N.A. Subrahmania Aiyar vs Queen Empress

Charles Arnold White, C.J.—The first point of law which is raised in the certificate of the Officiating Advocate-General is with reference to

the pardon tendered to the Second accused (paragraph A.). The certificate states as follows:""That, in my judgment, the learned Judge who

presided at the First Criminal Sessions of the High Court of Judicature at Madras for 1900, erred in law in deciding that it was competent to him to

tender a pardon to D''Santos not with standing that none of the offences in respect of which the said N.A. Subrahmania Iyer was being tried, was,

with in the meaning of the Criminal Procedure Code, exclusively triable by the High Court.

The question of the legality of the pardon turns entirely upon the construction of Sections 337 and 338 of the Code of Criminal Procedure. On

principle it ft difficult to see why the discretionary power of Judge of a Sessions Court or of a Judge of the High Court to tender a conditional

pardon should, when a case has been committed to a Sessions Court or to the High Court, be limited to cases which were, in, the first instance,

exclusively triable by the Court of Session or High Court."" However, the effect of the words "" such offence"" in Section 338 is to restrict the scope

of the section to the offences referred to in Section 337, viz; offences triable exclusively by the Court of Session or High Court. The offences in the

present case were not triable exclusively by a Court of Session or the High Court. It has been expressly decided by the Calcutta High Court that a

Sessions Judge cannot tender a pardon to an accused under sectien 338 of the Code of Criminal Procedure when the offence for which he has

been committed is not triable exclusively by the Court of Session, Queen Empress v. Sadhee Kasal. On the construction of Section 337 and 338, I

am constrained to hold that it was beyond the powers of the learned Judge to tender a conditional pardon, and that the learned Judge erred in law

in deciding that it was competent to him to tender a pardon to the second accused.

With reference to the question of the legality of the pardon, the certificate of the Officiating Advocate-General proceeds to state that "" therefore

(i.e., by reason of the fact that it was not competent for the learned Judge to tender a pardon to the second accused) ""in the judgment of the

Officiating Advocate-General, the learned Judge erred in law in admitting the evidence given by the second accused as a witness for the drown and

in placing the same before the jury.

In my view the question of the admissibility of the evidence of the second accused as a witness for the Crown must be considered independently

of the question of the legality of the pardon. The course of events at the trial was this. On behalf of the Crown an application was made that a

conditional pardon might be tender-ed to the second accused. The learned Judge declined to consider the application until the second accused had

pleaded to the charges preferred against him. The second accused then pleaded guilty on the 1st, 3rd, 5th and 7th counts of the jndictment, and his

plea was recorded. The learned Judge then tendered a pardon to the second accused u/s 338 of the Code of Criminal Procedure, following the

words of Section 337, and the second accused was then removed from the dock. This is the statement of the learned Judge as to what took place

at the trial and his statement is conclusive. If the learned Judge had made it a condition of pardon that the second accused should plead guilty other

questions would no doubt have arisen for consideration. The learned Judge, however, made no such condition, and the real question, therefore,

which we have to consider is whether, apart from the question of pardon, the second accused, in the events which happened, became a competent

witness for the Crown. This question is not raised in the certificate of the Officiating Advocate-General, but inasmuch as it has been fully argued on

both sides, and inasmuch as it is impossible for this Court to ""review the case,"" as we are empowered to do by Section 26 of the Letters Patent,

without determining this point, I proceed to deal with it.

The English practice when an accomplice is to be called for the Crown is either ILR 10 C. 936 not to include him in the indictment, ILR 2 A

260 to take his plea of guilty or otherwise withdraw his case from the jury before calling him, (3) to offer no evidence against him on the indictment

and take an acquittal before calling him, or (4) to enter a nolle prosequi.

In the case of Winsor v. The Queen, it was held by the Exchequer Chamber, on a writ of error from the Court of Queen''s Bench, that when

two prisoners were jointly indicted and pleaded not guilty, but only one was given in charge to the jury the other was an admissible witness

although his plea of not guilty remained on the record undisposed of Unless precluded from so doing by any express provision of the law of India, I

should be prepared to apply the principle of this decision to the facts of the present case and to hold that, when the second accused had pleaded

guilty, as between him and the Crown, no issue remained to be tried, and that his incompetency to give evidence was removed notwithstanding

that, at the time he gave his evidence, his plea of guilty remained on the record undisposed of.

In support of the view that the evidence of the second accused was inadmissible, it has been argued that the plea of guilty, in itself, did not

amount to conviction, that, at the time he gave his evidence, the trial of the second accused was not at an end, and that the then was an ""accused

person"" and therefore incompetent to give evidence on oath. Our attention was drawn to a number of section; of the Code of Criminal Procedure

sections 243, 245, 246, 255, 257, 263(g) and (A) 305, 306, 307, 309, 412, 562 as showing that the Code of Criminal Procedure contemplates

some further proceeding by the tribunal before which the admission of. guilt is made or the plea of guilty is pleaded before the admission or the plea

becomes a ""conviction."" The word ""conviction"" with its cognate expressions would Seem to bo used somewhat loosely in the Procedure Code.

For example, in Section 271 ""convicted"" seems to mean nothing more than ''sentenced, since the Code contains no other provision for dealing with

an accused person who pleads guilty. It may be that it would have been more strictly regular if the learned Judge, after recording the plea of guilty,

had stated or recorded in set terms that he convicted the second accused on his plea of guilty. But, in my judgment, the question of the admissibility

of the evidence of the second accused ought not to be decided on the narrow and technical ground that he had not been ""convicted"" in the sense in

which the""word is used in certain sections of the Code of Criminal Procedure, but on the broad ground that when he gave his evidence he was not

in charge of the jury and no issue remained to be tried as between him and the Crown.

The authorities relied upon by the defence are in no way in conflict with this view. In Regina v. Hanmanta ILR 1 B. 610 the Bombay High Court

held that the evidence given by a person who had received a pardon in the case of an offence not exclusively triable by the Court of Session was

not relevant inasmuch as the witness had not been acquitted or discharged or convicted. So far as can be gathered from the report, the witness

would seem to have pleaded ""not guilty."" In any case, the question of the effect of a plea of guilty was not raised or considered. The same

observation applies to the judgments of the Allahabad High Court in Empress of India v. Ashgar Ali ILR 2 A 260, and Queen-Empress v. Kallu 3.

