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Kasem Ali v. Emperor

Calcutta High Court

Aug 6, 1919

Judgment

Subsequent
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Structured Summary of the Opinion — Shams-Ul-Huda, J. (with concurrence by Duval, J.)

Factual and Procedural Background

Thirty-four persons were tried on a charge under section 401 of the Indian Penal Code (association for the purpose of habitually committing theft or robbery). The trial was conducted by a Magistrate specially authorised under section 30 of the Code of Criminal Procedure. The trial was lengthy and involved the examination of 314 witnesses. Two accused were acquitted and the remainder convicted. Three accused (identified in the judgment as Kasem Ali, Jaban and Munshi) received sentences exceeding four years' rigorous imprisonment and appealed to this Court under section 408(b) of the Code of Criminal Procedure.

Background leading to the trial: proceedings under section 110 of the Criminal Procedure Code were initiated in 1917 against Mason Haji and others, including Munshi and Jaban. Mason Haji made a confession which prompted an inquiry. The Local Government appointed M. Mufizur Rahman to verify Mason's confession; Rahman recorded a more extensive confession and carried out verification. The accused were subsequently sent for trial. On 14 June 1918, the Public Prosecutor withdrew the charge against Mason under section 494 of the Criminal Procedure Code and Mason was discharged. Mason's confession formed the basis for the charge against the other accused.

The learned Magistrate produced an exhaustive judgment detailing evidence against each accused separately. The present opinion reviews the convictions of the three appellants and addresses several legal objections raised by their counsel.

Legal Issues Presented

Whether the Magistrate's discharge of Mason Haji deprived the court of the ability to treat Mason's evidence as admissible — i.e., whether Mason's discharge rendered his evidence inadmissible because the discharge was not the product of judicial consideration.
Whether section 234 of the Criminal Procedure Code (concerning joinder of offences committed within 12 months) applied so as to limit charges here, and whether the charge offended s.234.
Whether the prior proceedings under section 110 of the Criminal Procedure Code (which bound accused to be of good behaviour) precluded subsequent punishment under section 401 IPC (i.e., whether this amounted to double punishment).
Whether the confession of Mason Haji recorded by Maulvi Mufizur Rahman, and the verification evidence by that officer, were admissible.
Whether evidence of previous convictions and evidence that accused had previously been bound down under section 118 of the Criminal Procedure Code was admissible (relying on precedents).
Whether the Magistrate was wrong to incorporate tabular statements prepared by the Public Prosecutor into his judgment and whether doing so prejudiced the accused.

Arguments of the Parties

Appellants' Arguments

The Magistrate's order discharging Mason Haji did not reflect judicial consideration and was therefore illegal, rendering Mason's evidence inadmissible.
The charge violated section 234 of the Criminal Procedure Code by effectively charging more offences than permitted in a single trial.
Because the accused had been bound down under section 110 of the Criminal Procedure Code, subsequent conviction under section 401 IPC punished them twice for the same matter.
The confession made by Mason and the verification evidence by M. Mufizur Rahman were inadmissible.
The admission into evidence of prior convictions and evidence of previous binding under section 118 CrPC was inadmissible, supported by precedent (Mankura Pasi v. Queen-Empress and Kader Sundar v. Emperor).
The Magistrate erred in placing tabular statements prepared by the Public Prosecutor on the record and incorporating them into the judgment, which allegedly prejudiced the accused.
Counsel also urged (as noted by Duval, J.) that, because Mason had been discharged under section 494 CrPC, his evidence should be expunged from the record.

The opinion does not set out a detailed, separate narrative of the prosecution's counter-arguments; the Court's responses to the appellants' contentions are recorded in the reasoning below.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re Shriram Venkatasami (Madras High Court)	Principle that "habit" (for s.401 IPC) is to be proved by the aggregate of acts; although charged as a single offence, the period over which the association extends may be long and habit may be shown by many acts.	The Court relied on this reasoning to conclude that section 234 CrPC (which restricts joinder of similar offences within 12 months) did not apply: the charge was of a single special offence under s.401 IPC and may legitimately be founded on conduct over a long period to prove habit/association.
Mankura Pasi v. Queen-Empress	Authority regarding admissibility (or inadmissibility) of evidence of previous conviction / related prior procedure (as applied to show bad character or conviction).	The Court treated reliance on this decision as supporting the proposition that evidence of previous convictions was inadmissible; the Court held such evidence was wrongly admitted in the present case (while noting some doubt about limited use of past convictions for proving association rather than character).
Kader Sundar v. Emperor	Also relied on for the proposition that evidence of previous conviction (or similar prior proceedings) is inadmissible in the circumstances discussed.	The Court similarly treated this authority as supporting the inadmissibility of evidence of previous conviction; again, the Court concluded the evidence had been wrongly admitted though it acknowledged a possible narrow use for proving association might exist.

