1936 (4) TMI 14 - HC - Indian Laws

Summary

Issues Involved:

1. Withdrawal of prosecution under Section 494(a) of the Criminal Procedure Code (CrPC) for obtaining evidence.
2. Legality of recommitting a discharged accused for trial.
3. Power of a Special Magistrate to tender a pardon under Section 337 of the CrPC.
4. Validity of previous case law decisions on these issues.

Issue-wise Detailed Analysis:

1. Withdrawal of Prosecution under Section 494(a) CrPC for Obtaining Evidence:

The primary issue was whether the Court may consent to the Public Prosecutor withdrawing from the prosecution of any person under Section 494(a) CrPC for the purpose of obtaining that person's evidence as a witness. The Court held that there is nothing in Section 494 which prevents a Public Prosecutor from withdrawing the case against one of the accused to call him as a witness against the others if it is in the interests of justice. The Court emphasized that Section 494, CrPC, gives discretion to the Magistrate to consent to such withdrawal, and this discretion must be exercised based on correct legal principles.

The Court referred to the English case of Winsor v. The Queen, which discussed the admissibility of evidence from a co-accused who had not been acquitted or convicted. The Court agreed with the principle that an accomplice's evidence is admissible but should be viewed with caution. The Court also cited several Indian cases, including Emperor v. Har Prosad and Raman v. Emperor, which supported the view that the prosecution could withdraw a case under Section 494 to use the accused as a witness.

2. Legality of Recommitting a Discharged Accused for Trial:

The Court found that recommitting Nalini, who had been discharged under Section 494(a) CrPC, to take his trial along with the other accused was illegal. Section 494(a) states that once the Public Prosecutor, with the consent of the Court, withdraws from the prosecution, the accused "shall be discharged in respect of such offence or offences." The Court interpreted this to mean that the accused should be discharged from those proceedings and not put back into them. The Court held that the convictions could not stand because the appellants were deprived of their fundamental right to cross-examine Nalini, violating Sections 256 CrPC and 136 of the Evidence Act.

3. Power of a Special Magistrate to Tender a Pardon under Section 337 CrPC:

The Court examined whether a Special Magistrate appointed under the Bengal Suppression of Terrorist Outrages Act, 1932, had the power to tender a pardon under Section 337 CrPC. The Court concluded that the Special Magistrate had this power. The Bengal Suppression of Terrorist Outrages Act provided that the Special Magistrate should follow the procedure prescribed by the CrPC for the trial of warrant cases by Magistrates. Section 337 CrPC allows certain tribunals, including Magistrates of the first class, to tender a pardon to obtain evidence. The Court held that the Special Magistrate, acting under Section 337, could tender a conditional pardon and examine the pardoned person as a witness in his Court.

4. Validity of Previous Case Law Decisions:

The Court addressed the validity of previous case law decisions, specifically Abdul Majid v. Emperor and Mohammad Saleudin v. Emperor, which dealt with similar issues. The Court upheld these decisions, stating that the Special Magistrate had the authority to tender a pardon and try the accused himself, instead of committing them to the Sessions or High Court. The Court found that the provisions of the Bengal Suppression of Terrorist Outrages Act were not inconsistent with Section 337 CrPC, and thus the Special Magistrate's actions were lawful.

Final Judgment:

The appeals were allowed, the convictions quashed, and the accused were acquitted. The appellants were discharged from their bail bonds, except for one appellant who was undergoing imprisonment for another offence. The Court's decision clarified the legal principles regarding the withdrawal of prosecution under Section 494 CrPC, the power of Special Magistrates to tender pardons, and the validity of previous case law on these issues.