Sitaram Mahato vs The State

Sen, J.—This revisional application is directed against the conviction of the four Petitioners, namely, Sitaram Mahato, Fulchand Ahir, Bir Bahadur and Ramraj Ahir alias Ramdas Ahir, under Sections 399 and 402 of the Indian Penal Code and the sentence passed thereunder of rigorous imprisonment for three years each, the sentences to run concurrently. The Petitioners were tried before an Assistant Sessions Judge of Alipore with a jury who returned a unanimous verdict of guilty. There was an appeal before the Sessions Judge, Alipore, which was dismissed.

The prosecution case is briefly as follows: On April 6, 1954, at 2 p.m., Animesh Chandra Bhattacharjee, Inspector of Police, C.I.D., West Bengal, Alipore, received a secret information at his office at 39 Chakraberia Road, South and accordingly he took steps to intercept a supposed gang of dacoits which might be raiding a house at Palta in the course of the next evening or night. He sent a message to the Subdivisional Police Officer, Barrackpore and requested him to have a police force ready to meet him at Charnak Out-post, Barrackpore, at 7-30 p.m. that day. He then set out himself and met the police party deputed by the Subdivisional Police Officer and he also requisitioned the help of two local gentlemen, Birendra Chakravarty and Makaraddaj Misir and he loitered about in order to keep a watch on a gang of 8 or 10 suspicious persons who might be coming that way. At about 10-30 p.m. he noticed 6 or 7 persons passing along the junction of Barrackpore Station Road and Ghosepara Road and proceeding along the Ghosepara Road towards the north. Suspecting that they might be the persons about whom he had the information, he followed them. Those 6 or 7 persons entered into the Bengal Restaurant on Ghosepara Road. After they had gone inside the restaurant the Police Inspector got the staff under his control to surround the restaurant and he then entered the restaurant with some search witnesses and police officers and arrested the men who had entered the restaurant a short time before. These men tried to escape and in the course of the ensuing scuffle two of them namely, Sitaram and Bhagabati Singh, got some injuries. The Police, however, succeeded in arresting all the six of them, namely, the four Petitioners, Sitaram, Fulchand, Bir Bahadur and Ramraj, and accused Bhagabati Singh who was also convicted but who is not before us, and Ram Dulari, who was tendered pardon u/s 337 of the Code of Criminal Procedure and examined as a witness. On search of the persons of these men a small pistol, a live cartridge and some bus tickets were recovered from the person of Bhagabati Singh; one dagger, one lathi and two bus tickets were recovered from Sitaram Mahato, a bhojali with a sheath was recovered from Bir Bahadur and a dagger was recovered from Ramraj. A dagger was also recovered from Ram Dulari, who was examined subsequently as an approver. These accused persons were then taken to the Titagar Police Station, where a formal first information report was drawn up by Inspector Animesh Bhattacharjee. Investigation was done by Sub-Inspector Sachindra Nath Mukherjee, who after investigation submitted a charge-sheet against the six accused under Sections 399 and 402 of the Indian Penal Code. When the accused were before the court, Ram Dulari was tendered pardon u/s 337 and the remaining five accused were sent up for trial in the court of Sessions and they were all convicted under Sections 399 and 402 of the Indian Penal Code by the learned Sessions Judge. Bhagabati Singh was also convicted u/s 19(f) and u/s 19A, read with Section 19(f) of the Indian Arms Act by the learned Assistant Sessions Judge, who tried the accused for that offence with jurors acting as assessors, and he was sentenced to suffer rigorous imprisonment for two years u/s 19(f) and three years u/s 19A, read with Section 19(f) of the Indian Arms Act-both the sentences to run concurrently with the sentence passed upon him under Sections 399 and 402 of the Indian Penal Code.

As stated before, the appeal was dismissed by the learned Sessions Judge.

In this Court where four of the accused are before us, Mr. Nalin Banerjee appearing for the Petitioners has first urged the point that the procedure adopted by the courts below was illegal inasmuch as the committing Magistrate failed to commit the approver along with the other accused. According to Mr. Banerjee this was contrary to the provisions of Section 337(2A) of the Code of Criminal Procedure. Section 337(2A) of the Code of Criminal Procedure runs as follows:

In every ease where a person has accepted a tender of pardon and has been examined under Sub-section (2) the Magistrate before whom the proceedings are pending shall if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence commit him for trial to the court of Sessions or High Court as the case may be.

