Ameer Ali and Henderson, JJ.
1. In this case the petitioners, Abbas Peada and Chhirru alias Shibu Gain were tried by the Additional Sessions Judge of the 24-Pergunnahs with a jury, who convicted the former under Sections 365 and 346, and the latter under Sections 365 and 346 read with Section 109 of the Indian Penal Code; and the Judge has sentenced them to four years' and three years' rigorous imprisonment, respectively.
2. The grounds upon which we admitted the appeal were of a twofold character, namely, first, that the Judge had misdirected the jury in his charge with reference to certain evidence, which was not legally admissible against the accused; and, secondly, that there was no sufficient explanation of the law in the charge.
3. The case has been argued by the learned pleader for the appellants on one side and the learned Deputy Legal Remembrancer for the Crown on the other. The appellants' pleader has taken three principal grounds upon which he impugns the verdict of the jury; and he asks that we should set aside that verdict and either acquit the petitioner or direct a retrial of the case. He contends, as he contended at the time of the admission of the appeal, that, having regard to the character of the offence charged against the accused, the learned Sessions Judge ought to have given a sufficient explanation of the law on the subject in order to assist the jury in the consideration of the facts of the case; that not having done so, he has failed to comply with the provisions of Section 279 of the Code of Criminal Procedure, and that his clients have been prejudiced by the omission. He contends further that the learned Judge ought not to have admitted in evidence certain statements alleged to have been made by the petitioners to a mukhtear, named Kedar Nath Chakravarti, who had acted as legal adviser and representative for one of the accused in a previous case; and, that the learned Judge was also in error in asking the jury to draw any inference of guilty knowledge from a compromise spoken of by the clerk of their present mukhtear Hem Chundra; and, thirdly, he has contended that the trial had relation to the detention of the woman Lakhi at several places, and had reference to more than one individual, and that consequently the appellants were prejudiced in their defence.
4. We shall first refer to the law on the subject before dealing with the learned Sessions Judge's charge to the jury.
5. Section 297 of the Code of Criminal Procedure provides that, 'in a case tried by jury when the case for the defence and the prosecutor's reply (if any) are concluded, the Court shall proceed to charge the jury summing up the evidence for the prosecution and defence and laying down the law by which the jury are to be guided.' And Section 367 declares 'that in trials by jury the Court need not write a judgment, but the Court of Session shall record the heads of the charge to the jury.'
6. It has been repeatedly held in this Court that it is incumbent on the Sessions Judge to explain the law relating to the particular offence with which the accused is charged before him, in order to enable the jury to apply the law to the special facts of the case; and that although the Judge is not bound to record a judgment, yet he should give sufficient indication in his charge that he has complied with the law, so as to enable the Appellate Court to form an opinion whether he has acted in accordance with the provisions of the section or not. No doubt in this case the Sessions Judge has in different parts of his charge mentioned the sections of the Penal Code we have referred to; but we regret there is very little indication to suggest that any explanation, such as is contemplated by Section 297 of the Code of Criminal Procedure, as has been laid down in the different cases already decided, was given to the jury. Mere references to sections, unless the jurors are trained men, cannot be of much assistance to them to apply the law to the facts; and we think, therefore, it is always desirable in charges to juries that the law should be sufficiently explained in order that the jury may be assisted in the consideration of the case. That in this particular case the jury were not assisted in the consideration (sic) the case by an explanation of the law is sufficiently clear from the manner in which they appear to have given their verdict which is recorded as follows:
Q.---Are you unanimous?
Q.---What is your verdict?
Ans.---Abbas and Chhirru are guilty. Charan is not guilty.
Q.---Is Luckmi under sixteen years of age?
Ans.---Yes, under sixteen.
Q.---Under what charge do you convict Abbas and Chhirru?
Ans.---We convict as regards the road occurrences. Sections 147, 365, 363.
Q.---What is your verdict as regards the charges under Sections 346 and 346-109 (The jury retired again to consider).
