1. After stating that the appellant had been convicted under Section 121 of the Penal Code in respect of a speech delivered at a place known as Manjeri on 24-8-21, his Lordship proceeded : Two legal objections have been taken by Mr. Menon, the learned Counsel for the Appellant. It will be convenient to deal with them before I come to discuss the evidence, (1) It is said that charges under Section 121 form one of a class of cases falling under Section 196, Criminal Procedure Code, which provides that the complaint must be made by order of or under authority from the Local Government.
2. Mr. Menon took a preliminary objection before us that the sanction (printed at page 50 of the printed papers) was so defective and insufficient as practically to amount to no sanction at all. Paragraph 1 of the Government Order, dated 3rd May 1922 sanctions the prosecution of the accused for an offence under Section 121, Indian Penal Code, in that he incited and encouraged the Moplahs of Wornad and Walluvanad to take up arms against the British Government and was closely associated with various active rebels before and after the commencement of the Moplah rebellion. Paragraph 2 also sanctions his prosecution under Section 124(A), Indian Penal Code, in respect of five speeches delivered are various places from July to September 1921, extracts of which (or translations of certain passages of which) are set out in the order; and it is as to passages 3, 4 and 5 that the present charge was instituted on the form of the order.
3. Mr. Menon contends that all that was sanctioned was the prosecution under Section 124(A), Indian Penal Code, though he admits that, if paragraph 1 of the order stood alone, evidence could have been given of the speeches in question as incitement and encouragement. The charge is quite specific and in paragraph 6 of the same the effect of the speech which is alleged to have been made by the accused on the 24th August 1921 is set out. No objection was taken in the lower Court.
4. In Queen-Empress v. Bal Gangadhar Tilak (1898) 22 Bom. 112 it was held that; there was no special mode laid down in the Code whereby the order or sanction of Government is to be conveyed to the officer who puts the law in motion, not even on a charge under Section 121. Even under Section 124-A, though the complaint must contain the article complained of to give information to the accused of the charge against him, there is nothing in the Code to show that the written order (if a written order is required) must specify the exact article in respect of which the Complaint is to be made.
5. In a case of our own Court, In re Subramania Siva Chidambaram Pillai v. Emperor (1909) 32 Mad. 3, also a case under Section 124-A, it was held that all that Court had to see was whether the complaint was made by the order or under the authority of Government. It was held there that even if the charge does not set out the speeches alleged to be seditious it would not vitiate the proceedings and that any objection on the ground of such defect ought to be taken as early as possible. For these reasons I am quite clear that this objection must be overruled.
6. The second legal point advanced on behalf of the accused is that certain witnesses whom he desired to summon were not called by the learned Special Judge. These are : (1) the Chief Secretary to Government; (2) Mr. E.C. Smith, I.C.S., Private Secretary to His Excellency the Governor; and (3) Mr. Clements, Superintendent, Central Jail, Coimbatore.
7. The first of these witnesses was required 'to produce certain documents i.e., letter written to him on or about 18th February 1922' (which was in fact produced through the Superintendent, Central Jail, Coimbatore) 'and the correspondence of the Government of Madras and the Advocate-General on the one side and the District Magistrate on the other side to prove that district authorities arrested me and detained me in the jail till the rebellion was over.'
8. Mr. Smith, I.C.S., as stated by the learned Counsel for the accused, would have spoken to the loyal character of the accused. Mr. Smith was the Sub-Divisional Magistrate of the District in February 1921, though he was very shortly afterwards transferred, and he signed Exhibit XXI which was an order under Section 144, Criminal Procedure Code. Mr. Clements was to be called to prove that the accused protested to Mr. Knapp in January 1922 against his detention under the Moplah Act.
9. In dealing with this application the learned Special Judge said as to (1) that he was not prepared to call for the correspondence mentioned as the accused did not know its contents; as to (2), the evidence of P.W. No. 14, Mr. Clements, being only to prove a protest by the accused against his arrest and detention, it was not of sufficient importance to justify the summoning of such an officer as the Superintendent of the Coimbatore Jail; and as to (3) that the evidence of E.C. Smith was not sufficiently material to justify the summoning of this witness 'at this stage at least.'
