Charles Arnold White, C.J.
1. The first point of law which is raised in the certificate of the Officiating Advocate-General is with reference to the pardon tendered to the Second accused (paragraph A.). The certificate states as follows:'That, in my judgment, the learned Judge who presided at the First Criminal Sessions of the High Court of Judicature at Madras for 1900, erred in law in deciding that it was competent to him to tender a pardon to D'Santos not with standing that none of the offences in respect of which the said N.A. Subrahmania Iyer was being tried, was, with in the meaning of the Criminal Procedure Code, exclusively triable by the High Court.'
2. The question of the legality of the pardon turns entirely upon the construction of Sections 337 and 338 of the Code of Criminal Procedure. On principle it ft difficult to see why the discretionary power of Judge of a Sessions Court or of a Judge of the High Court to tender a conditional pardon should, when a case has been committed to a Sessions Court or to the High Court, be limited to cases which were, in, the first instance,' exclusively triable by the Court of Session or High Court.' However, the effect of the words ' such offence' in Section 338 is to restrict the scope of the section to the offences referred to in Section 337, viz; offences triable exclusively by the Court of Session or High Court. The offences in the present case were not triable exclusively by a Court of Session or the High Court. It has been expressly decided by the Calcutta High Court that a Sessions Judge cannot tender a pardon to an accused under sectien 338 of the Code of Criminal Procedure when the offence for which he has been committed is not triable exclusively by the Court of Session, Queen Empress v. Sadhee Kasal. On the construction of Section 337 and 338, I am constrained to hold that it was beyond the powers of the learned Judge to tender a conditional pardon, and that the learned Judge erred in law in deciding that it was competent to him to tender a pardon to the second accused.
3. With reference to the question of the legality of the pardon, the certificate of the Officiating Advocate-General proceeds to state that ' therefore ' (i.e., by reason of the fact that it was not competent for the learned Judge to tender a pardon to the second accused) 'in the judgment of the Officiating Advocate-General, the learned Judge erred in law in admitting the evidence given by the second accused as a witness for the drown and in placing the same before the jury.
4. In my view the question of the admissibility of the evidence of the second accused as a witness for the Crown must be considered independently of the question of the legality of the pardon. The course of events at the trial was this. On behalf of the Crown an application was made that a conditional pardon might be tender-ed to the second accused. The learned Judge declined to consider the application until the second accused had pleaded to the charges preferred against him. The second accused then pleaded guilty on the 1st, 3rd, 5th and 7th counts of the jndictment, and his plea was recorded. The learned Judge then tendered a pardon to the second accused under Section 338 of the Code of Criminal Procedure, following the words of Section 337, and the second accused was then removed from the dock. This is the statement of the learned Judge as to what took place at the trial and his statement is conclusive. If the learned Judge had made it a condition of pardon that the second accused should plead guilty other questions would no doubt have arisen for consideration. The learned Judge, however, made no such condition, and the real question, therefore, which we have to consider is whether, apart from the question of pardon, the second accused, in the events which happened, became a competent witness for the Crown. This question is not raised in the certificate of the Officiating Advocate-General, but inasmuch as it has been fully argued on both sides, and inasmuch as it is impossible for this Court to 'review the case,' as we are empowered to do by Section 26 of the Letters Patent, without determining this point, I proceed to deal with it.
5. The English practice when an accomplice is to be called for the Crown is either I.L.R. 10 C. 936 not to include him in the indictment, I.L.R. 2 A 260 to take his plea of guilty or otherwise withdraw his case from the jury before calling him, (3) to offer no evidence against him on the indictment and take an acquittal before calling him, or (4) to enter a nolle prosequi.
6. In the case of Winsor v. The Queen, it was held by the Exchequer Chamber, on a writ of error from the Court of Queen's Bench, that when two prisoners were jointly indicted and pleaded not guilty, but only one was given in charge to the jury the other was an admissible witness although his plea of not guilty remained on the record undisposed of Unless precluded from so doing by any express provision of the law of India, I should be prepared to apply the principle of this decision to the facts of the present case and to hold that, when the second accused had pleaded guilty, as between him and the Crown, no issue remained to be tried, and that his incompetency to give evidence was removed notwithstanding that, at the time he gave his evidence, his plea of guilty remained on the record undisposed of.
7. In support of the view that the evidence of the second accused was inadmissible, it has been argued that the plea of guilty, in itself, did not amount to conviction, that, at the time he gave his evidence, the trial of the second accused was not at an end, and that the then was an 'accused person' and therefore incompetent to give evidence on oath. Our attention was drawn to a number of section; of the Code of Criminal Procedure sections 243, 245, 246, 255, 257, 263(g) and (A) 305, 306, 307, 309, 412, 562 as showing that the Code of Criminal Procedure contemplates some further proceeding by the tribunal before which the admission of. guilt is made or the plea of guilty is pleaded before the admission or the plea becomes a 'conviction.' The word 'conviction' with its cognate expressions would Seem to bo used somewhat loosely in the Procedure Code. For example, in Section 271 'convicted' seems to mean nothing more than 'sentenced, since the Code contains no other provision for dealing with an accused person who pleads guilty. It may be that it would have been more strictly regular if the learned Judge, after recording the plea of guilty, had stated or recorded in set terms that he convicted the second accused on his plea of guilty. But, in my judgment, the question of the admissibility of the evidence of the second accused ought not to be decided on the narrow and technical ground that he had not been 'convicted' in the sense in which the'word is used in certain sections of the Code of Criminal Procedure, but on the broad ground that when he gave his evidence he was not in charge of the jury and no issue remained to be tried as between him and the Crown.
8. The authorities relied upon by the defence are in no way in conflict with this view. In Regina v. Hanmanta I.L.R. 1 B. 610 the Bombay High Court held that the evidence given by a person who had received a pardon in the case of an offence not exclusively triable by the Court of Session was not relevant inasmuch as the witness had not been acquitted or discharged or convicted. So far as can be gathered from the report, the witness would seem to have pleaded 'not guilty.' In any case, the question of the effect of a plea of guilty was not raised or considered. The same observation applies to the judgments of the Allahabad High Court in Empress of India v. Ashgar Ali I.L.R. 2 A 260, and Queen-Empress v. Kallu 3. The cases in which it has been held that, when one of two per-sons jointly charged pleads guilty, his confession is not admissible against the other, are illustrations of the proposition that when an accused person has pleaded guilty nothing remains to be tried as between him and the Crown. In Queen-Empress v. Pahuji 4 A and B were charged with murder. A pleaded guilty, but he was not convicted or sentenced till the conclusion of the trial of B. The Sessions Judge took into consideration as against B a confession made by A. The Court held that after A had pleaded guilty he could not be treated as being jointly tried with B, and his confession, therefore, was not admissible as against B under Section 30 of the Indian Evidence Act. In Regina, v. Kalu Patil it was held by the Bombay High Court that a prisoner who pleads guilty at the trial and is conviated and sentenced cannot be said to be tried jointly with other prisoners, committed on the same charge who plead not guilty; and in Venkatasami v. The Queen, where the prisioner at the time he gave his evidence had pleaded guilty but had not been sentenced, a Judge of this Court decided the same point in the same way. A Divisional Bench of this Court has recently decided see Queen-Empress v. Chinna Pavuchi I.L.R. 1 B. 610, that a trial does not necessarily come to an end with a plea of guilty. Using the word trial in its popular and not in its technical sense, this is a proposition which is indisputable. In the present case the ' trial'--in the non-technical sense--of the second accused had obviously not come to an end when he gave his evidence, seeing that after he had given his evidence he was sentenced on his plea of guilty. But the question is not whether his trial had come to an end, but whether his incompetency to give evidence had been removed. In my judgment, when the second accused gave his evidence he was not an incompetent witness, and an oath could be lawfully administered to him. I think his evidence against the first accused was rightly admitted.
9. The next question for consideration is whether the first count of the indictment is bad. As to this the Officiating Advocate-General certifies as follows:' That, in my judgment, the said learned Judge erred in law in not striking out the 1st count from the indictment, but trying and convicting the said N.A. Subrah-mania Iyer on it, and in allowing evidence to be adduced by the Crown in respect of the 1st count, as regards matters of alleged extortions of money and illegal gratifications therein specified, other than those forming the subject-matter of the 2nd, 4th and 6th counts, and placing the same before the jury.' The count alleges that the two accused in the month of March 1898 conspired, and until November 1898 continued to conspire, to extort money and obtain illegal gratifications from clerks for the first accused, and that in pursuance of this conspiracy the first accused obtained for himself through the second accused diverse sums of money from four individuals.'The count specifies the moneys thus alleged to have been obtained. For the purposes of the question now under consideration it is sufficient to say that the sums of money thus specified are more than three in number, and that the period during which it is alleged these sums of money were obtained exceeds one year. The count then charges both accused with having committed an offence punishable under sections 109 and 384 and sections 109 and 161 of the Indian Penal Code.
10. Under the English law the agreement or combination to do an unlawful thing or to do a lawful thing by unlawful means amounts, in itself, to a criminal offence.
11. The only provision in the Indian Penal Code which makes the mere combining or conspiring without more, a criminal offence is contained in Section 121A which provides:
Whoever within or without British India conspires to commit any of the offences punishable by Section 121, or to deprive the Queen of the sovereignty of British India or of any part thereof, or conspires Jo overawe, by means of criminal force or the show of criminal force, the Government of India or any local Government, shall be punished with transportation for life or any shorter term, or with imprisonment of either-description which may extend to ten years.
Explanation:To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall take place in pursuance thereof.
12. Section 107 of the Penal Code provides that a person abets the doing, of a thing who engages with another person in a con-spiracy for the doing of that thing if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing. Explanation I.L.R. 2 A 260 to Section 108 provides that to constitute the offence of abetment it is not necessary thai the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. Section 107 does not create any offence It merely specifies three ways in which the doing of a thing may' be abetted. Under this section the offence of an abetment of an offence by instigation may be committed although nothing is done as the result of the instigation, but it is a necessary ingredient of the offence of abetment of an offence by conspiracy that an act or illegal omission should take place in pursuance of the conspiracy Thus a charge of abetment of an offence by conspiracy which did not allege an act done in pursuance of the conspiracy would, under the Indian law, be bad upon the face of it. Section 108 provides:
A person abets an offence who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by Jaw of committing an offence with the same intention or knowledge as that of the abettor.
