1. In this case nine persons were charged with offences under Sections 401, 328/120 B and 394/120-B, I.P.C. With regard to the charges under Section 401, they were tried with the aid of assessors, and with regard to the charges under the other sections they were tried by the Additional Sessions Judge and a jury. Biren, Majid, Chitta, Nilu and Ramani were convicted and the other four acquitted. A Rule for enhancement of sentence was issued by this Court. Biren was sentenced to four years' rigorous imprisonment and Nilu and Ramani to six months each. None of these have appealed. The sentences of Nilu and Ramani have already expired. Majid and Chitta were sentenced Co two years' rigorous imprisonment each, of which sentence they have already served about 12 months each.
2. The case for the prosecution was that Biren was the brain of the movement alleged by the prosecution. He got to know Majid, Chitta, Pulin, Naresh and Deben and probably others, and about the end of 1931 or the beginning of 1932, he invited Pulin to Beadon Square, where Chitta and Majid were already present by appointment, and described a plan of making money by doping prostitutes and stripping them of their ornaments. Since then the plan had been put into operation by Pulin and Biren visiting several prostitutes in pursuance of this conspiracy, while Chitta and Majid supplied money, and got a share of the spoil. Drugs were procured at first from Naresh Mitra, who, though at first he knew nothing about the purposes for which the drugs were to be used, eventually became aware of the plan and subsequently shared in the profit; later on, Sailen, Nilu and Bhulu were introduced and joined the conspiracy. These men used to meet in one or other of the parts of Calcutta to arrange plans for carrying out the objects of the conspiracy and for raising funds. Later on, operations were extended outside Calcutta, to Dinajpur and Rangpur. Later on, Aswani, Ramani and Jadu joined and operations were extended to Kustia. Still later a plan was proposed to be carried out at Navadwip, by Biren, Chitta, Nilu and Bhulu, which involved the picking of the lock of a safe. This failed because nobody could pick the lock. It was alleged that Majid introduced Sukhani as an expert who could do that.
3. Later on, the plans became more daring and it was arranged to make raids upon houses. These, however, came to nothing for one reason or another and, eventually, the police got some knowledge about the gang, and various persons were arrested on suspicion and were subsequently discharged. Eventually, however, Pulin was arrested on 13th June 1933 and made a confession implicating the whole of these persons and they were re-arrested. It is obvious therefore that the case depends largely upon the confession made by Pulin. 'With regard to Biren, Pulin's statements have been corroborated by the evidence of the victims of some of these plots. The rest of the evidence depends upon one or two documents, and evidence of association between the accused.
4. As Biren, Nilu and Ramani have not appealed we are only concerned in this case with the evidence against Majid and Chitta. It is not necessary therefore for me to mention at any great length the rest of the evidence in the case. The documents mostly affected Biren, though one document was alleged to refer to Majid and I will deal with that later. The learned Judge pointed out at the beginning that the case depended mostly upon the evidence of Pulin, and suggested for the consideration of the jury that a statement containing such a complex mass of details could hardly have been the result of tutoring by the police. But he pointed out various aspects of this statement which ought to lead the jury to view it with some suspicion so far as its details were concerned.
5. Pulin gave evidence in this case and was corroborated to some extent by the evidence of three other accused who were called as witnesses Debendra, Naresh and Mukherji. The learned Judge quite rightly drew the attention of the jury to the necessity of scrutinising very strictly the evidence of all these witnesses. The procedure adopted with regard to these 4 accused is unwarranted by any provision of the Code. As I understand the position, the Public Prosecutor asked leave to withdraw the prosecution against each of them and this was allowed by the Court. Thereupon, they were called as witnesses against their co-accused. In the case of Deben, Naresh and Mukherji possibly this course was justified, because it may be that there was not sufficient evidence of a prima facie case against them. But in Pulin's case there was overwhelming evidence upon which he could have been convicted.
