1. The accused Atlanta, Nani, Shashi, Gopal, Srikanta and Bolai were tried along with seven others, who have been acquitted, with having committed the offence of dacoity.
2. The trial took place before the learned Sessions Judge of Murshidabad and a Jury. The six appellants before us were convicted and each sentenced to undergo seven years' rigorous imprisonment. Against that conviction and sentence they have appealed to this Court. The principal point that has been argued on this appeal is as to the legality of the trial before the learned Sessions Judge. It appears that the accused Shashi was tendered and accepted a pardon under Section 337 of the Code of Criminal. Procedure, on the 21st of April 1914, whilst the proceedings were pending before the Committing Magistrate. The Magistrate subsequently forfeited the pardon granted to Shashi and the magisterial inquiry was recommenced from the stage at which it was interrupted as against Shashi by the tender and acceptance of the pardon. The Magistrate committed all the accused for trial. Shashi having raised, before the learned Judge, a plea in bar on the ground that he had received a pardon, the learned Judge took a special verdict from the Jury in the first instance as to whether Shashi had forfeited his pardon. The Jury having returned a verdict that he had done so, the learned Judge then continued the trial against all the accused.
3. Against this procedure two points have been urged on the appeal before us: (i) that the procedure of the Magistrate in recommencing the magisterial inquiry against Shashi, from the stage it was interrupted by the tender and acceptance of the pardon, and the commitment of Shashi to take his trial with the other accused was illegal; and (ii) the taking of a special verdict of the jury as to whether the pardon, granted to Shashi had been forfeited was also illegal. On the first point, authorities have been cited showing that when the approver deviates from the condition of his pardon in the Sessions Court, he cannot be removed from the witness-box and placed in the dock as an accused, I should have thought that such a proposition did not require any authority. It is obvious that the Court of Sessions could not try a person who had not been committed for trial.
4. The question, however, as to whether or not an approver whose pardon has been forfeited by the Committing Magistrate can be committed and tried along with-the other accused, is a totally different question.
5. On behalf of the appellants the decision in the case of Queen-Empress v. Natu (1899) I. L. R. 27 Calc. 137, is much relied on. No doubt the observations of the learned Judges (Rampini and Pratt JJ.) in that case do lend support to the argument on behalf of the appellants. In that case, however, a charge had been framed against the two approvers under Section 194 of the Indian Penal Code without the sanction of the High Court. The remarks of the learned Judges that a 'person to whom a pardon has been made should not be tried for an alleged breach of the conditions upon which the pardon was tendered until the original case has been fully hoard and determined' show clearly that what the learned Judges were considering was the charge under Section 194 of the Indian Penal Code.
6. In my opinion that case cannot be taken as air authority for the proposition that, where the approver fails to act up to the condition of his pardon before the enquiring Magistrate, the Magistrate cannot recommence the inquiry as against the approver and commit him to take his trial along with the other accused.
7. As against the interpretation sought to be placed on the decision in the case of Queen-Empress v. Natu (1899) I. L. R. 27 Calc. 137, by the learned vakil for the appellants, there is a considerable body of judicial authority in which a different view was taken. In the case of Queen-Empress v. Brij Narain Man (1898) I. L. R. 30 All. 529, the learned. Judges observed 'We are unable to find anything in the Code of Criminal Procedure which would render it necessary that sin approver whose pardon has been withdrawn by the Magistrate, and who has been committed by the Magistrate in time to stand his trial along with the other accused in the case, should be tried separately from them.' A similar view was taken in the case of Emperor v. Budhan (1906) I. L. R. 29 All. 24. and also in the case of Sultan Khan v. King-Emperor (1908) 5 All. L. J. 691, and in the case of King-Emperor v. Bala (1901) I. L. R. 25 Bom. 675. a similar view seems to have been taken by Fulton J.
