The Public Prosecutor vs K.K. Kadiri Koya Hajee

Oldfield, J.—The accused has been acquitted in Calendar Case No. 4 of 1915'' on a charge of an offence punishable u/s 420, Indian Penal

Code, by the Additional District Magistrate of Malabar. A learned Judge thought it necessary to take up the case in the exercise of this Court''s

powers of revision. Whilst it was under the consideration of a Bench, Government instructed the Public Prosecutor to file the appeals, which are

before us against the acquittals in Calendar Case No. 4 and Calendar Case No. 5, a connected case. I deal at present with the former.

A preliminary objection to the hearing of both appeals has been made that they were not legally presented and that they cannot be proceeded

with, because the provisions of Section 421 of the Code of Criminal Procedure have not been complied with, inasmuch as the appeals were not

duly presented to this Court and they were not perused and notice was not ordered by a judge empowered for those purposes. The facts are that

the Bench above referred to issued notice to the Public Prosecutor to appear at the further hearing of the revision case and also to inform the Court

whether Government intended to appeal. He-appeared and then handed in the appeals by Government now under disposal to the learned Judges,

who perused them and ordered notice forthwith.

As regards presentation no special method is enjoined in the; Code of Criminal Procedure; and therefore the question is one of administrative

convenience alone. So long as there is, as there-was in this case, an actual presentation to an officer of the Court, such as a Bench Clerk or to one

of the Judges its members, I am not prepared to hold that the presentation was invalid. As to compliance with Section 421, accused relies on the

note published at part of the weekly sittings list: ""Urgent Criminal Appellate Side motions will be heard by the Bench before which the criminal

work of the week is posted (and must be moved at 11 a.m.), unless an Admission Court is sitting, in which case, if the motion can be heard by a

single Judge, the application must be made before the Admission Court"" and argues that, as an Admission Court constituted by a single Judge was

sitting on 15 March 1915, the date on which orders were passed u/s 421, that Court alone, and not the Bench of two Judges, was competent to

peruse the appeals. It is a sufficient answer to this objection that u/s 13, Charter Act rules for the exercise of the High Court''s appellate jurisdiction

by one or more judges or by Divisional Courts can be made only by such High Court, the powers of the Chief Justice being only those conferred

by Section 14 to determine which Judges shall sit alone and which in Divisional Courts. It is by reference to the rules so made that the respective

powers of Judges sitting alone and of Divisional Courts must be ascertained, not by reference to the notes to the sittings list, which are merely

instructions for the guidance of practitioners and parties. The rules made by this Court are contained in the Appellate Side Rules; and under Rule

1(1)(f), applications for the admission of appeals from the judgment of any Criminal Court are ordinarily to be made before a single Judge. This

does not in terms, and is not intended to, deprive the Divisional Court, constituted for the disposal of criminal business, of the right to exercise its

powers in special cases, such as those before us, in which convenience and the acquaintance with the circumstances, which the two learned Judges

concerned had, rendered their intervention specially advisable. This objection must therefore fail.

I turn next to an argument relating to the conduct of the proceedings in the lower Court, on which Mr. Richmond, who appeared for the accused

has relied, as a comprehensive answer to the appeal, in so far as the substitution of a conviction for the acquittal is asked for, and not merely an

order for a retrial. The relevant facts are that both Calendar Case No. 4 and Calendar Case No. 5 were instituted by the same complainant by the

presentation of only one complaint, containing all the allegations necessary to the establishment of both cases, those allegations being shortly that

accused had cheated the Bank of Madras in connection with certain bills of exchange and also by a false representation, contained in Exhibit K, as

to the amount of his assets. The Magistrate in spite, Mr. Richmond alleges, of his remonstrances recorded the prosecution evidence tendered on

behalf of the complainant continuously without discriminating between that which was relevant on each of these two charges, examining each

witness once as to all he knew regarding both and questioning accused u/s 342, Criminal Procedure Code, only once. He then, as his diary shows,

split"" the case into Calender Cases Nos. 4 and 5 and proceeded to the further cross-examination of the prosecution witnesses, which accused