Section 109 provides the punishment for the offence of abetting an offence. It is in these terms:
Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
13. This section does not say if the offence is committed but if the act abetted is committed. This shows that in cases of abetment by conspiracy a punishable offence has been committed as soon as an act has been done in pursuance of the conspiracy. I do not think the words 'act abetted' are used in Section 109 as a synonym for offence.' No doubt there are sections of the Penal Code in which the word 'act' is used as meaning offence. But in Section 109 and in the illustration thereto a distinction seems to be drawn between an act abetted and an offence committed. The first count charges a continuous abetment of an offence by conspiracy. The allegations as to things done or in the phraseology of the English law 'overt acts' are not allegations of separate offences and are not charged as such: they are allegations of things done in pursuance of the conspiracy which may or may not amount to offences in themselves. These acts are charged in order that the jury may draw the inference, if, in their opinion, the evidence supports such inference, that the offence of abetment of extortion or abetment of bribery by conspiracy has been committed. In my opinion the first count only alleges one offence--that of the abet-ment of an offence by conspiracy. In my opinion, apart from the question as to whether changes in the substantive law could be effected by the provisions of a Code of Procedure, it was not the intention of the Legislature, by the introduction into the Procedure Code in. 1872 of the section which corresponds with Section 233 of the present Code, to alter or modify either as to form or substance the law of abetment by conspiracy as laid down in the Penal Code.
14. Further, the proposition that in laying a charge of conspiracy by abetment the number of overt acts which can be alleged is restricted to three by reason of sections 233 and 234 of the Code of Criminal Procedure is inconsistent with the express provisions of Section 10 of the Evidence Act, 1872.
15. It has been objected that the first count contains charges of abetment by conspiracy of two offences--bribery and extortion. Having regard to the provisions of sections 235(2) and 236 of the Code of Criminal Procedure, this objection cannot be sustained.
16. In my opinion the first count charges only one offence, the form in which it is drawn does not contravene any of the provisions of the Procedure Code, and the count, in itself, is a good count.
17. The next point of law which has to be considered is the question of the legality of the trial of the first accused on the first, second, fourth and sixth counts at one trial. As to this the Officiating Advocate-General certifies that, in his judgment, the learned Judge erred in law in trying the first accused on the first, second, fourth and sixth counts at one trial. In my opinion the indictment, as a whole, is bad for misjoinder, and the learned Judge erred in law in trying, the first accused on the first, second, fourth and sixth counts at one trial. The first count charges, as against the first accused, the offence of abetment of bribery, or of extortion by conspiracy. This is a distinct offence. The second count charges against him a specific act of bribery or extortion committed on 27th August 1896. This is a distinct offence. The fourth count charges against him a specific act of bribery or extortion, committed on 1st March 1897. This is a distinct offence. The sixth count charges against him a specific charge of bribery committed on 10th May 1897. (It was admitted by the Junior Counsel for the Crown that it was intended by this count to charge the substantive offence and not the abetment of an offence. The refer-ence to Section 109 must be taken to be a clerical error. Otherwise the count is meaningless). The offence charged in the sixth count is a distinct offence. We thus have an indictmant in which the accused is charged with more than three distinct offences in contravention of sections 233 and 334 of the Code of Criminal Procedure. The question then is--can the indictment, as a whole, be supported on the ground that it charges offences committed in one series of acts so connected as to form the same transaction within the meaning of Section 235 of the Code of Criminal Procedure? I think the answer to this question must be in the negative. ' If. the series of acts alleged in counts 2, 4 and 6 of the indictment are not themselves so connected as to form one transaction, it is obvious that the offence of abetment by conspiracy cannot be said to have been committed 'in one series of acts so connected together as to form the same transaction.' In my judgment neither the words of the section nor the illustrations thereto would justify the construction of the words 'the same transaction' as applicable to the acts alleged in counts 2, 4 and 6 of the indictment in the present case. This view, moreover, is strongly supported by authority. I need only refer to the cases of Queen-Empress v. Fakirapa, Re Luchminarain,2 and Queen-Empress v. Chandi Singh 8.
18. Section 222(2) of the Code of Criminal Procedure is an express provision that when the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of an offence within the meaning of Section 234. An express enactment was thus considered necessary in the case of a series of acts of dishonest appropriation of money, or of criminal breach of trust, to bring the case within the, scope of Section 234. In the absence of any express enactment applicable to the facts of the present case, it seems to me that the contention that the acts alleged in counts 2, 4 and 6 of the counts form the same transaction cannot be supported. More. over, the proviso to Section 222(2) shows the intention of the Legislature that no further departure from the law as laid down in sections 233/234 and 235 should be made than was necessary, for the purposes of that particular enactment.
19. The point of law raised in paragraph D of the Officiating Advocate-General's certificate was not pressed by the defence.
20. In paragraph E the Officiating Advocate-General certifies that, in his judgment, the ruling of the learned Judge disallowing the examination of the defence witnesses in reference to certain documents and excluding the said documents from the evidence should be further considered.
The documents in question are--
1. A post-card, dated 14th May 1897, and a letter, dated 8th August 1898, purporting to have been written by one Isyara, a brother of the 6th defence witness Sivachendra Rau.
2. Certain postal receipts. It was not seriously contended that the postal receipts were admissible or that, if admissible, they proved anything material to the ease. It is only necessary therefore to deal with the admissibility of the post-card and the letter.
Isvara died before the trial.
21. The case for the Crown was that two 50-rupee notes had been given to the first accused as a bribe and that the witness Sivachendra Rau had on behalf of the first accused exchanged these two 50 rupee notes into a currency note for Rs. 100. Sivachendra Rau gave evidence to the effect that on the 3rd May he received Rs. 100 from a chit fund; that he lent this amount to Balasundram on 3rd May for a week, after telling him that he the witness wanted it for his brother's marriage; that on 10th May the two 50 rupee notes were given to the witness by Balasundrarn in repayment of the loan; that the witness exchanged these two notes into a 100-rupee currency note with the object of sending it to his brother Isvara, but that he did not in fact send it; that Isvara. wrote the witness a letter which was missing; that the witness wrote Isvara a letter, for which he had asked Isvara but which he did not get, that he witness recieved a post-card the post-card in question on 15th May 1897, that in consequence of that postcard he did not send the 100-rupee currency note to Isvara but kept it until May 25th.
22. It was conceded by the defence that the post-card was not admissible in evidence under Section 32 of the Evidence Act, or under any special provision of law relating to statements made by deceased persons.
23. The defence contended that the contents of the post-card were admissible in evidence as proving 6r helping to prove--
(1) that the witness had in fact written a letter to Isvara to which the post-card of 14th May was a reply;
(2) that the witness had made a statement in a letter to Isvara connecting a 100-rupee note with moneys received by the witness, from a chit fund;
(3) that Isvara made a certain request to the witness with reference to the sum of Rs. 100.
24. As regards (1) and (2), i.e., the fact that the' witness had written a letter to Isvara and the fact that the witness had made a statement connecting a 100-rupee note with a chit fund, this so-called evidence amounts to nothing more than a statement by the witness of a statement made by Isvara in writing of a statement alleged to have been made by the witness to Isvara. The defence sought to use the post-card as, evidence, or corroborative evidence, of the existence of a chit fund and of the fact that a 100 rupee note was the proceeds of a chit fund. If Isvara had been alive, bis cral testimony that the. witness had made a statement to him connecting a 100-rupee note with a chit fund might perhaps have been admissible under Section 157 of the Evidence Act. But Isvara being dead the statement by the witness of what Isvara said the witness said cannot be admissible. As regards (3) it is a statement by the witness of a statement alleged to have been made to the witness by Isvara. Evidence of the fact that a statement was made would be admissible. Evidence of the terms of the statement is inadmissible. The sections of the Evidence Act to which our attention has been called have no application. They would have been in point if Isvara had been in the witness-box and the question had been whether evidence by Isvara of statements made by Siva-chendra Rau to him was admissible. They lend no support to the proposition that something which Sivachendra says Isvara said, Sivachendra said, or something which Sivachendra says Isvara said, can be regarded as legal evidence. The letter of 8th August 1898 was inadmissible in evidence for the same reasons. I do not feel the least doubt that both letters were inadmissible in evidence and were rightly rejected by the learned Judge.
25. In paragraph F of his certificate, the Officiating Advocate-General certifies that in his judgment the direction by the learned Judge in a portion of his charge to the jury is a misdirection in law. A passage was read to us from what purports to be a shorthand note taken on behalf of the defence of the learned Judge's summing up. The learned Judge tells us that the shorthand note is imperfect, and it is obvious that the statement in paragraph 11 of the Officiating Advocate-General's certificate which purports to be a statement is a summarised form of the portion of the charge which is said to amount to a misdirection in law, is inconsistent with the shorthand note.
26. If the learned Judge laid it down as law to the jury that it was the duty of the Magistrate, under Section 212 of the Code of Criminal Procedure, to summon and examine any witness named in any list given in to him under Section 211, this would in my judgment amount to misdirection.
27. At the conclusion of the argument on the points of law raised in the Officiating Advocate-General's certificate it was intimated to Counsel that the majority of the Court being of opinion that the first count ought to have been struck out of the indictment, the Court would review the case against the first accused on the evidence on record relating to the charges preferred against him in the 2nd and 6th counts of the. indictment, the first accused having been acquitted on the 4th count.
28. An objection was then raised by Mr. Norton on behalf of the defence, that, in view of the opinion of the majority of the Court that the first count ought to have been struck out of the indictment, it was not competent to this Court to review the case on the evidence or any portion of the evidence, and that inasmuch as (as the defence contended) Section 26 of the Letters Patent gave no power to order a new trial, the first accused was entitled, on the findings of the Court upon the points of law, to be acquitted or discharged.
