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not be used against him.

There is an implied promise that the approver will give evidence at
the trial, and this is why clause (2) is inserted. The bargain between the
Magistrate and approver is however complete independent of clause (2),
the approver is bound without that clause to make a full and true disclo-
sure at the trial, clause (2) only repeats what is already a part of the
bargain. This provision assumes that the approver's statement will bo
considered useful, and that there will be a trial, but when the approver's
statement is found to be useless or false, it cannot be intended that he
should necessarily bo examined as a witness. The most that could be
intended is, that he should be presented for cross-examination if there were
a trial, and when, as here, there is no case at all, it is impossible for him
to be examined.

I find it difficult to think that the Legislature could have intended
that the arrangement between the Magistrate and the approver should be
so one-sided that the approver should lose nothing if his statement was «)
false, that it was useless to consider it against the person he named, and it
should allow the approver to perhaps divert the whole course of the in-
vestigation and save the real criminals and yet suffer no penalty for breach
of faith.

The present is a good illustration of the point. There is little doubt
that Suba is one of the murderers. He has given probably the true details
of the murder, but has simply substituted the names of his innocent
enemies, for the names of his real accomplices : is it likely that the legis-
lature should have intended to exclude his statement altogether on his
trial ?

It would have a most prejudicial effect on the investigation of crime,
if it were permissible for an approver, without risk of his statement being
used against himself, to tell any false story that would tend to spoil the
case. It is true that he may be prosecuted for perjury, section 339 (3),
but that is hardly sufficient. It has been frequently held by this Court
that a Magistrate can withdraw^ a pardon, [P. R,, 31 of 1904 (Cr.Jj holds
differently. I will discuss that later] that necessarily implies that the



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Vol. in] 1'he.Ckimix AX Law ^Journal Reports. 59

SUBA^r. EMPEROR.

approver will not be exadfiined'fis ir witness, and generally that there will
bo no case except the one.in wbiob^e^accused is himself being tried, and
in these cases clause (2) of-rieotiohS&T^ becomes necessarily inapplicable.

My view of the lan^^^g^;^ ^^-^^ode is that clause (2) is no essential
part of section 337, that.ii i& i«t«nde«l to provide for cases where the ap-
prover's story is believed and other^^rsons are put on trial, but that there
are other cases where tho:»ppiww is^iiot believed and the }>ardon may be
withdrawn and the approver, never Ix? examined, and in those cases clause
(2) may be neglected and:.clausc* I of section 337 with section 339 (2)
renders the statement adnw9»ible.''=

I would now like to discuss the authorities quoted. P, i?., Xo. 31 of
1904 (Cr.), Robertson awd^haitetyirJJ^

The point referred there .was^ whether the Sessions Judge, who heard
the approver as a witness,, couldrorderlrim to be committed to the Sessions
for trial on the original charge^.or whether this could only be done by the
authority which had tendorei^the pardsHf ?

The ruling was that the •S;essiomt*Jiidge, could order the committal,
and that the final authority for determining whether the pardon had been
forfeited was the Court tryii^* the itpprover. In these conclusions I
entirelv agree, but the judgmep^ialso lays down on the change of the
wording in the Criminal Pfooeckin»^\)de of 1898, that a pardon cannot be
withdrawn, it can only be forfeited." "This is obiter dictum^ as the point did
not arise, and I am not, as: will »p^^e«pfr^m my reading of the Code, as
above stated, prepared to agre<yB-ihis ^w.

The substitution of ther^word " -forfeited " for the word " withdrawn "
in clause 2, section 339, does not neJoessftTily imply that there could be no
such thing as a withdrawal-ot pardon^.' -The word "forfeited " is the more
appropriate word even if withdrawal -w^re still admissible.

If the pardon had been imffoi*efJy?»withdrawn, it would be wrong to
admit it in evidence, this contingeway:4ifts been avoided by the substitution
of the word " forfeited " for " withdrA>)i^n ;" the Court trying the approver
is the ultimate authority 01^ this pbint, but the change in the wording
throws no light upon the quejtticwr^who; in the first instance, is to determine
that the approver shall be tried for ^he-^ofl&pnce.

The change in the wordinj!;-ha^!i;rf»ted a fresh difficulty. When the
question is, whethei* the pardon has been* forfeited^ is the statement admissi*
ble ? When the pardon has been forfeited, it no doubt is admissible, but is
it admissible to decide whetlier -the -pardon has been forfeited ?

