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Superintendent and Remembrancer of Legal Affairs Vs. Jiban Kumar De and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported inAIR1936Cal292,163Ind.Cas.228
AppellantSuperintendent and Remembrancer of Legal Affairs
RespondentJiban Kumar De and ors.
Excerpt:
criminal trial - plea of guilty--informal admission as to guilt--whether amounts to plea of guilty--proceedings under section 110, criminal procedure code (act v of 1898)--prosecution or defence should not be hampered in any way--defence should be allowed to cross-examine prosecution witnesses. - .....first two. the rule was directed against an order passed by the sessions judge of faridpur. the learned judge was dealing with an order made by one of his subordinates, if that is the proper expression to use, mr. de who is a sub-divisional officer and a first class magistrate at madaripore.2. it became de's duty to preside over an inquiry under section 110, criminal p. c. that is one of the so-called preventive sections which deals with the liability in time of disturbance of persons implicated to execute bonds for good behaviour. the state of affairs down in mr. de's district seemed to have been, before this inquiry took place, of a somewhat serious nature. there was apparently a rebellious agitation going on, people were being terrorised on the one hand and other persons were.....
Judgment:

Cunliffe, J.

1. The petitioners here are the Crown. They obtained a rule nisi on a number of grounds, of which we need only now consider the first two. The rule was directed against an order passed by the Sessions Judge of Faridpur. The learned Judge was dealing with an order made by one of his subordinates, if that is the proper expression to use, Mr. De who is a Sub-Divisional Officer and a First Class Magistrate at Madaripore.

2. It became De's duty to preside over an inquiry under Section 110, Criminal P. C. That is one of the so-called preventive sections which deals with the liability in time of disturbance of persons implicated to execute bonds for good behaviour. The state of affairs down in Mr. De's district seemed to have been, before this inquiry took place, of a somewhat serious nature. There was apparently a rebellious agitation going on, people were being terrorised on the one hand and other persons were apparently arming themselves. It is obvious from Mr. De's order that living in the midst of scenes like this, he appreciated to the full, in fact, one might almost say, was obsessed with what was going on around him. Having examined over 70 witnesses for the prosecution, nine of whom were cross-examined, the accused were, I imagine, asked to make some statement and in the statements they made, there appeared to have been certain admissions for the purpose of notifying the Court that they would submit to the giving of security. As a result of this inquiry, Mr. De ordered each of the accused and they were ten of them to execute a bond of Rs. 1,000 with two sureties each for the same sum binding themselves over to be of good behaviour for three years, and the Magistrate added that, considering the nature of the evidence against them, the dangerousness of their character, and the enormity of their record, the order cannot be at all regarded as severe a curious piece of self criticism which does not often find in this type of order. Apparently, the securities were not forthcoming and the matter got into the hands of the Sessions Judge at Faridpur under the provisions of Section 123 of the Code and the learned Judge does not seem to have seen very much eye to eye with the Sub-Divisional Officer. In the course of his judgment and at the end of it he says:

For the present I would only order that as the accused refused to cross-examine the witnesses who deposed against them and also pleaded guilty from an idea that they would be let off easily on making a confession and since this impression was created in their minds undoubtedly by the Subordinate Police Officer who was entrusted with the investigation, it would be proper for me under Section 123 (3), Criminal P. C., to direct that the accused should be allewed to cross-examine the prosecution witnesses, that their plea of guilty should be cancelled and they should be questioned again under Section 342, and that, if they want to examine any defence witness, they should be allowed to do so.

3. The order of the Sessions Judge terminates in this way:

After taking down the deposition in this manner, the S. D. O. should submit the record again to the District Judge for considering the evidence on its merits. No further prosecution witnesses will, however, be examined. The record is accordingly sent back to the Section D. 0. for necessary action.

4. It is against that order of the Sessions Judge that the Crown obtained the rule and the first two grounds that we are considering may be regarded as preliminary grounds which are drafted as follows:

(1) For that the learned Judge's order directing the cancellation of the plea of guilty is unauthorised by law; and (2) for that the learned Judge's order directing that no further prosecution witness would be allowed to be examined is illegal and erroneous.