8. I think that the opinions expressed in these eases arc correct, and that the case of Queen-Empress v. Natu (1899) I. L. R. 27 Calc. 137. is only an authority for what was actually decided in that case, namely, that 'a person to whom a tender of pardon has been made should not be tried for an alleged breach of the conditions upon which the pardon was tendered until the original case has been fully heard and determined.' These remarks appear to me to be only capable of referring to a charge under Section 194, although, perhaps, the judgment is not very happily worded. In that view the opinions expressed in Queen-Empress v. Natu (1899) I. L. R. 27 Calc. 137. are not in conflict with the judgments of the High Courts of Allahabad and Bombay which I have cited above. I think, therefore, that the commitment to, and trial before, the Sessions Court in the present case was not illegal.
9. The second question urged on this appeal is that the trial was illegal by reason of the learned Judge having taken a verdict from the Jury as to whether Shashi had forfeited his pardon or not. The only case cited in support of this argument is the decision of this Court in the case of Emperor v. Abani Bhushan Chuckerbutty (1900) I. L. R. 37 Calc. 845. That case came before a Special Bench of three Judges, consisting of Holm wood and Sharfuddin and D. Chatterjee JJ., under the provisions of the Criminal Law Amendment Act. Holmwood J. held that the Committing Magistrate was the sole authority to determine whether or not the pardon had been forfeited. The grounds on which Holmwood J. formed this opinion are stated by him as follows: 'As soon as a charge is drawn up the accused is ipso facto put upon his defence.....' The word 'withdrawal' has been left out. of the present Code, and, as I have just said, the forfeiture appears now to operate ipso facto.' In support of this view the learned Judge relies on the case of Queen-Empress v. Munick Chandra Sarkar [1897) I. L. R. 24 Calc. 492. which lays down that the withdrawal or forfeiture of the pardon should be by the authority that granted it. But that case did not decide that the validity of the withdrawal or forfeiture could not be questioned at the trial. The other case Kullan v. Emperor (1998)I. L. R. 32 Mad. 173. relied on by Holmwood. J., with all due respect to the learned Judge, decided exactly the opposite to what the learned Judge did. Towards the end of his judgment Holmwood J., however, remarked that 'it is open to the accused here to show that the statement he made on oath was not a false statement, or was a false statement induced by improper influence.' D. Chatterjee J. held that as the case came before the Court as a 'Special Tribunal' under the provisions of the Criminal Law Amendment Act the Court had no jurisdiction to enquire into the fact whether the pardon had been properly forfeited or not. Chatterjee J, however, remarked that 'it is perfectly open to the accused to show before us in this Court, that the statements which are alleged to be false are true in fact or were induced by improper influences,' The tribunal before which that case came was not a 'Special Tribunal,' but the High Court, though no doubt the Bench was specially constituted to hear a case committed to it under the provisions of the Criminal Law Amendment Act. The provisions of the law, except so far as they have been varied by the Criminal Law Amendment Act, apply to such trials.
10. I am unable to concur in the views expressed in the case of Emperor v. Abani Bhushan Chuckerbutty (1910) I. L. R. 37 Calc. 845. which appears tome to be opposed to whole current of judicial decisions in India. Nor can I understand the remarks of the learned Judges that if the Committing Magistrate was the sole Judge as to whether or not the pardon had been forfeited, the accused could be permitted to give evidence to show that his former statement was true or induced by improper influences. Such evidence would be irrelevant on the charge of dacoity against the accused, but would be relevant on the issue as to whether the pardon had been validly forfeited. On the other hand, there are a number of authorities in which a different view has been taken.
11. In the case of Kullan v. Emperor (1908) I. L. R. 32 Mad. 173, the learned Judges remarked 'we think that where a pardon has been tendered and the approver is afterwards put on trial he should be asked If he relies on it, and if he says ' yes,' which is a plea of pardon, the issue as to the pardon should be tried first.' Again, in the case of Alagirisami Naicken v. Emperor (1910) I. L. R. 33 Mad. 514. it was held that the Judge at the trial at the sessions must, leave it to the Jury to decide whether the pardon had been actually forfeited and not decide the point himself.