had claimed u/s 256(1). It is not clear whether he bore in mind that he had two distinct cases to try during the cross-examination of first

prosecution witness; for part of it is headed Calendar Case No. 5. But his attempt to do so, if he made one, was ineffective, since that part of the

cross-examination is in fact relevant rather to Calendar Case No. 4. And in any case the attempt was abandoned almost immediately, no such

distinction being made in the cross-examination of third prosecution witness, who deposed regarding both the bills and Exhibit K, or of other

witnesses. Subsequently one written statement was filed by the accused u/s 256(2), and both cases were disposed of in one judgment. Mr.

Richmond argues that this was one trial of separate charges of distinct offences, which offended against Section 233; that the trial was therefore not

a legal one; and that, before accused can be convicted by this or any Court, a legal trial must be held.

There is no doubt that the offences in question in the two cases were distinct, and it is not suggested that Section 234, 235, 236 or 239 is

applicable. It is also in my opinion the fact that, although two charges were framed, one trial only was held. For except in that respect the

proceedings were, as pointed out above, in every way similar to those, which would have taken place in one trial. It has not been shown how

Section 233 is not in point; and accordingly the learned Public Prosecutor''s efforts have been directed mainly towards establishing that there is in

question only an irregularity, to which Section 537 is applicable.

This contention requires close scrutiny because the effect of the leading case on the subject--Subrahmania Ayyar v. King-Emperor ILR (1902)

Mad. 61--is to discountenance any liberal application of the section and because it is in terms inapplicable, as the Public Prosecutor would apply it

here, to sustain the validity of a trial, attacked by the accused only incidentally and not to resist directly a claim to the reversal or alteration of a

decision in reference, appeal or revision. And there is in any case the direct objection, which I state in words borrowed from the decision already

referred to: ""When the Code positively enacts that such a trial as that which has taken place here shall not be permitted,"" it cannot be said ""that this

contravention of the Code comes within the description of error, omission or irregularity."" This principle was applied to facts resembling those now

in question in essential respects in Gobind Koeri v. Emperor (1902) 29 Calc. 385 and Raman Behari Das v. Emperor (1914) 41 Calc. 722, the

latter case being authority also for a strict construction of Section 233. The only conclusion I can reach is that Section 537 is inapplicable; and it is

therefore useless to follow the Public Prosecutor in his contentions that no failure of justice has been occasioned by what occurred or that the

accused did not raise his objection to it at a sufficiently early stage in the proceedings.

As accused has undergone no legal trial, he cannot be convicted and sentenced by us; and if we are to take action, the only course open to us is

to order that he be tried a second time. It is no doubt true that in two respects the case is one, in which interference with a decision of acquittal

could be justified. For it is one of public importance since the establishment of the charge would mean that accused profited largely by conduct

subversive of the existing system of mercantile credit; and, though it is not in my opinion legitimate in one judgment to hold that accused has not

been tried legally and to reach a conclusion that he is guilty, the full argument we heard on the merits demonstrated that the Magistrate dealt most

inadequately with one question of fundamental importance and never came to close quarters with the evidence. On the other hand the charge deals

with events in October 1910 and was made over three years later on the 15th May 1914. The explanation given for this delay is that accused''s

accounts and other documents, en which the prosecution largely depends were not accessible to the complainant Bank, until proceedings in

another case against accused had ended in this Court in September 1912. But I am not satisfied that the subsequent interval is not excessive; and it

is clear that after so long accused would labour under great disabilities. In the circumstances I do not think that the case is one for retrial. In my

opinion therefore the appeal must be dismissed.

Seshagiri Ayyar, J.

I have come to the same conclusion. Mr. Richmond contended that the appeal is not properly before us. The facts he relies on for this

contention are these. The Public Prosecutor presented the appeal petition to Spencer and Coutts Trotter, JJ., in Court through the Bench Clerk on

the 15th March 1915. On that date, Mr. Justice Ayling was sitting in the Admission Court. Consequently he argues it was not competent to the

two learned Judges to receive the appeal.