5. As regards the first ground, it seems to me that there is a fallacy underlying the contentious argument which consists of the criticism of the learned Judge's direction in relation to the plea of guilty on the part of the accused persons. In point of fact, and in point of law, this plea was not a plea of guilty at all. Strictly speaking a plea of guilty in a criminal Court can only be made in response to a charge made by the Court and an informal admission as to guilt does certainly not amount to a formal plea of guilty and such an admission has not, of course, the same binding effect as a plea of guilty. It has not the same effect in fact and it has not the same effect in law. It is quite obvious that an admission of guilt in proceedings such as this or in proceedings of a more informal character could not support, for example, the plea of autrefois convict and that being so, I think it is only right and proper that we should regard the whole of the action of the Sessions Judge to which exception has been so strongly taken on technical grounds by the Crown from a fair and reasonable standpoint. I think that the learned Judge was of the opinion that having regard to the atmosphere which existed in the Madaripur District to which I made a brief reference at the beginning of my judgment with a purpose that the whole conduct of these proceedings was perhaps of a rather less unimpassioned kind than one would usually find in a Court of justice. He seems to have suspected too and those of us, who have practical experience in this matter, know that such a thing is not impossible that there might have taken place a bargain on the part of the accused and the Subordinate Police Officers with regard to these admissions. A Sessions Judge is entitled to take that view if he chooses. It is, in my opinion, of very great importance that the Judge in his position should take this broad line and should more specially regard the local difficulties both of the accused and of the prosecution when they are perhaps living in an atmosphere electric with unrest. I think it was reasonable that he should have ordered the cancellation of the so called pleas of guilty which, as I have already pointed out, were really nothing more than admissions. I think that the whole of the rest of his order was perfectly correct and proper, with the exception that I consider that he had no right to direct that no further prosecution witnesses should be examined. Neither the prosecution nor the defence, in enquiries of this kind, ought to be hampered in any way. It ought to be open to the defence to crossexamine these prosecution witnesses if they wished to. The reason for this is that the learned Judge with his experience has referred to the abstention, as if it was part of the bargain possibly between the authorities and the accused, so that the accused should not give further trouble. Therefore, our order on this application is that this rule will be made absolute to a limited extent. It will be on this basis that the learned Judge ought not to have directed that no further prosecution witnesses should be allowed to be examined and on that ground alone his final direction, to which I have referred, be altered.

Henderson, J.

6. Proceedings were drawn up under the provisions of Section 110, Criminal P. C., against the opposite partieSection 70 witnesses were examined for the prosecution. None of them was cross-examined. The opposite parties were then examined under the provisions of Section 342, of the Code and, in reply to the questions asked, they made use of the Bengali words:

An order was then made, directing them to give security for a period of three years. As they were unable to do so, the proceedings automatically came before the learned Sessions Judge under the provisions of Section 123 and he passed an order, the terms of which have been set out by my learned brother.

7. In my opinion the first ground upon which this rule has been supported is entirely misconceived. The ground taken is that a plea of guilty cannot be withdrawn or cancelled. Of course, the answer to that technical plea is that there never was a plea of guilty, because such a thing is unknown in an inquiry under Ch. 8 of the Code. I entirely agree with my learned brother that a plea of guilty means a plea made to a regular charge at a trial. Section 117, subs. (2) specifically lays down that in an enquiry under this chapter, no charge need be framed, and in fact, no charge was framed. The statements made by the opposite parties are, therefore, nothing more than admissions and the position is as follows: When the proceedings came before the learned Judge, the opposite parties made a case to the effect that their conduct at the trial was due to an inducement made by the investigating Police Officer; that they were led to suppose that their security would be accepted, and although they led no serious objection to execute bonds, they strongly objected to being given rigorous imprisonment for a term of three years. Now, there were materials before the learned Judge which would certainly justify him, if he saw fit to do so, to come to the conclusion that there was something in this. Indeed, it is difficult to explain their behaviour at the trial on any other hypothesis. I can find nothing in the law to suggest that in such circumstances, a Sessions Judge is forbidden to direct that the accused persons should be examined again. Taking the view that he did, and it is not for us to say here whether that view was right or wrong, this order was a thoroughly sensible order.

8. The second ground appears to me to be equally plain. The opposite parties induced the Judge to accept their contention that their conduct was due to an inducement and that their admissions were, therefore, made under a misapprehension. In such circumstances, they asked that they might be allowed to re-open the matter. But it is exactly the same with the prosecution; owing to the attitude adopted by the opposite parties, they did not think it necessary to produce all the evidence which they had at their disposal. I entirely agree with my learned brother that if the matter is to be re-investigated at all, it ought to be a proper and complete investigation. I am bound to say that I find it difficult to appreciate why Mr. Gupta should have thought it worth his while to oppose the rule on this ground and to attempt to shut out evidence which was not produced merely because of the attitude adopted by his own clients. I accordingly agree that this rule should be made absolute to the limited extent indicated by my learned brother.


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