29. It was argued that Section 238 of the Code of Criminal Procedure is in its terms imperative, that a trial which had been Conducted in contravention of the provisions of the section was an illegal trial, that inasmuch as the jurisdiction of this Court was based upon Section 26 of the Letters Patent, the Crown could not pray in aid the provision of Section 537 of the Code, and that, even if they could, Section 537 applied only to proceedings in which an irregularity had been committed and not to a trial which was illegal ab initio. In support of this contention the defence relied upon the decisions in the cases amongst others of Queen-Empress v. Chandi Singh l, Be Luchminarain I.L.R. 2 A 260 Queen Empress v. Fakirapa 3 Pulisanki Reddi v. The Queen and on a passage in the judgment of the Calcutta High Court in. a case reported in Nilratan Sircar v. Jogesh Chunder. The short answer to this contention appears to me to be that the question is not whether any irregularity or illegality in the trial is curable, but whether under the powers conferred by Section 26 of the Letters Patent this Court has power to review the case notwithstanding the irregularity on-illegality. The condition precedent to the exercise of the powers conferred by Section 26 of the Letters Patent, the granting of a certificate by the Advocate-General that in his judgment there has been an error in the decision of a point of law or that a point of law should be further considered, has been fulfilled. This is the only condition precedent prescribed by the section to the exercise of the powers conferred by the section. Section 233 is a provision in a Code of Procedure, and, in my judgment, a contravention of the provisions of this section does not render a trial 'illegal' so ,as to preclude this Court from exercising the jurisdiction conferred upon it by Section 26 of the Letters Patent, if the conditions precedent prescribed by the section to the exercise of that jurisdiction have been fulfilled.
30. It was also argued that it was not competent for this Court to review the evidence inasmuch as, by so doing, we should be usurping the functions of a jury, and substituting the judgment of the Court for the verdict of a jury. This was the view taken by Mr. Justice Bayley in the judgment delivered by him in the case of Beg. v. Navroji Dadabhai I.L.R. 2 A 260. The majority of the Court, however, were of opinion that they had jurisdiction to review the evidence and pass such judgment thereon as they thought fit. In. The Queen v. Hurribole Chunder Ghose 3, Sir Richard Garth in the course of his Judgment said (page 218)': ' Apart, ' however, from Section 167 of the Evidence Act, I think 'that, under Section 26 of the Letters Patent, by virtue of which ' this case has been submitted to us for review, we have a right ' either to quash or to confirm the conviction, as we may think 'proper. The section enables the Court, after deciding upon ' the point reserved or certified, to pass such judgment or ' sentence as it may think right. If, therefore, upon reviewing ''the whole case, we are' of opinion that, upon the evidence ' properly redeived, there is sufficient ground to convict the ' prisoner, I consider that we ought to allow the conviction to 'stand.'
31. In Imperatrix v. Pitamber Jina I.L.R. 1 B. 610 the Bombay High Court took the same view. In The Queen-Empress v. O'Hara a Full Bench of the Calcutta High, Court, after hearing argument upon the point, held that it was competent for them in dealing with a case under the Letters Patent to review the case upon the evidence notwithstanding that at the trial there had been improper reception of evidence and misdirection by the learned Judge who tried the case. Thus in Bombay and Calcutta it appears to be now settled law that it is competent tor a Court dealing with a case under the Letters Patent, to review the case on the evidence properly admissible at the trial. 'The defence has been unable to call our attention to any decision or dictum, where the question before the Court has been the powers of the Court under the Letters Patent, which is in conflict with the established practice in Calcutta and Bombay, excepting the dissenting judgment of Mr. Justice Bayley in 9 B.H. C.R. 358. With regard to Mr. Justice Bayley's judgment it is to be observed that, for the purposes of his judgment, he appears to have assumed that Section 167 of the Evidence Act did not apply to criminal cases. It is now well settled, as was conceded' by the defence, that Section 167 applies to criminal as well as to civil proceedings. The argument for the defence, so far as the question of the improper admission of evidence is concerned, is insonsistent with the express words of Section 167.
32. The defence, however, contended that the decisions to which I have referred above ought not to be followed, having regard to the judgment of the Court for the consideration of Crown Cases Reserved in The Queen v. Gibson 3 and that of the Judicial Committee in Makin v. Attorney-General for New South Wales, The former case was decided before the decision of the Calcutta High Court in The Queen v. O'Hara I.L.R. 2 A 260. The latter was after that decision. As regards the latter case the question Jurned on the construction of a section of the New South Wales Criminal Law Amendment Act, 1883, which is taken almost word for word from Section 2 of the Crown Cases Act, 11 and 12 Vict., C. 87. This section does not give to. the tribunal to whom the points of law are referred power to ' review the case.' The English legislature, in enacting Section 26 of the Letters Patent, might have followed closely the provisions of the Crown Cases Act. They did not think fit to do so.
33. It must be taken that the variation in the language adopted. by the framers of the Letters Patent in Section 26 when compared with the section of the Statute which evidently served as a model was not an accidental variation, but had reference to a substantial difference in the circumstances. The Court for the Consideration of Crown Cases Reserved having regard to the function which it has to perform has no need to have any record of the evidence in the case before it save so far as is required to explain how the reserved points of law came to be raised. A case stated is sufficient for the purpose. Anything like an examination or weighing of the evidence is not necessary, because the Court does not assume the function of a jury. Legislating for this country, the framers of the Letters Patent found that they had to provide for a different state of things, because they presumably had before them the Evidence Act of 1855, Section 57 of which casts upon a Court dealing with objections to the admissi-bility of evidence admitted in another Court whose decision is under consideration, the duty of appreciating the weight of the evidence which remains after that which ought not to have been admitted is put aside. The Court is enjoined not to reserve the decision if the residuum of evidence is sufficient to justify the decision, or if the 'decision would not have been affected by the admission of evidence improperly, rejected.
34. If we are right in holding, as has been frequently held, that this suction applies to decision in criminal matters, the departure from the phraseology of the Statute of 1848 is explained. Obviously a case stated by the Judge would not avail and nothing short of a review of the whole evidence would suffice if the Court is to be placed in a position to comply with the provisions of the Evidence Act.
35. I cannot accede to the argument that, notwithstanding the fact that the Legislature in the Letters Patent departed from the model of the Crown Cases Act and introduced certain words giving a power to review the case, the section is nevertheless to be construed as if the powers of this Court, in dealing with a case under Section 26 of the Letters Patent, were no greater than the powers of the Court for the Consideration of Crown gases Reserved.
36. In Queen-Empress v. Ramachendra Govind Harshe I.L.R. 1 B. 610 it was held by the Bombay High Court in 1895, that the law as settled in England by the Queen v. Gibson and as stated by the Privy Council in Makin v. Attorney-General for New South Wales with reference to the granting of new trials when evidence has been improperly admitted does not apply to India, and that when part of the evidence which had been allowed to go to the jury was held to be inadmissible, it was open to the High Court in appeal either to uphold the verdict upon the remaining evidence on record, or to quash the verdict and order a new trial. A different view, however was taken by the Calcutta High Court in Wafadar Khan v. Queen-Empress I.L.R. 2 A 260. It is not necessary to express an opinion as to which of these two conflicting decisions with reference to the powers of a High Court as a Court of Appeal in cases where evidence had been improperly admitted is right. It is sufficient to say that in my judgment neither the decision of the Court for the consideration of Crown Cases Reserved, nor that of the Judicial Committee apply when the Court is acting in exercise of the powers conferred upon it by Section 26 of the Letters Patent.
37. The real intention of the Legislature in Section 26 is not easy to determine, but I think the construction which has been placed upon it by the Calcutta and Bombay High Courts is the right one. It is at any rate consistent with the words of the section and it seems suitable to the special circumstances in which the administration of the criminal law is carried on in this country.
38. I think the objection which has been raised as to our jurisdiction to review the case upon the evidence should be overuled.
39. Agreeing generally with the judgmenj of the Chief Justice, I intend to confine my observations to the question raised with reference to the first count of the indictment. In this particular case the question has become compara tively unimportant in consequence of the fact that the majority of the Court are agreed that as the four counts cannot stand together this first count must be struck out. Still as the question has been fully argued, 'I think I ought to explain my views on the matter. If I have rightly understood the argument on behalf of the prisoner, two distinct points are made against the first count. One point is that the count charges, not one, but several offences; the other the more generally important point is that a count charging a consplracy to commit one offence and averring the doing of acts in pursuance of that conspiracy which amount to offences is not a good count according to the Indian Penal Code.
40. As regards the first point, it is urged on behalf of the Crown that what is charged is one conspiracy and not several conspiracies, and that the allegations of acts done in pursuance of the conspiracy are not allegations of offences committed and that, therefore, it is wrong to say that more than one offence is charged. It seems to me that this is the right view. Whether, in fact, there was one engagement and not several successive engagements, whether such a conspiracy as is charged is likely to be proved to the satisfaction of a jury, and whether it is wise or fair for the prosecution to make such a charge where evidence of offences committed in pursuance of the alleged conspiracy is forthcoming--these are matters with which we are not now concerned. The simple question is whether the words in the count indicate one offences or more than one. If the count after avering the conspiracy had gone on to allege that acts not in themselves criminal had been done in pursuance of the conspiracy, it could hardly be questioned that the only charge made was that of combining together to obtain money in an illegal manner from the clerks of the department. It could not then have been urged that, because the clerks were numerous or because the agreement was maintained for a series of months, thatothere were in fact, several agreements. The evidence might have shown that that was the case, but that, as I have said, is a matter which does not concern us. Let me put the case of a man instigating another to do an act which may result or is intended to result in the death of several persons at the same time, supposing that.in fact.(nothing more is alleged to have been done. According to the. Penal Code mere instigation without more may be charged as an offence. Can it be said that although the instigation consisted of one single act done at one moment of time, it must be taken that there were several instigations, each of which should be charged separately? It appears to me that as there may be one instigation to commit several criminal acts, so there may be one conspiracy to do such acts--an engagement in a criminal partnership--and that is what the first count charges. The count goes on to aver in conformity with the requirements of Section 107 the acts don in pursuance of the conspiracy. It cannot be said that these acts, whatever may be the character of them, are charged as criminal. The gist of the averment is that they are acts done in pursuance of the conspiracy--acts which under Section 10 of the Indian Evidence Act are relevant for the purpose of proving the aileged conspiracy.
