# l!JJ8 Srt11tosli K1tm'lr v. Bltai .Jlool Singh

- **Citation:** [1958] 1 S.C.R. 1218
- **Court:** Supreme Court of India
- **Decided:** 1956-11-16
- **Case number:** Criminal Appeals Nos. 202 and 203 of 1957
- **Bench:** B. P. Sinha, Jafer Imam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/l-jj8-srt11tosli-k1tm-lr-v-bltai-jlool-singh-1404
- **Pages:** 8

## Headnote

Criminal Law-Grant of pardon-Power of the District
Magistrate--.Case triable by Court of Special Judge-Cou1't of
Session=-ConcUrrent jurisdiction to tender pardon-Prevention
of Corruption Act, 1947 (2 of 1947), s. 5(2)-Criminal Law
(Amendment) Act, 1952 (46 of 1952), ss. 8(2)(3), 9-Code of Cm·
minal Procedure (Act 5 of 1898). ss. 337. 338.
The appellants were convicted under s. 120B and s. 224/109
of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act, 1947, by the Court of Special Judge constituted under the Criminal Law (Amendment) Act, 1952. It was contended I
for them that lhe conviction was bad on the ground inter alia
that the ·pardon tendered to the approver by the Ditsrict M.agistrate under s. 337 of the Code of Criminal Procedure by virtue
of which he was examined as a witness by the Special Judge,
S.C.R.
SUPRE'.ME countr REPORTS
1219
was without jurisdiction. The contention was that the provisions
Qf s. 337 were not applicable to the case, as the offence under
s. 5(2) of the Prevention of Corruption Act, 1947, was punishable with impl'li!ionment which may ·extend to ten years, while
s. 337 of the Code of Criminal Procedure enabled a Distr'ict
Magistrate to tender a pardon "in the case of any offence triable exclusively by the High Court or a Court of Session or any
offence punishable with imprisonment which may
extend to
ten years ............ ". But under ss. 8(3) and 9 of the Criminal Law
(Amendment) Act, 1952, for the purposes of the Couri of Criminal Procedure, the Court of Special Judge is deemed to be 1.1
Court of Session 1lI'yi,ng cases without jur-·:
Held, that although the offence was triable exclusively by
the Court of Special Judge, the District Magistrate had authomty to tender a pardon under s. 337 of the Code of Criminal
Procedure, as tbe Court of Special Judge was, 1ln law, a Court
of Session.
CRIMIN'AL APPELLATE JURISDICTION : Criminal Appeals
Nos. 202 and 203 of 1957.
Appeals by special leave from the judgment and order
dated November 16, 1956, of the Punjab High Court (Circuit
Bench) at Delhi in Criminal Appeals Nos. 31-D and 506-C Gf
1956, arising out of the judgment and order dated August 31.
1956, of the Court .of the Special Judge at Delhi, in Corruption Case No. 8 of 1956.
D. R. Kalia and K. L. Arora, for the appellant in Criminal
Appeal No. 202 of 1957.
D. R. Katia and Raghu Nath; for the appellant in Criminal Appeal No. 203 of 1957.
H. J. Umrigar and R. H. Dhebar, for the respondent in
both the appeals.
1958. February 6. The Judgment of the Court was delivered by
IMAM J.-The appellants, who were police constables at
the time of.the occurrence, were convicted by the Special
Judge of Delhi under s. 1208 and s. 224/ 109 of the Indian
Penal Code and s. 5(2) of the Prevention of Corruption Act
(2 of 1-947). They were sentenced to two years' rigorous imprisonment under s. 5(2) of the Prevention of Corruption Act,
1947 and to nine months' rigorous imprisonment under each
of the ss. 1208 and 224/ 109 of the Indian Penal Code.
1958
.Kantn Prw~!trul
v.
])d!i;
Ar..lminil!t.raUon
lmam,J.
/!1.iS
A·r1nt11 Pra.~lwd
".
JJdld
Admini~tn1liun
luwm .!,
1220
SUPREME ('Ol'RT UEPOUTS
[1958]
The sentences of imprisonment were directed to run
concurrently. Their appeals to the Punjab High Court were
dismissed and the present appeals are by special leave.