6. The withdrawal of the prosecution under Section 494, must be with the consent of the Court, and in exercising his discretion, the Judge must act judicially. The section is only intended to be applied in cases where either the evidence is insufficient to secure a conviction, or in cases of compromise and similar circumstances. It is not intended to be used by the prosecution to get the evidence of an accused against his co-accused and so escape the safeguards laid down in the Code with regard to such evidence under Section 337. The Code provides in the latter section various safeguards to ensure that the use of an accomplice's evidence in a trial shall not be liable to abuse. In the first place, it provides that he shall be granted a conditional pardon. Thus it ensures to that extent that he will give his evidence knowing that if he speaks the truth he will not suffer subsequent prosecution for the offence with which he has been charged. He knows that, to that extent, he need not feel that he is under the necessity of strengthening his evidence against his co-accused in order to satisfy the prosecution, and thus escape subsequent prosecution for the offence of which he has been pardoned.
7. It is true that this is only a provisional release and if he does not speak the truth, the pardon may be withdrawn and he may be prosecuted. This amendment was introduced in the year 1898, and is a blemish upon the provisions of the Code, because it has the witness to some extent in jeopardy. The evidence of an accomplice must always be received with the greatest possible caution, and if there is any fear in the witness's mind that failure to establish the case for the prosecution will result in his own prosecution, it is not likely to lead to truthful evidence being given by such a witness. However, the danger is comparatively remote, because such a witness could not be prosecuted subsequently unless the Public Prosecutor certified that, in his opinion, the witness has either by wilfully concealing or by giving false evidence, not complied with the conditions upon which the tender was made. If this certificate is given, then such a person may be tried for the offence in respect of which the pardon was tendered. But he cannot be tried jointly with any of the other accused, and at his trial he is entitled to plead that he has complied with the conditions upon which such tender was made, in which case the prosecution must prove that such conditions have not been complied with. There is a further safeguard provided in Sub-section 2(a), which makes it obligatory upon the Magistrate tendering pardon to commit the accused, against whom the accomplice's evidence is to be given, for trial at the Court of Sessions, or the High Court as the case may be.
8. In Section 494 no such safeguards are provided so far as sub-para. (a) is concerned. That is to say, where the case as in the present instance is withdrawn before a charge has been framed. In such a case the accused is discharged, that is to say he is liable to further prosecution for the same offence, and consequently he gives his evidence well knowing that he may be prosecuted for that offence if he does not give satisfaction to the prosecution at whose instance he has been called as a witness. The position is different under sub-para. (b) where the prosecution is withdrawn after the charge has been framed against the accused. In such a case he must be acquitted and, consequently, can give his evidence without fear of any further prosecution. I am aware that there is one decision of this Court in G.V. Raman v. Emperor, 1929 Cal 319 in which the Court held that the trial Court did not exercise its discretion wrongly in relying on the discretion of the Public Prosecutor against one of the accused, in order that his evidence might be available after his discharge against his co-accused who was being jointly tried with him, and that the procedure laid down in Section 337, Criminal P. C, namely, by tendering an accused person pardon under that section with all the safeguards mentioned therein, is not the only method of obtaining the evidence of a co-accused against another. 8. 337, Criminal P.C., does not control Section 494. The learned Judge who gave the first judgment in that case seems, with all respect, to have missed the point of the objections to the suggested procedure under Section 494, which I have already stated, because he based his decision entirely upon English cases, and text book writers, all of which deal with a position in which proposed witness is no longer in jeopardy-either he has been acquitted or a nolle prosequi has been entered against him by the Crown.
9. It is clear therefore that the authorities cited by the learned Judge are no authority for the proposition that it is proper to apply Section 494, and by withdrawal of the case against the accused before a charge has been framed, enable the prosecution to call him as a witness. In such circumstances the witness is in jeopardy all the time. Consequently he has the greatest possible temptation to improve his evidence so as to give satisfaction to the prosecution.
10. In view of the fact that the evidence of such witnesses is always open to grave suspicion, the Code has laid down stringent safeguards to provide as far as possible, that the evidence of such witnesses shall be true. Those safeguards are contained in Section 337. If the decision in G.V. Raman v. Emperor, 1929 Cal 319, be correct then a way has been provided, for the prosecution to obtain the evidence of an accomplice without any of the safeguards provided by Section 337, and so far as that section is concerned it would be reduced to a nullity. I regret to say that I profoundly disagree with the judgment to which I have just referred and I am not surprised that the prosecution, in several recent instances which have come to our notice, have employed the method approved by that judgment, and have applied the provisions of Section 494 rather than follow the procedure laid down by the Code under Section 337.
