Govinda Sambhuji Mali v. Emperor

1. The five applicants have been convicted of being concerned in the forgery of an unregistered mortgage-bond (Ex. P-10) and sentenced to various terms of imprisonment by the Magistrate with powers under S. 30. On appeal the Sessions Judge has upheld the findings and sentences.

2. During the course of the investigation ordered by the District Magistrate, Amraoti, the C.I.D Inspector (P.W 1) discovered a number of cases of forgery at, Sirasgaon. As regards the applicant Jainarain, who had instituted a suit based on the mortgage (Ex. P-10), the sanction of the civil Court was necessary for his, prosecution. Under the orders of the District Superintendent of Police, the Inspector promised a pardon to one Sakharam Dinaji. Sakharam's evidence was thereupon taken on oath by the Munsif who held a preliminary inquiry on the Inspector's petition and eventually sanctioned the prosecution of Jainarain. The criminal proceedings were started on a petition of the Inspector, which is described and treated by the first Court as a complaint. The prayer was that five persons, that is, the present applicants, are to be tried and dealt with according to law. In para. 3 of the petition it is stated that all the five accused together with Sakharam Dinaji were members of one gang, and they jointly fabricated the mortgage bond. Sakharam was never arrested nor brought to trial in the criminal Court, though no steps have ever been taken to give him a conditional pardon under Section 337 of the Cr PC. The main argument before me is that the evidence of Sakharam is inadmissible and the rest of the evidence is insufficient to support the conviction. Some of the points urged can be easily disposed of on the authority of decided cases. But none of the reported decisions touches the argument so far as it is based upon the provisions of Sections 170, 204 and 343 of the Cr PC. S. 343, to which reference will have to be made, is reproduced below:

“Except as provided in Ss. 337 and 338, 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.”

3. The argument of the learned counsel for the applicants may be summarized as follows: The word “accused” is used in the Code of Criminal Procedure in two senses: first in the sense of a person against whom an accusation has been made but against whom no process has issued; secondly, a person over whom a Magistrate is exercising jurisdiction. Upon the police view of the evidence, Sakharam should have been placed before the Magistrate as an accused person, having regard to the imperative provisions of S. 170, and the Magistrate was bound to issue process against him under S. 204. Sakharam was thus an accused person in the eye of the law, irrespective of the illegal action of the police and the Magistral. He could not therefore be sworn, having regard to the provisions of Section 342(4) of the Cr PC. Next it is pointed out that Section 337 of the Cr PC, contemplates the tender of a pardon to a person who at the time of the tender is one who is “supposed to have been directly or indirectly concerned in or privy to the offence under inquiry.” The section does not use the word “accused,” nor does S. 338. But S. 343 expressly refers to and therefore incorporates the provisions of Ss. 337 and 338 and debars the use of any influence or of any promise or threat to an accused person. It is hence argued that the word “accused” in S. 343 includes persons who are not technically accused, persons who are referred to in Ss. 337 and 338, as well as those who are fully “accused.” According to the applicant's contention, the promise of a pardon to Sakharam, not being in accordance with S. 337, was illegal, as it contravened the provisions of S. 343 and his evidence should therefore be rejected as inadmissible. A further contention is that the statement of Sakharam is irrelevant under Section 24 of the Evidence Act.

4. It is now settled law that a person not on his trial is not an accused person within the meaning of S. 342. It is only to such a person that no oath can be administered. As held by Plowden, J., in Mal Singh v. Empress(1):

“Section 342 in its widest interpretation only authorizes an objection that the person offered as a witness answers to the description of the accused person in the inquiry or the trial as the case may be, in which he is presented as a witness.”

