Case Note & Summary
The appeals arose from the conviction of two police constables by the Special Judge of Delhi under Section 120B of the Indian Penal Code, Section 224 read with Section 109 of the Indian Penal Code, and Section 5(2) of the Prevention of Corruption Act, 1947. They were sentenced to two years rigorous imprisonment under the Prevention of Corruption Act and nine months rigorous imprisonment under each of the Indian Penal Code sections, with sentences to run concurrently. The Punjab High Court dismissed their appeals, and the Supreme Court granted special leave. The prosecution case was that between 6 and 16 November 1955 at Delhi, the appellants conspired with the approver Ram Saran Das, M. P. Khare, Nand Parkash Kapur and Murari to bring about the escape from lawful custody of M. P. Khare, an undertrial prisoner. The appellants allegedly agreed to accept Rs. 1,000 each as illegal gratification for enabling the escape and thereafter received the illegal gratification from Nand Parkash Kapur. The courts below recorded findings that M. P. Khare escaped from lawful custody, the appellants enabled him to do so, and they received money as illegal gratification. Before the Supreme Court, the appellants raised five contentions: the pardon tendered to the approver by the District Magistrate under Section 337 of the Code of Criminal Procedure was without jurisdiction; the offence fell under Section 222 and not Section 224 IPC and hence sanction under Section 196A CrPC was required; prosecution witnesses Mela Ram and Shiv Parshad were accomplices; absence of a test identification parade vitiated identification; and the single charge contravened Section 233 CrPC. The Court disposed of the accomplice, identification and charge objections at the outset. It found no evidence establishing Mela Ram and Shiv Parshad as accomplices; their prior knowledge without informing authorities affected only reliability. Failure to hold a test identification parade did not make in-court identification inadmissible, and weight was for trial courts. Separate charges should have been framed, but the irregularity was cured by Section 537 CrPC as no prejudice was shown, especially since the accused had insisted on the single charge. On the sanction point, the Court held it was a question of fact not raised earlier and academic if the Prevention of Corruption Act conviction stood. On the main issue of pardon jurisdiction, the Court noted that the offence under Section 5(2) of the Prevention of Corruption Act was punishable with imprisonment up to seven years, and Section 337 CrPC at the relevant time permitted pardon only for offences triable exclusively by High Court or Court of Session or punishable with imprisonment up to ten years; the 1956 amendment to seven years did not apply to a pardon tendered on 1 December 1955. However, under Section 8(3) of the Criminal Law (Amendment) Act, 1952, the Court of the Special Judge is deemed to be a Court of Session trying cases without a jury, and Section 9 provides appeals as if from a Court of Session. Therefore, the District Magistrate had concurrent jurisdiction to tender a pardon, and the approver's evidence was admissible. Consequently, all contentions were rejected, and the appeals were dismissed, confirming the convictions and sentences.
Headnote
A) Criminal Law - Grant of Pardon - Jurisdiction of District Magistrate - Code of Criminal Procedure, 1898, Section 337; Criminal Law (Amendment) Act, 1952, Sections 8(3), 9 - The District Magistrate had authority to tender a pardon to an approver in a case triable exclusively by the Court of Special Judge because for the purposes of the Code of Criminal Procedure, the Special Judge is deemed to be a Court of Session trying cases without a jury under Section 8(3) of the Criminal Law (Amendment) Act, 1952. The Court rejected the contention that the pardon was without jurisdiction, reasoning that Section 9 of the Criminal Law (Amendment) Act also provides appeals as if from a Court of Session. Held that concurrent jurisdiction existed and the approver's evidence was admissible. B) Criminal Law - Conspiracy and Sanction - Necessity of sanction under Section 196A CrPC for conspiracy to commit non-cognizable offence - Code of Criminal Procedure, 1898, Section 196A; Indian Penal Code, Sections 120B, 222, 224 - The Court observed that whether a sanction had been granted was a question of fact which ought to have been urged at the trial and before the High Court, and the question was academic if the conviction under Section 5(2) of the Prevention of Corruption Act, 1947, was affirmed. Held that no substance existed in the contention. C) Criminal Law - Accomplice Evidence - Reliability of prosecution witnesses with prior knowledge - Evidence Act, 1872, Sections 133 and 114 (illustration (b)) - The Court examined the evidence of Mela Ram (P.W. 6) and Shiv Parshad (P.W. 7) and found nothing which established them as accomplices. The fact that they had knowledge of an attempt to enable an undertrial prisoner to escape but did not inform authorities went to their reliability, not their character as accomplices. Held that courts below were entitled to believe them. D) Criminal Law - Identification Parade - Evidentiary value of identification without test identification parade - Indian Evidence Act, 1872, Sections 9, 134 - The Court held that failure to hold a test identification parade did not make identification in court inadmissible; the weight to be attached to such identification was a matter for the courts of fact. Held that absent exceptional grounds, the Supreme Court would not reassess such evidence. E) Criminal Law - Charge - Misjoinder of charges and curing of irregularity - Code of Criminal Procedure, 1898, Sections 233, 537 - Separate charges should have been framed for distinct offences under Section 120B IPC, Section 224/109 IPC and Section 5(2) of the Prevention of Corruption Act, 1947, but the irregularity was cured by Section 537 CrPC because no prejudice was shown. The accused had earlier insisted on the single charge as framed, and the objection was abandoned. Held that the question could not be raised at the Supreme Court stage.
Issue of Consideration
Whether the District Magistrate had jurisdiction to tender a pardon under Section 337 of the Code of Criminal Procedure when the offence was triable exclusively by the Special Judge constituted under the Criminal Law (Amendment) Act, 1952, and whether the conviction was vitiated by misjoinder of charges, absence of sanction, or procedural irregularities.
Final Decision
The Supreme Court rejected all contentions raised on behalf of the appellants and dismissed the appeals, thereby upholding the convictions and sentences imposed by the Special Judge and affirmed by the Punjab High Court.
Law Points
- Legal points not extracted
- A District Magistrate has jurisdiction to tender pardon under Section 337 of the Code of Criminal Procedure for offences triable by a Special Judge because the Special Judge is deemed a Court of Session for purposes of the Code
- Separate charges required under Section 233 CrPC but irregularity cured by Section 537 CrPC when no prejudice
- Failure to hold a test identification parade does not make identification evidence inadmissible
- Witnesses with prior knowledge of an attempt to escape but who did not inform authorities are not necessarily accomplices