41. It was suggested from the Bench, I think, and not at the Bar, that the reference in the count to Section 109 of the Indian Penal Code indicating that the offence abetted had been committed, shows that the intention was to charge several offences. The question whether Section 109 or Section 116 should be named is only material with reference to the sentence. If by mentioning Section 109 it was intended to allege that one of the two prisoners had committed the offences which were the object of the conspiracy, then no doubt the count would be open to the objection that it charged two or more offences against one person, but I do not think that was intendod The obtaining of moneys which is averred as the act done in furtherance of the conspiracy is within the meaning of Section 109 an act committed in consequence of the abetment, and although it must almost necessarily have been itself a criminal act, it is not described in such terms as to make it criminal. If the first count had been the only count and the prisoner had been sentenced under Section 109 to a punishment which could not have been adjudged under Section 116,1 think the sentence would have been wrong, for the reason that the commission of the 'completed offence was not distinctly charged against him. The main argument on behalf of the prisoner was based on the proposition that conspiracy is a crime unknwn to the-law of India. That is a proposition which has to be examined exclusively with reference to the language of the Penal Code and without regard to the provisions of the Code of Criminal Procedure; for it is not suggested that the latter Code, either the present Code or its predecessor of 1872, has in any respect altered the substantive law. It is said that the framers of the Indian Penal Code have, by treating conspiracy as a mode of abetment, evinced their intention to break away entirely from the English law, and that therefore no light on the-subject can be derived from that source. I do not think this is the case. The points in which the law of England resembles the law of the (Indian) Penal Code appear to me quite as important as the differences. According to English law conspiracy Consists in the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. Dismissing the second alternative and substituting in the first ' criminal' for ' unlawful,' the Penal Code designates as an offence the engagement between two or more persons in a conspiracy to commit an offence. The verb 'conspire' is not used, and the offence is not called conspiracy, but in substance it is the engagemsnt in a conspiracy or the conspiring which is the offence. It is none the less so because the constituents of the offence are found in two sections of the Code and not in one as is the case with Section 121A. It is true that in order to charge the offence of conspiracy under Chapter V the prosecution must aver and prove, what is not necessary to aver and prove under Section 121 A, that an act has been done in pursuance of the conspiracy. Here there is a departure from English law, but the importance of the difference is greatly diminished by the fact that the Court has power in England to order the overt acts or particulars of the conspiracy to be stated for the benefit of the prisoner. Although a person cannot be convicted of abetment by conspiracy unless it is proved that an act was done in furtherance of the conspiracy, the fact remains that it is the 'agreement which constitutes the offence, and this, I think, is shown by the circumstance.that if one of a dozen conspirators does such an act the rest may be convicted although they were absolutely ignorant of what was done. (See the illustration to Section 10 of the Evidence Act). When once the conspiracy has advanced to such a point that acts in furtherance - of it have been done by any member of the conspiracy, the offence is cpmplete, and I cannot understand why it should cease to be chargeable as such because other offences have also been committed. In other words, I think that a man remains chargeable as an abettor although he may also be chargeable as having committed the offence abetted. The cases may be rare, but still cases may welahappen in which it may be expedient or comparatively easy to prove the conspiracy and almost impossible to prove that the offence or effences which the conspirators had in view were committed. In my opinion, therefore, a count charging conspiracy is not bad in law because in the averment of acts done it alleges acts which might themselves be charged is substantive offences. So long as one engagement or conspiracy is alleged and that only is the distinct offence charged, I do not think the count offends against the provisions of the Criminal Procedure Code because other offences are averred as acts done in pursuance of the conspiracy.
42. I concur in the judgment which has been delivered by the learned Chief Justice on the various points of law which have been raised before us, except in regard to the legality and propriety of the first count of the charge. In my opinion that count is bad in law, in that it offends against the provisions of the Code of Criminal Procedure which are designed to protect an accused person against the danger and difficulty of having to defend himself against a multiplicity of charges at' one and the same trial. The contention that the count is drawn in accordance with the practice and procedure which obtains in the criminal courts in England is 6eside the mark, since the Criminal Procedure Code is not in force in England and the law of procedure in the criminal courts of the two countries differs in many respects, The procedure of the courts in India is regulated by the Criminal Procedure Code, and it is by its provisions that the validity of the charge must be determined.
43. Section 233 of that Code enacts 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 to 236 and 239. ' Of these the only exceptions that are of any importance in regard to the matter before us are those in sections 234(1) and 235(2). 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 ' and Section 235(1) provides that If, in one series of acts so connected together as to form the same tftins-action, more offences than one are committed by the same person he may be charged with, and tried at one trial for every such offence.'
44. Thus the fundamental rule is that for each offence there must be a separte charge, and each charge must be dealt with in a separate trial but as exceptions to this rule, several offences committed by the same person in one and the same transaction may be tried together, as may also not more than three distinct offences of.the same kind all committed within the space of one year. Does the 1st count comply with these conditions?
45. Shortly stated it is as follows:That you, Subrahmania Iyer and D'Santos, in March 1896, did conspire and combine together, and thereafter, until November 1898, did continue to conspire and combine for the purpose of extorting bribes for Subrahmania Iyer, in pursuance of which conspiracy, Subrahmania Iyer did obtain for himself through D'Santos diverse sums of money from various persons, at various times, and thereby committed an offence punishable under sections 109 and 384 and under sections 109 and 161, Indian Penal Code. Four persons are named as having paid the bribes. The first of these is said to have paid (an unstated number of) sums aggregating Rs. 680, in the course of three years 1896--1898, the second is said to have paid three sums, the third one sum and the fourth four sums on various specified dates. Here it is necessary to bear in mind the distinction between the English and the Indian-Law in regard to conspiracy. Under English Law the mere agreement to commit an offence is itself an offance, but under the Indian Penal Code this is not so except as regards certafn offences against the State under Section 121 Indian Penal Code. So far as other offences are concerned con spiracy is dealt with merely as one of the modes of abetment, and the mere agreement or conspiracy to commit an offence, is not an. offence unless some act or illegal omission takes place in pursuance of the agreement and in order to the commission of the offence (sections 107 and 108). The act need not be a criminal act, still less, the offence abetted. It is enough if any act is done in pursuance of the conspiracy and in order to the commission the offence abetted. If the offence abetted is committed in consequence of the abetment, the punishment is the same as for the offence abetted (Section 109). Even if the offence is not committed in consequence of the abetment, still the abetment is an offence and may be punished under sections 115 and 116 though less - severely than in the former case.
46. Let us now consider the first count of the charge against the accused.
47. The learned Advocate-General contends that what is charged in this count is merely a single conspiracy or agreement to extort bribes, and that though the conspiracy continued for some two years and eight months, and was evidenced by the payment of many sums of money, by various persons, and at various times, during that period, yet only one offeace is charged, viz., a conspiracy to extort bribes. In my judgment, however, it is difficult to accept this contention. If the allegations in the count are analysed, they seem to set forth not a single agreement to extort, but a series of such agreements extending over nearly three years. It is not contended, nor is it possible to contend, that there was from the beginning a conspiracy to extort all the various sums mentioned in the charge. There was only an agreement to extort money generally at first, and from time to time thereafter, as opportunity arose, there were further agreements or conspiracies to extort the particular sum or sums then in view. This, I think, is the only meaning which can with accuracy be attached to the words 'did thereafter continue to conspire.' The words cannot refer to a single agreement, but must refer to a succession of agreements. No doubt, the agreements to extort the particular sums may have been inpursuance of an original arrangement, but each agreement to extort any sum followed by an act in pursuance of the agreement, was by itself a separate and complete offence of abetment of extortion and might have been charged by itself as such offence. If each of these agreements had been separately charged not more than three of them (occurring within one year) could have been tried together at one trial in accordance with Section 234, Criminal Procedure Code.
48. But the prosecution, by treating the first count as if it refer-red to a single offence only, has let in evidence in regard to what is in reality a series of many offences, and lias thas tendered the protection designed by sections 233 and 234 nugatory.
49. The prosecution cannot, in my judgment, get rid of the fact that a series of separate agreements, or conspiracies are charged, by saying that those conspiracies were in pursuance of an original arrangement. The charge is not only that there was a conspiracy in March 1896,' but that, thereafter, during nearly three years, the accused did continue to conspire, and, in pursuance of the same did obtain various sums of money at various times and from various persons. Each time they conspired and obtained money in pursuance of the same there was a separate and complete offence.
50. It is easy to understand that there might be a conspiracy consisting of a series of agreements', extending over years, to commit a single offence as the final outcome of the conspiracy. Such a conspiracy might well be called a continuing conspiracy. So long as it was a conspiracy only, no offence would, under the Indian law, be committed, but as soon as an act was done in pursuance of the conspiracy, and in order to commit the offence abetted, then the offence of abetment of an offence would be complete, and there would be only a single offence of abetment though there had been a series of agreements leading up to it. In the same way, there might be a single agreement to commit a number of offences. Such agreement (when followed by an act in pursuance of the agreement and in order to the commission of the offence) would be a single offence, not a series of offences. But neither of these is the kind of conspiracy charged against the accused in the present case. Here there are alleged a series of acts, from March 1896 to November 1898, done in pursuance of the series of agreements implied in the words' did continue to conspire and combine.' This series of agreements, followed by a series of acts done pursuance of the agreements, constitutes, in my judgment, a series of separate and complete offences, for each of which a separate charge ought to have been framed under Section 233, Criminal Procedure Code. A number of such offences cannot be charged together by saying that they evidence a continuing conspiracy to commit offences of the kind generally, since to do so would render nugatory a protection given by Section 233. Three of these charges, (but only three), provided they occurred within one year from first to last, might have been tried at one trial under section '234, Criminal Procedure Code. As there were in reality many more than three of these offences involved in the first count, and as they were spread over a longer period than one year, that count is, in my opinion, bad in law.
51. In dealing with this first count I have proceeded on the supposition that the acts referred to therein are not necessarily offences. The argument would be good even though all the acts were innocent in themsees There can, however, be little doubt but that the acts referred to were in themselves offences. Three of the acts are, in fact, charged in the 2nd, 4th and 6th counts as separate offences and there is nothing to suggest that the other acts were of a different character, while the reference in the count to Section 109, Indian Penal Code, indicates that the offence abetted was actually committed. If the acts were in themselves offences, the argument against the propriety of the first count becomes the more cogent. The exception provided in Section 235(1) has, in my judgment, no application to the facts of the present case, since it is impossible to hold that the series of acts to which I have referred were so connected together as to form 'the same transaction' within the meaning of that section. There were at least four sets of transactions connected with the payments made by the four persons named in the count, and the only connection that appears between the transactions is that jn each case the blackmail was paid to the same persons, viz., the accused.