10. Though the learned Special Judge has undoubtedly not specifically recorded that he considered that any of those applications should be refused on the ground of vexation or delay, or as defeating the ends of justice, it is by no means clear that he did not intend to find so by his recorded reasons. Wahid Ali Khan v. Emperor (1906) 11 C.W.N. 789 is an authority for holding that it is a sufficient compliance with Sub-section 2 of Section 257, Criminal Procedure Code, if a Magistrate, in rejecting an application for summoning the defence witnesses, states the facts which lead him irresistibly to the conclusion that the application was for purposes described in the section though he does not expressly say so.
11. Mr. Menon cites in his favour Narayanu Mudaly v. Emperor (1908) 31 Mad. 131, where a conviction was set aside on account of the refusal of a Magistrate to issue process to the witnesses named by the accused. The Magistrate there rejected an application to examine all the 71 original defence witnesses as too late. The Court held that, as his refusal was not based on any of the grounds in Section 257, Criminal Procedure Code, his order was illegal.
12. It may be noted in connection with this case that the question of the power of the Appellate Court to call for fresh evidence under Section 428, Criminal Procedure Code, was not raised. Another case cited was Emperor v. Purushottam Kara (1902) 26 Bom. 418, where the Court found that no reason at all had been assigned for the refusal to summon any particular witness. The Court said that
although discretionary power of refusing to summon any particular witness is vested in the Magistrate the order of refusal must be such as to show in writing the ground of refusal as applied to each individual.
13. That does not apply to the present circumstances. Again, the question of the power of an Appellate Court was not raised there. Further is the case, Referred Trial No. 16 of 1923 of this Court reported in In re : Ayarvolfi Pakker A.I.R. 1924 Mad. 243 where it was held that the Special Judge having illegally issued commissions for the examination of certain of the defence witnesses, who, however, elected to put interrogatories to the witnesses, was a material irregularity that vitiated the trial.
14. The defence in that case (to which one of us was a party on appeal) was that the murder charged had been committed by some other person since dead, and the Court held that the matter was of such importance that the defence, if believed, would form a complete answer to the case against the accused and the only course was to set aside the trial. It is to be remarked that this was a referred trial and that Section 375, Criminal Procedure Code, applied.
15. I am of opinion that nothing like such cogent reasons can be advanced in the case of the three witnesses not summoned by the Special Judge. We, however, held in our interim order delivered on 29th August 1923 that the special Judge's procedure was irregular in that he had not set out his reasons in detail under Section 257, Criminal Procedure Code, for refusing to summon the witnesses. We did not hold it illegal or incurable.
16. We offered to call these witnesses in this Court under Section 428, Criminal Procedure Code, and in addition to give the defence the opportunity by calling Mr. E.H. Hitchcock as he was at all material times the District Superintendent of Police of this district and also if necessary, to allow the defence to recall P.W. No. 1.
17. The reason why we offered the opportunity to the defence in the case of Mr. Hitchcock and P.W. No. 1 will more clearly appear when I come to examine the evidence in the case. Mr. Menon for the accused has rejected our offer on the ground that we have no jurisdiction to call this evidence in an Appellate Court. The accused has thought fit, by a petition to us dated 15th September 1923, to allege that Mr. Hitchcock bears personal enmity to himself and may support the false story of P.W. No. 1.
18. As to the latter the accused alleges that he will not if recalled scruple to fabricate records and produce a connected statement as the statement sent up by him to the District Superintendent of Police. There is nothing before the Court to lead us to give credit to either of these statements. Counsel for accused insists that the failure to call these witnesses is a material irregularity amounting to an illegality and claims a re-trial of the accused in consequence.
19. His argument in brief amounts to this, that in Section 428, Criminal Procedure Code, the word 'necessary' imports that it is impossible to pronounce judgment without the additional evidence. I cannot accede to this. There may be many cases, as for instance, the present, where judgment can be pronounced without any additional evidence but here we considered it was necessary as a general measure of justice that the defence should have every opportunity of putting forward anything that might help their case. I might here remark that Mr. Hitchcock's name originally appeared in the list of witnesses tendered by the accused (page 412) and was struck out. (Exhibit XXIII).