Before dealing with the objection, a few further facts may be stated. Under the orders of a learned Judge of this Court, the records of the

present case were called for by the High Court. It was numbered as Criminal Revision Case No. 782 of 1914. On the 4th March, the learned

Judges who heard the case sent a notice to the Public Prosecutor calling upon him to inform the Court whether the Government was prepared to

file an appeal against the acquittal, and whether he would make any further representation in the matter. The Revision Case was adjourned to the

15bh March. On this latter date, the incident referred to by Mr. Richmond took place. It is conceded that Spencer and Coutts Trotter, JJ., were

constituted a Bench for hearing Criminal Cases on the day for which the appeal was presented.

Mr. Richmond''s first objection is that there was no valid presentation of the appeal. I am unable to agree with him. Section 419 contemplates

a presentation by the appellant or his pleader. The petition of appeal was handed over to the clerk present in Court by the Public Prosecutor. It

has not been shown that the clerk had no authority to receive the appeal petition. Even if it be said that the presentation was to the Judges direct, I

am unable to see why it is not a presentation to the High Court. Moreover, the learned Judges who heard the revision petition having issued the

notice were certainly competent to receive the appeal which was presented to them in pursuance of that notice. There is no force in this contention.

The second argument rests on the fact that in the note-appended to the sitting list for the week, it is stated that all applications relating to

criminal matters should be made before the Judge sitting in the Admission Court. It is therefore argued that the presentation of the appeal for

admission to the two learned Judges while there was an Admission Court was improper. Speaking for myself, I accept the contention of the

learned Counsel that when the Public Prosecutor presented the appeal petition to the learned Judges he moved for its admission. Rule 1 of the

Appellate Rules of Practice speaks of it as an application. I do not think that the admission of the appeal is a partial hearing of the appeal itself. I

proceed on the assumption that when an appellant asks the Court to admit an appeal, he is making an application in a criminal matter. In this case,

it was an urgent application, as the hearing of the Revision Petition which was stayed depended upon the admission of the appeal. The question

then arises, whether the Criminal Bench, was deprived of jurisdiction to admit the appeal because an Admission Court was sitting. The note in

question only says that ordinarily all applications of this kind should be heard by the Admission Judge. Under Clause 13 of the Charter Act, the

High Court can make rules for the exercise, by one or more Judges, of the Original and Appellate Jurisdiction vested in the Court. Clause 14

empowers the Chief Justice to determine what Judge shall sit alone and what Judges shall constitute a Bench. It was under this Clause the two

learned Judges were constituted a Bench to hear and determine criminal cases. They had jurisdiction to dispose of all criminal matters during the

week of their sitting. Their jurisdiction was not taken away, because a single Judge was entrusted with the duties of admitting appeals. Stress was

laid on the foot-note to the sitting list to which I have already referred, I have no hesitation in saying-that it was Dot intended to restrict the powers

of the Benches"" constituted for the week. It was only an intimation to the practitioners as to the course they should adopt. It may be taken also as a

suggestion to the Benches not to encourage applications made to them otherwise than in accordance with the note. Every Judge of the High Court

would certainly act on the suggestion. But there can be no warrant for arguing that this note deprives the Criminal Bench of its jurisdiction to hear

applications. There is nothing in Section 14 which would enable such a limitation being placed on the powers of a Bench. Clause 36 of the Letters

Patent on which Mr. Richmond relies is not against this view. As pointed out in Haladhar Maiti v. Choytonna Maiti (1903) 30 Calc. 588, the Chief

Justice has power to constitute a Bench even in the absence of rules made under Clause 13; and when a Bench is constituted, it has jurisdiction to

hear applications and appeals in criminal cases. I agree in holding that the appeals were properly before us.

Mr. Richmond finally contended that even if we are satisfied that the judgment of the lower Court is wrong, we ought not to convict his client of

the offences charged, as the trial was illegal in that it contravened the provisions of Section 233 of the Code of Criminal Procedure. It is to be

regretted that such an objection should be taken at this late stage.

