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Case Number

Criminal Appeal No. 169 of 1938

Attorney(S)

A.A Peerbhoy, with A.R Baakza, for accused Nos. 1, 2, 3 and 4.
A.R Baakza, for accused No. 5.
Dewan Bahadur P.B Shingne, Government Pleader, for the Crown.

Judges

Mr. Broomfield
Mr. Norman, JJ.

Acts

Code of Criminal Procedure.The provision in section 345
Code of Criminal Procedure, part of section 342,
SECTION 239 CRIMINAL PROCEDURE CODE
ss. 234, 235, 236 and 239. Section 234

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Smart Summary

Judgment Summary — Excerpt of Opinion by Broomfield, J.

Factual and Procedural Background

The charge-sheet in this criminal matter was placed before the Magistrate on 14 September. On that date the prosecution applied to the Magistrate to make Aziz an approver under s. 337 of the Criminal Procedure Code; the Magistrate declined that application because s. 337 did not apply to the facts, so no pardon could lawfully be tendered. The hearing was postponed to 21 September. On 21 September the prosecution applied that Aziz be tried separately from the other accused so that he could be examined as a witness; it was prayed that his name be deleted from the main charge-sheet and placed on a separate charge-sheet. The application for separate trial was opposed on behalf of the other accused, but the Magistrate allowed it. The trial court subsequently convicted some or all of the accused on charges including conspiracy (s. 120B) and other charges (described as charges 2–4, relating to purchasing, treating and disposing of stamps over a three-year period). The appellate court (from which this opinion issues) examined (a) whether Aziz was a competent witness and whether his evidence was admissible, and (b) the propriety and legality of the joinder, particulars and separate sentences imposed under charges 2–4 in addition to the conspiracy conviction.

Legal Issues Presented

Whether Aziz, examined as the principal prosecution witness after being removed from the main charge-sheet and tried separately, was a competent witness and whether his evidence was admissible.
Whether a Magistrate may order a separate trial of an accused (Aziz) to enable him to be examined as a witness for the prosecution, and whether the Magistrate acted judicially in doing so (including the role of s. 239 of the Criminal Procedure Code).
Whether charges 2–4, framed as omnibus counts alleging an indefinite number of offences over a three-year period without particularization, were properly joined and whether separate sentences could lawfully be imposed on those counts in addition to a conviction for conspiracy (s. 120B).
Whether it was lawful to impose one sentence under s. 120B and additional separate sentences under ss. 263 and 109 for acts said to have been done in furtherance of the conspiracy.

Arguments of the Parties

Prosecution's Position

The prosecution initially sought to make Aziz an approver under s. 337 but that application was not entertained by the Magistrate because s. 337 did not apply.
Afterwards the prosecution applied for Aziz to be tried separately and for his name to be placed on a separate charge-sheet so that he could be examined as a witness for the prosecution.
Before this Court, the Government Pleader relied on s. 239(d) of the Criminal Procedure Code to contend that the offences (including those in charges 2–4) were committed in the course of the same transaction and therefore the form of the charges and separate sentences were not objectionable.