12. The High Court of Bombay has adopted a similar view. In the case of King-Emperor v. Bala (1901) I. L. R. 25 Bom. 675. the following observations appear in the judgment of the learned Judges, 'as the law now stands the question is whether the accused has forfeited his pardon by some act of his own, not whether the-Magistrate has validly withdrawn it. This question is one of fact on which it is clear that the Magistrate may hold one opinion and the Sessions Court another, just sis may happen on any other question of fact at issue hr the case. The Sessions Court has to determine for itself on the evidence before it whether the pardon has been forfeited, for if not, the accused, who has accepted such pardon cannot be tried.' Again, in the case of Emperor v. Kolhia (1906) I. L. R. 30 Bom. 611, Aston J. remarked. 'it is, therefore, open to a pardoned accomplice, if placed on trial as an accomplice who has forfeited the pardon already accepted by him, to plead in bar of the trial that he did comply with the condition on which the tender of pardon was made, and such plea in bar of trial would have to be gone into and decided before the accused is culled to enter his plea in defence to the charge of having committed the offence in respect of which the pardon was tendered.' The same view was taken by the Chief Court of the Punjab as will appear from the following remarks in the judgment in the case of Emperor v. Kalu 31 Punj. Rec. 1904. 'the word 'withdrawn' does not now appear at all.' The word 'forfeited' has been substituted. Under the present Code, therefore, a pardon cannot be withdrawn, it can only be forfeited and whether or not it Las been forfeited will be a question of fact to be tried and decided by the. Court acting under competent authority which tries such person in respect of the charge in regard to which a pardon, was tendered to him.' Against this large body of judicial authority there is only the decision in the case of Emperor v. Abani Bhushan Chuckerbutty (1910) I. L. R. 37 Calc. 845. But when that case is closely looked at it cannot be taken aft' an authority the other way. For the Court admitted evidence to show that the statement of the accomplice, whose pardon bad been withdrawn, was not false and that such statement was induced by improper means, which was clearly irrelevant on the charge of dacoity but relevant on the plea as to whether the pardon had been validly withdrawn. In that view the judgments in the case of Emperor v. Abani Bhushan Chuckerbutty (1910) I. L. R. 37 Calc. 845. can be reconciled with the decision of the other cases, I have referred to above, although it may not have been strictly regular, or in accordance with the weight of judicial opinion, to have tried the plea in bar along with the charge on which the accused was committed for trial. The course adopted by the learned Judge in the present case in taking a verdict from the Jury in the first instance on the plea in bar was manifestly correct.
13. Then a subsidiary point was raised that the fact that the learned Judge took the verdict of the Jury on the plea in bar raised by Shashi after recording some of the evidence on the charge vitiates the trial. But Shashi, when called upon to plead, raised his plea in bar in such an obscure manner that the learned Judge apparently in the first instance did not grasp what Shashi meant when he said he was a witness. As soon, however, as the learned Judge realized the plea that Shashi wished to place before the Court, he proceeded in a regular manner, and any irregularity that there may have been cannot have prejudiced the accused at the trial. Finally it was argued that the learned Judge in his charge to the' Jury oil the charge upon which the accused had been committed for trial misdirected the Jury. I was and still am unable to appreciate what were the misdirections the learned vakil for the appellants complains of. But even if the portions referred to amounts to misdirections they are of such a trivial nature that they could not possibly have had any effect on the verdict of the Jury.
14. In the result, I think, the present appeal ought to be dismissed.
15. The learned pleader for the appellants bases his appeal on three grounds: (i) that the joint trial of the approver, Shashi, and the other accused was illegal, a branch of which argument is that it was incumbent on the prosecution to examine Shashi as a witness at the sessions trial; (ii) that the Judge adopted an extraordinary procedure in taking a verdict on the question whether Shashi had forfeited his pardon, after the examination of eleven only of the fifty-five prosecution witnesses, which seriously prejudiced the appellants; (iii) that there were misdirections in the charge to the Jury.
16. Many cases are to be found in the reports in which the question of the joint trial of an approver with the other accused has arisen, and in approaching a consideration of these eases there is a broad, dividing line between the two classes into which they naturally fall, a line which, I think, has not always been observed.
17. One class comprises those cases in which at the sessions trial the approver has failed to observe the conditions of his pardon, and has then been transferred from the witness-box to the dock and tried with the other accused.