11. In my opinion therefore the evidence of Pulin ought to be rejected, with the result that the convictions and sentences imposed against Majid and Chitta must be set aside. We are not concerned with the rest of the accused, who have not appealed. That however will not dispose of the case, because we have to consider whether it is worth while sending the case against these two appellants, Majid and Chitta, back for retrial. As I have already said, the evidence against them depends almost solely upon the evidence of the accomplice, Pulin. The learned Judge warned the jury quite properly that it is dangerous to convict any person upon the uncorroborated testimony of an accomplice. There is nothing in law against doing so, an accomplice being a competent witness finder Section 133, Evidence Act but in prudency, as is shown by Section 114, Illus. (b), Evidence Act, the jury should require corroboration of such evidence. Further he pointed out that one accomplice cannot corroborate another, and that although it is not necessary to have corroboration of every detail of the confessional statement, there must be corroboration in material particulars. The learned Judge in order to make the position clear ought to have said, in material particulars which implicate the accused in the crime. He then quoted from a judgment of Rankin, C.J., in Ambica Charan Roy v. Emperor, 1931 Cal 697, in which the principle is correctly and clearly laid down. It is useful to refer to the following paragraph in that judgment:
A man who has been guilty of a crime himself will always be able to relate the facts of the case and, if the confirmation be only of the truth of that history without identifying the person, that is no corroboration at all. We have always to be careful lest the names of the individual accused are introduced into the texture of a story the outline of which is true enough.
12. Now the corroborative evidence against these two accused seems to me to fall within the terms of that warning. (His Lordship then considered the corroborative evidence and held that there was no corroborative evidence within the correct legal meaning of the term against either of these two accused. The judgment then proceeded.) The Judge ought to have told this to the jury, and I think that he misdirected them when he summed up the evidence against Majid and Chitta by mentioning these facts without saying either one way or the other whether they amounted to corroboration in law or not. Thus the jury may easily have been led to believe that the Judge mentioned this part of the evidence in order to remind them of evidence which was corroborative in law of the evidence given by the accomplice. For these reasons, these convictions and sentences must be set aside and these two appellants acquitted. We see no reason to enhance the sentences of the other accused. The Rule is discharged.
13. I agree. I would like to add that the use which has been made of Section 494 in this case was entirely unjustified. As stated by my learned brother, an approver is a competent witness under the provisions of Section 337 under which there are various precautions taken as laid down in the statute, which are omitted in the case of withdrawal of a prosecution under Section 494. It is true that in a number of cases such a witness has been held to be a competent witness. But I respectfully agree with the judgment of Witworth, J., in Queen-Empress v. Hussein Haji (1901) 25 Bom 422, where he says that
It is necessary to reconcile the provisions of Sections 337 and 494 and that can I think only be done by taking the consent of the Court in Section 494 as meaning consent based solely upon a judicial consideration of the case against the person from whose prosecution the Public Prosecutor desires to withdraw, and not upon any consideration of the uses to which that person may be put in a case other than his own. And indeed apart from any conflict with Section 337, I should think that to be the most natural interpretation of the section.
14. He therefore held in that case that the witness discharged under the provisions of Section 494 was not a competent witness. In my view the witness can only be considered a competent witness in the sense that his evidence is not inadmissible in respect of the facts to which it relates. I find that the view that he is a competent witness has been held in this Court in asem Ali v. Emperor, 1920 Cal 87. But in that case there is no discussion of the previous cases and it is merely stated by Shamsul Huda, J., that upon the reported decision
it is enough that the accused person had been discharged before he gave his evidence and was not on his trial when such evidence was given. This is quite sufficient to make his evidence admissible.
15. The learned Judge in that case altogether left out of view the fact that such evidence is not safeguarded by the provisions of Section 337. The evidence is no doubt admissible but in practice no weight should be given to it without corroboration.