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TMI Blog1938 (7) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 337, Criminal P.C., and could only be lawfully tried in the circum. stances of the case by the High Court or Court of Session. This objection was overruled by a decision of the High Court of Lahore and in effect it is from that decision that this appeal is brought. The facts which are so far as relevant not in dispute may be shortly stated. The appellant, an advocate of the High Court, acted as counsel for G.S. Kochar, who was plaintiff in a suit in the Court of the Senior Subordinate Judge based on a promissory note. The plaintiff succeeded against two of the defendants, both before the Subordinate Judge and on appeal. Meantime complaints had been made by Durga Das, the defendant, against whom the case was dismissed, that his si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f District Magistrate and Deputy Commissioner. The proceedings in the case were very delayed and protracted. Eventually, after various protests and objections by the appellant, the Public Prosecutor applied to Mr. Luthra, the Special Magistrate, to whom the case had been transferred and who was vested with the powers under Section 30 of the Code, for permission to withdraw from the prosecution of Sain Dass. The Special Magistrate by order dated 4th July 1932, allowed the Public Prosecutor to withdraw the case under Section 494, Criminal P.C. The appellant objected to this order on various grounds, in particular that the case could only properly proceed under Section 337, whereas the prosecution were seeking to have the case tried otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, but he framed charges against the appellant before the examination of the witnesses was completed, under Section 254, instead of proceeding under Sections 206-210, which apply to committal for trial. The appellant objected to this course, claiming that he was entitled to be committed for trial under Section 337, but his objections were overruled eventually by a Divisional Bench of the High Court consisting of Bhide and Coldstream JJ., who on 29th October 1934, delivered judgment, rejecting the objection with the result that the trial continued and was concluded before the Magistrate as already stated. 4. The question is whether Section 337 and the material Sections which follow have been brought into operation by what was done by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 338 gives power to the Court to which commitment is made to tender or order the Magistrate to tender a pardon on the similar condition. Section 339 deals with the trial of a person to whom a conditional pardon has been granted under Sections 337 and 338, if the Public Prosecutor certifies that he has not fulfilled the condition of full and complete disclosure. Section 339-A provides that a person by whom a tender of pardon has been accepted, when tried under Section 339, is to be asked whether he pleads that he has complied with the conditions of the pardon, and if it is found that he has, he shall be acquitted. Before considering the rival contentions in this appeal, it will be necessary to refer to Section 494, which it is said o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were entitled thereafter to ignore the provisions of Section 337 and proceed under Section 494. Their Lordships are of opinion that the prosecution were not so entitled, and therefore it is not necessary here to discuss the precise effect of Section 494 or to consider any question which might arise in regard to Section 343, which by its express terms does not apply to Section 337, if action were not taken under that Section. In their Lordships' judgment, what was done here comes substantially within Section 337. The offences charged were within the Section. The tender of pardon was made by a Magistrate, within the terms of the Section. It was expressly made on condition of the person to whom it was addressed making a full and true discl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... falls under Chap. 38, which is headed of the Public Prosecutor, that is to say, the former Section deals with the action of a judicial, the latter with that of an executive officer. Section 494 says nothing about pardons at all. It gives a general executive discretion to withdraw from the prosecution subject to the consent of the Court, which may be determined on many possible grounds, one of which no doubt is that the person in respect of whom the charge is withdrawn may be willing to give evidence. But the whole procedure and the various consequences under Section 494 differ from those under Section 337. No doubt, at a later stage in the present proceedings, the prosecution sought to bring themselves under Section 494, by purporting to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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