52. In the result them, the first count of the charge is, in my judgment, bad in law in that it offends against the limitation imposed by Section 233, Criminal Procedure.Code.
53. This conclusion, however, is of little practical importance as the Court has, on other grounds, decided that the first count ought to be struck out of the indictment?
54. In paragraph B of the Offciating Advocate-General's certificate he certifies that, in his judgment, the learned Judge who presided at the trial of Sessions Case No. 2 of 1900 on the file of the High Court erred in Jaw in not striking out the first count from the indictment but trying and convicting the first pri-soner N.A. Subrahmania Iyer on it and in allowing evidence to be adduced by the Crown in respect of the first count as regards matters of alleged extortions of money and illegal. gratifications therein specified other than those forming the subject-matter of the 2nd, 4th and 6th counts and placing the same before the jury. In my opinion the objection to the first count here raised is a valid one, and it must be held that that count was bad in law. That count is to the effect that Subrahmania Iyer and D'Santos (2nd prisoner), from March 1896 up to November 1898, conspired and combined together for the purpose of extorting money and obtaining illegal gratifications for N.A. Subrahmania Iyer from clerks in the Accounts Branch of the Military Accounts Department, in pursuance of and according to which conspiracy Subrahmania Iyer obtained for himself through D'Santos from Kalyana Chetty during the years 1896, 1897 and 1898 a sum amounting in the, aggregate to Rs. 680, from Balasundra Mudali a sum of Rs. 100 on one occasion, of Rs. 50 on another and of Rs. 100 on a third occasion, from K. Srinivasa Chari a sum of Rs. 100, and from Vedachala Chetti a sum of Rs. 5 on one occasion, a sum of Rs. 5 on another, a sum of Rs. 3 on another, and a further sum of Rs. 3 on a fourth occasion; and that they thereby committed offences under sections 109 and 384 and 109 and 161 of the Indian Penal Code, i.e. that they committed the offences of abetting the commission of extortion and bribery in cases where the acts abetted were committed in consequence of the abetment (Section 109, Indian Penal Code). It will be found that it was alleged that Kalyana Chetti had paid Rs. 40 in March 1896 and Rs. 20 in every succeeding month up to and including November 1898, i. e,, that he made thirty-three distinct payments on thirty-three different occasions. C. Balasundra Mudali is stated to have made three payments on three occasions, K. Srinivasa Chari one payment, and C. Vedachala Chetti four payments on four different occasions. It was, therefore, charged against the prisoners that they had made forty-one illegal collections from four clerks on forty-one distinct occasions dating from March 1896 to November 1898. Such being the case, it appears to me that it must be held that the prisoners were in fact charged on the first count with having committed forty-one distinct offences of abetment of extortion where the extortion was committed in consequence of the abetment on forty-one different occasions ranging over a period of two years and eight months and of having committed forty-one similar dis-tenct offences of abetment of bribery and that the first count is therefore bad, as having been framed in contravention of sections 232 and 234 of the Criminal Procedure Code which provide that there must be a separate charge for every distinct offence and that not more than three of such offences, and those three committed within one calendar year, shall be charged and tried at one trial An attempt has been made to show that the count is good, as framed, by the argument that the several acts of extortion or bribery there set out should not be looked on as distinct offences but,.rnerely as illustrations showing the general nature of the acts committed by the prisoners in pursuance of the agreement or conspiracy entered into between them. It is also contended that it is not alleged in the count that the several sums there set forth as having been received by the conspirators were extorted by them or received as bribes. It is urged that they may have been taken as presents without any dishonest or improper intention and that there is no allegation to the contrary in the count. It does not appear to me that there is any force in these arguments. The several acts of extortion and bribery set out in the count are not there mentioned as being illustrative of any other distinct specific act of extortion or bribery, but are there entered as the several acts of extortion and bribery the commission of which was abetted by the prisoners by conspiracy. It also cannot be admitted that the count leaves it an open question as to whether the several sums were extorted or obtained as bribes or were received innocently as presents. It is there distinctly charged that the accused persons entered into a conspiracy to extort money and receive illegal gratifications, that in pursuance of that conspiracy they received certain sums and that they thereby committed offences under sections 109 and 384 and 109 and 161 of the Indian Penal Code. If the acts abetted, i.e., acts of extor-' tion and bribe-taking were, not committed in pursuance of the conspiracy and nothing more followed than in the innocent receipt of presents, a charge under Section 109, it is clear, could not be sustained. I further cannot find in either the code. of Criminal Procedure or the Law of Evidence any warrant for setting out a number of acts as illustrative (whatever that may mean) of the main offence charged and then admitting a mass of evidence to prove the commission of these so-called illustrative acts. Such a procedure is, in my opinion, irregular and illegal. It is also urged that the several acts of extortion and bribery mentioned in this count should not be looked upon as being there set forth as separate offences of extortion and bribery, carried out in consequence of abetment by the prisoners, but as overt acts committed in pursuance of the conspiracy into which it is alleged that the prisoners had entered, which are accordingly set out in the counts as showing the existence of the conspiracy. The flaw in this argument, to my mind, is that it appears to be founded on the assumption that the offence with which the prisoners are charged is conspiracy. The charge has, in fact, as will be found fey a reference to similar charges set forth in Archbold's Pleading and Evidence in Criminal Cases, been framed as if it were a. charge of conspiracy, drawn up under the law in force in England, although it is, in my opinion, very doubtful if even under English law, such a Count as this could be held to be good. In India, however, there is no such offence as conspiracy, with the single exception of conspiracy to wage war against the Queen (S. 421 A, Indian Penal Code). What the prisoners are charged with is not conspiracy' as such, but with having by conspiracy abetted the commission of forty-one distinct acts of extortion or bribery which acts were committed in consequence of such abetment. Such a charge would, in my opinion, require to be set out in forty-one separate counts. It is further contended that the series of acts alleged to have been committed by the prisoners were so connected together as to form one transaction, and that, such being the case, the prisoner could under Section 235, Criminal Procedure Code, have been charged with and tried at one trial for all such offences. It appears to me, however, that it cannot possibly be held that forty-one acts of extortion or taking of bribes from four persons corrcmitted at various dates for a period of over two years were so connected as to form one transaction.
55. For those reasons, I am of opinion that the 1st count of the charge now under consideration must be held to be bad; on the other questions raised in the certificate of the Officiating Advocate-General, I concur with the judgment that has been pronounced by the learned Chief Justice.
56. The first point for our consideration on the certificate of the Advocate-General is whether the tender of a pardon to D'Santos, second accused in the case, by the learned Judge who presided at the trial was legal, and, if it was not legal, whether the evidence given by D'Santos under colour of the pardon was admissible. On the first part of the question, I am in agreement with my learned colleagues that the tender of the pardon was illegal, inasmuch as the offences that were being tried were not offences exclusively triable by the High Court Section 338 read with Section 337 of the Criminal Procedure Code is conclusive on the point. But as to the second part of the question I am unable to agree with them that the evidence given by D'Santos was nevertheless admissible It is quite certain that when D'Santos gave his evidence he was not a convicted person, for it is only to a person under trial that a pardon can be tendered by a Judge. It is true that D'Santos had at the time pleaded guilty to the charges, but the learned Judge' s record shows that he had not been convicted on that plea, and, in fact, he was not convicted until after his pardon had been forfeited, which was after he had given his evi-dence. It is also certain that at the time D'Santos gave his evidence he was not an acquitted person nor had he been discharged. It follows, therefore, that he was still an accused person under trial awaiting judgment of either acquittal, conviction or discharge. Thus being an accused person in the case he could not at the same time be a competent witness therein, save and except that he was giving his evidence under a legal tender of pardon. The. pardon tendered here being illegal, D'Santos was otherwise incapable, so long as he stood accused and unconvicted in the case of giving evidence on oath (sections 342, Code of Criminal Procedure and 5 of the Oaths Act, 1873). I, therefore, hold the evidence inadmissible on this techanical ground that it had not the sanction of valid oath or affirmation. Apart, from this, however, I consider that the circumstances under which D'Santos' evidence was given altogether vitiated it. It was given by him under the false impression that he was a pardoned person, not as a person expecting sentence on his plea of guilty. The statements made by D'Santos were made under the inducement of a pardon and were therefore not made freely as by a self-condemned man. 'He was crouching under the shelter of a pardon and not manfully making a clean breast of his guilt fear less of consequences. Had D'Santos been aware that the pardon that he had accepted was of no avail to him, who can tell, under such altered circumstances, what evidence he would have given, if he had given any? The view I am taking of the absolute inadmissibility of theevidence of D'Santos if the view taken by two learned Judges of the Bombay High Court, Melvill and Kemball, JJ., in Beg. v. Hatmanta I.L.R. 1 B. 610. Though my learned colleagues held differently, they have practically put aside the evidence of D'Santos as of no value. So it is unnecessary for me to labour the point furtherThe second question for our consideration is as to the legality of the first count of the indictment with which I proceed to deal. My opinion on this matter is in accord with the opinions of Benson and Moore, JJ.
