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The High Court held that since the account books were not translated they are not admissible in evidence STA |
The High Court was clearly wrong in so holding STA |
In coming to this conclusion it has relied upon the provisions of s. 356 (2A) of the Code of Criminal Procedure STA |
That section reads thus:" "This provision relates only to the oral evidence adduced in a case and not to documentary evidence STA |
Mr. Bhimasankaram, therefore, very rightly did not support the view of the High Court STA |
In the circumstances we wish to say nothing further on the point STA |
We may, however, point out that Billimoria himself gave his evidence in English STA |
Another point urged by Mr. Bhimasankaram was that as many as 2, 000 documents were "dumped" by the prosecution in this case out of which 1600 documents were not sought to be proved by it ARG |
Further, 64 documents were missing from the records when they came to the High Court and that this has caused serious prejudice to the respondent ARG |
No objection, however, was taken in the courts below on this score and in the absence of any prejudice to the respondents Ratio |
we do not think that we should take notice of the complaint made by Mr. Bhimasankaram Ratio |
The third point stressed by him was that the approver was allowed to refresh his memory, while deposing in the case, by referring extensively to the account books and various documents produced in the case Ratio |
This, according to him, was an absue of the provisions of s. 159 of the Evidence Act Ratio |
Now, s. 159 expressly enables a witness while under examination to refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is being questioned or soon afterwards, or to a writing made -similarly by another person and read by the witness immediately or soon after... |
S. 160 provides that a witness may also testify to the facts mentioned in any such document as is mentioned in s. 159 Ratio |
The complaint of Mr. Bhimasankaram is that the approver should have been questioned about the various facts which were sought to be established through his evidence and it was only if and when he was in a difficulty that he should have been allowed to refer to the account books Ratio |
Instead of doing that what he was permitted to do was just to prove the various documents or read those documents and then depose with reference to them Ratio |
In our opinion, where a witness has to depose to a large number of transactions , and those transactions referred to are or mentioned either in the account books or in other documents there is nothing wrong in allowing the witness to refer to the account books and the documents while answering the questions put to him ... |
He cannot be expected to remember every transaction in all its details and s. 160 specifically permits a witness to testify the facts mentioned in the documents referred to in s. 159 although he has no recollection of the facts themselves if he is sure that the facts were correctly recorded in the document Ratio |
That is precisely what happened in this case and we do not think that the Additional Sessions judge adopted a procedure which was either a violation of law or was an abuse of the power of the Court Ratio |
The next point is a formidable one Ratio |
According to Mr. Bhimasankaram, the pardon tendered to the approver was illegal and if the pardon is illegal his evidence is wholly inadmissible Ratio |
Further, according to him, the evidence of the approver was found by the Additional Sessions judge to be unreliable and therefore, the first condition referred to in Sarwan Singh v. The State of Punjab , was not satisfied Ratio |
For all these reasons the evidence of the approver must be left out of account Ratio |
If it is left out of account, he contends, there is nothing left in the prose- cution case, because, as pointed out by the Additional Sessions judge himself the evidence of the approver is the pivot of the prosecution case Ratio |
The pardon is stated to be illegal for two reasons Ratio |
The first reason is that none of the offences alleged to have been committed falls within s. 337 of the Code of Criminal Procedure and the second reason is that the pardon was granted by an authority not empowered to grant it Ratio |
S. 337 (1) as it stood before its amendment by Act 26 of 1955 read thus Ratio |
His contention is that where none of the offences is exclusively triable by the High Court or the Court of Sessions pardon could be granted only if the offences are punishable with imprisonment which could extend to ten years but not if a higher punishment were provided for them ARG |
Here, one of the offences alleged against the respondents is criminal breach of trust punishable under s. 409, I.P.C ARG |
It is not exclusively triable by a Court of Sessions and the punishment as set out in the 7th column of Schedule II, Cr ARG |
P. C. was transportation for life or imprisonment of either description for ten years and fine ARG |
He contends that since the offence is punishable with transportation for life, s. 337 (1) could not be availed of for granting pardon to the approver ARG |