20. Mr. Menon further contended that, by virtue of the wording of Sub-section 3 of Section 428, Criminal Procedure Code, the section can apply to evidence taken for the prosecution and that only formal proof, it any, is allowed. He points to the distinction between Section 375 (Referred Trials) and Section 428(3), Criminal P.C.
21. It is true Section 375 says that 'additional evidence may be taken upon any point bearing upon the guilt or innocence of the convicted person,' whereas all that Section 428(1) says is 'in dealing with any appeal, the appellate Court, if it thinks additional evidence to be necessary, etc.' There is no restriction in the wording of the section 'either as to the nature of the evidence, or that it is to be taken for the prosecution only or that the provisions of the section 'are only to be invoked when formal proof for the prosecution is necessary.
22. Mr. Menon has quoted to us Varadurajulu Naidu v. Emperor (1919) 2 Mad. 885 and Jeremiah v. Vas (1911) 36 Mad. 457. In the former of these cases it has been held that the powers given Section 428, Criminal P.C. to an appellate Court to take additional evidence, are perfectly general and are subject only to the condition that the Court should record its reasons. Undoubtedly, whore additional evidence for the prosecution is admitted under this section, the jurisdiction should Tie exercised with great care. It is true that that was a case of supplying formal proof in the prosecution case
In Jeremiah v. Vas (1911) 36 Mad. the passage relied on by Mr. Menon is at page 467, where Mr. Justice Sundara Aiyat whose views were disapproved by Wallis, C.J., in Varadurajulu Naidu v. Emperor (1919) 2 Mad. 885 says : 'Section 428 is not applicable where the prosecution having had ample opportunities to produce the evidence has failed to do so.' the learned Judge further stated that that case was not one in which lie could say that the interests of public justice would justify the use of the provisions of Section 428.
23. It will be observed that in neither of the cases just mentioned it is stated, or even suggested, that Section 428 is confined to supplying proof of the prosecution case. On the other hand the learned Public Prosecutor draws our attention to the several recent cases of this Court in which evidence for the defence has been taken under the provisions of this section apparently without the jurisdiction ever being questioned.
24. In Referred Trials No. 22 and 26 of 1923, and in Referred Trial No. 123 of 1922, and in the Criminal Appeal No. 1603 of 1922 the evidence was taken by the Court itself. In Criminal Appeal No. 186 of 1922 the evidence was directed to be taken by the Court below. I am not prepared, without better authorities than have been cited particularly after the remarks of Wallis, C.J., in Varadurajulu Naidu v. Emperor (1919) 2 Mad. 885 to limit the ambit of Section 428 in the way contended for by Mr. Menon.
25. I am, therefore, of opinion that this legal objection also fails the further portions of his Lordship's judgment are not material for this report. His Lordship discussed evidence and held on a point of law involved, that statements which were not evidence under Section 162 could not be made evidence, simply because the witnesses signed them contrary to the provisions of Section 162, Criminal P.C. In the end his Lordship dismissed the appeal and confirmed the conviction and sentence.
26. I agree entirely with the judgment of my learned brother which ho has just read, but wish, on certain aspects of the case, to put forward some additional remarks.
27. On the second legal point raised, it is true that the Sessions Judge did not in words base his refusal to summon certain defence witnesses on any of the grounds set out in Section 257 of the Criminal P.C.; but on the ground the accused (the appellant), whom he questioned about it, had not satisfied him that the evidence was of material importance in the case.
28. For my part there seems to me to be little difference in effect between rejecting an application to summon a witness because his evidence, even though believed, would not affect the Judge's judgment in the case, and rejecting it because the application is vexatious. 'Whether an application deserves the epithet 'vexatious' or not is a matter for the Judge to decide, and if he decides that the evidence of a witness to be summoned is not going to be of any use in the matter of helping him to decide the case, ho, in effect, if not in words, is deciding that the application is vexatious, and I would bold that the application in this case was in substance rejected on one of the grounds stated in Section 257, although the words of that section have not been used by the Judge.
29. Section 216 of the Criminal Procedure Code applicable to committing Courts, seems to me to elucidate this point, when it states that
if the Magistrate thinks that any witness is included in the list for the purpose of vexation or delay or of defeating the ends of justice, the Magistrate may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of such witness is material.