Court's Reasoning and Analysis

The Court examined each contention in turn and gave concise legal reasons:

On the admissibility of Mason Haji's evidence after his discharge: the Court stated that, according to reported decisions (unnamed in the text), it is sufficient for admissibility that the accused (Mason) had been discharged before he gave his evidence and was not on trial when his evidence was given. Therefore, the discharge did not render Mason's evidence inadmissible; Mason was competent to be a witness.
On the applicability of section 234 CrPC: the Court held that s.234 deals with joinder where more than one offence of the same kind are charged within 12 months (permitting up to three). Here the accused were charged with a single offence under s.401 IPC (a special offence whose gist is association for the purpose of habitually committing theft/robbery). Citing Re Shriram Venkatasami, the Court explained habit is proved by an aggregate of acts over a period and that the charge as a single offence may legitimately encompass acts over a long time. Thus s.234 had no application.
On double punishment arising from section 110 CrPC proceedings: the Court observed that an order under section 110 (binding to be of good behaviour) is preventive and not a punishment. A conviction under s.401 IPC is for an offence and is distinct from the preventive binding; therefore there is no double punishment bar.
On admissibility of the confession recorded by M. Mufizur Rahman and his verification evidence: the Court noted that even if those earlier confessions/verification evidence were inadmissible, Mason subsequently repeated his story in court on oath as an approver. That made the question of the earlier-confession admissibility of no practical consequence. The Court also said it was of the opinion that the confession was of no value as a piece of evidence, but that did not affect the merits because Mason's in-court testimony and other evidence sufficed.
On evidence of previous convictions / section 118 CrPC: relying on the two cited authorities (Mankura Pasi and Kader Sundar), the Court held that the contention that such evidence was inadmissible is sound and that the evidence of previous conviction had been wrongly admitted. However, the Court left open a limited question — whether proof of previous convictions in a prior jointly tried and convicted case might be used not to show bad character but to prove association — saying some doubt exists on that narrower point.
On the incorporation of tabular statements prepared by the Public Prosecutor into the judgment: the Court acknowledged it is generally undesirable to make party-prepared documents part of the judgment. But here the record was voluminous and the tabular statements did not add new material; they were an epitome of the evidence. Importantly, the Magistrate explicitly recorded on every page that he himself had checked these statements. The Court concluded the accused were not prejudiced by their inclusion.
On the sufficiency of the remaining admissible evidence: the Court, leaving aside evidence it had deemed inadmissible, found the remaining evidence ample. The Magistrate's detailed findings showed frequent meetings of the accused at various places before or after offences, sightings of them carrying away stolen articles and other facts indicating association for habitual commission of thefts and robberies. The Court highlighted Mason Haji's account of 74 thefts/burglaries and the specific numbers attributed to the three appellants (Kasem Ali: 11; Jaban: 31; Munshi: 11). The Sessions Judge had also upheld convictions of other co-accused sentenced to less than four years, which corroborated belief in the evidence.
Duval, J., in concurrence, reiterated key points: the tabular statements were checked by the Magistrate and no incorrect particulars were shown; Mason, discharged under s.494, remained competent to testify; earlier confessions might be used by defence to contradict Mason but discrepancies existed; an approver alone is an unreliable witness and cannot convict without corroboration, but here a large mass of corroborative evidence (association, repeated sightings, direct evidence of robberies/thefts, evidence of patterns such as thefts on river steamers after dismissal from service) established the existence of a gang and the membership/leadership roles of the three appellants.

Holding and Implications

Holding: The convictions and sentences of the three appellants were upheld and their appeals were dismissed.