18. Instances of such cases are those of Queen v. Pitumber Dhoobee (1870) 14 W. R. Cr. 10. Queen v. Bipro Dass (1873) 19 W. R. Cr. 43. In re Joyudee Paramanik (1880) 7 C. L. R. 66. Queen-Empress v. Mulua (1892) I. L. R. 14 All. 502. Queen-Empress v. Rama Tevan (1892) I. L. R. 15 Mad. 352, and Queen-Empress v. Jagat Chandra Mali (1894) I. L. R. 22 Calc. 50. To the procedure adopted in such cases there has been a double objection, viz., that the trial of the approver was without jurisdiction, he never having been committed to the sessions, and that to take him straight from the witness-box to the dock and try him with the other accused prejudiced him in his defence.
19. The second class comprises those cases in which in the Magistrate's Court the approver has failed to observe the conditions of his pardon, and his pardon having been withdrawn the enquiry against him in respect of the offence has been continued along with the enquiry against the other accused, and they have jointly been committed to the sessions. It is clear that remarks made in the first class of cases to the effect that the trial of the approver should await the termination of the trial of the other accused can have no application to the totally different state of facts met with in the second class, when the approver comes before the Sessions Court as an accused and not as a witness, but those remarks have been quoted in support of the view that, when the pardon has been withdrawn before the case has come to the sessions, the joint trial is improper.
20. The current of decisions that the trial of the approver must await the trial of the other accused, even in the second class of cases, was started by the case of Queen-Empress v. Sudra, decided by a single Judge. This case does not really fall within either of the classes to which I have referred, for the approver was committed to the sessions not on a charge of murder, which was the charge against the other accused, but in a separate proceeding on a charge of receiving stolen property belonging to the murdered man. The case turned on the meaning of the words 'in the case' in Section 337 of the Code of Criminal Procedure, and Knox J. remarked that the approver should not be tried till the original case had been fully heard and determined. That this dictum could not be universally correct was realised by the learned Judge who mentioned one difficulty which might arise from its universal application, viz., what was to be done when some of the accused in the original case absconded, and hinted that in such a casa the rule might be relaxed.
21. This case was subsequently dissented from by a Division Bench of the same Court, in Queen-Empress v. Brij Narain Man (1898) I. L. R. 20 All 529, and the later decision was followed in Emperor v. Budhan (1906) I.L.R. 29 All. 24.
22. Shortly after the decision in Queen-Empress v. Brij Narain Man (1898) I. L. R. 20 All. 529, a Bench of the Bombay High Court in Quean-Empress v. Bhau (1898) I.L.R. 23 Bom. 493 took the view that nothing could be done against an approver till the trial of the other accused at sessions was finished. The learned Judges relied on the case of Queen-Empress v. Sudra (1891) I. L. R. 14 All. 336, and five other cases, not one of which is an authority for the general proposition stated. This case was doubted by Fulton J. in the later case of King-Emperor v. Bala (1901) I. L. R. 25 Bom. 675. and the judgment of Candy J. shows that at an earlier stage a view inconsistent with that expressed in Queen-Empress v. Bhau (1898) I.L.R. 23 Bom. 403, had been a adopted.
23. In this Court the only reported case is that, of Queen-Empress v. Natu (1899) I. L. R. 27 Calc. 137. In that case the commitment of the approver was criticised on three grounds, only two of which have any tearing on the present discussion. These are that it was obligatory that the approver should be available as a witness at the sessions trial, and that the commitment of the approver before the trial of the other accused had terminate was illegal. Logically, the second reason would appear to depend on the first, for if there is no obligation that the approver should be available as a witness at the sessions, there would appear to be no reason as a general proposition of law, for delaying his trial till the termination of the trial of the other accused; though circumstances might exist which would induce the Sessions Judge, as a matter of discretion, to direct a separate trial on the ground of inconvenience or possible prejudice to the other accused.
