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PETITIONER: KANTA PRASHAD

       Vs.

RESPONDENT: DELHI ADMINISTRATION(and connected appeal)

DATE OF JUDGMENT: 06/02/1958

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER SINHA, BHUVNESHWAR P.

CITATION:  1958 AIR  350            1958 SCR 1218

ACT: Criminal Law--Gyant of  pardon--Power of the District  Magi- strate-Case  triable  by Court  of   Special-judge-court  of Session-Concurrent jurisdiction to tender  Pardon-Prevention of  Corruption Act, 1947 (2 of 1947), S.  5(2)-Criminal  Law (Amendment)  Act, 1952 (46 of 1952), Ss. 8(2)(3), 9-Code  of Criminal Procedure (Act 5 of 1898), ss. 337, 338.

HEADNOTE: The  appellants were convicted under s. 120B and S.  224/109 of  the Indian Penal Code and s. 5(2) Of the  Prevention  of Corruption  Act,  1947,  by  the  Court  of  Special   judge constituted under the Criminal Law (Amendment) Act, 1952. it was  contended for them that the conviction was bad  on  the ground  inter alia that the pardon tendered to the  approver by  the  District  Magistrate under S. 337 of  the  Code  of Criminal  Procedure by virtue of which he was examined as  a witness by the Special judge was without 1219 jurisdiction.  The contention was that the provisions Of  s. 337 were not applicable to the case, as the offence under s. 5(2)  Of  the  Prevention  of  Corruption  Act,  1947,   was punishable with imprisonment which may extend to ten  years, while  S.  337 Of the Code of Criminal Procedure  enabled  a District  Magistrate to tender a pardon "in the case of  any offence triable exclusively by the High Court or a Court  of Session  or any offence punishable with  imprisonment  which may extend to ten years......... But under ss. 8(3) and 9 of the Criminal Law (Amendment) Act, 1952, for the purposes  of the  Code of Criminal Procedure, the Court of Special  judge is deemed to be a Court of Session trying cases without jury : Held,  that although the offence was triable exclusively  by the  Court  of Special judge, the  District  Magistrate  had authority  to  tender a pardon under s. 337 of the  Code  of Criminal  Procedure, as the Court of Special judge  was,  in law, a Court of Session.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal

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Appeals Nos. 202 and 203 of 1957. Appeals  by special leave from the judgment and order  dated November 16, 1956, of the Punjab -High Court (Circuit Bench) at  Delhi in Criminal, Appeals Nos. 31-D and 506-C of  1956, arising out of the judgment and order dated August 31, 1956, of  the Court of the Special Judge at Delhi,  in  Corruption Case No. 8 of 1956. D.   R. Kalia and K. L. Arora, for the appellant in Criminal Appeal No. 202 of 1957. D.   R. Kalia and Raghu Nath, for the appellant in  Criminal Appeal No. 203 of 1957. H.   J. Umrigar and R. H. Dhebar, for the respondent in both the appeals. 1958.   February 6. The Judgment of the Court was  delivered by IMAM  J.-The appellants, who were police constables  at  the time of the occurrence, were convicted by the Special  Judge of  Delhi under s. 120B and s. 224/109 of the  Indian  Penal Code  and s. 5(2) of the Prevention of Corruption Act (2  of 1947).    They  were  sentenced  to  two   years’   rigorous imprisonment  under s. 5(2) of the Prevention of  Corruption Act,  1947 and to nine months’ rigorous  imprisonment  under each of the ss. 120B and 224/109 of the Indian Penal Code. 155 1220 The   sentences  of  imprisonment  were  directed   to   run concurrently.   Their appeals to the Punjab High Court  were dismissed and the present appeals are by special leave. The  case of the prosecution, as stated in the  charge,  was that  the appellants had conspired at Delhi with  Ram  Saran Das,  the  approver,  M. P. Khare, Nand  Parkash  Kapur  and Murari between the 6th and 16th of November, 1955, to  bring about  the  escape from lawful custody of M.  P.  Khare,  an undertrial prisoner, and that they had also agreed to accept Rs.  1,000  each and other pecuniary advantages  as  illegal gratification  for rendering the escape of M. P. Khare  from lawful custody and that in pursuance of the said  conspiracy they had abetted the escape of M. P. Khare and that they had accepted the illegal gratification from Nand Parkash  Kapur. It is clear from the findings of the courts below that  M.P. Khare  escaped  from lawful custody and the  appellants  had enabled  him  to do so and that they had received  money  as illegal  gratification  for  the part  they  had  played  in enabling M.P. Khare to escape from lawful custody. The  learned Advocate for the appellants had submitted  five points  for our consideration in support of  his  contention that the conviction of the appellants must be set aside  (1) the  pardon  tendered to the approver Ram Saran Das  by  the District  Magistrate  of Delhi under s. 337 of the  Code  of Criminal  Procedure was without jurisdiction and  authority. Consequently,  the evidence of the approver was  not  admis- sible  (2)  on the case of the prosecution, the  offence  of conspiracy  to commit an offence under s. 224 of the  Indian Penal  Code had not been committed but that offence,  if  at all,  was one under s. 222 of the Indian Penal Code.  As  an offence  under  s. 222 of the Indian Penal Code  is  a  non- cognizable offence no conviction under s. 120B of the Indian Penal  Code could be had in the absence of a sanction  under s.  196A of the Code of Criminal Procedure  (3)  Prosecution witnesses  Mela Ram, P.W. 6, and Shiv Parshad, P.W. 7,  were accomplices on their own showing and as such their testimony could not be taken into consideration (4) no test 1221 identification  parade of the appellants had been  held  (5) the charge, as framed, contravened the mandatory  provisions