It seems to us that it would not be correct to read s. 337 (1) in the way sought by learned counsel ARG |
The very object of this provision is to allow pardon to be tendered in cases where a grave offence is alleged to have been committed by several persons so that with the aid of the evidence of the person pardoned the offence could be brought home to the rest ARG |
The gravity is of course to be determined with reference to the sentence awardable with respect to that offence ARG |
On the strength of these considerations Mr. Chari for the State contends that if the words "any offence punishable with imprisonment which may extend to 10 years" were interpreted to mean offences which were punishable with imprinsonment of less than 10 years grave offences which are not exclusively triable by a court ... |
He suggests that this provision can also be reasonably interpreted to mean that where the offences are punishable with imprisonment exceeding 10 years pardon may be granted to the approver ARG |
No doubt, if this interpretation is accepted the object of the section, that is, to embrace within it the graver offences, would be fulfilled, but we wish to express no opinion on it Ratio |
For, the pardon granted in -this case can be regarded as being within the ambit of s. 337 (1) for another reason Ratio |
It will be noticed that transportation for life was not the only punishment provided for an offence under s. 409 of the Indian Penal Code even before the amendment made to the Indian Penal Code by s. 117 of the Act 26 of 1955, the other alternative being imprisonment up to 10 years Ratio |
Therefore, since the offence under s. 409 was not merely punishable with transportation for life but alternately also punishable with imprisonment which could extend to 10 years, s. 337 (1) would apply Ratio |
This section does not expressly say that the only punishment provided for the offence should be imprisonment not exceeding 10 years Ratio |
The reason why two alternative maximum sentences are given in col Ratio |
7, that is, transportation for life (now imprisonment for life) and imprisonment not exceeding 10 years appears to be that the offence is not exclusively triable by a court of session and could also be tried by a Magistrate, who, except when empowered under s. 30 would be incompetent to try offences punishable with tra... |
Now, of course, by the amendment made by s. 117 of Act 26 of 1955 for the words "transportation for life" the words "imprisonment for life" have been substituted, but the original structure of all the sections now amended continues Ratio |
That is why they read rather queer but even so they serve the purpose of allowing certain offences triable by a court of Session, to be triable also by Magistrates of the First Class Ratio |
Be that as it may, there is no substance in the first ground Ratio |
What we have said about pardon in respect of an offence under s. 409 would apply equally to that for one under s. 120-B because the punishment for it is the same as that for the offence under s. 409 Ratio |
The offence under s. 467 read with s. 471 is punishable with imprisonment for life or imprisonment of either description for a period of 10 years but it is exclusively triable by a court of Session and, therefore, in so far as such offence is concerned the argument of Mr. Bhimasankaram would not even have been availabl... |
As regards the offence under s. 477-A, it is one of those sections which are specifically enumerated in s. 337 (1) and the argument advanced before us-and which we have rejected would not even be available with regard to the pardon in respect of that offence Ratio |
It is true that the respondent No Ratio |
I alone was convicted by the Additional Sessions judge of this offence and the offence under s. 467 read with s. 471 but the validity of a pardon is to be determined with reference to the offence alleged against the approver alone and not with reference to the offence or offences for which his associates were ultimatel... |
Coming to the next ground of attack on the validity of pardon, the argument of Mr. Bhimasankaram is that whereas s. 337 (1) speaks of pardon being granted by a District Magistrate, or Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate of First Class, except in cases where an enquiry or trial was pendi... |
He contends that s. 337 (1) speaks of the District Magistrate which expression does not include an Additional District Magistrate ARG |
Mr. Bhimasankaram's argument on the point may be summarised thus : Such a power cannot be conferred upon an Additional District Magistrate because s. 337 (1) does not contemplate grant of pardon by an Additional District Magistrate and that the Additional District Magistrate would have no status other than that of a Ma... |
No doubt, under entry (9-a) in Part III of Sch Ratio |
III to the Code a Magistrate, First Class, has the power to grant pardon under s. 337 but it is limited by the proviso thereto to certain classes of cases Ratio |
A case under enquiry or trial before another magistrate does not fall in any of these classes Ratio |
Therefore, a pardon granted by him in such a case would be illegal Ratio |
The Magistrate before whom the enquiry or trial is proceeding or the District Magistrate would be the only authorities competent to grant a pardon in such a case Ratio |