It is only with some diflfeul^>"Hby the exclusion of any other possible
meaning, that I am able to: bold the statement admissible to determine
whether the pardon has beeir forfeit edV'Aat Court being the only autho-*
rity that can decide the point* -



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(JO The Criminal Law Journal Reports. [Vol. Ill

SUBA r; emperor;

P. /?., Xo. 5 of 1899 (Cr.), (Jieid, J., and Clark, C. J.) present some
difficulty to my present view of the case.

The question there was whether the approver whose pardon had been
withdrawn by the District Magistrate, and who had never been examined
as a witness, could be legally committed along with other accused.

There the provisions of clause (2), section 337, laying down that the
approver shall be examined as a witness, apparently barred the way to his'
being treated as an accused.

The judgment proceeds ''the language of section 337 (2) is concise
and the question remains whether, reading section 339 with it, the ^y-
prover was at the date of his commitment a person accepting a tender of
pardon," and it was held that the pardon having been withdrawn, and he
being treated as an accused person and not as a witness, that he was not at
the date of his commitment a person accepting a tender of pardon, and
that he did not come under section 337 (2) and that the commitment
was legal.

It was remarked there that to hold otherwise would entail conse-
quences not contemplated by the C/ode. " It would necessitate a person
whose statement was from a date prior to the commencement of proceed-
ings in any Court, believed by those responsible for the prosecution to be^
false, being examined as a witness for the prosecution, and would necessi-
tate a second trial without any compensating advantages."

The evil consequences of making clause (2) an integral part of clause.
1, section 337, were there fully recognized.

I should prefer now to base my decision in that case on the grounds
that clause (2), section 337, did not apply to approvers whose })ardon had.
been withdrawn, but only to those whose pardon had not been withdrawn,:
and that it was not a necessity that an approver should be examined as a
witness in all cases.

P. P., :Vo. 24 of 1902 (Cr.) (1), (Kensington and Reid, J J.) is the
judgment directly opposed to the view I am propounding.

In that case an approver was pardoned, and his pardon was with-
drawn by the District Magistrate, and he was never examined as a wit-
ness, and it was held that his statement as an approver was not admissible
against him.

The Judges accepted and agreed '^ith the ruling P. P., Xo. 5 of 1899
(Cr.), and said that it followed as a necessary corollary that the statement
was not admissible. '^ The essence of that ruling is that the approver
must be treated as a man who nt»ver was pardoned, the whole of the pro-
ceedings in connection with his pardon being regarded for purposes of his
subsequent trial as a nullity,"



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Vol. Ill] The Criminal Law Journal Reports. 61

SUBA V. EMPEROR.

I have already said that . I would maintain the conclusion arrived at
in P. /Z., iVb. 5 of 1899 (Cr.), on other grounds than those contained in
that judgment, and that being so, it follows that I do not fully agree in
the ruling in P. /?., iVo. 24 of 1902 (Cr.) (1) which is based on that
ruling.

But beyond this, it seems to me that P. /?., 24 of 1902, (Cr.) (1)
pushes the consequences of P. i?., 5 of 1899 (Cr.), beyond their legitimate
conclusion.

P. R., No. 5 of 1899 (Cr.), decides that after pardon has been with-
drawn, the appover is no longer accepting a tender of pardon, bat I do
not think it follows that he must be treated as a man who never was par-
doned, and that the whole proceedings connected with his pardon must be
considered as a nullity.

The correct view seems to me to be that he received a conditional
pardon, but broke the conditions, the consequence being that his statement
can be used against him under section 339 (2).

My conclusion is that Suba's statement of 27th September 1904, is
admissible against him under section 339 (2).

If my learned brother agrees, I would refer the question stated above
for decision to a Full Bench of all the Judges.

Retd, J. — I concur in the opinion that the case should be referred to
a Full Bench.

Judgments of Full Bench.

Reid, J. — The circumstances out of which this reference arose are as

-found by the Sessions Judge, the following: — A murder was committed

and no clue to the identity of the murderers was obtained until one

Suba approached the police and offered to disclose the facts if he were

pardoned.

A pardon was tendered and Suba made a statement under cover of
the pardon.