24. Section 337 (2) of the Code of Criminal Procedure provides that a person accepting a tender of pardon is to be examined as a witness in the case. That condition is fulfilled when the approver is examined as a witness in the Magistrate's Court. In my opinion, that sub-section does not mean that it is compulsory to examine the approver in the Sessions Court if he has shown by his evidence in the Magistrate's Court that he is an untrustworthy witness. It is contrary to all principles that the Crown should be obliged to examine as a prosecution witness a person who has shown himself by his evidence in a previous stage of the case to be untrustworthy. This view was taken in case of Queen-Empress v. Ramasami (1901) I. L. R. 24 Mad. 321. Incidentally I may remark that the view expressed in the same case that, beyond revoking the pardon nothing should be done against the approver until after the trial of the other accused is over, is obiter dictum and based on the case of Emperor v. Bhau (1898) I.L.R. 23 Bom. 493, and the cases therein quoted, which apply to an entirely different state of facts.
25. It is to be noticed that the learned Judges who decided the case of Queen-Empress v. Natu though referring to Sub-sections (2) and (3) of Section 337, say that the intention of the law is that the approver shall be 'available' as a witness in the Sessions Court. If Section 337 (2) really applies, his examination, is compulsory. The language of the Code is imperative- 'he shall be examined.' I nave pointed out that there is no obligation on the prosecution to examine him at the sessions trial, if he has previously shown himself untrustworthy. There is never any obligation on the accused to examine a witness, and with all respect to the learned Judges I see nothing in the section to lead to the supposition that no action is to be taken against him in order that he may be 'available' as a witness for the defence. In fact ho will be available as such witness if at the sessions trial he is able to successfully plead that he has not forfeited his pardon; though I do not wish to he understood as giving this contingency as a reason for differing from the view expressed in Queen-Empress v. Natu (1899) I. L. R. 27 Calc. 137.
26. I am of opinion that where an approver has forfeited his pardon in the Magistrate's Court there is no illegality in proceeding with the enquiry against him and in committing him for trial jointly with the other accused.
27. The second argument advanced by the learned pleader for the appellants was, as originally formulated, that the procedure of the learned Sessions Judge was unintelligible, and it is quite clear that ho did not realise what the object of the learned Judge was. It would have been better if the learned Sessions Judge had clearly stated in his order sheet what was the preliminary point on which he heard arguments on the 4th July, but an examination of the earlier proceedings leads to the conclusion that he was trying a preliminary issue in bar on a plea by Shashi that ho had been granted a pardon. On the charge being read the following plea by Shashi was recorded, that he is a witness, that he cannot be tried in this case and that he is 'not guilty.' This may reasonably be read as first a pica of pardon, second an. objection to being tried jointly with the other accused, third, a plea of not guilty on the general issue.
28. It appears that an argument was then addressed to the learned Judge objecting to the Magistrate's procedure in 'canceling' the pardon and at once proceeding with the enquiry against the accused jointly. The learned Judge decided that he could do nothing in view of Section 215 of the Code oil Criminal Procedure-Then on the 4th July, after the examination of eleven witnesses, the evidence of Shashi given before the Committing Magistrate was read. This was followed by arguments on the 'preliminary point.' The Judge then charged the Jury, and took their verdict on the question whether Shashi had forfeited his pardon.
29. From this it is evident that the learned Judge was trying the preliminary issue raised by Shashi's plea of pardon as a bar to his being tried at all.
30. This raises the question whether the procedure adopted was correct. The learned pleader for the appellants argues, in the first place, that the only person to decide whether the pardon was forfeited was the authority who granted the pardon, and, in the second, that if this was a question for the Court of Session it was one for the Judge to decide and not the Jury, and to support the second part of the argument he relies on Section 298 (1) (c) of the Code of Criminal Procedure.
