor is sufficient to dispel any doubts that the petitioner may have entertained in his mind about the mistake, I think, under these circumstances if no injustice is likely to result, I should not interfere in this revision merely on a technical point.
7. The learned Government Advocate then placed reliance on several decisions on the interpretation of Section 337, Criminal Procedure Code which lay down that even when a tender of pardon was held to be illegal, the approver was held to be a competent witness. 'In the matter of Khairati Ram' I L R 12 Lah 635 : AIR 1931 Lah 476 (K) it has been held that an accused person whom pardon is tendered under Section 337, Criminal P. C., ceases to be an accused person from the moment pardon is accepted and he is treated as a witness thereafter. In 'Queen-Empress v. Mona Puna' ILR 16 Bom 661 (L), it was held that an accused person means a person over whom the Magistrate or other Court is exercising jurisdiction. This view was approved by the High Court of Calcutta in 'Banu Singh v. Emperor' I L R 33 Cal 1353 (M). In Keshav v. Emperor AIR 1935 Bom 186 (N), Beaumont C. J., delivering the judgment of the Division Bench, observed that mere inclusion of the name of the accused in the charge-sheet could not make him an accused for the purpose of Section 342, Criminal P. C., and the evidence of the approver was, therefore, admissible. A similar view has been held by a Division Bench of this Court in 'State v. Vikrampuri', Confirmation Case No. 3 of 1950 (Madh B) (O). Where it was observed that as no charge-sheet was framed against the approver, and as he was not on trial, oath could validly and legally be administered to him and his evidence would be admissible. In 'A. J. Peiris v. State of Madras' : AIR1954SC616 , the Supreme Court laid it down that the moment the pardon is tendered to the accused, he must be presumed to have been discharged whereupon he ceases to be an accused and becomes a witness. These are decisions under Section 337, Criminal P. C, The same principle will apply when pardon is tendered under Section 8 (2) of the Criminal Law Amendment Act. On the basis of these decisions, it can be held that Nasirali is a competent witness and if he is a competent witness, the trial should proceed. What weight can be attached to his evidence will be considered by the trial Court after the close of the evidence. Of course, the rule of prudence laid down in this connection is that it would not be safe to act upon the evidence of an accomplice unless it is corroborated in material particulars so as to implicate the accused. I have BO doubt that the learned trial Court will bear this rule in mind when the evidence is closed and the arguments commence.
8. Here I may point out that the case law alluded to above remains unaffected by the recent amendment of the Criminal Procedure Code by Act No. 26 of 1955 S 342A which has been recently added in the Code gives an accused the option of being a competent witness for the defence either in his own favour or 'in favour of any person charged together with him at the same trial.' It does not make him a competent witness for the prosecution,
9. The learned Government Advocate also placed reliance on Section 529, Criminal P. C , but it relates to irregularities made by Magistrates and not by a Special Judge. So this section has no bearing on the question before me.
10. In my opinion, the pardon tendered, despite the mistake made by the Special Judge, remains legal and I am not disposed to allow this revision merely on this ground. I would, therefore, dismiss this revision.