The cases in which it has been held that, when one of two per-sons jointly charged pleads guilty, his confession is not admissible against the other,

are illustrations of the proposition that when an accused person has pleaded guilty nothing remains to be tried as between him and the Crown. In

Queen-Empress v. Pahuji 4 A and B were charged with murder. A pleaded guilty, but he was not convicted or sentenced till the conclusion of the

trial of B. The Sessions Judge took into consideration as against B a confession made by A. The Court held that after A had pleaded guilty he

could not be treated as being jointly tried with B, and his confession, therefore, was not admissible as against B u/s 30 of the Indian Evidence Act.

In Regina, v. Kalu Patil it was held by the Bombay High Court that a prisoner who pleads guilty at the trial and is conviated and sentenced cannot

be said to be tried jointly with other prisoners, committed on the same charge who plead not guilty; and in Venkatasami v. The Queen, where the

prisioner at the time he gave his evidence had pleaded guilty but had not been sentenced, a Judge of this Court decided the same point in the same

way. A Divisional Bench of this Court has recently decided see Queen-Empress v. Chinna Pavuchi ILR 1 B. 610, that a trial does not necessarily

come to an end with a plea of guilty. Using the word trial in its popular and not in its technical sense, this is a proposition which is indisputable. In

the present case the "" trial""--in the non-technical sense--of the second accused had obviously not come to an end when he gave his evidence,

seeing that after he had given his evidence he was sentenced on his plea of guilty. But the question is not whether his trial had come to an end, but

whether his incompetency to give evidence had been removed. In my judgment, when the second accused gave his evidence he was not an

incompetent witness, and an oath could be lawfully administered to him. I think his evidence against the first accused was rightly admitted.

The next question for consideration is whether the first count of the indictment is bad. As to this the Officiating Advocate-General certifies as

follows:"" That, in my judgment, the said learned Judge erred in law in not striking out the 1st count from the indictment, but trying and convicting the

said N.A. Subrah-mania Iyer on it, and in allowing evidence to be adduced by the Crown in respect of the 1st count, as regards matters of alleged

extortions of money and illegal gratifications therein specified, other than those forming the subject-matter of the 2nd, 4th and 6th counts, and

placing the same before the jury."" The count alleges that the two accused in the month of March 1898 conspired, and until November 1898

continued to conspire, to extort money and obtain illegal gratifications from clerks for the first accused, and that in pursuance of this conspiracy the

first accused obtained for himself through the second accused diverse sums of money from four individuals.""The count specifies the moneys thus

alleged to have been obtained. For the purposes of the question now under consideration it is sufficient to say that the sums of money thus

specified are more than three in number, and that the period during which it is alleged these sums of money were obtained exceeds one year. The

count then charges both accused with having committed an offence punishable under sections 109 and 384 and sections 109 and 161 of the Indian

Penal Code.

Under the English law the agreement or combination to do an unlawful thing or to do a lawful thing by unlawful means amounts, in itself, to a

criminal offence.

The only provision in the Indian Penal Code which makes the mere combining or conspiring without more, a criminal offence is contained in

Section 121A which provides:

Whoever within or without British India conspires to commit any of the offences punishable by Section 121, or to deprive the Queen of the

sovereignty of British India or of any part thereof, or conspires Jo overawe, by means of criminal force or the show of criminal force, the

Government of India or any local Government, shall be punished with transportation for life or any shorter term, or with imprisonment of either-

description which may extend to ten years.

Explanation:To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall take place in pursuance thereof.

Section 107 of the Penal Code provides that a person abets the doing, of a thing who engages with another person in a con-spiracy for the

doing of that thing if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing. Explanation ILR 2

A 260 to Section 108 provides that to constitute the offence of abetment it is not necessary thai the act abetted should be committed, or that the

effect requisite to constitute the offence should be caused. Section 107 does not create any offence It merely specifies three ways in which the

doing of a thing may'' be abetted. Under this section the offence of an abetment of an offence by instigation may be committed although nothing is

done as the result of the instigation, but it is a necessary ingredient of the offence of abetment of an offence by conspiracy that an act or illegal

omission should take place in pursuance of the conspiracy Thus a charge of abetment of an offence by conspiracy which did not allege an act done

in pursuance of the conspiracy would, under the Indian law, be bad upon the face of it. Section 108 provides:

A person abets an offence who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by

a person capable by Jaw of committing an offence with the same intention or knowledge as that of the abettor.

Section 109 provides the punishment for the offence of abetting an offence. It is in these terms:

Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code

for the punishment of such abetment, be punished with the punishment provided for the offence.

This section does not say if the offence is committed but if the act abetted is committed. This shows that in cases of abetment by conspiracy a

punishable offence has been committed as soon as an act has been done in pursuance of the conspiracy. I do not think the words ""act abetted"" are

used in Section 109 as a synonym for offence."" No doubt there are sections of the Penal Code in which the word ''act'' is used as meaning offence.

But in Section 109 and in the illustration thereto a distinction seems to be drawn between an act abetted and an offence committed. The first count

charges a continuous abetment of an offence by conspiracy. The allegations as to things done or in the phraseology of the English law ""overt acts

are not allegations of separate offences and are not charged as such: they are allegations of things done in pursuance of the conspiracy which may

or may not amount to offences in themselves. These acts are charged in order that the jury may draw the inference, if, in their opinion, the evidence

supports such inference, that the offence of abetment of extortion or abetment of bribery by conspiracy has been committed. In my opinion the first

count only alleges one offence--that of the abet-ment of an offence by conspiracy. In my opinion, apart from the question as to whether changes in

the substantive law could be effected by the provisions of a Code of Procedure, it was not the intention of the Legislature, by the introduction into

the Procedure Code in. 1872 of the section which corresponds with Section 233 of the present Code, to alter or modify either as to form or

substance the law of abetment by conspiracy as laid down in the Penal Code.