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of s. 233 of the Code of Criminal Procedure. Points 3, 4 and 5 may be disposed of at the outset.  We have examined the evidence of Mela Ram and Shiv Parshad and  find nothing   in  their  evidence  which  establishes  them   as accomplices.  It does not appear that before the High  Court it had ever been urged that these witnesses were accomplices and their evidence could not be taken into consideration  to corroborate the approver.  It was, however, urged that these witnesses were unreliable because they had knowledge that an attempt  would be made to enable M.P. Khare to  escape  from lawful custody and yet they informed no authority about  it. As  to the reliability of these witnesses the  courts  below were entitled to believe them and nothing of any consequence has been placed before us to convince us to take a different view from that taken by the courts below. As  for the test identification parade, it is true  that  no test  identification parade was held.  The  appellants  were known  to the police officials who had deposed  against  the appellants and the only persons who did not know them before were the persons who gave evidence of association, to  which the High Court did not attach much importance.  It would  no doubt have been prudent to hold a test identification parade with  respect  to  witnesses who did not  know  the  accused before  the  occurrence, but failure to hold such  a  parade would  not make inadmissible the evidence of  identification in court.  The weight to be attached to such  identification would  be a matter for the courts of fact and it is not  for this  Court  to  reassess the  evidence  unless  exceptional grounds were established necessitating such a course. It  is true that no separate charges were framed  under  ss. 120B,  224/109 of the Indian Penal Code and s. 5(2)  of  the Prevention of Corruption Act, 1947.  Separate charges should have  been  framed  as required by s. 233  of  the  Code  of Criminal  Procedure.   In  our  opinion,  the   irregularity committed, in this case, was 1222 cured by the provisions of s. 537 of the Code.  It is to  be noticed  that  it was urged before the  Special  Judge  that separate  charges should have been framed and that a  single charge  should  not have been framed but the  objection  had been  abandoned  by the Advocate for the  accused  when  the Special  Judge told him that if it was his  contention  that the accused had been prejudiced by this form of the  charge, he  would  frame separate charges under separate  heads  and then  proceed with the trial.  Furthermore, when the  charge was  framed,  the public prosecutor had urged  that  charges under  separate heads for each offence should be framed  and that they should not be joined together under one head.  The Advocate  for  the  accused, however,  had  urged  that  the charge,  as framed, was correct.  It seems to us  that  when the charge was being framed the Advocate for the  appellants desired.  that  the charge as framed should  stand  and  the public  prosecutor’s  objection  should  be  overruled.   It cannot  be now urged that the appellants were prejudiced  by the  charge  as  framed.   Indeed,  the  Advocate  for   the appellants abandoned this objection and there is nothing  in the  High Court’s judgment to show that this contention  was again raised.  We cannot permit such a question to be raised at this stage.  It seems to us, therefore, that there is  no substance   in  the  submissions  made  on  behalf  of   the appellants with reference to the above-mentioned points 3, 4 and 5. With  reference to the second point, even if it  is  assumed that  the  offence alleged against the appellants  does  not come under s. 224 of the Indian Penal Code, but under s. 222