Mr. Richmond states that he objected at the outset td evidence being let in without specifying the charges on which the accused is to be tried.

Although there is authority for the position see In the matter of Govindu (1903) 26 Mad. 592 that the letting in of evidence before framing a charge

in respect of separate allegations is not obnoxious to Section 233 of the Code of Criminal Procedure, I think that the procedure is not calculated to

advance justice. In Tangaturi Sriramulu and Nalam Krishna Rao, and Others Vs. K. Veerasalingam, and in Palaniandy Goundan v. Emperor ILR

(1909) Mad. 218 it was laid down that a trial commences only after the charge is framed. It is no doubt true that as the accused pleads only to the

charge his trial commences really after the charge. None the less, he is practically on'' his trial from the moment the prosecution starts the case.

However that may be, in this case we are concerned only with what happened after the charge was read out. The Magistrate rightly enough framed

separate charges and numbered the cases as Calendar Cases Nos. 4 and 5 of 1914. But when the witnesses came to be cross-examined, he lost

sight of the necessity for keeping the two trials separate and allowed the witnesses to be cross-examined promiscuously in respect of both the

charges. I do not think the fact that he noted the further cross-examination of the first witness as in Calendar Case No. 5 is of any consequence,

because that examination was not in reference to the charge framed in that case. Under these circumstances, there can be no doubt that the trial

offends against the provisions of Section 233.

It was argued by the learned Public Prosecutor that as the reading of the charge and the numbering of the cases were not improper, the further

irregularity in not recording evidence separately did not vitiate the trials. The section says that each charge shall be tried separately and the failure to

conform to it at any stage of the trial renders the proceeding illegal: see Subrahmania Ayyar v. King-Emperor (1902) ILR 25 Mad. 61 (P.C.),

Gobind Koeri v. Emperor ILR (1902) Calc. 385 and Raman Behari Das v. Emperor ILR (1914) Calc. 722. In Emperor v. Madan Mandal

(1914) 41 Calc. 662, the learned Judges point out that if the mode of trial was wrong, the proceedings ought to be set aside.

Mr. Grant''s more serious contention was that Section 537 cured the defect. In the first place, the Section has no application. The language of

the first part of the section is against the conclusion which the Public Prosecutor asks us to adopt. In the second place Clause (a) which speaks of

error ""in proceedings before or during trial"" does not cover cases where the trial itself is defective. Consequently, the explanation which introduces

the principle of acquiescence under certain circumstances has no application. Moreover as the Judicial Committee has held that a violation of a

plain provision of law is not an irregularity, the section has no application to the present case. In Moharuddi Malita v. Jadu Nath Mandul 11

C.W.N. 54, the error related to the framing of the charge which is distinctly dealt with in Clause (a) of Section 537. Further in that case, the trial

was perfectly regular. I am therefore of opinion, that the joint trial of the two calendar cases is opposed to Section 233 and that consequently the

accused should not be convicted of the offences charged against him.

I feel little doubt on the records before us that the accused is guilty of at least two out of the three counts mentioned in the charge in Calendar

Case No. 4. Ordinarily such a failure of justice would warrant a retrial of the accused. But the offence took place in October 1910 and the

accused has been before the Criminal Courts on three occasions. Under these circumstances, I agree in holding that it is not desirable to direct a

retrial.

Napier, J.

I concur. I do not however think that the decision of the Privy Council in Subrahmania Ayyar v. King-Emperor ILR (1902) Mad. 61 compels

us to hold that in no case can a misjoinder of charges or a failure to try charges separately be an irregularity within the meaning of Section 537 of

the Code of Criminal Procedure. In the manner in which this case comes before us that section however cannot be relied on, and we have only to

apply Section 233. The only question that remains is what course we must adopt being satisfied (1) that the accused has been tried illegally, (2)

that his acquittal on the merits on two of the charges was wrong and (3) that in the circumstances we do not think that he should be retried on

those charges. It seems to me that we must do what the lower Court could have done if its attention had been drawn to the illegality of the trial

before judgment, that is, acquit the accused, which in our position, is done by dismissing the appeal.