5. To the same effect is the Bombay case, Queen-Empress v. Mona Puna(2): see also Banu Singh v. Emperor(3). It is therefore recognized by the High Courts that a person separately tried is a competent witness against his accomplices. The latest case on the subject is Akhoy Kumar Mukerjee v. Emperor(4). Unless Sakharam is to be regarded as a co-accused with the applicant in the eye of the law, the objection founded on S. 342 is untenable. It is urged that as the police found Sakharam to be as guilty as the others, they had no option but to proceed against him and the Magistrate was equally bound to issue process. S. 170 or the analogy of it and S. 204 were relied on to show that Sakharam could not be converted into a witness. The short answer to this is that as he could, in view of S. 239, betried jointly or separately, the fact that he was not tried separately does not make him a co-accused with the applicants and hence his competency as a witness cannot be questioned, as he does not “answer to the description of an accused person” in this trial. The disability created by S. 342(4) applies only to such a person. In Queen-Empress v. Mona Puna a person who ought to have been an accused but was illegally discharged by the police was held to be a competent witness. I now proceed to deal with the arguments based on S. 343. The Code, as pointed out by Jardine, J., in Queen-Empress v. Mona Puna, uses the word “accused” in two senses. In the chapter relating to investigations “accused” can only mean a person against whom there has been an accusation. But the word, as used in the chapters dealing with inquiries and trials, means, I think

“a person over whom the Magistrate or other Court is exercising jurisdiction.”

6. This definition, though laid down in the leading Bombay case with reference to the word “accused” as used in S. 342, has been accepted by the Calcutta High Court as applicable to S. 340: Jhoja Singh v. Queen Empress(5), and, this has been followed in Seikh Chand v. Mahomed Hanif(6). S. 343 occurs in Chap. 24 of the Code entitled “General Provisions as to Inquiries and Trials.” Although the section must be read with S. 337, to which it refers, I am not prepared to accept the contention that the word “accused” in S. 343 includes any person supposed to have been directly or indirectly concerned in or privy to the offence under inquiry,”

unless there is an inquiry or trial in respect of that person, including a magisterial inquiry under the Code in relation to an offence before its cognizance has been taken. If a person is placed before the Magistrate for the tender of a pardon under S. 337, he is an accused person, though he may not have been arrested or challaned. He is a person over whom the Magistrate is “exercising jurisdiction” under S. 337. If he accepts the offer, he becomes a conditionally pardoned accused. If he rejects the offer, he ceases to be an accused unless he is already an accused in the technical sense. Whilst he is an accused person in respect of the proceeding under S. 337, no influence other than that authorized by law can be used to induce a disclosure. Proceedings under S. 337 may take place before the accused is challaned: Bhallu Singh v. Empress(7). After process has been issued against a person under an accusation, he becomes technically an accused person and necessarily comes under S. 343. But the issue of process does not seem to be essential to constitute a person an accused within the meaning of flection. S. 163 lays down:

“(1) No police officer or person in authority shall offer or make, or cause to be offered or made any such inducement, threat, or promise as is mentioned in the Evidence Act, 1872, S. 24. (2) But no police officer or other person shall prevent any person from making in the course of any investigation under this chapter any statement which he may be disposed to make of his own free will.

7. A mere suspect appears to be sufficiently protected from harassment by S. 163, which lays down in the form of a mandate the underlying principle of Section 24 of the Evidence Act. It does not seem necessary to give the word “accused” in S. 343, occurring as it does in a chapter relating to inquiries and trials, a wider meaning in order to include a person against whom there has been only an accusation, especially as there is no penalty attached to that section. One possible effect of S. 343 may be noticed. If a conditional pardon is tendered under S. 337 in violation of the terms of S. 343, the pardon would be an illegal pardon and the question would then arise whether the person so pardoned is a competent witness. If he was being jointly tried, he would not cease to be an accused person within the meaning of S. 342(4).

8. Another effect of S. 343 is that an answer given by an accused person when examined by the Court under S. 342, if induced by means prohibited by S. 343, must be ruled out both in that trial as well as in a subsequent trial of the same accused, whether the answer so induced is also irrelevant under Section 24 of the Evidence Act, or not. But neither S. 163 nor S. 343 rules out the evidence of Sakharam. There is a distinction between a confession or mere disclosure, as such, and the testimony of a competent witness. A witness does not become an incompetent witness merely because he has been bribed or threatened. Nor is his testimony declared irrelevant by the Evidence Act. The fact that he has been bribed or threatened, no doubt, affects the value of his testimony.

9. Sakharam was threatened with prosecution; he was offered a pardon by the police. This was prohibited by S. 163. He made a confession or disclosure to the police. If we assume that the word “accused” in S. 343 is to be taken in its widest sense, the disclosure was improperly obtained within the meaning of that section. But the prosecution does not seek to tender evidence of that confession or disclosure. They rely solely on his evidence given at the trial duly cross-examined.