Other Accused / Defence Position

The application to try Aziz separately was opposed on behalf of the other accused in the trial court.
The principal legal argument against Aziz's competency as a witness was based on the authority of Reg. v. Hanmanta, which holds that a Magistrate cannot convert an accused into a witness except where a pardon has been lawfully granted under the corresponding statutory provision (old s. 347 / present s. 337); that case relied on old ss. 344 and 345 of the Criminal Procedure Code.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Reg. v. Hanmanta	Held that a Magistrate cannot convert an accused into a witness except when a pardon has been lawfully granted under the then s. 347; decision was based on old ss. 344 and 345.	Cited by opponents of Aziz's competency; the Court discussed it but distinguished it from the present facts and followed later authorities interpreting "accused" more narrowly.
Queen-Empress v. Lilladhur	Followed the principle in Hanmanta in prior decisions (mentioned as a follower of Hanmanta).	Noted as one of the cases that followed Hanmanta; part of the background on the development of the rule.
Empress of India v. Asghar Ali	Another case following the Hanmanta line (cited alongside Queen-Empress v. Lilladhur).	Referenced as part of the group of authorities that followed Hanmanta's approach.
Queen-Empress v. Mona Puna	Considered and explained Reg. v. Hanmanta; held that "the accused" in s. 342 means a person over whom the Court is exercising jurisdiction, and distinguished persons illegally discharged by police who were never brought before the Court.	Used by the Court to illustrate a narrower interpretation of "accused"; the Court referred to it when considering whether Aziz was an "accused" for purposes of s. 342.
Empress v. Durant	Held that "accused" in s. 342 means the accused then under trial and under examination by the Court; did not include an accused under the jurisdiction of the Court in another trial; discussed old s. 345 and its relation to present s. 342.	Relied on by the Court as part of the line of authority supporting the view that Aziz was not an "accused" for the purposes of s. 342 and s. 343 in the present context.
King-Emperor v. Annya	Considered Empress v. Durant; part of the appellate treatment of the meaning of "accused" in s. 342.	Noted as following or considering Durant; used to support the settled meaning of "accused" as applying to the person then under trial.
Emperor v. Govind Balvant Laghate	Followed the rule that "accused" in s. 342 means the accused under trial at the time.	Listed among authorities that have held this meaning.
Emperor v. Dawood Kazi	Followed the same principle about the meaning of "accused" in s. 342.	Noted as one of the cases applying the same rule.
Kortikar v. Emperor	Referred to in the context of settled law on the meaning of "accused".	Included among the cases indicating the law is settled in this respect.
Queen-Empress v. Tirbeni Sahai	Referred to among authorities on the same point.	Mentioned as part of the line of cases treating the meaning of "accused" under s. 342.
Emperor v. Har Prasad Bhargava	Included among decisions on the interpretation of relevant provisions of the Code.	Listed as part of the supporting authorities.
Banu Singh v. Emperor	Also part of the body of authority on the same legal point.	Referenced as supporting the settled rule.
Akhoy Kumar Mookerjee v. Emperor	Court noted that in this case the law was stated to be settled on the point.	Relied upon to show that the law on the meaning of "accused" should be regarded as settled.
Maung Ba Chit v. King-Emperor	Held that a charge of conspiracy to steal government timber over two years may be joined with a charge of habitually receiving and dealing in such stolen timber (s. 413 IPC); illustrates permissible joinder where statutory provision (s. 413) fits.	Discussed by the Court in considering joinder and whether omnibus charges lacking particulars were acceptable; noted that Maung Ba Chit did not present the same difficulty because s. 413 was available there.
Harsha Nath Chatterjee v. Emperor	Held that as long as a conspiracy continues the transaction continues, and offences committed in pursuance of the conspiracy may be joined with the conspiracy charge; in that case the particular offences were specified.	Examined by the Court; used to show that joinder is permissible where particular offences are specified, but distinguished from the present omnibus charges lacking particulars.
Superintendent & Remembrancer of Legal Affairs, Bengal v. Mon Mohan Roy	Referred to in connection with the principles allowing joinder of conspiracy with offences committed in furtherance of it, when the conspiracy continues.	Cited (via Harsha Nath Chatterjee) to explain the circumstances in which joinder is permissible.
Abdul Salim v. Emperor	Another case bearing on the point that particular offences alleged in furtherance of a conspiracy were specified.	Used to show that where particulars are given, the difficulty with omnibus charges does not arise; distinguished from the present case where particulars were lacking.

Court's Reasoning and Analysis

The Court addressed two principal strands of analysis: (A) the competence and admissibility of Aziz's evidence; and (B) the legality of the joinder, particularization and sentencing in respect of charges 2–4 alongside the conspiracy conviction.