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of the Indian Penal Code, it has to be remembered that  this would  be  of  academic  interest  in  this  case,  if   the appellants have been rightly convicted under s. 5(2) of  the Prevention of Corruption Act, 1947.  It also does not appear from  the judgments of the Special Judge and the High  Court that it had been contended that there was no sanction  under s.  196A of the Code of Criminal Procedure and  consequently the court could not take cognizance of the offence under  s. 120B of the Indian Penal Code.  Whether a sanction had  been granted under s. 196A 1223 was a question of fact which ought to have been urged at the trial  and before the High Court.  It is impossible at  this stage  to go into this question of fact.  Furthermore,  this question also is one of academic interest if the  conviction and  sentence  of  the  appellants  under  s.  5(2)  of  the Prevention of Corruption Act, 1947, are affirmed. Coming  now  to  the  first point urged  on  behalf  of  the appellants, it would appear that the District Magistrate  of Delhi granted a pardon under s. 337 of the Code of  Criminal Procedure to Ram Saran Das, the approver, in consequence  of which Ram Saran Das was examined as a witness by the Special Judge.  It was urged that the District Magistrate could  not grant  a  pardon when the case was triable by the  Court  of Special Judge constituted under the Criminal Law (Amendment) Act,  1952.  The offence under s. 5(2) of the Prevention  of Corruption Act, 1947, is punishable with imprisonment for  a term which may extend to seven years, or with fine, or  with both.   It  was  not an offence which  was  punishable  with imprisonment which may extend to ten years.  The  provisions of  s. 337 enabled a District Magistrate to tender a  pardon in  the case of any offence triable exclusively by the  High Court or a Court of Session, or any offence punishable  with imprisonment  which may extend to ten years, or any  offence punishable  under  s.  211 of the  Indian  Penal  Code  with imprisonment which may extend to seven years, or any offence under  ss. 216A, 369, 401, 435 and 477A of the Indian  Penal Code.   These  provisions  of s. 337 at the  time  that  the pardon  was tendered were inapplicable as the  present  case was  not covered by its terms.  It is pointed out  that  the High  Court erred in supposing that the District  Magistrate could  grant  pardon  in  a  case  where  the  offence   was punishable with imprisonment which may extend to seven years or  more and which was triable exclusively by the  Court  of Session.   The Code of Criminal Procedure at the  time  that the  pardon was granted spoke of an offence punishable  with imprisonment  for a term which may extend to ten  years  and not seven years.  The amendment to s. 337 of the 1224 Code,  which came into effect in January, 1956, spoke of  an offence  punishable  with imprisonment which may  extend  to seven years, but this amendment could have no application to a pardon tendered on 1-12-55.  It seems to us, however, that the  District  Magistrate had authority to tender  a  pardon under  s.  337  of  the  Code  of  Criminal  Procedure  with reference   to   a  case  concerning  an   offence   triable exclusively by the Special Judge and, therefore, we need not consider   whether   the   offence   was   punishable   with imprisonment which may extend to seven years.  Under s. 8(3) of the Criminal Law (Amendment) Act of 1952 it is  expressly stated  that for the purposes of the provisions of the  Code of  Criminal  Procedure, 1898, the Court  of  Special  Judge shall  be  deemed  to be a Court  of  Session  trying  cases without  a jury or without the aid of assessors.  Section  9 of  that  Act provides for an appeal from the Court  of  the

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Special  Judge  to the High Court and states that  the  High Court  may exercise, as far as they may be  applicable,  all the powers conferred by Chapters XXXI and XXXII of the  Code of Criminal Procedure, 1898, as if the Court of the  Special Judge  were a Court of Session trying cases without a  jury. It would seem, therefore, that although a Special Judge is a court  constituted  under the Criminal Law  (Amendment)  Act yet, for the purposes of the Code of Criminal Procedure  and that Act, it is a Court of Session.  Accordingly, we are  of the   opinion   that  although  the  offence   was   triable exclusively  by the Court of the Special Judge the  District Magistrate had authority to tender a pardon under s. 337  of the  Code of Criminal Procedure as the court of the  Special Judge was, in law, a Court of Session. It  was,  however, suggested that the  proper  authority  to grant the pardon was the Special Judge and not the  District Magistrate,  but  it seems to us that the  position  of  the Special Judge in this matter was similar to that of a  Judge of a Court of Session.  The proviso to s. 337 of the Code of Criminal  Procedure contemplates concurrent jurisdiction  in the District Magistrate and the Magistrate making an enquiry or holding the trial to tender a pardon.  According to the 1225 provisions of s. 338 of the Code, even after commitment  but before judgment is passed, the Court to which the commitment is  made  may  tender  a  pardon  or  order  the  committing Magistrate  or the District Magistrate to tender  a  pardon. It  would seem, therefore, that the District  Magistrate  is empowered to tender a pardon even after a commitment if  the Court so directs.  Under s. 8(2) of the Criminal Law (Amend- ment)  Act,  1952, the Special Judge has also  been  granted power to tender pardon.  The conferment of this power on the Special Judge in no way deprives the District Magistrate  of his  power to grant a pardon under s. 337 of the  Code.   At the  date  the District Magistrate tendered the  pardon  the case  was not before the Special Judge.  There seems to  us, therefore,  no  substance in the submission  made  that  the District Magistrate had not authority to tender a pardon  to Ram Saran Das, the approver, and consequently the approver’s evidence was inadmissible. The findings of the High Court establish the offence of  the appellants  under  s. 5(2) of the Prevention  of  Corruption Act,  1947,  and we can find no sufficient reason  to  think that the appellants were wrongly convicted thereunder. The appeals are accordingly dismissed. Appeals dismissed. 1226