Further, the proposition that in laying a charge of conspiracy by abetment the number of overt acts which can be alleged is restricted to three

by reason of sections 233 and 234 of the Code of Criminal Procedure is inconsistent with the express provisions of Section 10 of the Evidence

Act, 1872.

It has been objected that the first count contains charges of abetment by conspiracy of two offences--bribery and extortion. Having regard to

the provisions of sections 235(2) and 236 of the Code of Criminal Procedure, this objection cannot be sustained.

In my opinion the first count charges only one offence, the form in which it is drawn does not contravene any of the provisions of the Procedure

Code, and the count, in itself, is a good count.

The next point of law which has to be considered is the question of the legality of the trial of the first accused on the first, second, fourth and

sixth counts at one trial. As to this the Officiating Advocate-General certifies that, in his judgment, the learned Judge erred in law in trying the first

accused on the first, second, fourth and sixth counts at one trial. In my opinion the indictment, as a whole, is bad for misjoinder, and the learned

Judge erred in law in trying, the first accused on the first, second, fourth and sixth counts at one trial. The first count charges, as against the first

accused, the offence of abetment of bribery, or of extortion by conspiracy. This is a distinct offence. The second count charges against him a

specific act of bribery or extortion committed on 27th August 1896. This is a distinct offence. The fourth count charges against him a specific act of

bribery or extortion, committed on 1st March 1897. This is a distinct offence. The sixth count charges against him a specific charge of bribery

committed on 10th May 1897. (It was admitted by the Junior Counsel for the Crown that it was intended by this count to charge the substantive

offence and not the abetment of an offence. The refer-ence to Section 109 must be taken to be a clerical error. Otherwise the count is

meaningless). The offence charged in the sixth count is a distinct offence. We thus have an indictmant in which the accused is charged with more

than three distinct offences in contravention of sections 233 and 334 of the Code of Criminal Procedure. The question then is--can the indictment,

as a whole, be supported on the ground that it charges offences committed in one series of acts so connected as to form the same transaction

within the meaning of Section 235 of the Code of Criminal Procedure? I think the answer to this question must be in the negative. '' If. the series of

acts alleged in counts 2, 4 and 6 of the indictment are not themselves so connected as to form one transaction, it is obvious that the offence of

abetment by conspiracy cannot be said to have been committed ""in one series of acts so connected together as to form the same transaction."" In

my judgment neither the words of the section nor the illustrations thereto would justify the construction of the words ""the same transaction"" as

applicable to the acts alleged in counts 2, 4 and 6 of the indictment in the present case. This view, moreover, is strongly supported by authority. I

need only refer to the cases of Queen-Empress v. Fakirapa, Re Luchminarain,2 and Queen-Empress v. Chandi Singh 8.

Section 222(2) of the Code of Criminal Procedure is an express provision that when the accused is charged with criminal breach of trust or

dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been

committed and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates, and the

charge so framed shall be deemed to be a charge of an offence within the meaning of Section 234. An express enactment was thus considered

necessary in the case of a series of acts of dishonest appropriation of money, or of criminal breach of trust, to bring the case within the, scope of

Section 234. In the absence of any express enactment applicable to the facts of the present case, it seems to me that the contention that the acts

alleged in counts 2, 4 and 6 of the counts form the same transaction cannot be supported. More. over, the proviso to Section 222(2) shows the

intention of the Legislature that no further departure from the law as laid down in sections 233/234 and 235 should be made than was necessary,

for the purposes of that particular enactment.

The point of law raised in paragraph D of the Officiating Advocate-General''s certificate was not pressed by the defence.

In paragraph E the Officiating Advocate-General certifies that, in his judgment, the ruling of the learned Judge disallowing the examination of

the defence witnesses in reference to certain documents and excluding the said documents from the evidence should be further considered.

The documents in question are--

A post-card, dated 14th May 1897, and a letter, dated 8th August 1898, purporting to have been written by one Isyara, a brother of the 6th

defence witness Sivachendra Rau.

Certain postal receipts. It was not seriously contended that the postal receipts were admissible or that, if admissible, they proved anything

material to the ease. It is only necessary therefore to deal with the admissibility of the post-card and the letter.

Isvara died before the trial.

The case for the Crown was that two 50-rupee notes had been given to the first accused as a bribe and that the witness Sivachendra Rau had

on behalf of the first accused exchanged these two 50 rupee notes into a currency note for Rs. 100. Sivachendra Rau gave evidence to the effect

that on the 3rd May he received Rs. 100 from a chit fund; that he lent this amount to Balasundram on 3rd May for a week, after telling him that he

the witness wanted it for his brother''s marriage; that on 10th May the two 50 rupee notes were given to the witness by Balasundrarn in repayment

of the loan; that the witness exchanged these two notes into a 100-rupee currency note with the object of sending it to his brother Isvara, but that

he did not in fact send it; that Isvara. wrote the witness a letter which was missing; that the witness wrote Isvara a letter, for which he had asked

Isvara but which he did not get, that he witness recieved a post-card the post-card in question on 15th May 1897, that in consequence of that

postcard he did not send the 100-rupee currency note to Isvara but kept it until May 25th.

It was conceded by the defence that the post-card was not admissible in evidence u/s 32 of the Evidence Act, or under any special provision

of law relating to statements made by deceased persons.

The defence contended that the contents of the post-card were admissible in evidence as proving 6r helping to prove--

(1) that the witness had in fact written a letter to Isvara to which the post-card of 14th May was a reply;

(2) that the witness had made a statement in a letter to Isvara connecting a 100-rupee note with moneys received by the witness, from a chit fund;

(3) that Isvara made a certain request to the witness with reference to the sum of Rs. 100.