30. That seems to me to be tantamount to saying that, if the Magistrate is not satisfied that the evidence of a witness is material, he will be justified in law in dismissing the application as put in for the purpose of vexation or delay.
31. Various casts have been quoted to us as against this view. Those which take the most uncompromising view are Narayana Mudali v. Emperor (1908) 31 Mad. 131 and Emperor v. Purshottam Kara (1902) 26 Bom. 418. The former gives no reasons and merely follows the latter. The latter proceeds on the footing that the language of Section 257 is exhaustive and imperative. It seems to me clear that it is neither.
32. Take for example Section 503, which permits the Court to refuse to issue a process to compel the attendance of any witness when it thinks that the expense, delay or inconvenience is unreasonable. If the Court follows that section, can it be said that it is thereby disobeying Section 257, because the grounds of its refusal to compel personal attendance is not one of the grounds set out in Section 257?
33. Obviously it cannot be so held. Hence Section 257 is neither imperative nor exhaustive, and the grounds on which these two reported cases proceed, it appears to me with due respect, are based on incomplete premises.
34. In Emperor v. Purshottam Kara (1902) 26 Bom. 418 the Magistrate did not consider the case of each of the proposed witnesses individually or give any reason at all for not summoning them. In the case quoted in In re Vyasa Rao : (1911)21MLJ283 it is merely laid down that every case under Section 257 has to be decided on its own merits. The case in Emperor v. Nundbasappa Basappa : (1912)14BOMLR360 is not a case under Section 257. That was a case where the Magistrate declined to examine witnesses already summoned in Court.
35. In the case in Wahid Ali Khan v. Emperor (1906) 11 C.W.N. 789 it was held that, as the reasons given for refusal to summon show that in substance the refusal was based on one of the grounds stated in Section 257, although not in the very words of that section, there was sufficient compliance with the section. This principle seems to me to apply to the present case.
36. In the present case, I would hold that although there may be an irregularity in the trial because the Special Judge has not recorded his reasons for his refusal in the words of Section 257, that section has been substantially complied with, and there is, therefore, no illegality vitiating the trial. At the most, since the exact terms of the section have not been followed, there would be an irregularity curable by Section 537, and which can be cured here unless the accused's defence was seriously prejudiced thereby.
37. Now, it will be noted that the witnesses whom the lower Court refused to summon were cited to give evidence wholly on side issues: the Chief Secretary to Government, as to what information Government had and what opinion it had formed on the case before issuing the sanction order; Mr. Clements, to prove the protest by the accused against his detention in jail in February 1922; and Mr. E.C. Smith, I.C.S., to prove that up to February or March, 1921, five months before the alleged offence, the appellant was a loyal subject.
38. The Judge's reasons for refusing to summon these witnesses indicate very plainly that, even if they had given the evidence they were summoned to give, that evidence would not, in his view have been relevant to the case, and his decision would not have been affected one way or the other by it; so that even if he had examined them the result of the case would have been just what it is now.
39. In such circumstances it is difficult to see how the appellant's defence before the trial Judge has been prejudiced.
40. Since, however, that evidence, although it would have weighed nothing with the Special Judge, might in the appellant's Counsel's opinion, weigh with us to some extent, we thought it advisable to give the appellant an opportunity of having it taken under Section 428, Criminal P.O., and we added to this offer a farther offer to the defence to call for and have produced before us the first report in the case by P.W. No. 1 to the District Superintendent of Police about which, as will be seen later, there was much discussion before us, and which the defence in the lower Court failed to call for. To this officer, the appellant has replied that this Court has no option to call for such additional evidence under Section 428 and that the only course is to order a re-trial.
41. I am unable to accede to this contention, since, in my opinion, Section 428 clearly covers the case. The appellant argues that the section does not apply, first, because it must be the Court, and not the accused, that considers the evidence to be 'necessary'; secondly because the section applies only to cases of absence of evidence on some formal point such as a sanction; and thirdly because the section applies to evidence for the prosecution only.
42. As to the first point, it does not seem to me to make any difference how the Court arrives at its conclusion that the evidence is necessary-whether it is persuaded to the conclusion by the arguments advanced for the accused, or whether it comes to that conclusion without the assistance of such arguments. If the Court finds that an appellant thinks the evidence necessary it cannot be seriously pleaded that the Court's agreement in the opinion or the acceptance of it deprives the Court of its jurisdiction under Section 428.
