1. The appellants have been found guilty of conspiracy with each other; the accused Romesh Das who has not appealed, P.W. 2, Peara Hossain and others to commit offences punishable under Sections 387 and 506, I.P.C. In brief the prosecution case is that they are members of a gang of revolutionaries, who extort money from persons by terrorising them. The modus operandi is said to be as follows: A letter is sent demanding the payment of money, which is said to be required for the purchase of firearms and for other revolutionary purposes. The letter contains a threat to the effect that, if the money is not forthcoming, the recipient and the members of his family will be murdered. There is a further direction to hand over the money to a messenger, who will come with another letter on some subsequent date. This letter is then followed by another one containing a direction in these terms. The prosecution case is that in pursuance of this conspiracy specific offences were committed against P.W. 3, Radhika Prosad Mukherjee, P.W. 10, Satish Chandra Roy Choudhury and P.W. 13, Manmatha Nath De.
2. A pardon was tendered to the accused Piara Hossein and he was examined as a prosecution witness. It has been contended by Mr, Manowar on behalf of the appellants that this procedure has resulted in an illegality. This argument has two branches: in the first place it was contended that the Magistrate, having once taken action under this section, was bound to commit the accused for trial to the Court of Session: in the second place it was contended that if the Magistrate did not commit, S, 337, Criminal P.C., has no application and the evidence so taken was inadmissible, On behalf of the Crown Mr. Khundkar argued that a special Magistrate has no jurisdiction to commit and that he has power to tender a pardon under the provisions of this section, It may be noted here that the appellants were tried by a Special Magistrate under the provisions of Section 25, Bengal Act 12 of 1932. It was not disputed that under the Criminal Procedure Code a Magistrate, who takes action under Section 337, must commit. the accused for trial to the Court of Session. It is also clear that a Special Magistrate has no jurisdiction to commit; this is apparent from the terms of Section 25 to the following effect, viz....
The Local Government... may, by order in writing, direct that such person shall be tried by a Special Magistrate.
3. The direction to the Magistrate is that he is to try the accused, not to send him elsewhere to be tried by some other tribunal. Indeed it is difficult to see what useful purpose would be served by appointing a Special Magistrate to do what could be done by an ordinary Magistrate of the first class. We could only give effect to this argument made on behalf of the appellants by holding that when the Code is inconsistent with the special Act, the former is to prevail. This contingency is provided for in Section 34, Bengal Act, which is in these terms:
the provision of the Code... in so fay as they may be applicable and in so far as they are not inconsistent with the provisions of this Chapter, shall apply to all matters committed with... a trial by Special Magistrate.
4. A similar question came up for decision before this Court in Abdul Majid v. Emperor 1933 Cal 537. In that case the trial was held under the provisions of Ordinance 2 of 1932. Some of the provisions of that Ordinance had been incorporated in the Bengal Act and the Ordinance contained a provision identical with that in Section 34, Bengal Act. The appeal was heard by Rankin, C.J. and Costallo, J. In dealing with this point the learned Chief Justice observed as follows:
When we look at the Ordinance, we find that there is an express provision that the provisions of the Code are to apply in the case of Special Magistrates so far as they are not inconsistent with the Ordinance... It is quite clear that, in so far as the Ordinance is inconsistent with subsection 2-A (of the Code), the Ordinance prevails.
5. The identical point, with which we are concerned, also came up for decision in two unreported cases, i.e. Criminal Appeals 844 and 845 of 1933. The accused persons in those appeals were tried by a Special Magistrate appointed under the provision of Section 25 of the Bengal Act. The appeals were heard by Guha and Nasirn Ali, JJ., who had to determine the point which has been raised before us. The learned Judges held that the provision of the Code, in so far as they are inconsistent with the Act, are inapplicable to trials by Special Magistrates; in reaching this decision they relied on the judgment of Rankin, C.J., in the case to which I have already referred. It is thus plain that the point is amply covered by authority and it is really unnecessary for us to say more than that we respectfully agree with those decisions. There remains the second branch of the defence argument. There can be no question that, if Section 337 applies, the provisions of the Bengal Act are inconsistent with it. But the point is not whether the Bengal Act is inconsistent with the Code but whether the Code is inconsistent with the Act; if it is, the Act is to prevail. It is therefore only necessary to see whether the provisions of Section 337 of the Code are within the terms of Section 34 of the Act. It could hardly be said that the provisions for tendering a pardon to an accused person in order to secure his evidence are not applicable to a trial before a Special Magistrate.
6. Although the point does not appear to have been argued, it was actually decided in both the eases to which I have referred. In both these cases a pardon was tendered to one of the accused and his evidence was taken into consideration. Thus there can be no question that, if the contention advanced before us is sound, both those cases were wrongly decided. We must accordingly hold that a Special Magistrate has power to tender a pardon to an accused person and the evidence of P.W. 2 was rightly admitted. It is therefore necessary to consider what weight should be attached to it. When his evidence is read, it at once becomes apparent that, if he has told the whole truth, he has done nothing which, requires a pardon; indeed his position is in no way different from that of the two coolies P. Ws. 9 and 14. (After examining the evidence. His Lordship concluded). After giving the case our best consideration we can only come to the conclusion that the appellants have been properly convicted and the appeal is dismissed.
S.K. Ghose, J.
7. I agree.