The case of the prosecution, as stated in the charge,
was that the appellants had onspired at Delhi
with Ram
Saran Das, the approver, M.P. Khare, Nand Parkash Kapur
and Murari between the 16th and 16th of November, 1955, to
bring <(bout the escape from lawful custody of M.P. Khare,
an undertrial prisoner,
and that they had also agreed to
accept Rs. I ,000 each and other pecuniary advantages as illegal gratification for rendering the escape of M. P. Khare from
lawful custody and that in pursuance of the said conspiracy
they had a.betted the escape of M. P. Khare and that they had
accepted the illegal gratification from Nand Parkash Kapur.
It is clea

## Text

l!JJ8
Srt11tosli K1tm'lr
v
Bltai .Jlool Singh
Bo~e J.
1''1'.bruury 6.
1218
SUPHE:\IE C'OUHT JUWOH'l'S
[1958]
arbitrarily. or is based on a misunderstanding of the principles that govern its exercise. then interference is called for
if there has been a resultant failure of justice. As we have
said, the only ground given for concluding that the defence
is not bona fide is that the defendant did not prove his assertions before he was allowed to put in his defence; and there
i' an obvious failure of justice if judgment is entered against
a. man who, if he is allowed to prove his case, cannot but
succeed. Accordingly, interference is called for here.
The appeal is allowed. We set aside the orders of the
High Court and the learned trial Judge
and remand the
case to the first Court for trial of the issues raised by the
defendants. The costs of the appellants in this Court will be
paid by the respondent who has failed here.
Appeal allowed.
KANT A PRASHAD
v.
DELHI ADMINISTRATION
(and connected appeal)
(B. P. SINHA and JAFER IMAM JJ.)
Criminal Law-Grant of pardon-Power of the District
Magistrate--.Case triable by Court of Special Judge-Cou1't of
Session=-ConcUrrent jurisdiction to tender pardon-Prevention
of Corruption Act, 1947 (2 of 1947), s. 5(2)-Criminal Law
(Amendment) Act, 1952 (46 of 1952), ss. 8(2)(3), 9-Code of Cm·
minal Procedure (Act 5 of 1898). ss. 337. 338.
The appellants were convicted under s. 120B and s. 224/109
of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act, 1947, by the Court of Special Judge constituted under the Criminal Law (Amendment) Act, 1952. It was contended I
for them that lhe conviction was bad on the ground inter alia
that the ·pardon tendered to the approver by the Ditsrict M.agistrate under s. 337 of the Code of Criminal Procedure by virtue
of which he was examined as a witness by the Special Judge,
S.C.R.
SUPRE'.ME countr REPORTS
1219
was without jurisdiction. The contention was that the provisions
Qf s. 337 were not applicable to the case, as the offence under
s. 5(2) of the Prevention of Corruption Act, 1947, was punishable with impl'li!ionment which may ·extend to ten years, while
s. 337 of the Code of Criminal Procedure enabled a Distr'ict
Magistrate to tender a pardon "in the case of any offence triable exclusively by the High Court or a Court of Session or any
offence punishable with imprisonment which may
extend to
ten years ............ ". But under ss. 8(3) and 9 of the Criminal Law
(Amendment) Act, 1952, for the purposes of the Couri of Criminal Procedure, the Court of Special Judge is deemed to be 1.1
Court of Session 1lI'yi,ng cases without jur-·:
Held, that although the offence was triable exclusively by
the Court of Special Judge, the District Magistrate had authomty to tender a pardon under s. 337 of the Code of Criminal
Procedure, as tbe Court of Special Judge was, 1ln law, a Court
of Session.
CRIMIN'AL APPELLATE JURISDICTION : Criminal Appeals
Nos. 202 and 203 of 1957.
Appeals by special leave from the judgment and order
dated November 16, 1956, of the Punjab High Court (Circuit
Bench) at Delhi in Criminal Appeals Nos. 31-D and 506-C Gf
1956, arising out of the judgment and order dated August 31.