As regards (1) and (2), i.e., the fact that the'' witness had written a letter to Isvara and the fact that the witness had made a statement

connecting a 100-rupee note with a chit fund, this so-called evidence amounts to nothing more than a statement by the witness of a statement made

by Isvara in writing of a statement alleged to have been made by the witness to Isvara. The defence sought to use the post-card as, evidence, or

corroborative evidence, of the existence of a chit fund and of the fact that a 100 rupee note was the proceeds of a chit fund. If Isvara had been

alive, bis cral testimony that the. witness had made a statement to him connecting a 100-rupee note with a chit fund might perhaps have been

admissible u/s 157 of the Evidence Act. But Isvara being dead the statement by the witness of what Isvara said the witness said cannot be

admissible. As regards (3) it is a statement by the witness of a statement alleged to have been made to the witness by Isvara. Evidence of the fact

that a statement was made would be admissible. Evidence of the terms of the statement is inadmissible. The sections of the Evidence Act to which

our attention has been called have no application. They would have been in point if Isvara had been in the witness-box and the question had been

whether evidence by Isvara of statements made by Siva-chendra Rau to him was admissible. They lend no support to the proposition that

something which Sivachendra says Isvara said, Sivachendra said, or something which Sivachendra says Isvara said, can be regarded as legal

evidence. The letter of 8th August 1898 was inadmissible in evidence for the same reasons. I do not feel the least doubt that both letters were

inadmissible in evidence and were rightly rejected by the learned Judge.

In paragraph F of his certificate, the Officiating Advocate-General certifies that in his judgment the direction by the learned Judge in a portion

of his charge to the jury is a misdirection in law. A passage was read to us from what purports to be a shorthand note taken on behalf of the

defence of the learned Judge''s summing up. The learned Judge tells us that the shorthand note is imperfect, and it is obvious that the statement in

paragraph 11 of the Officiating Advocate-General''s certificate which purports to be a statement is a summarised form of the portion of the charge

which is said to amount to a misdirection in law, is inconsistent with the shorthand note.

If the learned Judge laid it down as law to the jury that it was the duty of the Magistrate, u/s 212 of the Code of Criminal Procedure, to

summon and examine any witness named in any list given in to him u/s 211, this would in my judgment amount to misdirection.

At the conclusion of the argument on the points of law raised in the Officiating Advocate-General''s certificate it was intimated to Counsel that

the majority of the Court being of opinion that the first count ought to have been struck out of the indictment, the Court would review the case

against the first accused on the evidence on record relating to the charges preferred against him in the 2nd and 6th counts of the. indictment, the

first accused having been acquitted on the 4th count.

An objection was then raised by Mr. Norton on behalf of the defence, that, in view of the opinion of the majority of the Court that the first

count ought to have been struck out of the indictment, it was not competent to this Court to review the case on the evidence or any portion of the

evidence, and that inasmuch as (as the defence contended) Section 26 of the Letters Patent gave no power to order a new trial, the first accused

was entitled, on the findings of the Court upon the points of law, to be acquitted or discharged.

It was argued that Section 238 of the Code of Criminal Procedure is in its terms imperative, that a trial which had been Conducted in

contravention of the provisions of the section was an illegal trial, that inasmuch as the jurisdiction of this Court was based upon Section 26 of the

Letters Patent, the Crown could not pray in aid the provision of Section 537 of the Code, and that, even if they could, Section 537 applied only to

proceedings in which an irregularity had been committed and not to a trial which was illegal ab initio. In support of this contention the defence relied

upon the decisions in the cases amongst others of Queen-Empress v. Chandi Singh l, Be Luchminarain ILR 2 A 260 Queen Empress v. Fakirapa 3

Pulisanki Reddi v. The Queen and on a passage in the judgment of the Calcutta High Court in. a case reported in Nilratan Sircar v. Jogesh

Chunder. The short answer to this contention appears to me to be that the question is not whether any irregularity or illegality in the trial is curable,

but whether under the powers conferred by Section 26 of the Letters Patent this Court has power to review the case notwithstanding the

irregularity on-illegality. The condition precedent to the exercise of the powers conferred by Section 26 of the Letters Patent, the granting of a

certificate by the Advocate-General that in his judgment there has been an error in the decision of a point of law or that a point of law should be

further considered, has been fulfilled. This is the only condition precedent prescribed by the section to the exercise of the powers conferred by the

section. Section 233 is a provision in a Code of Procedure, and, in my judgment, a contravention of the provisions of this section does not render a

trial ""illegal"" so ,as to preclude this Court from exercising the jurisdiction conferred upon it by Section 26 of the Letters Patent, if the conditions

precedent prescribed by the section to the exercise of that jurisdiction have been fulfilled.

It was also argued that it was not competent for this Court to review the evidence inasmuch as, by so doing, we should be usurping the

functions of a jury, and substituting the judgment of the Court for the verdict of a jury. This was the view taken by Mr. Justice Bayley in the

judgment delivered by him in the case of Beg. v. Navroji Dadabhai ILR 2 A 260. The majority of the Court, however, were of opinion that they

had jurisdiction to review the evidence and pass such judgment thereon as they thought fit. In. The Queen v. Hurribole Chunder Ghose 3, Sir

Richard Garth in the course of his Judgment said (page 218)"": "" Apart, "" however, from Section 167 of the Evidence Act, I think ""that, u/s 26 of

the Letters Patent, by virtue of which "" this case has been submitted to us for review, we have a right "" either to quash or to confirm the conviction,

as we may think ""proper. The section enables the Court, after deciding upon "" the point reserved or certified, to pass such judgment or "" sentence

as it may think right. If, therefore, upon reviewing ''''the whole case, we are"" of opinion that, upon the evidence "" properly redeived, there is

sufficient ground to convict the "" prisoner, I consider that we ought to allow the conviction to ""stand.

In Imperatrix v. Pitamber Jina ILR 1 B. 610 the Bombay High Court took the same view. In The Queen-Empress v. O''Hara a Full Bench of

the Calcutta High, Court, after hearing argument upon the point, held that it was competent for them in dealing with a case under the Letters Patent

to review the case upon the evidence notwithstanding that at the trial there had been improper reception of evidence and misdirection by the

learned Judge who tried the case. Thus in Bombay and Calcutta it appears to be now settled law that it is competent tor a Court dealing with a

case under the Letters Patent, to review the case on the evidence properly admissible at the trial. ''The defence has been unable to call our

attention to any decision or dictum, where the question before the Court has been the powers of the Court under the Letters Patent, which is in

conflict with the established practice in Calcutta and Bombay, excepting the dissenting judgment of Mr. Justice Bayley in 9 B.H. C.R. 358. With

regard to Mr. Justice Bayley''s judgment it is to be observed that, for the purposes of his judgment, he appears to have assumed that Section 167

of the Evidence Act did not apply to criminal cases. It is now well settled, as was conceded'' by the defence, that Section 167 applies to criminal

as well as to civil proceedings. The argument for the defence, so far as the question of the improper admission of evidence is concerned, is

insonsistent with the express words of Section 167.