10. To adopt the construction suggested by the accused would be to make the provisions of S. 337 and S. 494 unworkable in practice. The legislature must know that all preliminary negotiations are settled by the police before a person is produced before a Magistrate for the tender of a conditional pardon or before the withdrawal of the prosecution under S. 494, where it is intended to convert him into a competent witness. To hold that the word “accused” means any suspect and to rule out not merely the disclosure as such but also the testimony subsequently given in Court would be to frustrate the object of S. 337. When however the testimony or the confession or disclosure of Sakharam is tendered as evidence in a future trial against him, that testimony as against him would be nothing more than a confession or disclosure improperly obtained and would have to be rejected both under Section 24 of the Evidence Act and in view of S. 163, if not also of S. 343. It is futile to argue in the present trial that Sakharam's testimony is to be excluded from consideration as against the applicants on the ground of Section 24 of the Evidence Act. There is an unreported judgment of the Calcutta High Court from which an extract is given in the judgment of Jardine, J., in Queen-Empress v. Mona Puna. The question raised was whether the evidence of one Shwe Wa examined as a witness for the prosecution was admissible. Jardine, J., one of the Judges in the Special Court in Burma, held that the witness was illegally pardoned and the pardon amounted to an inducement contrary to Ss. 163 and 343, and that Shwe Wa was an accused person to whom no oath could be administered. The Recorder considered that:

“no pardon was necessary, for Shwe Wa was never an accused person, that is, he was never presented in that aspect either before the Committing Magistrate, or before the Court of Sessions.”

11. The reference went up to the High Court at Calcutta, where Romesh Chunder Mitter and Field, JJ., ruled as follows:

“Whether the evidence of the witness Shwe Wa was admissible? In answering this question this must be borne in mind that the statements of this man are not being considered as affecting himself and his liability to punishment, but only as affecting third persons against whom they are offered in evidence. Under the circumstances as disclosed in the record, and in the statement sent up by the learned Judges below, we are of opinion that the evidence of this witness was admissible, though of course the facts connected with his testimony and the circumstances under which this individual came to appear in the witness box should properly have been pointed out to the jury, in order to enable them duly to estimate the value of the evidence itself. Under the Evidence Act admissibility is the rule and exclusion the exception, and circumstances which under other systems might operate to exclude are, under the Act, to be taken into consideration only in judging of the value to be allowed to evidence when admitted.”

12. Jardine, J., as Judge of the Bombay High Court accepted this view as correct in preference to his former view. The arguments before me are very similar to those overruled by the learned Judges of the Calcutta High Court. Another point of law taken is that the lower Courts were wrong in admitting the recital contained in Ex. B-79. The mortgage which is alleged to be forged purports to have been executed by Hiraman and Dewaji on 21st July 1900. Dewaji died in 1904 and Hiraman in 1914. The prosecution case is that the document was forged in 1916 after the death of the alleged mortgagors. On 1st July 1909 Hiraman executed a registered mortgage deed (Ex. P-79) in favour of one Umrao Singh (C.W No. 1.) This mortgage contains a recital that the property was unencumbered. The relevant part of the mortgage deed was not against the proprietary interest of the mortgagor, but as held in Ningawa v. Bharmappa(8), the mortgage deed itself was against the interest of the mortgagor. The statement that there was no prior mortgage was a material part of the deed, the object of which was, to use the words of Fulton, J., to limit the mortgagors' proprietary interest. The statement was not unconnected with the purpose of the deed. As held by Couch, C.J, and Ainslie, J., in Leelanund Singh v. Mt. Lakhputtee Thakoorain(9):

“when a document of this kind is tendered in evidence, it is not to be divided into parts, and the part which is in favour of the person making it rejected, and that which is against his interest accepted.”

13. On the same principle it is laid down in Taylor on Evidence:

“Accounts are admissible, some items of which charge the declarant, though other connected items discharge him, or even show a balance in his favour: for it is not to be presumed that a man will charge himself falsely for the mere purpose of getting a discharge, and in the latter case, the debt items would still be against his interest, since they disminish the balance in his favour.”