A. Competence and Admissibility of Aziz's Evidence

The Court examined authorities beginning with Reg. v. Hanmanta, which had held that an accused cannot be converted into a witness except where a lawful pardon has been granted; that decision rested on old ss. 344 and 345 of the Criminal Procedure Code (which regulated use of inducement and administration of oath to an accused).
The Court reviewed subsequent cases that interpreted the term "accused" in the present Code (notably Queen-Empress v. Mona Puna and Empress v. Durant). Empress v. Durant held that "accused" in s. 342 refers to the accused then under trial and under examination by the Court; it does not include an accused over whom the Court is exercising jurisdiction in a different trial.
Several later authorities (including King-Emperor v. Annya, Emperor v. Govind Balvant Laghate, Emperor v. Dawood Kazi, and others) were cited as following the Durant approach, and the Court remarked that the law must be regarded as settled in this sense.
Applying that settled meaning, the Court concluded that Aziz was not an "accused" for the purposes of s. 342 (no oath to be administered to the accused in the trial of that accused) nor for s. 343 (old s. 344 equivalent — prohibition on influence by promise or threat). Moreover, there was no evidence of any promise or inducement to Aziz that would render his evidence inadmissible under the latter section.
On the question whether it was desirable to order a separate trial solely to enable Aziz's evidence to be used against co-accused, the Court acknowledged it might be undesirable if alternatives (e.g., a tendered pardon or withdrawal under s. 494) were available; but observed the prosecution may not have been willing to withdraw the prosecution or risk trying Aziz first (when he might refuse to give evidence). Section 239 of the Criminal Procedure Code is an enabling provision giving the Magistrate discretion to order separate trial(s). The Court was not prepared to say the Magistrate acted unjudicially in ordering a separate trial of Aziz given the circumstances and the aim of preventing and punishing crime.
Finally, the Court emphasized the distinction between admissibility and weight: even if Aziz's evidence was admissible, its reliability or value as a witness was a separate matter for assessment at trial.

B. Joinder, Particulars and Sentencing (Charges 2–4 and Conspiracy)

The Court noted no objection to joinder was taken in the trial court and the appellants' counsel did not raise the point in argument, but the appellate court itself examined whether charges 2–4 (omnibus counts alleging an indefinite number of offences over three years without particulars of time, place, circumstances, or identification of accused) were admissible.
The Government Pleader relied on s. 239(d) to argue all offences occurred in the course of the same transaction and therefore the form of the charges and separate sentencing was permissible.
The Court reviewed authorities permitting joinder of crimes committed in the course of the same transaction (noting Maung Ba Chit and Harsha Nath Chatterjee). It observed that in those cases the particular offences were specified or a distinct statutory provision (e.g., s. 413 IPC) could be invoked; thus those cases did not remove the difficulty posed by omnibus, unparticularized counts.
The Court analyzed relevant Code provisions: s. 222 (particulars required), s. 233 (separate charges for distinct offences), and the exceptions in the latter part of s. 233 (ss. 234–236 and 239). It concluded that while ss. 235 and 239 allow joinder when offences are in the same transaction, they do not displace the requirement of s. 222 and the first part of s. 233 that particulars be given and charges be separate where required. Illustrations to s. 235 indicate that different offences tried together must be separately charged.
As regards sentencing, the Court explained the interaction of conspiracy (s. 120B) with ss. 109 and 116: punishment under s. 120B depends on whether the illegal act has been carried out (then s. 109 applies) or not (then s. 116 applies). Where proof shows the unlawful acts were done in furtherance of the conspiracy, s. 120B is punishable under s. 109. However, acts done in pursuance of the conspiracy cannot be separately punished unless those acts are separately charged and particularised as required by the Code.
Applying these principles, the Court found it was not legal to impose one sentence under s. 120B and separate sentences under ss. 263 and 109 for the same conduct when the subsidiary acts had not been separately particularised in the charge as required.