The result of the investigation by the police was the conclusion that
no one of the persons named by Suba as his accomplices had anything to
do with the murder, but that certain other persons were his accomplices.
These persons were sent to a Magistrate for inquiry and were discharged
. by him. Suba was sent up separately for inquiry, his evidence was not
recorded by the Magistrate at the inquiry in respect of the persons even-
tually discharged, he was committed for trial and was convicted of murder
by the Sessions Judge, who admitted in evidence the statement made by
him to the Magistrate who tendered pardon, and examined him on that
statement. Suba adopted the statement and adhered to it, probably under
the impression that it could be used against him, and that the safest course
for him to adopt was to insist on the truth of that statement.



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62 The Criminal Law ^w^al ?ltEPORtfe. [Vol. Ill

The quostion referred is whether ;iiie atotenient made by Suba to the
Magistrate who tendered pardon w&6 :ttdmi«s^e Rgainst him at his trial
for murder ?

The Sessions Judge was under 4ihe impveseuni that 31 P. R., 1904
(Cr.) was opposed to 6 P. J?., 1899 fCr.>ttd«4 P. i?., 1902 (Cr.), but
my brother Chatterji, who was a party to the 1904 judgment has explained,
and it is obvious that this is not the ca«e, except m no far as a distinction is
drawn in that judgment between " withdrawal ^ and " forfeiture." The
sense in which the word " withdrawal " Waa u^ m the 1899 judgment
was not that the District Magistrate eoeld cancri the pardon to the extent
that the approver could not eventually at bis trinl plead that he had com-
plied with the conditions on which it was t^iideperf, but in the sense that
the District Magistrate being satisfied th«t the approver's statement was
not true, could proceed against the httter with a view to his trial for the
ofPence in respect of which the pardon wa» tmuiered.

The 1899 ruling was not opposed to the etmclusioh arrived at in 1
P. J?., 1898 (Cr.)y that when an approver is placed on his trial he can
plead his pardon and that, on proof that it was tendered and accepted, the
prosecution will have to prove that it ha» been forfeited.

The decision in 1899 was that the appro^ver, having been treated
throughout the proceedings before the Committing Magistrate as an ac-
cused person and not as a witness, was not at the date of the committal a
person accepting a tender of pardon within the terms of section 337 (2) of
the Code of Criminal Procedure.

I have used the term " approver " to denote a person to whom a ten-
der of pardon has been made under section 337 (1) of the Code.

It was suggested at the hearing that " accepting " does not mean
" who has accepted," that section 337 (2) contemplates different relations
between the responsible authorities and the approver at different times, and
that the approver may be treated for some purposes as a person accepting
and for other purposes as a person " not accepting " a tender, e.^., that for
the purposes of section 337 (2) the approver was not a person "accepting"
and for the purposes of section 349 (2) he was a person " accepting."

This interpretation cannot in my opinion be accepted, and I have 00
recollection that it was in my mind when the 1899 judgment was delivered.
The action taken by the Magistrate, who treated the approver throughout
the enquiry as an accused person, had, in my opinion, the effect of cancell-
ing all proceedings connected with the tender of pardon.

There is a conflict of authority on the question whether section 337
(2) necessitates the examination, as a witness in the ease, of every person
who has accepted a tender, whatever may have been the subsequent action
of the responsible authorities.



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Vol. ni] The Criminal Law Journal Reports. fiS

SUBA r. EMPEROR.

This Court has held in the 1899 ease followed in 24 P. i?., 1902 (Cr.)
and 4 P. i?., 1903 (Cr.), (2) that the examination is not necessary ; in
Queen-Empress v. Ramasami (3) it was held that examination in the Court
of the Committing Magistrate was sufficient ; in King-Emperor v. Bala
(4), this was doubted. Neither the Bombay nor the Madras ('ourt ap-
parently contemplated an approver being disbelieved and proceeded against
before inquiry into the case of other accused persons in the Court of the
Committing Magistrate.

The direction in section 337 (2) is imperative ; '' Every person accept-
ing shall be examined as a witness "

It is, in my opinion, immaterial whether this is a sub-section or a
separate section. It applies to all persons accepting, or, as I read the
word used, who have accepted a tender, and in my opinion, the only
possible reason for not examining such persons as witnesses is that they
have ceased, in consequence of the action of the responsible authorities, to
be persons who have accepted and must be treated as persons who have
not accepted, such tender.