1956, of the Court .of the Special Judge at Delhi, in Corruption Case No. 8 of 1956.
D. R. Kalia and K. L. Arora, for the appellant in Criminal
Appeal No. 202 of 1957.
D. R. Katia and Raghu Nath; for the appellant in Criminal Appeal No. 203 of 1957.
H. J. Umrigar and R. H. Dhebar, for the respondent in
both the appeals.
1958. February 6. The Judgment of the Court was delivered by
IMAM J.-The appellants, who were police constables at
the time of.the occurrence, were convicted by the Special
Judge of Delhi under s. 1208 and s. 224/ 109 of the Indian
Penal Code and s. 5(2) of the Prevention of Corruption Act
(2 of 1-947). They were sentenced to two years' rigorous imprisonment under s. 5(2) of the Prevention of Corruption Act,
1947 and to nine months' rigorous imprisonment under each
of the ss. 1208 and 224/ 109 of the Indian Penal Code.
1958
.Kantn Prw~!trul
v.
])d!i;
Ar..lminil!t.raUon
lmam,J.
/!1.iS
A·r1nt11 Pra.~lwd
".
JJdld
Admini~tn1liun
luwm .!,
1220
SUPREME ('Ol'RT UEPOUTS
[1958]
The sentences of imprisonment were directed to run
concurrently. Their appeals to the Punjab High Court were
dismissed and the present appeals are by special leave.
The case of the prosecution, as stated in the charge,
was that the appellants had onspired at Delhi
with Ram
Saran Das, the approver, M.P. Khare, Nand Parkash Kapur
and Murari between the 16th and 16th of November, 1955, to
bring <(bout the escape from lawful custody of M.P. Khare,
an undertrial prisoner,
and that they had also agreed to
accept Rs. I ,000 each and other pecuniary advantages as illegal gratification for rendering the escape of M. P. Khare from
lawful custody and that in pursuance of the said conspiracy
they had a.betted the escape of M. P. Khare and that they had
accepted the illegal gratification from Nand Parkash Kapur.
It is clear from the findings of the courts below that M.P.
Khare escaped from lawful custody and the appellants had
enabled him to do so and that they had received money as
illegal gratification for the part they had played in enabling
M. P. Khare to escape from lawful custody.
The learned Advocate for the appellants had submitted
live points for our consideration in support of his contention
that the conviction of the appellants must be set aside (!) the
pardon tendered lo the approver Ram Saran Das by the District Mμgistrale of Delhi under s. 337 of the Code of Criminal
Procedure was without jurisdiction and authority. Consequent·
ly, the evidence of the approver was not admissible (2) on the
case of the prosecution, the offence of conspiracy lo commit an
offence under s. 224 of the Indian Penal Code had not been
committed but that offence, if at all, was one under s. 222 of
the Indian Penal Code. As an offence under s.
222 of the
Indian Penal Code is a non-cognizable offence no conviction
under s. I20B of the Indian Penal Code could be had in the
absence of a sanction under s. l 96A of the Code of Criminal
Procedure (3) Prosecution witnesses Mela Ram, P.W. 6, and
Shiv Parshad. P.W. 7. were accomplices on their own show·
ing a.nd as such their testimony could not be taken into consideration (4) no test identification parade of the appellants
S.C.R.
SUPREME COURT REPORTS
1221
had been held (5) the charge, as framed, contra.vened the
mandatory provisions of s. 233 of the Code of Criminal Procedure.
Points 3, 4 and 5 may be disposed of at the outset. We
have examined the evidence of Mela Ram and Shiv Pa-rshad
and find nothing in their evidence which establishes them as
accomplices. It does not appear that before the High Court
it had ever been urged that these witnesses were accomplices
and their evidence could not be taken into consideration to
corroborate the approver. It was, however, urged that these
witnesses were unreliable because they had knowledge that
an attempt would be made to enable M.P. Khare to escape
from lawful custody and yet they informed no authority
about it. As to the reliability of these witnesses the' courts below were entitled to believe them and nothing of any consequence has been placed before us to convince us to take a
different view from that taken by the courts below.