The defence, however, contended that the decisions to which I have referred above ought not to be followed, having regard to the judgment of

the Court for the consideration of Crown Cases Reserved in The Queen v. Gibson 3 and that of the Judicial Committee in Makin v. Attorney-

General for New South Wales, The former case was decided before the decision of the Calcutta High Court in The Queen v. O''Hara ILR 2 A

The latter was after that decision. As regards the latter case the question Jurned on the construction of a section of the New South Wales

Criminal Law Amendment Act, 1883, which is taken almost word for word from Section 2 of the Crown Cases Act, 11 and 12 Vict., C. 87. This

section does not give to. the tribunal to whom the points of law are referred power to "" review the case."" The English legislature, in enacting

Section 26 of the Letters Patent, might have followed closely the provisions of the Crown Cases Act. They did not think fit to do so.

It must be taken that the variation in the language adopted. by the framers of the Letters Patent in Section 26 when compared with the section

of the Statute which evidently served as a model was not an accidental variation, but had reference to a substantial difference in the circumstances.

The Court for the Consideration of Crown Cases Reserved having regard to the function which it has to perform has no need to have any record

of the evidence in the case before it save so far as is required to explain how the reserved points of law came to be raised. A case stated is

sufficient for the purpose. Anything like an examination or weighing of the evidence is not necessary, because the Court does not assume the

function of a jury. Legislating for this country, the framers of the Letters Patent found that they had to provide for a different state of things, because

they presumably had before them the Evidence Act of 1855, Section 57 of which casts upon a Court dealing with objections to the admissi-bility

of evidence admitted in another Court whose decision is under consideration, the duty of appreciating the weight of the evidence which remains

after that which ought not to have been admitted is put aside. The Court is enjoined not to reserve the decision if the residuum of evidence is

sufficient to justify the decision, or if the ''decision would not have been affected by the admission of evidence improperly, rejected.

If we are right in holding, as has been frequently held, that this suction applies to decision in criminal matters, the departure from the

phraseology of the Statute of 1848 is explained. Obviously a case stated by the Judge would not avail and nothing short of a review of the whole

evidence would suffice if the Court is to be placed in a position to comply with the provisions of the Evidence Act.

I cannot accede to the argument that, notwithstanding the fact that the Legislature in the Letters Patent departed from the model of the Crown

Cases Act and introduced certain words giving a power to review the case, the section is nevertheless to be construed as if the powers of this

Court, in dealing with a case u/s 26 of the Letters Patent, were no greater than the powers of the Court for the Consideration of Crown gases

Reserved.

In Queen-Empress v. Ramachendra Govind Harshe ILR 1 B. 610 it was held by the Bombay High Court in 1895, that the law as settled in

England by the Queen v. Gibson and as stated by the Privy Council in Makin v. Attorney-General for New South Wales with reference to the

granting of new trials when evidence has been improperly admitted does not apply to India, and that when part of the evidence which had been

allowed to go to the jury was held to be inadmissible, it was open to the High Court in appeal either to uphold the verdict upon the remaining

evidence on record, or to quash the verdict and order a new trial. A different view, however was taken by the Calcutta High Court in Wafadar

Khan v. Queen-Empress ILR 2 A 260. It is not necessary to express an opinion as to which of these two conflicting decisions with reference to

the powers of a High Court as a Court of Appeal in cases where evidence had been improperly admitted is right. It is sufficient to say that in my

judgment neither the decision of the Court for the consideration of Crown Cases Reserved, nor that of the Judicial Committee apply when the

Court is acting in exercise of the powers conferred upon it by Section 26 of the Letters Patent.

The real intention of the Legislature in Section 26 is not easy to determine, but I think the construction which has been placed upon it by the

Calcutta and Bombay High Courts is the right one. It is at any rate consistent with the words of the section and it seems suitable to the special

circumstances in which the administration of the criminal law is carried on in this country.

I think the objection which has been raised as to our jurisdiction to review the case upon the evidence should be overuled.

Shephard, J.

Agreeing generally with the judgmenj of the Chief Justice, I intend to confine my observations to the question raised with reference to the first

count of the indictment. In this particular case the question has become compara tively unimportant in consequence of the fact that the majority of

the Court are agreed that as the four counts cannot stand together this first count must be struck out. Still as the question has been fully argued, ''I

think I ought to explain my views on the matter. If I have rightly understood the argument on behalf of the prisoner, two distinct points are made

against the first count. One point is that the count charges, not one, but several offences; the other the more generally important point is that a count

charging a consplracy to commit one offence and averring the doing of acts in pursuance of that conspiracy which amount to offences is not a good

count according to the Indian Penal Code.

As regards the first point, it is urged on behalf of the Crown that what is charged is one conspiracy and not several conspiracies, and that the

allegations of acts done in pursuance of the conspiracy are not allegations of offences committed and that, therefore, it is wrong to say that more

than one offence is charged. It seems to me that this is the right view. Whether, in fact, there was one engagement and not several successive

engagements, whether such a conspiracy as is charged is likely to be proved to the satisfaction of a jury, and whether it is wise or fair for the

prosecution to make such a charge where evidence of offences committed in pursuance of the alleged conspiracy is forthcoming--these are matters

with which we are not now concerned. The simple question is whether the words in the count indicate one offences or more than one. If the count

after avering the conspiracy had gone on to allege that acts not in themselves criminal had been done in pursuance of the conspiracy, it could hardly

be questioned that the only charge made was that of combining together to obtain money in an illegal manner from the clerks of the department. It

could not then have been urged that, because the clerks were numerous or because the agreement was maintained for a series of months,

thatothere were in fact, several agreements. The evidence might have shown that that was the case, but that, as I have said, is a matter which does

not concern us. Let me put the case of a man instigating another to do an act which may result or is intended to result in the death of several

persons at the same time, supposing that.in fact.(nothing more is alleged to have been done. According to the. Penal Code mere instigation without

more may be charged as an offence. Can it be said that although the instigation consisted of one single act done at one moment of time, it must be

taken that there were several instigations, each of which should be charged separately? It appears to me that as there may be one instigation to

commit several criminal acts, so there may be one conspiracy to do such acts--an engagement in a criminal partnership--and that is what the first

count charges. The count goes on to aver in conformity with the requirements of Section 107 the acts don in pursuance of the conspiracy. It cannot

be said that these acts, whatever may be the character of them, are charged as criminal. The gist of the averment is that they are acts done in

pursuance of the conspiracy--acts which u/s 10 of the Indian Evidence Act are relevant for the purpose of proving the aileged conspiracy.