The action of the responsible authorities dealt with in the 1899 case is,
in my opinion, quite independent of any final decision of the question
whether the pardon has been forfeited. That decision rests with the Court
which tries the approver. Where the responsible authorities form the
opinion that the statement made by the approver is false, it would be di-
sastrous to insist on their proceeding against persons believed to be inno-
cent, and they are justified in proceeding at once against the aj)prover,
treating him as if no pardon had been tendered, or accepted. If the
approver, on his trial, plead.-* the pardon and repeats the statement origin-
ally made by him, the statement made at the trial can be u-^ed against
him as a confession, if it be found that he has wilfully concealed anything
essential or has given false evidence, but if he does not plead the pardon
and does repeat his original statement, the latt^^r cannot be given in evidence
against him under section 339 (2).

There is, in my opinion, no middle course. The approver must either
be treated as a person who has accepted a tender of pardon, and be
examined as a witness, or be treated as a person who has not accepted
such tender. In the former case only is section 339 (2), in my opinion,
applicable. Having regard to the narrow line which separates approvers
from confessing prisoners, much stress cannot, in my opinion, be laid on
arguments deduced from the suggested result of answering this reference
in the negative, t*/^., the encouragement to persons to divert the course of
investigations.

(2) 8.C., 62 P. L. R., 1903. (3) L L. R., XXIY Mad., 321.

(4) I. L. R.. XXV Bom., 675.



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G4 The Criminal Law Journal Reports, [Vol. IH

SUBA r, EMFBROR.

The immunity promised to an approver .places him in *a far ^better
position than that occupied by a confessing prisoner, and the temptation
to put forward false approvers is great.

There are many cases in which a pefson could not give .the evidence
required unless he posed as an accomplice, and the allegation! of the- ap-
prover in the case now before us, that he looked after the clothes of the
murderers, is very common in such cases.

The remarkable frequency of cases, in which the only evidenoe against
perions charged with burglary and theft is that of production by them-
selves, frequently from places entirely outside their control, of stolen , pro-
perty, is an indication- in the same direction.

For the reasons above stated my answer -to the reference is in «the
negative.

iuf/i5mj/o/i,«/,^-The question involved in this reference is both diffi-
cult and important. The diffisulty is, as pointed out in the. order of refer-
ence, due to want of lucidity and completeness in the provisions ^of the
Criminal Procedure Code, on the subject of pardons. The result is-some
want of harmony in- the rulings of the High Courts -on material ^points.
The rule of practica at present laid down by this Cjurt is that enunciated
in P. i?., Xo. 5 of 1899 (Cr.% .Vo. 2i of 1992 (Cr.) and No. 4 of 1903
(Cr.) (2), while No. 3i of 1902 (Cr.) (5) may also be usefully referred to
on the subject of pardons gc^nerally, though the point there concerned was
not the sam?. The ^3 rulings are bslieved to contain references to dll the
relevant decisions of this Court and the High Courts.

Having reconsidered the matter I adhere to the conclusion that the
corollary stated in P. J?., Xo. 24 o/ 7902 (CV.) (1) necessarily follows
from the argument adopted in P. R.^ No. 5 of 1899 (Cr). It is suggested
in the order of reference that the decision in the, latter case might have
been supported on other grounds, but this appears to me^immateriil. Un-
less we are prepared to dissent from the argument. in P.. P., No. 5 of 1899
(Cr.), I would submit that we cannot avoid the conclusion in P. *i?^, No. 24
of 1902, (Cr.) (1).

The learned Government Advocate has pointed out that the -words
*' inthe case " should have been omitted in tbe* last line but oneoi>page^
of the 1902 ruling as not occurring in the first clause ^f section ^^$39,
Criminal Proo^u re Code, but in my opinion this correction has «no ' force.
I reatl the words " by giving false evidence " in section 339 to be ^ com-
pendious reference back to section 337 (2).

I am also unable to agree that section 337 (2) is not an integcal pjrtt
x)f the provisions about 'pardons. It appearsto me that wciftre booad^to
treat clause (2) of section 337 as a necessary portion of the presetih^

(5) 8.C., 126 P. L. R., 1902.



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Vo!. in] The Criminal Law Journal Reports. 65

SUBA r. EMPEROR.

proSceduro, and oqually clauses (3) and (4) which deal with other matters.
All of these clauses alike are imperative, and no one of them can be isolat-
ed from the remaining procedure laid down.