57. The material averments in the first count of the indictment stated succinctly are that Subrahmanya Iyer, the first accused, and D'Santos, the second accused, being public servants in the Military Accounts Department conspired and combined together for a period extending from the month of March 1896 to November 1898 for the purpose of extorting money and obtaining illegal gratifications for the first accused from the clerks in the department, and that, in pursuance of the said conspiracy and combination, the first accused did obtain for himself through the second accused during the period stated Inine different sums of money from four different clerks:(particulars of which will be noticed hereafter) and the first and:second accused are then charged that they thereby committed 'an offence punishable under sections 109 and 384, Indian Penal Code, and sections 109 and 161, Indian Penal Code. A reference to these sections will show that the charges against the accused were the abetment of extortion and the abetment of 'taking illegal gratification, and that the offences abetted had in each case been committed in consequence of the abetment. For such is the forces of Section 109 of the Penal Code. Now, the 'question becomes material by whom were the offeriecs committed. If it was by the first accused, it is obvious that he could not be charged with abetting offences committed by himself. The abetted person is, and always must be, a different person from the abettor. For instance, the official who takes the.bribe cannot be the abettor of the offence. He ' is the offender, and it is the person who offers the bribe who is the abettor as shown by illustration (a) to Section 109 of the Indian Penal Code. The illustration (a) of the same section further elucidates the point. Ft runs as follows;--' A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the poison and delivers it to B in order that he may administer it to Z. B, in pursuance of the conspiracy, administers the poison to Z in A's absence and thereby' causes Z's death. Here B is guilty of murder. A is guilty of abetting that offence by conspiracy and is liable to the punishment for murder.' This shows that when only two persons conspire to commit an offence and one of them commits the offence he is guilty of that offence, and it is only the other who is guilty of the abetment. I do not suggest that two persons could not be charged with conspiring, that one or the other of them should commit an offence, and I think such a charge would be good in a case where the offence was not committed. But when the offence is committed by one or the other of them that one ceases to be an abettor and becomes the principal, by which I mean the person who actually commits the offence abetted; and he must, therefore, be charged with the commission of the offence abetted and not with the abetment thereof. In this case it is certain from the particulars given in the first count and in the succeeding counts Nos. 2 to 7, that according to the prosecution the first accused was the principal offender and that the second accused alone was the abettor. The first accused was, therefore, wrongly charged jointly with the second accused with the offence of abetment by conspiracy. The first count is consequently bad on account of this misjoinder. It is also bad for multifariousness The patent flaw in the count, namely, charging the commission of the two offences (1) of the abetment of extortion and (2) the abetment of bribery as one offence is not as harmless as it would at first sight appear. If the prosecution really meant to charge a conspiracy in respect of only one of the offences, extortion or bribery, they should have struck out the other But as the charge was left to stand the accused had no notice whether the several overt acts alleged against them were instances, of offences of both bribery and extortion or of one of those offences exclusive of the other. In the former case the charge would be inconsistent, as bribery and extortion are two entirety distinct offences under the Penal Code, one falling under Chapter IX, Offences by or relating to public servants and the other under Chapter XVII, 'Offences against property,' and a conviction on the same facts could not have been had on both charges together, but only in. the alternative. In the latter case the accused had a fight to be told which of the nine alleged illegal payments were obtained by bribery and which by extortion. There was thus a marked vagueness in this omnibus charge. Had it been made more definite in the matters referred to, its multifariousness would have been apparent on the face of it, A fuller examination of it will, however, sufficiently disclose how radically bad it is is that respect.. The first of the nine illegal payments relates to an aggregate sum of Rs. 680 said to have been paid by one Kalyana Chetty in the years 1896, 1897 and 1898. No details are given of the exact or approximate dates of the payments or of the several amounts paid, but we are informed that the evidence of Kalyana Chetty would show that some thirty separate payments extending over a period of two and a halt years were made, every separate payment constituting a separate offence. The general law is that for every distinct offence there shall be a separate charge, and every such charge shall be tried separately (S. 233, Code of Criminal Procedure). But under the next Section 234, a person may be tried at one trial for not more than three offences,, if those three offences are of the same kind and are committed within the space of twelve months from the first to the last of them. Here, however, we have thirty offences not shown to be of the same kind and extending over two and a half years, which there is nothing to justify. The special provision in Section 222, Clause (2) of the same Code for the case of criminal breach of trust or criminal misappropriation of money, whereby a gross sum is allowed to be stated in the charge without specifying particular items or exact dates, is not applicable to this case which is one of bribery or extortion, and even in the excepted case the time which the gross sum' may cover is limited to a year. The other eight items of the alleged illegal payments do not offend in respect of want of details, but they da in respect of time ranging from August 1896 to November 1898. The second, third and fourth items are sums of Rs. 100, Rs. 50 and Rs. 100 said to have been paid by one Ch Balasundara Mudali in August 1896, March 1897, and May 1897, lespectively, and they form the subject of the specific charges against the two accused in the six other counts of the indictment. The fifth item is a sum of Rs. 100 said to have been paid by K. Srinivasa Chari in October 1898. The remaining items (6, 7, 8 and 9) are small sums, two of Rs. 5 and two of Rs. 3, said to have, been paid by one C. Vedachellam in August, September, October and November 1898. Now there can be no doubt that each one of these thirty-eight alleged illegal payments made either by the same person at different times or by different persons at the same time constituted a separate offence, that is that there were thirty-eight distinct offences and that only three of them committed in the course of twelve months could properly have been tried together. There is no ground for the contention that the case ought to be treated as one falling under Section 235 of the Criminal Procedure Code, whereby any number of offences may be tried at one trial if they are a 'series of acts so connected together as to form the same transaction.' If it could be urged with any force in regard to Kaiyana Chetty's case that there was a running compact with him to pay so much every month, how could that transaction possibly be the same as those entered into separately with each of the other three clerks at different times? The only real ground on which it was attempted to justify the charge was that the charge was one of a continuing conspiracy and the various illegal payments were only set forth as proofs of that conspiracy. Excepting the offence of conspiracy to wage war against the Queen, punishable under Section 121 A of the Indian Penal Code, there is no other offence of conspiracy as such under the penal law of India. There is of course the offence of abetment by conspiracy, but to constitute the offence of abetment by conspiracy, or by any other form of abetment, the abetment must be of an offence or what would ordinarily be an offence Section 108 of the Indian Penal Code). So that abetment by conspiracy or otherwise cannot be charged by itself as a substantive offence.. The abejment must be linked with, or refer to the particular offence, the commission of which was its object. In this case that offence was extortion or bribery and every time the commission of that offence was abetted, a separate offence of the abetment of that offence was committed and a separate charge lay. It would be a clear evasion of the law to allow a wholesale clubbing of a number of separate offences under a single charge of abetment. Each offence abetted makes a separate offence of abetment and more than one of such offences can be tried together only under the provisions of sections 234 and 235, Code of Criminal Procedure, which provisions have not been complied with in the present case. Such I venture to declare is the law and the practice throughout India. At all events no authority to the contrary has been cited at the Bar. It is scarcely necessary to remark that the reason for the law is to prevent accased persons being paeju-diced in the eyes of the Court or jury and confused in their defence by the multiplicity of accusations roughly heaped against them. I am, therefore, clearly of opinion that the first count of the indictment is unsustainable in law, and the conviction upon it must be quashed.
58. The third question is whether the trial of the first accused on the 1st, 2nd, 4th and 6th counts, that is, on four different counts at one trial, was not illegal. On this question I am in agreement with the majority of the Court and follow ,the judgment of the learned Chief Justice on the point. I also agree with reference to the inquiry to be made into the evidence in the case, that the one count which should be struck out from further consideration out of the four should be the first count as it is bad in itself.
59. The fourth question raised by the Advocate-General's certificate as to the admissibility of certain evidence given by D'Santos is not pressed by Mr. Norton, Counsel for the petitioner.
60. In regard to the fifth question relating to the exclusion of certain documents from being given in evidence for the defence, I also think that they were rightly rejected as irrelevant.
61. As to the sixth and last question, it seems to me immaterial to decide whether the learned Judge misdirected the jury, inasmuch as the Court has resolved to go itself into the evidence in the case.With that resolution I agree as it seems clear that we have no power to order a new trial. But at the same time I think our review of the evidence should be limited to seeing whether, independently of the evidence on the first count, which forms the bulk of the record, and which we are bodily rejecting, there is sufficient evidence left to justify, the jury's verdict of guilty on the 2nd and 6th counts of the charge, and that our inquiry should not bc extended with a view to our giving our own independent judgment upon the facts. I take it that the ' sufficient ' evidence referred to in Section 167 of the Evidence Act under which we are proceeding would, in the case of a verdict by a jury be such good and accredited, evidesacre as the jury were bound to have convicted upon; that is, if they had not convicted upon it, it would have been what we term a 'perverse verdict.' If there was doubtful or conflecting evidence upon which it was quite open to the jury fairly to returna verdict of not guilty, I do not think it lies in us to say that the evidence was sufficient to support a conviction by
62. I agree with the judgment of the learned Chief Justice, except in one particular.
63. Granted that the 1st count is good, I do not think that there is any objection to the indictment as a whole. I do not think that the joinder of the 1st count with the 2nd, 4th and 6th is forbidden by the Criminal 'Procedure Code. I think it comes within either Section 235 or 236 of the Code.
64. The 1st count, charges abetment,by a continuing conspiracy to extort bribes from clerks in the Military Accounts Department, and amongst the overt acts alleged in that count are (1) obtaining from Balasundra Mudali the sum of Rs. 100 on or about the 27th August 1896; (2) obtaining from Balasundra Mudali the sum of Rs. 50 on or about 1st March 1897; and (3) obtaining from Balasundra Mudali the sum of Rs. 100 on or about the 10th May 1897.
65. The 2nd count charges that the accused extorted or obtained a bribe of Rs. 100 from Balasundra Mudali on or about the 27th August 1896.
66. The 4th count charges that the accused extorted or obtained a bribe of Rs. 50 from Balasundra Mudali on the 1st March 1897, and the 6th. count charges that the' accused obtained a bribe of Rs. 100 from Balasundra Mudali on or about the 10th May 1897.
67. As it seems to me, the acts alleged in the 2nd, 4th and 6th counts are identical with the acts alleged with others in the 1st count as overt acts showing the conspiracy and are within Section 235. The only difference lies in the way in which the acts are charged and the inference to be drawn by the jury from them.
68. In the 1st count all the acts are alleged as one series of acts so connected together as to form the same transaction from which the Jury are asked to infer (as they did) that there was a continuing conspiracy whereby the accused and D' Santos abetted one another in extorting bribes from clerks in each of the remaining counts, respectively, viz., the 2nd, 4th and 6th counts, one of the abovementioned acts is sat out separately and is charged as itself constituting a separate offence.
69. The accused was, therefore, only charged and tried for offences committed in one series of acts so connected together as to form one and the same transaction as he lawfully might be under Section 235(1).
70. Moreover, it also falls within Section 235(3) which says: ' If several acts, of which one or more than one would by itself 'or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be ' charged with and tried at one trial for the offence constituted ' by such acts when combined, and for any offence constituted ' by any one or more of such acts.'
71. Here, in the 1st count, the accused is charged with the offence to be inferred as constituted by the combined acts (along with others) which are alleged in the other counts as constituting separate offences, and he may therefore be tried at one trial for the offence to be inferred from the combined acts as well as for each offence constituted by the separate acts alleged.