Implications and direct consequences:

Direct effect on the parties: The three appellants (Kasem Ali, Jaban and Munshi) remain convicted and their sentences (each exceeding four years' rigorous imprisonment) stand.
The Court held certain categories of evidence to have been wrongly admitted (notably evidence of previous conviction); however, after excluding that evidence the remaining admissible evidence was sufficient to sustain convictions.
The decision does not purport to establish a new general rule of law beyond applying existing principles: the opinion affirms established principles on admissibility of approver-evidence after discharge, the non-applicability of s.234 to a single s.401 IPC charge founded on conduct over a long period, and the preventive (non-punitive) character of s.110 CrPC orders. The opinion also follows prior authority in holding evidence of past convictions inadmissible for certain purposes but leaves open a narrow question about limited use of such convictions to prove association rather than bad character.
No novel precedent was announced; the Court applied established principles and existing authorities to the facts before it.

E.H.M

Appeals dismissed.

Show all summary ...

Shams-Ul-Huda, J.:— Thirty-four persons were placed on their trial on a charge under section 401 of the Indian Penal Code. The trial was held by a Magistrate specially authorized under section 30 of the Code of Criminal Procedure. The trial lasted a long time, in the course of which 314 witnesses were examined. The Magistrate acquitted two of the accused and convicted the rest. Three of them were sentenced to more than four years' rigorous imprisonment, and they have appealed to this Court under section 408(b) of the Code.

The facts of the case are briefly as follows:—Proceedings under section 110 of the Criminal Procedure Code were taken in the year 1917 against Mason Haji and others including two of the appellants, Munshi and Jaban. Mason Haji made a confession which led to an enquiry, and the Local Government appointed M. Mufizur Rahman to verify the confession made by Mason. M. Mufizur Rahman then recorded the confession of Mason at a greater length than it was taken down before, and went on to verify the statements made to him. The accused were then sent up for trial. On the 14th June 1918 the charge against Mason was withdrawn by the Public Prosecutor under section 494 of the Criminal Procedure Code and he was discharged. Mason's confession formed the basis of the present charge. The learned Magistrate has, in an exhaustive judgment, dealt with the whole evidence in the case, and he has considered separately the case of each individual accused. The evidence against each accused has been separately detailed in the judgment, and it is unnecessary to repeat it.

Several points have been argued by the learned counsel who appeared on behalf of the appellants. The first argument is that the Magistrate in discharging Mason did not give judicial consideration to the case, and, therefore, the order of discharge is illegal and has no legal effect. As to this argument I need only say that, upon the reported decisions, 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, in my opinion, is quite sufficient to make his evidence admissible.

The next point argued was that the charge was had having regard to the provisions of s. 234 of the Criminal Procedure Code. It seems to me that there is no substance in this contention. S. 234 lays down that, when a person is accused of more offences than one of the same kind committed within the space of 12 months, he may be charged with and tried at one trial for any number of them not exceeding three. In this case the accused were not charged for more offences than one. They are charged with one offence only. An offence under s. 401 is a special one. The gist of the offence is association for the purpose of habitually committing theft or robbery and, as pointed out by the Madras High Court in Re Shriram Venkatasami , habit is to be proved by the aggregate of acts, and though the charge is a charge of a single offence, the period over which the association extends is often very long; and the longer the period the better it is to establish habit. The question of confining the charges to three in the course of a year, therefore, does not arise in the case, and section 234 has no application.

The next point urged is that the accused having been bound down under section 110 of the Criminal Procedure Code, they cannot again be punished for being members of a gang associated for the purpose of habitually committing crimes under section 401 of the Indian Penal Code. This, it is urged, is punishing a man twice over for the same offence. It is clear that a conviction under section 110 of the Criminal Procedure Code has nothing to do with the punishment of an offence. The order under section 110 of the Criminal Procedure Code is merely preventive, and only bound down the accused to be of good behaviour. It was not punishment for any offence committed by them.

It is also urged that the confession of Mason recorded by Maulvi Mufizur Rahman, and consequently the evidence of verification by that officer, are not admissible. This may be so, but after making the confession the approver has repeated his story in Court in his evidence on oath, and, therefore, the question of the admissibility of the confession is of no practical importance, and though I am of opinion that the confession was of no value as a piece of evidence, that does not affect the merits of the case.