There are then, so far as I understand it, only two alternatives. We
might hold (1), as the High Court of Bombay is inclined to do, that the
approver must be examined as a witness at the Sessions trial at least as
that of Madras prefers, as a witness before the Committing Magistrate^
before his pardon can be forfeited, or (2) as this Court has hitherto held
(in my opinion correctly) that the pardon can be forfeited at any earlier
stage before the trial begins. But if we adhere to (2), the conclusion ap-
pears to me inevitable that forfeiture before the approver's evidence has
been taken as a witness in the case implies that we adopt a convenient
cottrse required by the deficiencies of the Code, and therefore entailing
that the special provisions of section 339 cannot be enforced. In other
words we retut-n to the position as it stood before pardon was granted, and
have to ignore anything the aj)prover may have at that time said, the
general provision of section 24, Evidence Act, coming into force in place
of the special provision of section 339, Criminal Procedure Code, in con-
sequence of failure to act up to the procedure about pardons as a whole.

It follows, though the question perhaps hardly arises on the present
reference, that I now think it possibly open to question whether the ruling
in P. i2., So. 4 of 1903 (Cr.) (1) may not be somewhat too broadly stated.
If giving evidence before a Committing Magistrate is a suflScient compli-
ance with section 337 (2), a subsequent forfeiture of pardon might entail
all the consequences of section 339. But in that case it would be essential
that the approver's trial should bo held separately. The statement first
made by him as an approver has necessarily to be considered in order to
determine the preliminary issue whether his pardon has been forfeited.
If it is so considered in a case where other persons are being jointly tried,
it is difficult for the Judge — and hardly possible for the assessors — to keep
their minds free from prejudice so far as those persons are concerned.
The particular case discussed in P. R.^ Xo. 4 of 1903 (Cr.) (i)^ w^ sl
good instance of this. The only safe rule in such cases appears to me
-that for which a number of authorities are given in P. P., Xo. 5 of 1899
(Cr.) (second paragraph on page 14), namely, that the approver's trial
shall be separately conducted after all other accused have been dealt with.
I however refrain from discussing this point further as not being precisely
covered by the order of reference.

In the present case, in P. P., Xo. 24 of 1902 (Cr.) (2), we are con-
cerned with the wider case of an approver whose pardon has been forfeited
before he has been examined as a witness in any Court. I concur with
ray learned brother Reid that the answer to the order of reference as



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Cfl The Criminal Law Journal Reports* [Vol. Ill

8UBA r. EMPEROR.

framed should bo in the negative. We have to take the law as we under-
stand it to be, and we are not concerned with the consequences of our
interpretation if that interpretation is correct. I may however note that
I do not share the anticipation of the learned Chief Judge as to a possibly
prejudicial efEect of the interpretation on the investigation of crime. The
risk appears to me to be the other way, namely, that unless hedged round
with strict precautions pardons may be too lightly given as a short cut to
"the detection of offenders in a minor degree, at the expense of a failure of
justice involved in enabling the main criminal to go free.

And even if the approver's statement cannot be used against him when
he is never examined as a witness the prosecution is no worse oflE than it
was originally. The most that can be said is that it is unable to avoid
itself of an incriminating statement obtained from the approver under con-
ditions which have not been carried out.

Chatterji, J, — In this judgment in order to avoid circumlocution I
shall use the word '' approver " to denote a person who has received and
accepted a tender of pardon.

The facts given in the judgment of my learned brother R^id show
that Suba, accused appellant, was tendered a pardon and was examined by
a Magistrate, but further inquiries by the Police convinced them that his
statement in so far as it incriminates other persons was false. He wa«,
therefore, never examined as a witness in the inquiry under Chapter XVIII
of the Code of Criminal Procedure, nor at any Sessions trial, no fmch trial
lia\4ng in fact taken place. He is now being prosecuted for the^ence for
wlm^h the pardon was tendered, on the ground that he has wilfully con-
cealed essential things and has given false evidence, and has, therefore,
forfeited the pardon. The question for the Full Bench to decide is whether
his statement before the Magistrate on his accepting the tender of pardon
can be given in evidence against him under section 339 (2) of the CVIe.

From the foregoing resume of the facts, it is clear that Suba is a per-
son who has accepted a tender of pardon, and that he has made a state-
ment such as is mentioned in clause (4) of section 337, It is not asserted



Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 32 of 91)