Alternatively, the State Government has not made any directions under sub-s Ratio |
2) of s. 10 specifying the powers of the District Magistrate which would lie exercisable by the Additional District Magistrate concerned Ratio |
In order to appreciate and consider the argument it is desirable to bear in mind the changes in the magisterial set up in the former province of Madras which comprised within it the district of Visakhapatnam Ratio |
By Government Order No. 3106 dated September 9, 1949 the Government of the Province of Madras issued certain instructions to the Magistrates in pursuance of the separation of the judiciary from the executive Ratio |
It divided the magistrates into two groups, Judicial magistrates and executive magistrates Ratio |
The latter category comprises of the executive officers of the Revenue Department, on whom the responsibility for the maintenance of law and order was to continue to rest Ratio |
Para 4 of the instructions provides Ratio |
Para 5 provides that as officers of the Revenue Department, those magistrates would be under the control of the Government through the Board of Revenue Ratio |
The Additional District Magistrates (Independent) would also be under the control of the Government through the Board of Revenue Ratio |
The category of judicial Magistrates was constituted of the following: (1) District Magistrate; (2) Sub-divisional Magistrates; (3) Additional First Class Magistrates and (4) Second Class Magistrates (Sub- magistrates Ratio |
The District Magistrate was constituted as the principal magistrate of the District and as such was entrusted with the duty of general administration and superintendence and control over the other judicial magis- trates in the district Ratio |
In addition to his general supervisory functions and the special powers under the Code of hearing revision petitions, transfer petitions, appeals from Second Class Magistrates and the like, the District Magistrate was also to be assigned a specific area, the cases arising from which would be disposed of normally by him... |
This body of magistrates was made subordinate to the High Court Ratio |
Till the separation between the judiciary and the executive was effected the Collector as the head of the Revenue Department was also the District Magistrate Ratio |
Consequent on the separation Ratio |
he became only an Additional District Magistrate Ratio |
Part IV of the Government order deals with the allocation of powers between the judicial and executive magistrates Ratio |
Para 19(3) occurring in this part deals with allocation of powers under the provisions of the Code otherwise than these referred to in the earlier paragraphs Ratio |
It specifically provides that the power to tender pardon udder s. 337 shall be exercised by executive magistrates except in cases referred to in the proviso to sub-s Ratio |
1) of that section, in which case a judicial magistrate may exercise that power Ratio |
In spite of the Government order all Magistrates who have, under Sch Ratio |
III to the Code of Criminal procedure the power to grant pardon will continue to have that power and, therefore, a pardon granted by a judicial Magistrate in contravention of the Government order will not be rendered invalid Ratio |
However, that is not the point which is relevant while considering the argument of Mr. Bhimasankaram Ratio |
His point is that the proviso to s. 337(1) confers the power on "the District Magistrate" to grant pardon in a case pending before another Magistrate and not on "a District Magistrate" and, therefore, his power to grant pardon in such cases cannot be conferred under sub-s.(2) of s. 10 on an Additional District Magistra... |
According to him, under that section only the powers of "a District Magistrate" meaning thereby only the powers under Entry 7 (a) in Part V of Sch Ratio |
III Ratio |
as distinguished from the power under the proviso to s. 337 (1) can be conferred upon an Additional District Magistrate Ratio |
Secondly, according to him, no direction has in fact been shown to have been made by the State Government conferring upon an Additional District Magistrate the power of the District Magistrate to grant pardon Ratio |
In our opinion, there is no subtance in the contention Ratio |
The power conferred by sub-s Ratio |
1) of s. 337 on the different clauses of Magistrates is of the same character Ratio |
The power to grant pardon in a case pending before another Magistrate is no doubt conferred by the proviso only on the District Magistrate Ratio |
But Entry 7 (a) in Part V of Sch Ratio |
III when it refers to the power of a District Magistrate under s. 337 (1) does not exclude the power under the proviso Ratio |
There is, therefore, no warrant for drawing a distinction between the powers of "the District Magistrate" and the powers of "'a District Magistrate Ratio |
The power of a District Magistrate to grant Pardon has been specifically conferred on Additional District Magistrates as would appear from s Ratio |
no Ratio |
37 of Sch Ratio |
III of the Government Order, which reads thus Ratio |
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