43. As to the second point, there is no authority whatever; the section makes no such restriction. The authorities quoted by the appellant are directly against him, namely, Jeremiah v. Vas (1911) 36 Mad. 457 and Varadarajulu Naidu v. Emperor (1919) 2 Mad. 885.
44. As to the third point, the same argument applies. If Section 428 was intended to be so restricted, it is framed in an extraordinarily careless fashion. An example or two will show the hollowness of the argument. Suppose an appellant before us had been convicted in a case in which his defence was insanity and the appellate Court, either suo motu or persuaded by appellants' Counsal, thinks it advisable to have a further enquiry regarding his sanity. Is the only course open to that Court, an order for re-trial?
45. Again, if an appellant had been convicted of kidnapping a girl and the appellate Court thinks it advisable to have expert evidence on the age of the girl, is the only course open to the appellate Court to order re-trial?
46. It is obvious that Section 428 was conceived to meet just such cases and it is in practice used in such cases every day.
47. Whether the proper course in any particular case is a re-trial or taking further evidence is a matter of discretion - the discretion of the Court apart from what the appellant or the prosecution may desire.
48. There are cases in which the evidence not taken by the Court on accused's behalf is so extensive or so directly bears on the main issues in the case that the appellate Court thinks the best course is a re-trial, for example, Referred Trial No. 16 of 1923 : In re Ayarvali Pakkar A.I.R. 1924 mad. 243. There are eases again in which such evidence is on a broad view of the case comparatively unimportant or would have been of no assistance whatever to the defence, in such oases it would be absurd to waste time by ordering a re-trial.
49. In this case the appellant, so far from wanting the additional evidence, strongly protests against its being taken here. From this it seems plain ho does not regard that evidence as at all helpful to his defence but is merely using this irregularity in order to obtain a retrial, hoping that on the re-trial two years after the event, the witnesses may have forgotten all the details of the crime.
50. This is made particularly plain from the fact, that he (ejected also the offer of this Court to have proved first report of P.W. No. 1 to the District Superintendent of Police, preferred by us, in order to test the truth of his contention that no report containing any abstract of the statements of P.Ws. Nos. 3 and 4 had been seat up to the District Superintendent of Police before March 1922. It is very clear that, if no such report had been sent, that would be a very strong point for the defence and shake the credibility of the P.W's. Nos. 1, 3 and 4 very greatly, probably irretrievably.
51. Even at the original trial, the appellant never called for that report or attempted to get it; and after citing the District Superintendent of Police in his list of witnesses, he struck him out; now when he is given by us an opportunity of calling that evidence which we note is not evidence shut out by the lower Court, and, therefore, not evidence the absence of which could possibly form a ground for a re-trial, but evidence never called for there at all. The appellant refuses to have it on the weak plea that the report will be tampered with, and he proceeds to allege that not only P.W. No. 1 but even the District Superintendent of Police himself will probably be prepared to perjure themselves about it.
52. So from this attitude one is perfectly clear that the appellant dots not regard the rejected evidence or the evidence now offered regarding police report as of the slightest help to his defence. That is, after endeavouring to persuade us that it was vital to him in order that he might press for a re-trial, he admits, when a re-trial is refused, that it is useless to him.
53. In such circumstances we cannot refrain from concluding that the Special Judge's refusal to take this evidence on the ground that it was of no use to the accused is amply justified and that his application to summon these witnesses was vexatious.
54. In these circumstances it becomes unnecessary for us here and now to call for it or to waste further time in procuring it. (His Lordship went into the evidence in the case and continued.) When it was pointed out by us that they (the statements of P.W's. 3 and 4) were obviously statements taken in the course of police investigation, the appellant's counsel actually advanced the proposition, that, since they are said to have been signed contrary to the provisions of Section 162, they thereby became statements taken under Section 154 i.e., statements prior to investigation and were thereby rendered admissible under Section 154.
55. This seems to me a wholly untenable argument, namely, that the police by violating the provisions of Section 162 and thus committing an illegality can make admissible statements which are inadmissible under the law. (His Lordship further considered the evidence and in the end concurred with Odgers, J. in dismissing the appeal.)