72. Even if this were not so, the case falls to my mind within Section 236 which says: ' If a single act or series of acts is of ' such a nature that it is doubtful which of several offences the ' facts which can be proved will constitute, the accused may be 'charged with having committed all onany of such offences, and ' any number of such charges may be tried at once; or he may ' be charged in the alternative with having committed some one ' of the said offences.'
73. Here all the series of acts are stated in the 2nd, 4th and 6th counts and are alleged in the 1st count with others. They are there alleged in that count as proving one offence, viz., abetment by conspiracy to extort bribes from clerks, &c;, and they are set out as overt acts.
74. The very same acts are set out separately in the 2nd, 4th and 6th counts and are charged as respectively constituting Separate offences. It was doubtful if all the series of acts together constituted the offence as alleged in the 1st count and, therefore, some Of them are set out and charged as constituting other offences in the other counts respectively of the indictment, and the section says any member of such charges may be tried together.
75. It seems to me to be clear that an indictment may contain any number of variations in charges which depend upon the same facts. The object of the Legislature is to confine the prosecution to proving only such facts as constitute one charge taken together, but when they constitute together one charge there is nothing to prevent the same facts being separated and also made applicable to any number of other charges if they constitute several different offences. Here the whole of the facts are set forth and were proved in support of the charge contained in the 1st count; and the remaining counts contain merely a reiteration of some of the facts alleged in the 1st count and were proved or sought to be proved by the evidence called in support of the 1st count.
76. I, therefore, think that the indictment as a whole was unobjectionable.
77. As regards the last clause of the Officiating Advocate General's reference which refers to misdirection on my part, I wish to say a few words.
78. It runs thus: That in my judgment the direction by the learned Judge to the jury in regard to that portion of the charge referred to in paragraph 11 supra is a misdirection in law. Paragraph 11 is as follows:' That the said learned Judge in charging the jury severely commented upon the fact that certain witnesses examined on behalf of the defence in the High Court were not examined on behalf of the dafence before Mr. Clarke, the Committing Magistrate, and asked the jury to draw from that circumstance the inference that instruction for the present defence had not probably been given by N.A. Subrahmania Aiyar to the legal advisers who represented him before Mr. Clarke that the defence now set up was probably an afterthought and got up for the occasion and that the said direction of the learned Judge is not borne out by any evidence in the case.
79. It is not the fact that I asked the jury to draw the inference that instructions for the defence had not been given by the accused to his legal advisers before the Magistrate and that the defence set up at the Sessions was probably an afterthought and got up for the occasion because his witnesses had riot been called before the Magistrate.
80. My observations on that subject were directed to the absence of a witness who was said to be ill and who was not called on behalf of the accused. It is very probable that in this connection I did use the words ' At the end of every prosecution it is the duty of the Magistrate if the accused wishes it to take the evidence of any witnesses the accused wishes to tender, and the ob-' ject of this is to preserve the evidence of such witnesses in case ' anything should happen to them.' No doubt the use of the word 'duty' is wrong. I should have said ' It is within the power of ' the Magistrate, &c;,' and to that extent, if it is of importance, there was a misdirection.
81. It is impossible from the shorthand note to make any intelligible sense of what is there represented as my summing up, and as my attention was not called to the subject until the papers in this reference came before me, cannot pretend to remember the words I used. I do, however, remember the effect intended to be conveyed.
82. In discussing the evidence called on behalf of the accused I dealt with the evidence of Sivachendra Rau and showed how his original story grew from what he said when first called before Mr. Chester. I then dealt with the other witnesses callad and pointed out that they were all friends' of the accused according to his own statement made before Mr. Chester and were friends of each other and had discussed the case amongst themselves according to their own evidence. I then came to the witness who was said to be ill and had not been called, and my observations in this connection are those I have set out above. They were intended to point out to the jury that there was a possible means of having obtained the evidence of so important a witness as this and that they must not, therefore, lay any stress upon the fact that he was said to be ill and, therefore, incapable of giving evidence. I then pointed out that before Mr. Chester (when he first gave evidence on the subject of the chit fund) Sivachendra Rao had given the names of certain persons as being the members of the chit fund, but that he had not named as such any of the persons who had been called on behalf of the accused at the trial. He named Balasundram and D'Santos. They had both been called for the prosecution and had denied its existence. He named 'Drook Sing' who had not been called but had been vouched by all the witnesses called and was therefore of great importance, but he was said to. be ill. He had named Mahomed Sheriff who had not been called, and he had named no others except himself. He had not named any of those persons who had been called and who said that they were members of the chit fund, viz., Ananta Narayana Aiyar, Krishnamachari, Subbier or Vengu Aiyar. I pointed out that the first three of these each said that they had discussed the subject either, with Sivachendra Rau or amongst themselves, but according to their account had told no one else what they knew until about a fortnight before the case was heard at the Sessions.
83. I did no doubt invite the jury to consider whether, having regard to these facts, the evidence' then tendered before them was such as they could accept and rely upon. I did not ask the jury to draw the inference that the ' defence now set up was probably an afterthought and got up Tor the occasion.' Moreover, the shorthand notes referred to do not say that I made use of any such words; nor did I invite them to discredit the evidence given on behalf of the accused because the witnesses were not called before the Committing Magistrate. The circumstance was mentioned as I have above indicated, and it may have been and probaly was considered by the jury; but there were several other and more important reasons appearing by the evidence upon which the jury were invited to discredit the evidence called for the defence, more particularly those which I have mentioned above. In my opinion' it was my duty to warn the jury not to lay any stress upon the statement that an important witness was ill as a reason for. his not being called, and I do not think I did more than was necessary for that purpose though no doubt my words might have Been better chosen. I do not, however, think that the use of the word ' duty' could in any way affect the verdict of the jury used as it was On the evidence.
84. The Chief Justice expressing the opinion of The Court (Davies, J., dissenting).--The following is the judgment of the Court, with the exception of Davies, J., who takes a different view and will deliver a separate judgment, on our review of the case on the evidence against the 1st accused relating to the charges preferred against him in the 2nd and 6th counts of the indictment.
85. The 2nd count is to the effect that the 1st accused, on the 27th August 1896,by putting C. Balasundara Mudaliar in fear of injury, dishonestly obtained Rs, 100 from him and thereby committed the offence either of extortion (Section 384) or of receiving a bribe (Section 161). We are of opinion that the evidence on the record is not sufficient to support the conviction on this count. That evidence is briefly as follows:Balasundra Mudaliar (prosecution 5th witness), a clerk in the Military Accounts office, states that, in August 1893, D'Santos (prosecution 22nd witness), a Supervisor in the same office, sent for him and told him that if he did not pay the first accused, the Deputy Examiner, Rs. 100 he would not get an appointment that was then vacant in the office. Balasundra Mudaliar told his father C. Masilamani Mudaliar (6th prosecution witness) of this and on the 27th August obtained from him two currency notes of Rs. 50 each. He took the money to the office and gave it to D'Santos in an envelope. He saw D'Santos about half an hour after he had given him the envelope take it into the room in which the accused was working. D'Santos came back in a few minutes and told Balasundram that he had done well to bring the money, as if he had not done so, he would have been turned out of the office that day. Sometime afterwards P. Masilamany (7th prosecution witness), an attender in the office, went into the room where Subrahmania Iyer was. He came oat again with two notes which he said he was goiug to change at the Currency office. Bala3undram deposes that he saw these notes and ascertained that they were those that he gave D'Santos, bat it is difficult to believe that he had an opportunity of seeing them closely or of observing the numbers. P. Masilamany states that he was in the habit of taking notes from 'the accused and getting them exchanged at the Currency office, but he has no accuraterecollection of what happened on the 27th August 1898, Maduranayaga Mudali (8th prosecution witness), a teller in the Currency office, deposes that on the 27th August 1896 the 7th witness brought him T T two notes(--03026 and--03027), each of the value of 50 Rs. He 73 ' 73 gave him a 100 rupee note in exchange for them. This is all the evidence of any importance given on this charge. The case against the accused, therefore stands thus: Granting it to have been prov-ed that C. Balasundra Mudaliar took two notes for Rs. 50 each to the office on the 27th August 1896, we cannot hold that it has been established that that money ever passed into the hands of the first accused.. Balasundra Mudaliar says that he gave the money to D'Santos and the latter swears that he handed it over to the accused; but Balasundra Mudaliar is an accomplice and, therefore, a tainted witness, and D'Santos is not only an accomplice but also a person who, we consider has been shown to be utterly untruthful. There is no corroboration of the evidence of these tainted witnesses. P. Masilamani, the attender, admits that he changed two notes that morning at the Currency office but cannot say who gave them to him He may have received them from the Superintendent or from one of the Supervisors. Under these cireumstances, it cannot be held that his evidence affords any corroboration of the story told by Balasundra Mudali and D'Santos. As, therefore, the evidence on the second count appears to us to be insufficient to prove that any money was paid by Balasundram to the accused on the 27th August 1896, we arc of opinion that the accused should be acquitted on the charge preferred against him in the second count. We accordingly set aside the conviction an the second count.
86. The sixth count is to the effect that the accused received a bribe of Rs. I00 from Balasundram on the 10th May 1897 Balasundram states that he received promotion in the office in April 1897. D'Santos on that told him that he must pay the accused Rs. 100. He told this to his father and the letter on the 10th May sent his bill-collector, Govindrajulu (11th witness), with a cheque to the Agra Bank telling him to get it cashed there. This man got the cheque cashed and received two notes for Rs. 50 T T each,i.e.,--32418 and--43491 for it. This is proved by the 73 73.