14. I agree with the Courts below that the recital, for what it is worth, is relevant under Section 32, sub-Clause 3 of the Evidence Act, as part of a statement made by a deceased person against his proprietary interest. I hold that Sakharam, even if illegally covered into a witness, is nonetheless a competent witness. This view, which is in accordance with the plain meaning of S. 342(4), is supported by the authorities and is based on reasons of convenience. It would be highly inconvenient to enter into a preliminary collateral inquiry in the midst of a trial as to what relevant evidence the police had against a person tendered as witness. The fact that he is not presented as an accused ought to be sufficient to determine his competency. The argument that there has been an evasion of S. 170 and S. 204, though it does not support the applicants' contention that the evidence of Sakharam should be rejected as inadmissible, leads however to a conclusion equally fatal to the prosecution. The principle laid down by their Lordships of the Privy Council in Subrahmania Ayyar v. King-Emperor(10) comes into operation with the result that as the trial has been in disobedience of an express provision of the Code, it is bad and the proceedings must be set aside.

15. The procedure adopted in this case is said to be based upon a circular issued by the Punjab Government. The legality of the circular has, so far as I know, never been questioned in any reported decision of the Punjab Court. The matter is res integra. Though the point might have been raised in some of the reported cases, it was not raised, and it would probably not occur to anyone before the recent Privy Council decision. It has been held by the Calcutta High Court that a Local Government in India has no power to tender a conditional pardon: Banu Singh v. Emperor. Nor can it grant an unconditional pardon before a sentence is passed. A promise not to prosecute an offender stands on the same footing and cannot, on principle, be distinguished from a pardon. In effect, it tells a police officer to disobey his statutory duty of proceeding against such a person.

16. Section 170 lays down that if upon an investigation under Ch. 14, it appears to the officer in charge of the police station that there is sufficient evidence or reason, able ground of suspicion to justify the course, such officer shall forward the accused under custody to a duly empowered Magistrate or shall take security for his appearance before such Magistrate. The case before me was one of a non-cognizable offence in which an investigation was ordered by the District Magistrate. In such a case the police have no power to arrest and hence cannot forward under custody or take bail. But that part of S. 180 merely provides a machinery for bringing an accused person under the jurisdiction of the Court. The investigation, when duly ordered in a non-cognizable case, is an investigation under Ch. 84. The duties of the police officer are the same as in a cognizable case. The duty clearly is to move the Court to take proceedings against a person whom the investigation shows to be guilty. An accomplice against whom there is no case apart from his own confession to the police may lawfully be kept back and tendered as a witness, for even a “reasonable suspicion” cannot be based on what the law declares to be irrelevant. This however is not the position taken up here on behalf of the Crown, and in view of the manner in which the case was presented before the Magistrate it would be difficult to maintain it.

17. Para. 3 of the “complaint” admits that Sakharam assisted in the preparation of Ex. P-10, and it is argued before me that the prosecution may, at its discretion, treat him as an accused or as a witness without resort to the provisions of S. 337. Under S. 204 the Magistrate taking cognizance of the offence was bound to issue process against Sakharam. The terms of Ss. 170 and 204 are imperative, the word “shall” being used in both sections. It is however urged that the words “if in the opinion of the Magistrate there is sufficient ground for proceeding” leave him a discretion in the matter. I do not agree with this. These words in a negative form occur in the preceding section which enables a Magistrate to dismiss a complaint, “if there is no sufficient ground for proceeding, and this means “if there is no prima facie case.” If there is such a case, the Magistrate, like the police, has no option but to proceed. No doubt having regard to S. 239, the Magistrate can proceed jointly or separately. But not to proceed at all whether jointly or separately, is not within his competence. I was at first inclined to think that the prosecution was at liberty to select its own time. But S. 173 requires an investigation to be completed without unnecessary delay and as soon as it is completed the police officer is to send a report setting forth the names of the parties stating whether the accused has been forwarded in custody or not. Under S. 204 the process is to be issued, when the Magistrate is taking cognisance of the offence.