As for the test identification parade, it is tnw tliat no
test identification parade wa.s held. The appellants were
known to the police officials who had deposed against the
appellants and the only persons who did not know them
before were the persons who gave evidence of association, to
which the High Court did not attach much importance. It
would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the
accused before the occurrence, but failure to hold such a
parade would not make inadmissible the evidence of ideritification in court. The weight to be attached to such identification would be a matter for the courts of fact and it is not
for this Court to reassess the evidence unless exceptional
grounds were established necessitating such a course.
It is true that no separate charges were framed under ss.
120B, 224/109 of the Indian Penal Code and s. 5(2) of the
Prevention of Corruption Act, I 947. Separate charges should
have been framed as required bys. 233 of the Code of Crimim1l Procedure. In our opinion, the irregularity committed, in
19J8
Kanta .Prashad
v.
Delhi
Administration
Imam .J.
19:J8
)\ (l//{(I f'l'08}Uld
v.
l>dhi
Atlminisfrntion
Jrnrim .J.
1222
SUPREME COURT REPORTS
[1958]
this case, was cured by the provisions of s. 537 of the Code.
It is to be noticed that it was urged before the Special Judge
that separate charges should have been framed and that a
single charge shou!d not have been framed but the objection
had been abandoned by the Advocate for the accused when
the Special Judge told him that if it was his contention that
the accused had been prejudiced by this from of the charge.
he would frame separate charges under separate heads and
then proceed with the trial. Furthermore, when the charge
was framed. the public prosecutor had urged that charges
under separate heads for each offence should be framed and
that they should not be joined together under one head. The
Advocate for the accused, however, had urged that the charge,
as framed, was correct. It seems to us that when the charge
was being framed the Advocate for the appellants desired
that the charge as framed should stand and the public prosecutor's objection should be overruled. It cannot be now
urged that the appellants were prejudiced by the charge as
framed. Indeed, the Advocate for the appellants abandoned
this objection and there is nothing in the High Court's judgment to show that this contention was again raised. We cannot permit such a question to be raised at this stage. It seems
to us, therefore, that there is no substance in the submissions
made on behalf of the appellants with reference to the abovementioned points 3, 4 and S.
With reference to the second point, even if it is assumed
that the offence alleged against the appellants does not come
under s. 224 of the Indian Penal Code, but under s. 222 of
the Indian Penal Code, it has to be remembered that this
would be of academic interest in this case, if the appellants
have been rightly convicted under s. 5(2) of the Prevention of
Corruption Act, 1947. It also does not appear from the judgments of the Special Judge and the High Court that it had
been contended that there was no sanction under s. 196A of
the Code of Criminal Procedure and consequently the court
could not take cognizance of the offence under f. l 20B of
the Indian Penal Code. Whether a sanction had been granted
under s. 196A was a question of fact which ought to have
S.C.R.
SUPREME COURT REPORTS
1223
been urged at the trial and before the High Court It is impossible at this stage to go into this question of fact. Furthermore, this question also is one of academic interest if the
conviction and sentence of the appellants under s. 5(2) of
the Prevention of Corruption Act, 1947, are affirmed.
Coming now to the first point urged on behalf of the
appellants, it would appear that the District Magistrate of
Delhi granted a pardon under s. 337 of the Code of Criminal
Procedure to Ram Saran Das, the approver, in consequence
of which Ram Saran Das was examined as a witness by the
Special Judge. It was urged that the District Magistrate could
not grant a pardon when the case was triable by the Court
of Special Judge constituted under the Criminal Law (Amendment) Act, 1952. The offence under s. 5(2) of the Prevention
of Corruption Act, 1947, is punishable with imprisonment
for a term which may extend to seven years, or with fine, or
with both. It was not an offence which was punishable with
imprisonment which may extend to ten years. The provisions
of s. 337 enabled a District Magistrate to tender a pard/Jn in
the case of any offence triable exclusively by the High Court
or a. Court of Session, or any offence punishable with imprisonment which may extend to ten years, or any offence
punishable under s. 211 of the Indian Penal Code with imprisonment vyhich may extend to seven years, or any offence
under ss. 216A, 369, 401, 435 and 477A of the Indian Penal
Code. These provisions of s. 337 at the time that the pardon:
was tendered were inapplicabl.e as the present case was not
covered by its terms. It is pointed out that the High Court
erred in supposing that the District Magistrate could grant
pardon in a case where the offence was punishable with imprisorunent which may extend to seven years or more and
which was triable exclusively by the Court of Session. The
Code of Criminal Procedure at the time that the pardon was
granted spoke of an offence punishable with imprisonment
for a term which may extend to ten years and not seven
years. The amendment to s. 337 of the Code. which came
1958
Kanta PrashaJ.