It was suggested from the Bench, I think, and not at the Bar, that the reference in the count to Section 109 of the Indian Penal Code indicating

that the offence abetted had been committed, shows that the intention was to charge several offences. The question whether Section 109 or

Section 116 should be named is only material with reference to the sentence. If by mentioning Section 109 it was intended to allege that one of the

two prisoners had committed the offences which were the object of the conspiracy, then no doubt the count would be open to the objection that it

charged two or more offences against one person, but I do not think that was intendod The obtaining of moneys which is averred as the act done

in furtherance of the conspiracy is within the meaning of Section 109 an act committed in consequence of the abetment, and although it must almost

necessarily have been itself a criminal act, it is not described in such terms as to make it criminal. If the first count had been the only count and the

prisoner had been sentenced u/s 109 to a punishment which could not have been adjudged u/s 116,1 think the sentence would have been wrong,

for the reason that the commission of the ""completed offence was not distinctly charged against him. The main argument on behalf of the prisoner

was based on the proposition that conspiracy is a crime unkn�wn to the-law of India. That is a proposition which has to be examined exclusively

with reference to the language of the Penal Code and without regard to the provisions of the Code of Criminal Procedure; for it is not suggested

that the latter Code, either the present Code or its predecessor of 1872, has in any respect altered the substantive law. It is said that the framers of

the Indian Penal Code have, by treating conspiracy as a mode of abetment, evinced their intention to break away entirely from the English law, and

that therefore no light on the-subject can be derived from that source. I do not think this is the case. The points in which the law of England

resembles the law of the (Indian) Penal Code appear to me quite as important as the differences. According to English law conspiracy Consists in

the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. Dismissing the second alternative and

substituting in the first '' criminal'' for '' unlawful,'' the Penal Code designates as an offence the engagement between two or more persons in a

conspiracy to commit an offence. The verb ""conspire"" is not used, and the offence is not called conspiracy, but in substance it is the engagemsnt in

a conspiracy or the conspiring which is the offence. It is none the less so because the constituents of the offence are found in two sections of the

Code and not in one as is the case with Section 121A. It is true that in order to charge the offence of conspiracy under Chapter V the prosecution

must aver and prove, what is not necessary to aver and prove u/s 121 A, that an act has been done in pursuance of the conspiracy. Here there is a

departure from English law, but the importance of the difference is greatly diminished by the fact that the Court has power in England to order the

overt acts or particulars of the conspiracy to be stated for the benefit of the prisoner. Although a person cannot be convicted of abetment by

conspiracy unless it is proved that an act was done in furtherance of the conspiracy, the fact remains that it is the ''agreement which constitutes the

offence, and this, I think, is shown by the circumstance.that if one of a dozen conspirators does such an act the rest may be convicted although they

were absolutely ignorant of what was done. (See the illustration to Section 10 of the Evidence Act). When once the conspiracy has advanced to

such a point that acts in furtherance - of it have been done by any member of the conspiracy, the offence is cpmplete, and I cannot understand why

it should cease to be chargeable as such because other offences have also been committed. In other words, I think that a man remains chargeable

as an abettor although he may also be chargeable as having committed the offence abetted. The cases may be rare, but still cases may welahappen

in which it may be expedient or comparatively easy to prove the conspiracy and almost impossible to prove that the offence or effences which the

conspirators had in view were committed. In my opinion, therefore, a count charging conspiracy is not bad in law because in the averment of acts

done it alleges acts which might themselves be charged is substantive offences. So long as one engagement or conspiracy is alleged and that only is

the distinct offence charged, I do not think the count offends against the provisions of the Criminal Procedure Code because other offences are

averred as acts done in pursuance of the conspiracy.

Benson, J.

I concur in the judgment which has been delivered by the learned Chief Justice on the various points of law which have been raised before us,

except in regard to the legality and propriety of the first count of the charge. In my opinion that count is bad in law, in that it offends against the

provisions of the Code of Criminal Procedure which are designed to protect an accused person against the danger and difficulty of having to

defend himself against a multiplicity of charges at'' one and the same trial. The contention that the count is drawn in accordance with the practice

and procedure which obtains in the criminal courts in England is 6eside the mark, since the Criminal Procedure Code is not in force in England and

the law of procedure in the criminal courts of the two countries differs in many respects, The procedure of the courts in India is regulated by the

Criminal Procedure Code, and it is by its provisions that the validity of the charge must be determined.

Section 233 of that Code enacts 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 to 236 and 239. "" Of these the only exceptions that are of any

importance in regard to the matter before us are those in sections 234(1) and 235(2). 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 to the last of such offences, he may be

charged with, and tried at one trial for, any number of them not exceeding three "" and Section 235(1) provides that If, in one series of acts so

connected together as to form the same tftins-action, more offences than one are committed by the same person he may be charged with, and tried

at one trial for every such offence.

Thus the fundamental rule is that for each offence there must be a separte charge, and each charge must be dealt with in a separate trial but as

exceptions to this rule, several offences committed by the same person in one and the same transaction may be tried together, as may also not

more than three distinct offences of.the same kind all committed within the space of one year. Does the 1st count comply with these conditions?