31. In the case of Queen-Empress v. Manick Chandra Sarkar (1897) I. L. R. 24 Calc. 492. it was decided that the authority which granted, the pardon was the authority which has jurisdiction to revoke it. That case was decided under the old Criminal Procedure Code, Act X of 1882. The decision has become obsolete, for Act V of 1898 made a radical alteration in the law. Under the existing Code there is no provision for withdrawing the pardon, but the first clause of Section 339 shows in what circumstances the pardon is forfeited, and the second clause provides that when forfeited the approver's statement may he given in evidence against him Under the old law the pardon remained in force until it was withdrawn by the authority granting it in consequence of a failure by the approver to observe the conditions under which it was granted. Under the present law the result of a failure to observe the conditions is that the approver may be put on his trial without any formal order of withdrawal or cancellation. The act terminating the pardon was, under the old law, the withdrawal by the granting authority; under the present law it is the forfeiture by the approver. It follows, as a matter of course, that when the approver is put on his trial he may plead his pardon, and in such case it must be shown that his pardon has been forfeited.
32. Then arises the question what Court is to decide whether the pardon has been forfeited. The plea should, in my opinion, be taken at the commencement of the proceedings before the Magistrate, for it strikes at the jurisdiction to take any proceedings at all against the approver, and it would then be necessary for the Magistrate to consider whether the pardon had been forfeited. But if he decides against the approver, or even if the plea is not taken before the Magistrate, it does not follow that the plea cannot be pressed in the Sessions Court.
33. That is the Court which has to decide on the guilt or innocence of the accused, and I cannot conceive that the Court which has to adjudicate on that point has its hands tied in regard to what may be the strongest and perhaps the only point in the accused's defence. The position is exactly the same as in any ordinary sessions trial, e.g., on a charge of criminal breach of trust. The Committing Magistrate has to be satisfied both of the trust and of the breach before he can commit, and the Sessions Court has to come to a finding on both points before it cans convict. So if a pardon has been granted, the forfeiture must be proved.
34. When the case comes before the Sessions Court that Court ought to try the question whether the pardon has been forfeited before trying the general issue. It is possible that the evidence on the two issues may overlap and in some cases be practically identical, and that seems to me to be the only argument against trying the question of forfeiture of pardon before calling on the accused to plead to the charge of the offence, and where such is the case, it might be a reason for the Judge to use his discretion and order the approver to be tried separately from the other accused.
35. In expressing the above views as to the change made in the law by Act V of 1998 and as to the duty of the Sessions Court to try the question whether the pardon was forfeited or not, I have not failed to consider the judgment of Holm wood J. in Emperor v. Abani Bhushan Chuckerbutty (1910) I. L. R. 37 Calc. 845. It is true that the learned Judge expresses the opinion that the enquiry as to forfeiture should not be reopened at the trial but in the concluding paragraph of his judgment ho says,-'it is open to the accused hereto show that the statement he made on oath was not a false statement,' which is only another way of saying that he may prove that the pardon was in fact not forfeited. The learned Judge thereby in effect says that the question may be re-opened. Chatterjee J. in the same case says, 'It was for the Committing Magistrate to decide this question (i.e., the question of forfeiture). . . . I say tins with this qualification that this is only for the purpose of the commitment, and it is open to the accused to show before us in this Court that the statements which are alleged to be false are true in fact,' which I take to mean that the Magistrate must come to a finding on the question of forfeiture before he can commit to the sessions, that his finding has no effect beyond the proceedings in his own Court, and that the question can be re-opened in the Sessions Court. I consider that not only may the question be re-opened, but the onus is on the Crown to prove that the pardon has been forfeited.
36. Now, assuming that the procedure adopted was not quite correct in that evidence should have been taken only as against Shashi in the first instance, and only on the preliminary plea, there is no reason to suppose that any of the accused has been in any way prejudiced.
37. The argument that it was for the Judge and not the Jury to decide whether the pardon was forfeited, is not supported by Section 298 (1) (c) of the Code of Criminal Procedure. That clause refers only to a finding on a question of fact which it is necessary to prove to make other evidence admissible. Here the question of forfeiture of the pardon was important not for the purpose of making other evidence admissible, but for the purpose of determining whether the trial could at all continue as against Shashi. That was a question of fact for the Jury.
38. As regards the arguments that the learned Judge misdirected the Jury, it is sufficient to say that no passage in the charge has been pointed out, which justifies the suggestion.
39. I agree that the appeal should be dismissed.