Holding and Implications

HOLDING:

Aziz was a competent witness for the prosecution for the purposes of s. 342 and s. 343 of the Criminal Procedure Code; there was no evidence of promise or inducement rendering his evidence inadmissible.
The Magistrate's discretion under s. 239 to order a separate trial for Aziz was not shown to be exercised unjudicially in the circumstances of the case.
The convictions and sentences imposed on all the accused under s. 263 read with s. 109 were set aside.
The conviction of accused Nos. 1 to 4 under s. 120B (conspiracy) was confirmed and the sentences under that section were also confirmed.
The conviction of accused No. 5 under s. 120B was set aside; he was acquitted and discharged.
Accused Nos. 3 and 4 were ordered to surrender to their bail to complete their sentence.
Norman, J. agreed with this opinion.

Immediate Consequences for the Parties

The immediate practical effects are: the convictions and sentences under ss. 263 read with 109 are vacated for all accused; accused Nos. 1–4 remain convicted of conspiracy under s. 120B and their sentences under that section stand; accused No. 5 is acquitted and discharged; accused Nos. 3 and 4 must return to custody as necessary to complete their sentences.

Broader Legal Implications Noted by the Court

The opinion reiterates and applies an established interpretive principle: that the term "accused" in s. 342 of the Code is to be read as referring to the accused person who is actually under trial at the time (as reflected in Empress v. Durant and later cases). It also clarifies that while s. 239 permits separate trials, the admissibility of an accomplice's or co-accused's evidence and the propriety of ordering a separate trial must be judged in light of statutory protections (no administration of oath to an accused in the trial of that accused; prohibition on inducement) and the separate, distinct requirements of the Code for particulars and separate charges before separate punishment may be imposed.

Note: This summary is strictly confined to the matters and authorities discussed in the provided opinion and does not add information beyond the text of that opinion.

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Karamalli Gulamalli And Others (Original Accused Nos. 1 To 5), v. Emperor

Broomfield, J.:—

[His Lordship after setting out the facts of the case proceeded:] The first question which it is necessary to deal with is whether Aziz, who has been examined as the principal witness for the prosecution, is a competent witness and whether his evidence is admissible. The facts to be noted in this connection are these. The charge-sheet was placed before the Court on September 14 and on the same date the prosecution made an application to the Magistrate to make Aziz an approver under s. 337 of the Criminal Procedure Code. The Magistrate declined to entertain this application and no pardon could have been legally tendered as s. 337 does not apply to the facts of the case. The hearing of the case was postponed to September 21, and on that date the prosecution applied that Aziz should be tried separately from the other accused. It was stated in the application that the prosecution desired that Aziz should be examined as a witness and it was prayed therefore that in order that he should be so examined his name should be deleted from the charge-sheet and placed on a separate charge-sheet. The application was opposed on behalf of the other accused, but the Magistrate held that there was no objection and allowed it.

The argument that he is not a competent witness is based principally on the case of Reg. v. Hanmanta. That was a case in which a pardon had been tendered to an accused person but illegally tendered. The Court held that it is not competent to a Magistrate to convert an accused person into a witness except when a pardon has been lawfully granted under s. 347 corresponding to the present s. 337 of the Code of Criminal Procedure. The decision was principally based on ss. 344 and 345 of the old Code of Criminal Procedure. Old s. 344, which corresponds to the present s. 343, provides that except where a pardon is tendered no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge, and s. 345, which is now part of s. 342, prescribes that no oath or affirmation shall be administered to an accused person. This case was followed in Queen-Empress v. Lilladhur, in Empress of India v. Asghar Ali, and in other cases.

But in Queen-Empress v. Mona Puna, Reg. v. Hanmanta was considered and explained and it was held that when s. 342 of the present Code says that no oath is to be administered to the accused, it means by “the accused” a person over whom the Court is exercising jurisdiction, and that therefore a person concerned in an offence and illegally discharged by the police in order that he might give evidence was a competent witness. He had never been brought before the Court as an accused person and for that reason it may be said that case is distinguishable both from Reg. v. Hanmanta and the present case.