Shortly stated it is as follows:That you, Subrahmania Iyer and D''Santos, in March 1896, did conspire and combine together, and thereafter,

until November 1898, did continue to conspire and combine for the purpose of extorting bribes for Subrahmania Iyer, in pursuance of which

conspiracy, Subrahmania Iyer did obtain for himself through D''Santos diverse sums of money from various persons, at various times, and thereby

committed an offence punishable under sections 109 and 384 and under sections 109 and 161, Indian Penal Code. Four persons are named as

having paid the bribes. The first of these is said to have paid (an unstated number of) sums aggregating Rs. 680, in the course of three years 1896-

-1898, the second is said to have paid three sums, the third one sum and the fourth four sums on various specified dates. Here it is necessary to

bear in mind the distinction between the English and the Indian-Law in regard to conspiracy. Under English Law the mere agreement to commit an

offence is itself an offance, but under the Indian Penal Code this is not so except as regards certafn offences against the State u/s 121 Indian Penal

Code. So far as other offences are concerned con spiracy is dealt with merely as one of the modes of abetment, and the mere agreement or

conspiracy to commit an offence, is not an. offence unless some act or illegal omission takes place in pursuance of the agreement and in order to

the commission of the offence (sections 107 and 108). The act need not be a criminal act, still less, the offence abetted. It is enough if any act is

done in pursuance of the conspiracy and in order to the commission the offence abetted. If the offence abetted is committed in consequence of the

abetment, the punishment is the same as for the offence abetted (Section 109). Even if the offence is not committed in consequence of the

abetment, still the abetment is an offence and may be punished under sections 115 and 116 though less - severely than in the former case.

Let us now consider the first count of the charge against the accused.

The learned Advocate-General contends that what is charged in this count is merely a single conspiracy or agreement to extort bribes, and that

though the conspiracy continued for some two years and eight months, and was evidenced by the payment of many sums of money, by various

persons, and at various times, during that period, yet only one offeace is charged, viz., a conspiracy to extort bribes. In my judgment, however, it is

difficult to accept this contention. If the allegations in the count are analysed, they seem to set forth not a single agreement to extort, but a series of

such agreements extending over nearly three years. It is not contended, nor is it possible to contend, that there was from the beginning a conspiracy

to extort all the various sums mentioned in the charge. There was only an agreement to extort money generally at first, and from time to time

thereafter, as opportunity arose, there were further agreements or conspiracies to extort the particular sum or sums then in view. This, I think, is the

only meaning which can with accuracy be attached to the words ""did thereafter continue to conspire."" The words cannot refer to a single

agreement, but must refer to a succession of agreements. No doubt, the agreements to extort the particular sums may have been in�pursuance of

an original arrangement, but each agreement to extort any sum followed by an act in pursuance of the agreement, was by itself a separate and

complete offence of abetment of extortion and might have been charged by itself as such offence. If each of these agreements had been separately

charged not more than three of them (occurring within one year) could have been tried together at one trial in accordance with Section 234,

Criminal Procedure Code.

But the prosecution, by treating the first count as if it refer-red to a single offence only, has let in evidence in regard to what is in reality a series

of many offences, and lias thas tendered the protection designed by sections 233 and 234 nugatory.

The prosecution cannot, in my judgment, get rid of the fact that a series of separate agreements, or conspiracies are charged, by saying that

those conspiracies were in pursuance of an original arrangement. The charge is not only that there was a conspiracy in March 1896,"" but that,

thereafter, during nearly three years, the accused did continue to conspire, and, in pursuance of the same did obtain various sums of money at

various times and from various persons. Each time they conspired and obtained money in pursuance of the same there was a separate and

complete offence.

It is easy to understand that there might be a conspiracy consisting of a series of agreements'', extending over years, to commit a single offence

as the final outcome of the conspiracy. Such a conspiracy might well be called a continuing conspiracy. So long as it was a conspiracy only, no

offence would, under the Indian law, be committed, but as soon as an act was done in pursuance of the conspiracy, and in order to commit the

offence abetted, then the offence of abetment of an offence would be complete, and there would be only a single offence of abetment though there

had been a series of agreements leading up to it. In the same way, there might be a single agreement to commit a number of offences. Such

agreement (when followed by an act in pursuance of the agreement and in order to the commission of the offence) would be a single offence, not a

series of offences. But neither of these is the kind of conspiracy charged against the accused in the present case. Here there are alleged a series of

acts, from March 1896 to November 1898, done in pursuance of the series of agreements implied in the words"" did continue to conspire and

combine."" This series of agreements, followed by a series of acts done pursuance of the agreements, constitutes, in my judgment, a series of

separate and complete offences, for each of which a separate charge ought to have been framed u/s 233, Criminal Procedure Code. A number of

such offences cannot be charged together by saying that they evidence a continuing conspiracy to commit offences of the kind generally, since to

do so would render nugatory a protection given by Section 233. Three of these charges, (but only three), provided they occurred within one year

from first to last, might have been tried at one trial u/s ''234, Criminal Procedure Code. As there were in reality many more than three of these

offences involved in the first count, and as they were spread over a longer period than one year, that count is, in my opinion, bad in law.

In dealing with this first count I have proceeded on the supposition that the acts referred to therein are not necessarily offences. The argument

would be good even though all the acts were innocent in themsees There can, however, be little doubt but that the acts referred to were in

themselves offences. Three of the acts are, in fact, charged in the 2nd, 4th and 6th counts as separate offences and there is nothing to suggest that

the other acts were of a different character, while the reference in the count to Section 109, Indian Penal Code, indicates that the offence abetted

was actually committed. If the acts were in themselves offences, the argument against the propriety of the first count becomes the more cogent. The

exception provided in Section 235(1) has, in my judgment, no application to the facts of the present case, since it is impossible to hold that the

series of acts to which I have referred were so connected together as to form ""the same transaction"" within the meaning of that section. There were

at least four sets of transactions connected with the payments made by the four persons named in the count, and the only connection that appears

between the transactions is that jn each case the blackmail was paid to the same persons, viz., the accused.

In the result them, the first count of the charge is, in my judgment, bad in law in that it offends against the limitation imposed by Section 233,

Criminal Procedure.Code.

This conclusion, however, is of little practical importance as the Court has, on other grounds, decided that the first count ought to be struck out

of the indictment?

Moore, J.