7. We think we may take that as an indication that the jury were not quite clear in their minds about the application of the law to the facts of the case, and that their confusion or want of clearness on the subject was due, in some measure, to the omission of a sufficient explanation of the law on the subject.
8. The Sessions Judge's charge begins thus: 'The charges relate to four occurrences:
(a) On the Road, Sections 363, 365, 147 of the Indian Penal Code.
(6) At Abbasbari, Section 342 of the Indian Penal Code.
(c) At Jampabaria, Sections 346 and 346-109 of the Indian Penal Code.
(d) At Kalikapala, Section 346 of the Indian Penal Code.
9. Then it goes on: 'All the accused are charged in respect of (a) and (c) and accused Abbas only is charged in respect of (6) and (d),' and so forth.
10. We are inclined to attach some weight to the argument of the learned pleader for the appellants that the mode in which the matter was placed before the jury was a little confusing and one likely to have prejudiced the accused at the trial.
12. But the matter does not rest here. The occurrence is alleged to have taken place on the 29th of August. On the 30th August the accused went to the mukhtear Kedarnath, who was at the time defending the appellant Chhirru in another case of abduction in respect of the same girl, and stated that another false case was likely to be brought against them, and that he must appear in it for them and on their behalf. The learned Sessions Judge refers to the evidence of Kedarnath in the following terms:
Then the evidence of Kedar Babu (witness No. 3) who acted as accused's mukhtear is very important.' And he goes on to add, 'because, he says, accused Abbas and Chhirru came to him at 5 or 6 A. M. on the day after the night attack on Naba's party. This conduct of these accused, I think, you will agree with me, and the statements they made to Kedar Babu, indicate guilty knowledge.
13. It does not appear that when Kedar was being examined regarding this matter, any objection was taken by the accused to his making the statements in question.
14. Section 298, however, provides 'that in cases tried by jury it is the duty of the Judge to decide all questions of law arising in the course of the trial, and specially all questions as to the relevancy of the facts which it is proposed to prove, and the admissibility of evidence or the propriety of questions asked by or on behalf of the parties, and in his discretion to prevent the production of inadmissible evidence, whether it is or is not objected to by the parties.' If one may venture to say so, this is a wise provision of the law, because in many of these cases tried in the Sessions Court by a jury sometimes the prisoners are not defended at all, and sometimes defended by persons not fully qualified for their work. It is, therefore, the duty of the Judge to see that evidence, which is not admissible in itself, should not be allowed to go in to the prejudice of the accused. The pleader for the appellants contends that the statements made by the accused to the mukhtear Kedarnath were privileged, and that, without the consent of the accused, Kedarnath ought not to have deposed to those statements in Court; and reliance is placed on Section 126 of the Indian Evidence Act, which declares that 'no barrister, attorney, pleader, or vakil shall at any time be permitted, unless with the client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course of such employment.'
15. The cognate section in Act II of 1855, Section 21, declared that 'a barrister, attorney or vakil shall not, without the consent of his client, disclose any communication made by the client to him in the course of his professional employment or any advice given by him professionally to his client, the knowledge of which he shall have acquired in the course of his professional employment. The privilege, however, is that of the client to disclose any such matter.' It will be noticed that there are two important additions in Section 126, which differentiate it from Section 24 of Act II of 1855, namely, the addition of the word 'pleader' and of the word 'express' before the word 'consent,' which make it specially stringent in favour of the privilege. Now, there is no suggestion in this case that the accused expressly consented to Kedar disclosing in Court the statement or statements made to him by the accused. The question that was raised here was this: That inasmuch as he was a mukhtear he did not come within the purview of Section 126, and that consequently the statements made by the accused were not privileged; and we have been referred to the case of Queen v. Chandra Kant (1868) 1 B. L. R. App. Cr. 8 which proceeded upon Act II of 1855. As we have already pointed out, Section 21 of the old Act is different from the section in the present Act.