However, in Empress v. Durant, Mr. Justice Candy, after an elaborate discussion of the authorities both Indian and English, went further and held that “accused” in s. 342 means the accused then under trial and under examination by the Court and cannot include an accused over whom the Court is exercising jurisdiction in another trial. He pointed out that the decision in Hanmanta's case refers solely to the evidence of an illegally pardoned accomplice and is based on the combined effect of ss. 344 and 345 of the then Code of Criminal Procedure.

“The provision in section 345 stood by itself as a separate section, and was not, as it now is in the present Code of Criminal Procedure, part of section 342, which deals with the examination of an accused person at the trial of that accused person, and provides that for the purpose of that examination in the trial no oath shall be administered to that accused person. Their Lordships in Hanmanta's case did not profess to deal with the case of an accused person, who has been indicted jointly, but is to be tried separately by a different jury or by different assessors, being called as a witness for his co-accused” (p. 218).

Empress v. Durant was considered by a bench consisting of Candy and Fulton, JJ. in King-Emperor v. Annya.(6) Fulton, J. appears to have felt some doubt about it but he did not dissent from it. It was followed by a bench in Emperor v. Govind Balvant Laghate and by Mr. Justice Taraporewala in Emperor v. Dawood Kazi In all these cases it has been held that “accused” in s. 342 means the accused under trial at the time and no other. I may also refer in this connection to Kortikar v. Emperor, Queen-Empress v. Tirbeni Sahai, Emperor v. Har Prasad Bhargava, Banu Singh v. Emperor and Akhoy Kumar Mookerjee v. Emperor.(7) In the latter case the Court said that the law must be regarded as settled in this sense.

In view of these authorities we are satisfied that Aziz was a competent witness. He was not an accused for the purposes of s. 342 of the Code nor for the purposes of s. 343. In any case as regards the latter section there is no evidence of any promise or inducement having been made to him which would render his evidence inadmissible. Whether it is desirable that a separate trial should be ordered of one of several persons alleged to have committed the same offence, simply in order that his evidence may be available against the others, is a different question. I think it certainly would be undesirable if there were any alternative satisfactory to all concerned, for instance, if a pardon could be tendered or if it were a suitable case for withdrawing the prosecution under s. 494. Bat it may well be that the prosecution were not prepared in the present case to take the risk of withdrawing the prosecution. It would have been possible to try Aziz first, but in that case he might not have been willing to give evidence. Section 239 of the Criminal Procedure Code is an enabling section. The Magistrate has a discretion to order a separate trial. I am not prepared to say that in the present case he acted unjudicially in ordering a separate trial of Aziz even though the avowed object of the prosecution was to enable him to give evidence. It is necessary to bear in mind in this connection, as the Court said in Queen-Empress v. Mona Puna, that one great end of criminal procedure is the prevention and punishment of crime.

The value to be attached to the evidence of Aziz is again a question quite distinct from that of its admissibility. The Magistrate stated in his order that he was not discharged. The prosecution will not be permitted to withdraw the case against him and he will be dealt with just as the other accused. Nevertheless I dare say he hopes to benefit in some way by the assistance he has given to the police. It may be said that his evidence is therefore less reliable or more unreliable than that of an approver. Personally, however, I doubt if there is very much in that point as an approver may have his pardon cancelled if his evidence differs materially from his proof.

There is one other point of law. No objection was taken to the joinder of the charges in the trial Court and no point in that connection was taken in the argument of learned counsel for the appellants. But a doubt having arisen in our minds as to the admissibility of charges 2 to 4, which allege an indefinite number of offences of purchasing, treating and disposing of stamps during a period of three years, we put the point to the learned Government Pleader. He has relied on s. 239(d) of the Criminal Procedure Code and maintains that as all the offences were committed in the course of the same transaction there is no objection to the form of the charges and no objection to a separate sentence under charges 2, 3 and 4.