In paragraph B of the Offciating Advocate-General''s certificate he certifies that, in his judgment, the learned Judge who presided at the trial of

Sessions Case No. 2 of 1900 on the file of the High Court erred in Jaw in not striking out the first count from the indictment but trying and

convicting the first pri-soner N.A. Subrahmania Iyer on it and in allowing evidence to be adduced by the Crown in respect of the first count as

regards matters of alleged extortions of money and illegal. gratifications therein specified other than those forming the subject-matter of the 2nd, 4th

and 6th counts and placing the same before the jury. In my opinion the objection to the first count here raised is a valid one, and it must be held

that that count was bad in law. That count is to the effect that Subrahmania Iyer and D''Santos (2nd prisoner), from March 1896 up to November

1898, conspired and combined together for the purpose of extorting money and obtaining illegal gratifications for N.A. Subrahmania Iyer from

clerks in the Accounts Branch of the Military Accounts Department, in pursuance of and according to which conspiracy Subrahmania Iyer

obtained for himself through D''Santos from Kalyana Chetty during the years 1896, 1897 and 1898 a sum amounting in the, aggregate to Rs. 680,

from Balasundra Mudali a sum of Rs. 100 on one occasion, of Rs. 50 on another and of Rs. 100 on a third occasion, from K. Srinivasa Chari a

sum of Rs. 100, and from Vedachala Chetti a sum of Rs. 5 on one occasion, a sum of Rs. 5 on another, a sum of Rs. 3 on another, and a further

sum of Rs. 3 on a fourth occasion; and that they thereby committed offences under sections 109 and 384 and 109 and 161 of the Indian Penal

Code, i.e. that they committed the offences of abetting the commission of extortion and bribery in cases where the acts abetted were committed in

consequence of the abetment (Section 109, Indian Penal Code). It will be found that it was alleged that Kalyana Chetti had paid Rs. 40 in March

1896 and Rs. 20 in every succeeding month up to and including November 1898, i. e,, that he made thirty-three distinct payments on thirty-three

different occasions. ? C. Balasundra Mudali is stated to have made three payments on three occasions, K. Srinivasa Chari one payment, and C.

Vedachala Chetti four payments on four different occasions. It was, therefore, charged against the prisoners that they had made forty-one illegal

collections from four clerks on forty-one distinct occasions dating from March 1896 to November 1898. Such being the case, it appears to me

that it must be held that the prisoners were in fact charged on the first count with having committed forty-one distinct offences of abetment of

extortion where the extortion was committed in consequence of the abetment on forty-one different occasions ranging over a period of two years

and eight months and of having committed forty-one similar dis-tenct offences of abetment of bribery and that the first count is therefore bad, as

having been framed in contravention of sections 232 and 234 of the Criminal Procedure Code which provide that there must be a separate charge

for every distinct offence and that not more than three of such offences, and those three committed within one calendar year, shall be charged and

tried at one trial An attempt has been made to show that the count is good, as framed, by the argument that the several acts of extortion or bribery

there set out should not be looked on as distinct offences but,.rnerely as illustrations showing the general nature of the acts committed by the

prisoners in pursuance of the agreement or conspiracy entered into between them. It is also contended that it is not alleged in the count that the

several sums there set forth as having been received by the conspirators were extorted by them or received as bribes. It is urged that they may

have been taken as presents without any dishonest or improper intention and that there is no allegation to the contrary in the count. It does not

appear to me that there is any force in these arguments. The several acts of extortion and bribery set out in the count are not there mentioned as

being illustrative of any other distinct specific act of extortion or bribery, but are there entered as the several acts of extortion and bribery the

commission of which was abetted by the prisoners by conspiracy. It also cannot be admitted that the count leaves it an open question as to

whether the several sums were extorted or obtained as bribes or were received innocently as presents. It is there distinctly charged that the

accused persons entered into a conspiracy to extort money and receive illegal gratifications, that in pursuance of that conspiracy they received

certain sums and that they thereby committed offences under sections 109 and 384 and 109 and 161 of the Indian Penal Code. If the acts abetted,

i.e., acts of extor-"" tion and bribe-taking were, not committed in pursuance of the conspiracy and nothing more followed than in the innocent

receipt of presents, a charge u/s 109, it is clear, could not be sustained. I further cannot find in either the code. of Criminal Procedure or the Law

of Evidence any warrant for setting out a number of acts as illustrative (whatever that may mean) of the main offence charged and then admitting a

mass of evidence to prove the commission of these so-called illustrative acts. Such a procedure is, in my opinion, irregular and illegal. It is also

urged that the several acts of extortion and bribery mentioned in this count should not be looked upon as being there set forth as separate offences

of extortion and bribery, carried out in consequence of abetment by the prisoners, but as overt acts committed in pursuance of the conspiracy into

which it is alleged that the prisoners had entered, which are accordingly set out in the counts as showing the existence of the conspiracy. The flaw

in this argument, to my mind, is that it appears to be founded on the assumption that the offence with which the prisoners are charged is conspiracy.

The charge has, in fact, as will be found fey a reference to similar charges set forth in Archbold''s Pleading and Evidence in Criminal Cases, been

framed as if it were a. charge of conspiracy, drawn up under the law in force in England, although it is, in my opinion, very doubtful if even under

English law, such a Count as this could be held to be good. In India, however, there is no such offence as conspiracy, with the single exception of

conspiracy to wage war against the Queen (S. 421 A, Indian Penal Code). What the prisoners are charged with is not conspiracy'' as such, but

with having by conspiracy abetted the commission of forty-one distinct acts of extortion or bribery which acts were committed in consequence of

such abetment. Such a charge would, in my opinion, require to be set out in forty-one separate counts. It is further contended that the series of acts

alleged to have been committed by the prisoners were so connected together as to form one transaction, and that, such being the case, the prisoner

could u/s 235, Criminal Procedure Code, have been charged with and tried at one trial for all such offences. It appears to me, however, that it

cannot possibly be held that forty-one acts of extortion or taking of bribes from four persons corrcmitted at various dates for a period of over two

years were so connected as to form one transaction.

For those reasons, I am of opinion that the 1st count of the charge now under consideration must be held to be bad; on the ot