Mr. Banerjee''s contention is that the word "accused" used in the above Sub-section refers to the accused to whom pardon had been tendered and that he must also be committed to the Court of Session. This contention cannot be accepted. Throughout the different Sub-sections of Section 337, the party to whom pardon is tendered is described as a "person" and the word "accused" has never been used to describe him. It has been used to describe the other accused who are charged with having committed the same offence as the approver. An approver to whom pardon has been tendered is not to be tried until and unless it is certified by the Public Prosecutor that he has not complied with the conditions of pardon. Accordingly, before the stage of such certification arises, there cannot be any committing of the approver for trial. The effect of Sub-section (2A) of Section 337 of the Code of Criminal Procedure has been summarised by B.B. Mitra in his commentary to the Code of Criminal Procedure as follows:

Under Sub-section (2A) it is clear that when pardon has been granted to an accused the case of the other accused alone should be committed to the sessions. The approver cannot be committed to the sessions for since he has been granted a pardon he cannot be tried. If the Magistrate commits the approver along with the other accused (which Magistrates frequently do under a mistaken view of the law) the Sessions Judge ought to make a reference to the High Court for getting the commitment of the approver quashed.

In our opinion, the above correctly sets out the meaning of Sub-section (2A). Sub-section (2A) has also been explained in some reported cases, though there does not appear to be a case of the Calcutta High Court directly on the point. Reference has been made to the case of Bombay High Court Emperor v. Nana Amrita Savant (1934) Cri. L.J. 49, where it was expressly laid down that under Sub-section (2A) the approver could not be committed to the Court of Session and the other accused alone had to be committed. Mr. Banerjee has urged that in the above interpretation of Sub-section (2A) of Section 337, sufficient note was not taken of Section 339(1) which provides that when the Public Prosecutor certifies that the approver has not complied with the conditions of pardon, he may be tried for the offence in respect of which pardon was tendered or for any other offence of which he appears to have been guilty, provided that such person shall not be tried jointly with any of the other accused. Mr. Banerjee has urged that unless he is committed along with the other accused, he cannot be tried when such a certificate is granted by the Public Prosecutor. A reference to Section 339A shows, however, that the approver may be tried either by the Court of Session or by a Magistrate according as the offence is triable by the Court of Session only or by a Magistrate. Accordingly, the reference to the trial of the approver in Section 339(1) does not refer to trial by the Sessions Court at once without any further proceedings like the commitment of an accused in a case triable by the Sessions Court only. It only means that when such a certificate is given by the Public Prosecutor, the accused may be tried under the proper procedure. If the offence is triable by the court of a Magistrate, he will be sent to the court of the Magistrate, and if the offence is triable by the Court of Session, he will be sent to the Magistrate for committing him to the Court of Session for trial. In view of Section 193 of the Code of Criminal Procedure there can be no trial by the Sessions Court without a commitment unless there is express provision to the contrary anywhere and Section 339(1) is not such a provision. This view has also been taken in the case of Queen Empress v. Jagat Chandra Mali I.L.R (1894) Cal. 50, where it was held that before an approver can be tried by a Sessions Judge, the Sessions Judge must send him to a competent Magistrate for regular commitment. Thus Section 339(1) does not mean that the approver in respect of whom the Public Prosecutor has given a certificate is to be tried forthwith by the Court of Session, but it only means that he may be tried in accordance with the provisions of the Code of Criminal Procedure; and it does not, therefore, support the interpretation of Sub-section (2A) of Section 337, which is sought to be placed thereon by Mr. Banerjee. Accordingly, it must be held that the failure of the committing Magistrate to commit the approver along with the other accused was not only not illegal but strictly legal, and on the other hand the commitment of the approver would have been illegal.

