1973 (1) TMI 101 - HC - Indian Laws

Summary

Issues Involved:
1. Interpretation of Section 337(1) of the Criminal Procedure Code.
2. Procedural compliance and potential prejudice to the accused.
3. Application of the principle of issue estoppel.

Detailed Analysis:

1. Interpretation of Section 337(1) of the Criminal Procedure Code:

The primary legal issue revolves around the interpretation of Section 337(1) of the Criminal Procedure Code. The accused-petitioner contended that the learned Magistrate erred in summoning Janaki Ballav Mukheriee as a witness on a tender of pardon without first summoning him as a co-accused. The petitioner argued that the term "person" in Section 337(1) should be interpreted to mean an accused or a person summoned as an accused, emphasizing the marginal notes of the provision which refer to "tender of pardon to accomplice."

However, the court rejected this narrow interpretation. It held that the term "person" as defined in Section 3(42) of the General Clauses Act and Section 11 of the Indian Penal Code includes any individual, whether arraigned as an accused or not. The court emphasized the principle of literal construction, stating that the statute's words should be interpreted according to the legislature's intent. The court cited various precedents, including *Kashiram v. Emperor* and *Lt. Commander Pascal Fernandas v. State of Maharashtra*, to support the broader interpretation that Section 337(1) applies to any person supposed to be directly or indirectly concerned in or privy to the offense, not just those formally charged.

2. Procedural Compliance and Potential Prejudice to the Accused:

The second issue pertains to whether the procedure followed by the Magistrate was in accordance with the law and whether it prejudiced the accused-petitioner. The petitioner argued that the procedure adopted by the Magistrate was not established by law and operated to his prejudice.

The court found no procedural irregularities or prejudice. It noted that the cross-examination of P.W. 1 (the complainant) had not yet concluded, and the court still had to decide whether to grant pardon to Janaki Ballav Mukheriee to examine him as a witness. The court held that there was no question of prejudice at this stage, as the process was still ongoing and no final decision had been made regarding the pardon.

3. Application of the Principle of Issue Estoppel:

The third issue involves the principle of issue estoppel. The court observed that the predecessor of the current Magistrate had already clarified in an order dated December 10, 1969, that Janaki Ballav Mukheriee would be examined as a witness on tendering pardon and rejected the prayer to summon him as a co-accused. This order was challenged in a revisional application before the High Court, which was ultimately rejected on the ground of limitation.

Given this context, the court held that the principle of issue estoppel applied. The petitioner could not raise the same issue again, as it had already been decided and the remedy exhausted. The court emphasized that justice demanded the petitioner be estopped from re-litigating the same issue, as there was no scope for further clarification.

Conclusion:

The court discharged the Rule, upheld the order dated July 1, 1972, passed by the Magistrate, and directed that the case be disposed of in accordance with the law and expeditiously from the stage reached. The records were ordered to be sent down as early as possible.