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1938 Supreme(SC) 25
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD WRIGHT, LORD ROMER, LORD PORTER, SIR SHADI LAL, AND SIR GEORGE RANKIN.
BAWA FAQIR SINGH - Appellant
Versus
THE KING-EMPEROR - Respondents
On appeal from the High Court at Lahore.
Decided On : July 21, 1938.
Solicitors for appellant:T. L. Wilson & Co. Solicitor for respondent: Solicitor, India Office.
When a magistrate tenders a conditional pardon for disclosure under Section 337 of the Code of Criminal Procedure, the trial must be committed to the Court of Session or High Court; the prosecution cannot avoid this mandatory committal by subsequently invoking the Public Prosecutor's power to withdraw charges under Section 494.
Headnote:(A) Code of Criminal Procedure - Sections 337, 338, 339, 339A and 494 - Indian Penal Code - Sections 120B, 467 and 471 - Tender of pardon to obtain evidence - Jurisdiction of Magistrate - When a pardon is tendered by a magistrate on condition of full and true disclosure and the person is examined, the provisions of Section 337 are brought into operation - Under Section 337(2A), the magistrate must commit the accused for trial to the Court of Session or High Court if reasonable grounds for belief of guilt exist - Prosecution cannot evade this requirement by subsequently seeking withdrawal of charges against the approver under Section 494.
(B) Section 337 vs Section 494 - Section 337 deals with the action of a judicial officer regarding pardons, whereas Section 494 deals with the executive discretion of the Public Prosecutor to withdraw from prosecution - The two are different in character and consequences - If the method of tendering pardon substantially follows Section 337, the mandatory committal to a higher court applies regardless of the prosecution's intent to act under Section 494.
Facts of the case:
An advocate was charged with conspiracy to commit forgery and using forged documents. During the investigation, two co-accused were offered conditional pardons by a magistrate on the condition of making full and true disclosures. These pardons were accepted, and the individuals were examined. The prosecution then applied to withdraw the cases against these individuals under the section allowing the Public Prosecutor to withdraw from prosecution. The trial was subsequently conducted and concluded by a Special Magistrate rather than being committed to a higher court.
Findings of Court:
The trial was conducted without jurisdiction because the procedure followed in tendering pardons and examining the approvers fell substantially within the scope of the section requiring committal to a higher court.
Issues: Whether the action of tendering a conditional pardon and examining the approvers brought Section 337 into operation, thereby requiring the accused to be committed for trial to the Court of Session or High Court, or whether the prosecution could proceed under Section 494.
Ratio Decidendi: When a pardon is tendered as a judicial act under the statutory machinery of Section 337, the subsequent trial must be by the High Court or Sessions Court. Minor irregularities in recording reasons do not affect this operation. The prosecution cannot reap the benefits of obtaining evidence via a conditional pardon under Section 337 while evading the consequence of trial by a higher court by invoking Section 494.
Result: Appeal allowed, and the conviction and sentence set aside.
Legal Category Hierarchy
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crime and sentencing
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offences involving property
- forgery
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offences involving property
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practice and procedure
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criminal procedure
- jurisdiction
- pardon and approvers
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criminal procedure
Judgement
Appeal (No. 38 of 1938), by special leave, from a judgment of the High Court (December 2, 1936), which in part affirmed the convictions and affirmed the sentence passed on the appellant by the Special Magistrate, Lahore (May 28, 1936).
The Special Magistrate convicted the appellant, Bawa Faqir Singh, an advocate of the High Court at Lahore, of conspiring to commit forgery and of conspiring fraudulently to use as genuine a forged document, offences punishable under s. 120B of the Indian Penal Code, read, respectively, with s. 467 and s. 471 of the Penal Code, and he sentenced him to five years rigorous imprisonment.
On appeal by the appellant to the High Court (Skemp J.) the conviction on the charge of conspiracy to commit forgery was set aside, but the conviction on the charge of conspiracy fraudulently to use as genuine a forged document was affirmed, and the sentence of five years rigorous imprisonment maintained.
The relevant facts and circumstances giving rise to the prosecution out of which this appeal arose, and the terms of the material provisions of the Code of Criminal Procedure, appear from the judgment of the Judicial Committee.
1938. June 30. J. M. Pringle for the appellant. G. D. Roberts K.C., W. Wallach and John Megaw for the respondent.
July 21. The judgment of their Lordships was delivered by LORD WRIGHT. The appellant was convicted and sentenced on May 28, 1936, by the Special Magistrate of the District of Lahore under s. 120B (conspiracy) and s. 471 (using as genuine a forged document known to be forged) of the Indian Penal Code. The sentence was a sentence of rigorous imprisonment for five years. The conviction and sentence were confirmed on appeal. The ground of this appeal is that the Special Magistrate had no jurisdiction to try the case, since it came within the provision of s. 337 of the Code of Criminal Procedure, and could only be lawfully tried in the circumstances 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 signature to the promissory note had been forged. On May 14, 1928, the District Magistrate, acting on a police report, directed the issue of warrants against six persons, including the appellant and two other persons, Sain Dass and Vishwa Mitter. On June 3, 1928, the District Magistrate had brought before him Sain Dass, who was then in custody, and read over to him a document which had been enclosed with a letter sent to him by the Local Government. The letter, which was in answer to a communication from the District Magistrate on the question of obtaining evidence from one or more of the accused persons, was in the following terms—
"Subject—Grant of a promise of pardon to Sain Dass son of L. Nagar Mal.
"Sir,
"In reply to your unofficial note No. 751, dated the 19th "May, 1928, I am directed by the Governor in Council to state "that Sain Dass may be offered a promise of pardon in the "terms of the enclosed draft.
"The said enclosed draft ran as follows—
"PROMISE.’
"Whereas Sain Dass son of L. Nagar Mal, caste Khatri, "Manager, Central Co-operative Bank, Karnal, has undertaken "to make a full and true disclosure of the whole of the facts "within his knowledge regarding the criminal activities of "B. Faqir Singh son of B. Bir Singh, Bhalla, Advocate, High "Court, Lahore and other persons mentioned in the margin, "and whereas His Excellency the Governor in Council is "pleased to d