v.
Delhi
Administration
Im°'".!.
)!J.j8
Kanfn Prasl1ad
v.
lJelhi
Admi1ti1Sfralion
f111a 111 ./,
1224
SUPREi\JE COURT REPORTS
[I 958)
into effect in January, 1956, spoke of an offence punishable with
imprisonment which may extend to seven years, but this amendment could have no application to a pardon tendered on
1-12-'55. It seems to us, however, that the District Magistrate
had authority to tender a pardon under s. 337 of the Code
of Criminal Procedure with reference to a case concerning
an offence triable exclusively by the Special Judge and, therefore. we need not consider whether the offence was punishable
with imprisonment which may extend to seven years. Under
s. 8(3) of the Criminal Law (Amendment) Act of 1952 it is
expressly stated that for the purposes of the
provisions of
the Code of Criminal Procedure, 1898, the Court of Special
Judge shall be deemed to be a Court of Session trying cases
without a jury or without the aid of assessors. Section 9 of
that Act provides for an appeal from the Court of the Special
Judge to the High Court and states that the High Court may
exercise, as far as they may be applicable, all the powers
conferred by Chapters XXXI and XXXII of the Code of
Criminal Procedure, I 898, as if the Court of the Special Judge
were a Court of Session trying cases without a jury. It would
seem, therefore, that although a Special Judge is a court constituted under the Criminal Law (Amendment) Act yet, for the
purposes of the Code of Criminal Procedure and that Act, it is
a Court of Session. Accordingly, we are of the opinion that
although the offence was triable exclusively by the Court of
the Special Judge the District Magistrate had• authority to
tender a pardon under s. 337 of the Code of Criminal Procedure as the court of the Special Judge was, in law, a Court
of Session.
It was, however, suggested that the proper authority to
grant the pardon was the Special Judge and not the District
Magistrate, but it seems to us that the position of the Special
Judge in this matter was similar to that of a Judge of a Court
of Session. The proviso to s. 337 of the Code of Criminal
Procedure contemplates concurrent jurisdiction in the District
Magistrate and the Magistrate making an enquiry or holding
the trial to tender a pardon. According to the provisions of
s.c.n.
SUPREl\Il~ COURT REPOR'fS
1225
s. 338 of the Code, even after commitment but before judgment is passed, the Court to which the commitment is made
may tender a pardon or order the committing Magistrate or
the District Magistrate to tender a pardon. It would seem,
therefore that the District Magistrate is empowered to tender
a pardon even after a commitment if the Court so directs.
Under s. 8(2) of the Criminal Law (Amendment) Act, 1952,
the Special . Judge has also been granted power to tender
pardon. The conferment of this power on the Special Judge
in no way deprives the District Magistrate of his power to
grant a pardon under s. 337 of the Code. At the date the
District Magistrate · tendered the pardon the case was not
before the Special Judge. There seems to us, therefore, no
substance in the submission made that the District Magistrate
had not authority to tender a pardon to Ram Saran Das, the
approver, and
consequently the
approver's
evidence was
inadmissible.
The findings of the High Court establish the offence of
the appellants under s. 5(2) of the Prevention of Corruption
Act, 1947, and we can find no sufficient re'!son to think that
th1: appellants were wrongly convi.:ted thereunder.
The appeals are accordingly dismissed.
Appeals dismissed.
L/S4SCI-:l
1Yti8
K a»ta l'ra8hml
v.
Del/ii
A d1nini.~trali'un
]tllflllt J.