TaxTMI 
TaxTMI 
1923 (9) TMI 1
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....ate-General granted a certificate in the following terms: 2. "Certificate of the Advocate General of Bengal under Clause 26 of the Letters Patent of 1865. 3. "I. Whereas the accused above named was on the 16th August, 1923, charged at the Criminal Sessions holden in this Hon'ble Court in its Criminal Jurisdiction before the Hon'ble Mr. Justice Page and a Special Jury on an indictment as follows: 4. "First: That he, the said Barendra Kumar Ghosh, together with certain of the other persons on or about the 3rd day of August in the year of our Lord 1923 in Calcutta aforesaid committed murder by causing the death of one Amrita Lal Roy and thereby he, the said Barendra Kumar Ghosh; committed an offence punishable under Section 302 of the Indian Penal Code. 5. "Second. That the said Barendra Kumar Ghosh together with certain other persons at or about the time and in the place aforesaid were jointly concerned in attempting to commit robbery on the said Amrita Lal Roy and that at the time of committing such robbery voluntarily caused hurt to the said Amrita Lal Roy and thereby he, the said Barendra Kumar Ghosh, committed an offence punishable under Section 39....
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.... picked up by a small boy who gave it to the packer. 9. "That the prosecution case further was the Post Master had expired within a short interval of being shot, that one bullet was found inside his body which on being extracted fitted into the empty cartridge case picked up inside the room of the Post Office which in its turn was found to be of the same bore as that of the automatic pistol carried by the accused, that the dent of the bullet was found on the wall of 15 Mohendra Sircar's Lane fronting the Post Office, that no other empty cartridge was found inside the same room, that no trace of the third bullet was available in or out of it, and lastly that two revolvers and three daggers were found at premises No, 181, Harrison Road, a Chemist's shop where the accused was employed. 10. "IV. Whereas it has been further represented to me that the case for the defence as disclosed in the evidence was as follows: 11. "(a) That the case for the defence was embodied in the statement made by the accused in Court which according to him was identical with the statement he had previously made to Inspector Bon Behari Mukherji; a copy of the accused's statement i....
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....used. 21. "VII. And whereas the facts hereinbefore set out have been certified to me by Counsel for the accused as appears from the certificate hereunder written. 22. "Now I, Satish Ranjan Das, Advocate-General of Bengal, do under and by virtue of the powers entrusted to me by the Letters Patent for the High Court of Judicature at Fort William in Bengal bearing date the 28th September, 1865, certify that in my judgment whether the alleged direction and the alleged omission to direct the Jury do not in law amount to a misdirection should be further considered by the said High Court. Sd. S.R. Das. We, the undersigned defended the above accused at his trial by the Hon'ble Mr. Justice Page at the last Criminal Sessions of the High Court on the 16th and 17th instant and were present at his trial throughout and we certify that the facts hereinbefore set out have been correctly stated to the best of our recollection and belief. Sd. B.C. Chatterjee, S.K. Sen, and N.R. Das Gupta, Counsel for the accused. 23. Thereupon, on that very date, Counsel for the prisoner applied to the Chief Justice to appoint a Bench to hear "the application for review; and the present Bench....
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.... Counsel and Advocate-General. In my opinion, there is no room for controversy that what is thus stated to have been the established practice is the proper course to follow. This does not imply that when the Advocate-General is asked to grant a certificate under Clause 26, he should be guided by the views of the Crown; but he should be aware, before he forms his judgment, that the version of what took place at the trial, as given on behalf of the accused, is disputed by the prosecution. I am further of opinion that the allegations embodied in the petition to the Advocate-General should be verified by Counsel" present at the trial or by other responsible person. In the case before us, no certificate of any description was attached to the application made to the Advocate-General. The result was that the Advocate-General formed his judgment upon materials, the accuracy whereof was not certified. Counsel for the accused was heard by him, and a draft of a certificate was then prepared: this incorporated some only of the allegations contained in the unverified petition. A certificate was next appended by Counsel present at the trial, to the effect that the facts "hereinbefore&q....