16. The Procedure Codes (Act XXV of 1861 and Act X of 1872) did not contain any definition of the term 'pleader.' Act X of 1882 for the first time defines the word as follows: 'Pleader,' used with reference to any proceeding in any Court, means a pleader authorized under any law for the time being in force to practise in such Court, and includes (1) an advocate, a vakil and an attorney of a High Court so authorized; and (2) any mukhtears or other person appointed with the permission of the Court to act in such proceeding.'
17. The result of that definition, therefore, is this that all persons who appear in a Court in any legal proceeding as representing parties for the purpose of pleading in any particular case come within the category of pleader's, and Section 126 must, we take it, be construed as applying to all persons who come within the category of pleaders as defined in the Criminal Procedure Code. It would indeed be a strange anomaly if mukhtears who act in certain Courts as pleaders were excluded from the provisions of Section 126 of the Indian Evidence Act, and statements made to them by their clients were not regarded, as privileged, whilst in the case of all persons who hold a recognized position as barristers, attorneys or vakils, they should be privileged. We may say that the provision which was contained in Act II of 1885, and which was subsequently amplified by Section 126 of the present Evidence Act, embodies one of the wisest principles of the English law; and that although in England there is no analogue to a mukhtear, the Indian Legislature, having regard to the conditions of this country, has properly included in the term 'pleader' all persons who plead for clients in any legal proceeding in a Court of Justice.
8. We think, therefore, that the learned Sessions Judge was in error in allowing the statements which the accused had made to Kedarnath (who was at the time acting for one of them as his mukhtear and legal adviser, and to whom certain matters were mentioned with the object that he should appear for them in Court) to be given in evidence against the accused, and we also think that he was in error in asking the jury to agree with him in drawing an inference of guilty knowledge from those statements, even if those statements were admissible in evidence. The statement which the accused made to Kedarnath was that a false charge was going to be brought against them. We are inclined to think an inference of guilty knowledge was hardly warranted from that circumstance, and we have little doubt that the jurors were more or less influenced to the prejudice of the accused by the distinct direction given by the Sessions Judge in this behalf. Then, again, as regards the compromise, which was 'discussed and effectuated at a later stage,' it appears that the complainant and his party with another person went to the mukhtear who represented the accused in Court with the object of compromising the charge, and a paper was written out and apparently filed in Court. The learned Sessions Judge deals with the subject in this way: 'Then you have the evidence of witnesses 4, 12 and 16 with regard to the compromise discussed and effectuated at a later stage.' He had already mentioned that there was evidence indirectly bearing against the accused, and we may take it that his mention of the compromise at this stage and under the sixth head of his charge was intended to draw the attention of the jury to what he considered to bear indirectly on the case against the accused. In the first place it seems to us the evidence relating to the compromise ought not, in the exercise of a proper discretion, to have been allowed to go in as evidence of guilty knowledge against the accused; in the second place the statements relating to the compromise were made to the clerk of the mukhtear, who was acting as the pleader of the accused, and under Section 127 statements made to the clerks are as privileged as those made to their employers.
9. Other objections have been taken to the charge to the jury. But we do not think it necessary to deal with them, as it seems to us the verdict must be set aside on the grounds already referred to.
10. With reference to the third ground taken by the appellants' pleader we may mention he relies upon the statement contained at the beginning of the charge in order to show that the offences were not so connected with each other as to warrant the accused being tried together under Section 245 of the Code of Criminal Procedure, and he contends that the charges relate to separate offences alleged to have been committed by separate individuals at separate places. The learned Deputy Legal Remembrancer, on the other hand, argued that the section justifies the procedure adopted in this case. Looking at the statement at the beginning of the charge, we are not prepared to say the learned pleader's contention is without some force. But it is unnecessary to express any definite opinion on the point, as we think that when the case is retried the learned Sessions Judge will see that the trial is conducted in a manner which will not be likely to prejudice the accused or confuse the jury in any way in dealing with the facts.
11. On the whole, therefore, we have come to the conclusion that the verdict of the jury ought to be set aside in this case, and we accordingly set it aside and direct that the case be retried.