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TMI Blog1938 (7) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... Aziz an approver under Section 337 of the Criminal Procedure Code. The Magistrate declined to entertain this application and no pardon could have been legally tendered as Section 337 does not apply to the facts of the case. The hearing of the case was postponed to September 21, and on that date the prosecution applied that Aziz should be tried separately from the other accused. It was stated in the application that the prosecution desired that Aziz should be examined as a witness and it was prayed therefore that in order that he should be so examined his name should be deleted from the charge-sheet and placed on a separate charge-sheet. The application was opposed on behalf of the other accused, but the Magistrate held that there was no obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n concerned in an offence and illegally discharged by the police in order that he might give evidence was a competent witness. He had never been brought before the Court as an accused person and for that reason it may be said that that case is distinguishable both from Reg. v. Hanmanta and the present case. 4. However, in Empress v. Durant I.L.R. (1898) 23 Bom. 213, Mr. Justice Candy, after an elaborate discussion of the authorities both Indian and English, went further and held that accused in Section 342 means the accused then under trial and under examination by the Court and cannot include an accused over whom the Court is exercising jurisdiction in another trial. He pointed out that the decision in Hanmanta's case refers sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Har Prasad Bhargava I.L.R. (1922) All. 226, Banu Singh v. Emperor I.L.R. (1906) Cal. 1353, and Akhoy Kumar Mookerjee v. Emperor I.L.R. (1917) Cal. 720. In the latter case the Court said that the law must be regarded as settled in this sense. 6. In view of these authorities we are satisfied that Aziz was a competent witness. He was not an accused for the purposes of Section 342 of the Code nor for the purposes of Section 343. In any case as regards the latter section there is no evidence of any promise or inducement having been made to him which would render his evidence inadmissible. Whether it is desirable that a separate trial should be ordered of one of several persons alleged to have committed the same offence, simply in order th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that his evidence is therefore less reliable or more unreliable than that of an approver. Personally, however, I doubt if there is very much in that point as an approver may have his pardon cancelled if his evidence differs materially from his proof. 8. There is one other point of law. No objection was taken to the joinder of the charges in the trial Court and no point in that connection was taken in the argument of learned Counsel for the appellants. But a doubt having arisen in our minds as to the admissibility of charges 2 to 4, which allege an indefinite number of offences of purchasing, treating and disposing of stamps during a period of three years, we put the point to the learned Government Pleader. He has relied on Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being a habitual receiver. In Harsha Nath Chatterjee v. Emperor and also in Abdul Salirn v. Emperor I.L.R. (1921) Cal. 573, another case bearing on the point, the particular offences alleged to have been committed in furtherance of the conspiracy were all specified. 10. Section 222 of the Code requires that particulars should be given of the offence charged. Section 233 provides that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239. Section 234 provides that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 109 and not under Section 116. But acts done in pursuance of the conspiracy cannot be separately punished unless these acts are separately charged and particularised as required by the Code, We think, therefore, that although on the finding that the accused are guilty of conspiracy, the maximum sentence under Section 263 might have been imposed, it was not legal to impose one sentence under Section 120 B and a separate sentence under Sections 263 and 109. 12. [His Lordship went into detail as to the evidence in the case and concluded as follows :] On the evidence we think it is impossible to doubt that accused. No. 5 was dealing in these doctored stamps and committing offences against Section 263 of the Indian Penal Code. But we thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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