18. Experience shows that it is sometimes necessary to allow a criminal to escape punishment in order to bring home the guilt to his associates in the crime. Except in the case of the Advocate-General acting under S. 333, the law in India contemplates that the ultimate selection of the person to be allowed to escape rests with the Magistrate or the Court. In the case of an offence exclusively triable by the Court of Session, like the one before me it is a Magistrate of a certain grade who uses his discretion and tenders a pardon under S. 337. Unless he is a Presidency Magistrate he has to record his reasons for so doing. When a prosecution is withdrawn under S. 494 with the intention of converting an accused person into a witness the consent of the Court is essential. I am aware that it was open to the Magistrate in a case like this to nullify the action of the police if he thought fit by issuing process against an accomplice named as a witness. A mere passive acquiescence on his part in the course suggested by the prosecution does not afford the same safeguard as when he is called upon to consent to a withdrawal under S. 494 or when he is asked to use his discretion under S. 337, where he has to record his reasons. It is argued that the use of the word “may” in S. 337 shows that the procedure laid down in that section is not obligatory. But the word is used with reference to the exercise of a discretion by the Magistrate as to whether a pardon should be tendered to the person proposed. The Magistrate is at liberty not to accept the police nominee and may select a more suitable person for the tender of the pardon. This is in his discretion. It is true that the prosecution is not bound to have a pardon tendered to a person against whom there is evidence and is at liberty to put him up either for a joint or separate trial. But it is evasion of the law not to adopt any of these courses and tender him as witness under an unauthorized promise of pardon by pledging public faith not to prosecute him.

19. Proceedings under S. 337, though an inquiry under the Code, form no part of the trial for the Magistrate who tenders the pardon is incompetent to try the case. But the objection is not merely that no pardon was tendered under S. 337, but that a person whom the imperative provisions of the Code require to be tried has not been tried at all with a view to avoid proceedings under S. 337, which involve the risk of a possible magisterial disapproval of the course adopted by the police.

20. The illegality in this case is in not proceeding against Sakharam at all. If he had been proceeded against separately, he would no doubt have, been a competent witness. This procedure was not adopted because it was believed that he would not have assisted the prosecution in that case. It is thus only by disregarding Statute law that Sakharam's evidence has been made available to the prosecution without magisterial approval. Prima facie he ought to have been jointly tried. The question is whether this is an illegality in the trial or de hors the trial. It may be answered in both ways. But the argument that the illegality consisted merely in not taking separate proceedings appears to be somewhat artificial. Similarly the argument that the illegality is only antecedent to the trial overlooks that it subsisted and has been taken full advantage of during the trial. It seems to me that the proper test to apply in such a case is whether the accused have been prejudiced by the illegality. In my judgment the accused have been seriously prejudiced, for it is conceivable that the Magistrate might have selected one of the accused for the tender of the pardon. Even if the procedure be regarded as only irregular, I doubt whether S. 537 would cure the irregularity. The Privy Council case was one of misjoinder of charges. The rule prohibiting such misjoinder is enacted primarily in the interest of accused persons, though it is also in the public interest that an accused should not be prejudiced by having to meet a multiplicity of charges in one trial. S. 170 and S. 204 cannot be said to have been enacted in the interest of an accused's accomplices. But the case, as I understand it, does not proceed upon any such distinction. It lays down that disobedience to an express provision as to a mode of trial is not merely an irregularity but an illegality which vitiates the trial. I do not think that it is an undue extension of the principle laid down in that case to hold that the trial is bad. The view I have taken is different from that presented on behalf of the accused. To uphold their contention that an accomplice improperly converted into a witness is an incompetent witness, whose evidence is to be rejected as inadmissible, may have the effect of depriving the prosecution of the benefit of this evidence under Section 33 of the Evidence Act, in a subsequent trial after his death if, for example, in the meanwhile he has been duly pardoned under S. 337. The mere fact that a trial is bad practically on a ground similar to that of non-joinder would probably have no such effect.

21. The first Court expressed an opinion that there was sufficient evidence to convict the applicants without the testimony of Sakharam, an opinion apparently not concurred in by the Sessions Judge and rightly so. Holding that the trial is bad, I set aside the convictions and sentences, leaving it to the Crown to take such legal steps as it may be advised to take. I direct that the applicants be released from custody so far as they are detained under the present charge.

P.N/R.K

22. Conviction set aside.