It has next been urged that the evidence of previous conviction for an offence under the Indian Penal Code, or evidence to show that the accused had been previously bound down under section 118 of the Criminal Procedure Code, was inadmissible. Reliance has been placed on decisions of this Court in Mankura Pasi v. Queen-Empress and Kader Sundar v. Emperor . I think this contention is sound, and the evidence of previous conviction was wrongly admitted, although there may be some doubt whether, if it can be shown that in a previous case a number of the accused persons were placed on their trial together and convicted, such conviction can be used not for the purpose of proving the conviction or proving bad character but for proving association.

In my opinion, leaving aside the evidence which I have held to be inadmissible, the rest of the evidence is ample to establish the guilt of the appellants. The evidence which has been detailed by the learned Magistrate in his judgment shows that the accused often met together at different places before or after the commission of offences, and have been seen on various occasions carrying away stolen articles or seen together under circumstances that suggested their complicity in thefts and robberies and their association for the purpose of habitually committing such offences. This evidence is very strong: especially against the three appellants. Mason Haji speaks of 74 thefts or burglaries, out of which the accused Kasem Ali is said to have takeu part in 11. Jaban in 31 and Munshi in 11. No reason has been shown why the numerous witnesses, who have deposed on behalf of the prosecution and who have been believed by the learned Magistrate, should be disbelieved by us. I may also state that in the appeal that was preferred by the other accused persons, who were sentenced to less than four years' rigorous inprisonment, the learned Sessions Judge has upheld the conviction and believed the evidence upon which the conviction of the present appellants is largely based.

It has been complained before us that the Magistrate was wrong in placing on the record certain statements prepared by the Public Prosecutor and in making them a part of his judgment. No doubt it is generally not desirable to make documents prepared by parties to a case, part of the judgment, but in this case, as I have said, the record was voluminous and the statements do not furnish any new materials, but are simply the result of the examination of the evidence by the Public Prosecutor. If the learned Magistrate had taken those statements on trust there might have been some ground for complaint. But in this case the Magistrate has recorded, and he has done so on every page of these statements, that he has checked them himself. Under these circumstances, I do not think that the accused have been in any way prejudiced by the action of the Magistrate. The convictions and sentences are, therefore, upheld and the appeals are dismissed.

Duval, J. I agree with the judgment of my learned brother. As to the tabular statements, I would like further to point out that, though the learned counsel objected to them as being wrongly incorporated in the judgment, it is clear that they were checked by the Magistrate, and the learned counsel has not been able to show to us that in any single particular these statements, which are really an epitome of the evidence put in a tabular form, are incorrect. The learned counsel though he did not enter into details about individual witnesses, made some comments on the oral evidence in general. As to the approver, his position was that, as he had been discharged under section 494 of the Criminal Procedure Code, his evidence should be expunged from the record. My learned brother has dealt with that matter, and I agree in holding that after his discharge he was a person competent to be a witness. Then as to his evidence in Court and his confessions recorded by Mr. P.C Chatterjee and M. Mufizur Rahman, no doubt the earlier confessions could have been used by the defence for the purpose of contradicting what the approver Mason said in the course of the trial, and indeed it appears that there are certain discrepancies between his evidence during the course of the trial and his confession before Mr. Chatterjee. It is urged that as approver he is an unreliable witness, and of course no one can be convicted on the uncorroborated evidence of an approver. But here we have, before us, a large mass of corroborative evidence. There is first the evidence of association. This evidence shows that these accused and others were frequently seen together, specially at hâts, and there is evidence that shortly after they were seen together thefts and robberies used to take place; and as to the three men whose cases are before us, we have a mass of direct evidence against Kasem of robberies in houses, bazars and boats, against Jaban of robberies in houses and boats and against Munshi of robberies and thefts in shops and boats as well as thefts of cattle. We also have the evidence about Kasem and Jaban being engaged in the same thefts. The evidence shows that several of the accused were originally pilots on river steamers: and after their dismissal from the Steamer Company's service, thefts on river steamers and boats plying on the river and at the river-side bazars became frequent, and in addition to these thefts in boats and bazars the gang also engaged in thefts and robberies in houses and in regular systematic theft of cattle. On the evidence adduced I hold that the existence of a gang for committing thefts and burglaries has been amply proved: further, that the three men before us were members and (I should add) leaders of that gang.