87. Pass book produced by the Bank and admits of no doubt. The bill-collector gave these notes to bis master and then, under his orders, took them to Balasundram to his office in the Fort and handed them over to him. It is proved that these ewo notes were brought to the Currency office by Sivachendra Rau (6th defence witness) on the 10th May 1897,that he received one note for Rs. 100 T. (16429) in exchange for them and that he, on the 26th May, 88 paid into the Madras Bank that note togethe with other notes amounting' in all Rs. 800, and purchased on behalf of the accused Government paper with the sum thus paid. The entry in the books of the Bank as to this transaction is as follows: Government securities by N; A. Subrahmania Iyer by his friend Sivachendra Rau, clerk, Controller's office.' The numbers of the notes are T then given and among them is--16429 for Rs. 100. As to all this 88 there; can be no dispute, The case for the prosecution is that Balasundram gave the two notes for Rs. 50 each to D'Santos in an envelope, that D'Santos took the envelope into the room where the accused was working and came out shortly afterwards with an empty envelope which he showed Balasundram, that the accused was heard shortly afterwards to call Sivachendra Rau and tell him to get some currency notes exchanged, and that he accordingly went into the accused's room and came out again soon afterwards. Sivachendra Rau admits that he exchanged these two notes that morning at the Currency office, but states that he received them not from the accused but direct from Balasundram. His story is that there was what is called a Chit fand or lottery in the office, that on the 1st May 897 he drew the sum of Rs. 100 from the fund, that Balasundram asked him to lend him the money, that he did so on the 3rd May, that on the 10th Balasundram repaid the loan in the form of two notes for Rs. 50 each, and that he on the same day exchanged those two notes for one note for ,Rs. 100, that he kept that note himself, that on the 25th May the Accused gave him Rs. 800 and told him to purchase Government paper with it, and that he put the money that he had received from the accused in a box on the 25th and purchased the Government paper from the Madras Bank on the 26th. He does not appear to be able to say positively if he paid into the Madras Bank on the 26th the same notes that he received from the accused, or if some of his own money in his box may not have got mixed up with what he received from N.A. Subrahmania Iyer. The story told for the defence has, in our opinion, completely broken down. There appears to us to be a complete absence of trustworthy evidence to show that Balasundram borrowed any money from Sivachendra Rau on the 3rd May or repaid it on the 10th. The only witness who gives any evidence that could be held to be important on this point is Sivachendra Rau, and he is shown to have been a creature and hanger on of the accused and to have been frequently employed by him to purchase domestic supplies, &c.; The whole story is, we believe, a myth. What is clearly established is that two notes were received by C. Masilamany through his bill-collector on the 10th May and paid by him to his son on the same day. The records in the Agra Bank prove the numbers of these notes beyond doubt, and the not very satisfactory account book, Exhibit N, and the entry N2 in it may accordingly be excluded altogether from consideration. Balasundram states that he handed over those notes to D'Santos who wont into the accused's room with them. That the notes were given to the accused, we believe, not because D'Santos says so, but because it is shown that shortly after D'Santos had left his room the accused called for Sivachendra Rau and gave him two notes to exchange, which the records of the Currency office prove beyond all doubt were the two notes that Balasundram had received that morning at the office from his father's bill-collector What further affords most cogent evidence that these notes were exchanged by Sivachendra Rau on behalf of the accused is that the Rs. 100 note received for them formed a portion of the sum of Rs. 800 paid to the Madras Bank on behalf of the accused as the price of certain Government paper purchased on the 26th by Sivachendra Rau for him. The manner in which the notes have bees traced proves, in our opinion, the guilt of the accused beyond all rgasonable doubt. The evidence afforded by the books of the Agra Bank, of the Currency office and of the Madras Bank as to these notes is more valuable than hundreds of pages of evidence given by such men as C. Masilamany, D'Santos,Sivachendra Rau, &c; We hold that the evidence on the sixth head of the charge independ ently of the evidence which we have held to be inadmissible is amply sufficient to support the conviction of the accused on that count, and we accordingly affirm the convication upon that count. In modification of the sentence imposed by Mr. Justice Boddam, we sentence the first accused, N.A. Subrahmania Iyer, to a term of two years' rigorous imprisonment and to a fine of five thou-sand rupees. In default of payment of the fine, we sentence him to a further term of nine months' rigorous imprisonment.
88. With regard to the conviction of the accused on the sixth' count which we have affirmed, I wish to add to the judgment of the Court which has just been delivered by the learned Chief Justice that, in my opinion, the accused was not, in fact, embarrassad, or prejudiced, in making his defence in regard to the sixth count, by the fact that the first count was bad in law and was improperly joined with three other counts at one trial. If I was of opinion that be was so prejudiced, I should feel bound to acquit him. He, however made an elaborate defence on the sixth count, which would have been a complete defence if the evidence which he adduced in regard to it had been accepted as true. There is nothing to indicate that he would, or could, have made a more complete, or a better, defence if he had been charged with that effence alone. I, therefore, feel no hesitation in concluding that what I regard as defects in the indictment as a whole are not, in themselves, sufficient grounds for acquitting the. accused on the sixth count notwithstanding that the prosecution evidence on that count is found. to be true,
89. Now, coming to the counts, the evidence regard-jng which we have to consider, we are all agreed that there is not evidence sufficient in any sense of the term to support the verdict of guilty in regard to the second count.
90. The fourth count we have not to consider as, by direction of the learned Judge at the Sessions, a verdict of acquittal was returned by the jury.
91. The sixth count is the only charge left for the first accused (the petitioner) to meet. It alleges against him that he took Rs. 100 from C. Balasundra Mudali as a reward for doing an official act, and the offence charged is under Section 161, of the Penal Code.; that, is the charge is one of bribery, pure and simple, and extortion is not also alleged as in the second and fourth counts. The evidence of C. Balasundra Mudali, if true, proves that the offence committed was that of extortion. The money was paid, he says, under threats of degradation or ruin, Mr. Daly who conducted the case for the prosecution from the beginning would not, and the learned Advocate-General could not, explain why a charge of bribery only was laid in this matter. Now, it seems to me that if the evidence shows, as it undoubtedly does, that the offence committed was that of extortion, the charge of simple bribery and the convection thereon is bad on this account alone; and I do not think that we possess the power at this stage of the case to alter the charge and the conviction into one of extortion which it should properly be if Balasundram's evidence is true. If, however, I am wrong in this view and the charge and conviction for bribery alone is right I have no hesitation in finding that there was not sufficient evidence to support the verdict of the jury. The only evidence that the two 50 rupee notes which Balasundram undoubtedly had in the office on the 10th of May 1897 reached the hands of the first accused is that of Balasundram himself. As the charge is laid as one of bribery, his evidence is the evidence of an accomplice, and, therefore, requires corroboration according to the invariable practice of the Courts in India. The only corroboration is the evidence of D'Santos which I discard for reasons already given. Other corroboration, so far as I can see, there is none. There is clear evidence that the cash-keeper in the office, Sivachendra Rau, on that -same day, the 10th of May 1897, changed those two 50 rupee notes which Balasundram had into a 100 rupee note, and that 16 days afterwards the same Sivachendra Rau bought, on behalf of the first accused, 800 rupees worth of Government promissory notes in paying for which the 100 rupee note that he had exchanged on the 10th of May was used by him. Now, this no doubt is evidence against Sivachendra Rau, but it is no evidence against the first accused unless Sivachendra Rau deposes that he got the 100 rupee note for the first accused in place of the two 50 rupee notes and that the first accused gave him that 100 rupee note to purchase the Government securities. But Sivachendera Rau does not state that he got that 100 rupee note at first for,and afterwards from, the first accused. 'On the contrary, he denies all that, and says that the two 50 rupee notes into which the 100 rupee note was exchanged were paid to himself by C. Balasundram in repayment of a loan, and that he himself afterwards used it out of his own stock in place of smaller notes received by him from the first accused for buying Goverment paper. Now, whether this story be true or false, it is no corroboration of Balasundram's story and brings nothing home to the first acaused. I.L.R. 1 B. 610, therefore, find that there is no legal evidence upon which the 6th count can be supported. Supposing, again, that I am wrong in appreciating the evidence and that there was evidence to go to the jury in regard to this charge, surely it was acase in which the jury might fairly have doubts. The evidence of Balasundram was not so unimpeachable and conclusive that a jury ought in all reason to have convicted upon it as clear and convincing. It was tainted and contradicted and left room for, doubt, and the jury would at least have been entitled to give the accused the benefit of the doubt. Such being the case, I do not think that we should arrogate to ourselves the functions of the jury and say that we are satisfied with the evidence, whatever the jury might think about it. The first accused resides in Madras within the limits of the original jurisdiction of the High Court, and as such inhabitant he is of right entitled to a trial by jury, that is by his peers and not by us Judges, who are not on the panel. It is different in the Mofussil where the right of trial by jury is only a statutory right of late creation and only granted in certain cases. He has the same right to a trial by jury as any British-born subject of Her Majesty, and I therefore consider that the decision of the Privy Council in Makin v. Attorney-General for New South Wales reported in (1894) Appeal Cases 37, is in principle entirely applicable to this case. I extract the following passages from the judgment of the Lord Chancellor in that case. ' The ' result is that in a case where the accused has the right to have his guilt or innocence tried by a jury, the judgment passed upon ' him is made to depend not on the finding of the jury, but on the 'decision of the Court. The Judgss are in truth substituted for ' the jury, the verdict becomes theirs and theirs alone, and is ' arrived at upon a perusal of the' evidence without any opportu-' nity of seeing the demeanour of the witnesses and weighing the ' evidence with the assistance which this affords.' ' The evidence improperly admitted might have ' chiefly influenced the jury to return a verdict of guilty, and the ' rest of the evidence which might appear to the Court sufficient ' to support theconvication might have been reasonably disbelieved ' by the jury in view of the demeanour of the witnesses. Yet the ' Court might, under such circumstances, be justified, or even 'consider themselves bound to let the judgment and sentence ' stand'.' Their Lordships do not think it can ' properly be said that there has been no substantial wrong or ' miscarriage of justice, where on a point material to the guilt 'or innocence of he accused the jury have, not with standing ' objection, been invited by the Judge to consider in ariving at their verdict matters which ought not to have been submitted to ' them. In their Lordship's opinion substantial wrong would be ' done to the accused if he were deprived of the verdict of a jury ' on the facts proved by legal evidence, and there were substituted ' for it the verdict of the Court founded merely upon a perusal ' of the evidence.' I take my stand upon those observations and say that in this case we do not know that the jury would not have arrived at a verdict of ' not guilty' had their minds not been prejudiced against the first accused by a mass of damning yet inadmissible evidence, and that their minds were prejudiced there cannot, I think, be the slightest doubt. We ourselves are not in a position to judge who is speaking the truth Balasundram or Sivachendra Rau. A conviction on the sixth count must rest entirely upon the credibility of Balasundram, without whose evidence the case against the first accused must fail I am far from prepared to believe it implicitly and, therefore, am of opinion that the conviction of the first accused cannot be sustained and that he should be acquitted and released.