The next point urged by Mr Banerjee is that inadmissible evidence was admitted inasmuch as the contents of the information received from the Informer or source about the probable commission of the dacoity at Palta were admitted. It is true that the contents of the information were admitted. Thus P.W. 2, Inspector Animesh Bhattacharjee, deposed that he got the information from a source that a gang armed with arms and ammunition would go to the Palta side to commit dacoity. Section of the Indian Evidence Act provides that no police officer shall be compelled to say whence he got any information as to the commission of any offence, but it cannot make hearsay evidence admissible. The police officer may say that he got certain information and in consequence he took certain steps as a result of which certain suspicious persons were arrested with weapons. In such a case he cannot be questioned as to the source from whom he got the information, but he cannot say that from the source he learnt that certain persons were going to commit dacoity; with deadly weapons in a certain locality. In other words the contents of the information would be hearsay evidence and must be regarded as inadmissible. This was, however, admitted erroneously by the learned Sessions Judge and we must concede that there is force in the contention of Mr. Banerjee that once the contents of the information that dacoits would be going to commit a raid at Palta were heard by the jury the contents of the information together with the evidence as to the arrest of the accused in following up the information might lead the jury to conclude that the accused were dacoits, and thus the accused might be prejudiced.

Mr. J.M. Banerjee appearing for the State has urged that there is sufficient other evidence in the case, namely, the evidence of the approver Ram Dulari which is corroborated by sufficient other evidence and circumstances and that we should go into evidence and decide the matter for ourselves. There is, however, another misdirection which is referred to by Mr. Banerjee appearing for the Petitioners. One of the accused Sitaram Mahato stated in the committing court when examined u/s 342 of the Code of Criminal Procedure that the informers of the Detective Department invited them and when they assembled Ram Dulari got them trapped and that the place of invitation was settled as the restaurant at Barrackpore. Mr. Nalin Banerjee has explained that that place was settled because there were young women waitresses there for serving the food and that was the attraction. Mr. Banerjee has urged that there are circumstances to indicate that Bam Dulari was in fact a police spy who had invited the other accused to the restaurant and had then trapped them by giving a false information. He has also urged that the police tried to show that Ram Dulari was a particularly independent witness and prayed that after the recording of his confession, he might be sent to the jail custody and the other accused might be remanded to police custody. He has pointed out that the difference in the custody to which the accused Bam Dulari was remanded on April 10, 1954, was not placed before the jury by the learned Sessions Judge in support of the defence contention that Ram Dulari was a police spy. Sitaram Mahato did not repeat in the Sessions Court when he was questioned u/s 342 of the Code of Criminal Procedure that he and the other accused had been invited to the Bengal Restaurant by Ram Dulari. There he merely pleaded his innocence. None of the other accused also gave the case that Ram Dulari had invited the other accused to Bengal Restaurant and this case also does not appear to have been put to Ram Dulari in cross-examination. Thus in the court of the learned Assistant Sessions Judge prominence was not given to the defence that the accused had been invited to the Bengal Restaurant by Ram Dulari, who was a police spy and then trapped on information given by Ram Dulari himself. Accordingly, the learned Assistant Sessions Judge did not give prominence to the statement of Sitaram Mahato in the committing court. He stated in two places of his charge that he was placing the statements u/s 342 in the committing court and in the Sessions Court before the jury, and he must read out the statement made by Sitaram Mahato in the committing court, but he did not give any prominence to the defence case now specifically suggested by Mr. Nalin Banerjee which, in view of the circumstances, must be considered as a plausible defence which the jury must consider before they could come to a definite conclusion. In view of the fact that this definite defence has now been suggested for the accused, we consider it desirable that the case should go back for a retrial by the learned Judge and the jury rather than we should go into the evidence ourselves and decide the matter finally. It must be held that the verdict was vitiated by admission of inadmissible evidence and by non-consideration of the plausible defence which might be built on Sitaram Mahato''s statement in the committing court and, therefore, the verdict of the jury must be set aside and the conviction of the Petitioners under Sections 399 and 402 of the Indian Penal Code and the sentence passed thereunder must also be set aside. In view of the fact, however, that there appears to be sufficient evidence, namely, the evidence of the approver and the evidence showing that the accused had a number of daggers and other weapons with them and were assembled at Bengal Restaurant at a late hour at night, we consider that the case should go back for a retrial by a court to be selected by the learned Sessions Judge of Alipore.

The revision case is disposed of accordingly.

Rule absolute, case remanded for retrial.

Mitter, J.

I agree.