In Maung Ba Chit v. King-Emperor it was held that a charge of conspiracy to steal Government timber during a period of two years may properly be joined with a charge of habitually receiving and dealing in such stolen timber during the same period, the latter charge being under s. 413 of the Indian Penal Code. In Harsha Nath, Chatterjee v. Emperor it was held, following Superintendent and Remembrancer of Legal Affairs, Bengal v. Mon Mohan Roy that as long as the conspiracy continues, the transaction which began with the forming of the common intention continues, and charges of offences committed in pursuance of the conspiracy may be joined with the charge of conspiracy. But we do not think that these cases really get rid of the difficulty that charges 2 to 4 are omnibus charges relating to an indefinite number of offences alleged to have been committed within the period stated without anything to specify time, place or circumstances or even which of the accused are supposed to have committed any particular offence. There was no such difficulty in Maung Ba Chit v. King-Emperor, for there s. 413 of the Indian Penal Code could be availed of, the offence of being a habitual receiver. In Harsha Nath Chatterjee v. Emperor and also in Abdul Salim v. Emperor, another case bearing on the point, the particular offences alleged to have been committed in furtherance of the conspiracy were all specified.

Section 222 of the Code requires that particulars should be given of the offence charged. Section 233 provides that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in ss. 234, 235, 236 and 239. Section 234 provides that when a person is accused of more offences than one of the same kind committed within the space of twelvemonths from the first to the last of such offences, be may be charged with, and tried at one trial for, any number of them not exceeding three. Now the law is clear that ss. 235 and 239 of the Code, which deal with the joinder of charges of different offences and the joint trial of a number of accused persons, are not controlled by the latter part of s. 233 or by s. 234. If offences are committed in the course of the same transaction they may be tried together, although they are more than three in number and extending over a period of more than a year. But there is nothing in s. 235 or s. 239 to suggest that they are not governed by s. 222 or the first part of s. 233. On the contrary the illustrations to s. 235 make it clear that when different offences are tried together, they must be separately charged.

The punishment for the offence of conspiracy under s. 120B depends upon whether the illegal act has or has not been carried out. In the former case the punishment will be in accordance with s. 109, i.e it will be the same as for the offence itself. In the latter case it will be in accordance with s. 116. When conspiracy is charged, therefore, it is always open to the prosecution to charge further that the illegal acts which were the object of the conspiracy have been carried out. In the present case proof having been given that the illegal acts were done in furtherance of the conspiracy, the offence under s. 120B is punishable under s. 109 and not under s. 116. But acts done in pursuance of the conspiracy cannot be separately punished unless these acts are separately charged and particularised as required by the Code. We think, therefore, that although on the finding that the accused are guilty of conspiracy, the maximum sentence under s. 263 might have been imposed, it was not legal to impose one sentence under s. 120B and a separate sentence under ss. 263 and 109.

[His Lordship then dealt with the evidence in the case and thus concluded.] As regards accused Nos. 1 to 4 we are satisfied that the learned trial Magistrate was right in convicting them of the offence of conspiracy. The separate sentence imposed under charges 2, 3 and 4 cannot be maintained for the reasons which I have already given.

The result is that we set aside the convictions and sentences imposed on all the accused under s. 263 read with s. 109. The conviction of accused Nos. 1 to 4 under s. 120B is confirmed and the sentences under that section are also confirmed. The conviction of accused No. 5 under s. 120B is set aside and he is acquitted and discharged.

Accused Nos. 3 and 4 must surrender to their bail to complete their sentence.

Norman, J.:—I agree.

Convictions and sentences varied.

Y.V.D

Karamalli Gulamalli And Others (Original Accused Nos. 1 To 5), v. Emperor

Judgment Summary — Excerpt of Opinion by Broomfield, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Prosecution's Position

Other Accused / Defence Position

Table of Precedents Cited

Court's Reasoning and Analysis

A. Competence and Admissibility of Aziz's Evidence

B. Joinder, Particulars and Sentencing (Charges 2–4 and Conspiracy)

Holding and Implications

Immediate Consequences for the Parties

Broader Legal Implications Noted by the Court

Karamalli Gulamalli And Others (Original Accused Nos. 1 To 5), v. Emperor

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