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....rtificate has fceen granted, and the Court must consequently deal with the case under Clause 26 of the Letters Patent. 25. The facts material for the appreciation of the questions which have emerged for consideration, may now be conveniently narrated. On the 3rd August last, several persons it is a matter for controversy whether their number was three or fourarmed with fire-arms entered the Sankaritola Post Office in this city at about 3-30 p.m. The case for the prosecution is that the gang consisted of four persons, and included the accused. Three of these persons--one of whom was the accused--entered the Post Office, through its southeastern door, while the fourth remained outside. Of the three who went inside, the accused stood in the middle; he had a khaddar coat on and a shirt beneath. The man on his left had a mask on his face, the man on the right had a shirt on with black stripes. Inside, the room there were three officers, at three different tables, namely, the Post Master Amritalal Ray, the packer Haraprasad Das, and the Money Order Clerk Sham-dulal Das. The Post Master was facing west, the packer east and the Money Order Clerk north. The three men who entered the room s....
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.... and so I could not go. He said Come with me to my hous?, you will have to be away for only one hour, I have got to tell you something very important.' Then one of the men belonging to the dispensary came after taking his meal. I told my man that I " was going to this gentleman's house and wanted a man to stay in the dispensary. Then the gentleman took me to his house and I was made to wait in his drawing room. There I found two young men seated; I knew one of them but did not know the other. The gentleman then said to me you will have to go with me to a certain place and commit dacoity. I was very much frightened. I said what is the dacoity. He took me to a room next to the drawing room away from the two boys. This room was a dark room with all the doors and windows shut. There he began to encourage me saying I would have nothing to do but only to accompany these two boys. He said these two boys will do every thing, you will go there as a mere show.' I told him why should I commit dacoity, I am newly married, I am not in need of money. Instead of replying, he looked at me in the face for some little time. I was sitting quiet, when he called one of the boys into th....
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....cted, for the gentleman told me that a portion was to be pulled out first and then the trigger was to be pulled. As soon as I drew out a portion of the pistol a cartridge came out and fell on the ground, when I next attempted to fire a shot to the sky. After going some little distance I fired another shot. When I came to St. James Square, I could not run further and sat down on the ground and threw away the pistol. I was then arrested by three or four men, taken back to the Post Office and handed over to the Police. I heard one witness depose in Court that I fired at him; I can swear before God that I did not intend to fire at him. If I wanted to kill men I could have done so. I have never in my life assaulted any body or caused any bloodshed. This is my first offence, I will not keep bad company any longer. I throw myself on the mercy of the Court. I was married only three months ago and I pray that I may be saved. The period that I was with these men was only an hour. I am prepared to abide by any sentence that your Lordship metes out. I do not Avish to mention the names of the other men here, but I have already given them to the Police." 27. It is necessary at this stage t....
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....we thought it was a very difficult case--I am not pretending to give a verbatim report of what I said, but I am giving the sense of what I remember having said--and that if we could feel that a plea of guilty on the part of the accused under Section 394 were acceptable to the Court, subject to what the accused had to say to us in the interview we were going to have with him, we would advise him to plead guilty under Section 394; I would appeal to Mr. Justice Page to remember in this connection; but as far as my recollection serves me, His Lordship Mr. Justice Page told us that in a case like this, he could not accept a plea of guilty on any count lesser than murder, not even on culpable homicide not amounting to murder. After that we saw the accused, and he told us all that he had to say about the facts of the case; and upon full instructions by him, we came to the conclusion that we should be right, in the circumstances of the case, to advise him to plead guilty under Section 394 and that he should be defended on the charge of murder under Section 302. This is the recollection I have of this matter, and it is unfortunate that my learned friend Mr. Sen is not here, because in that ....
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....learned Judge, thought that if the accused were to plead guilty to the minor charge, the prosecution should not press the major charge, and ought, in his opinion, to withdraw it. Mr. Basu, we were further told, thereupon asked leave to refer the question to Standing Counsel, and that later, after learned Counsel on both sides had gone into the learned Judge's Chamber and informed him of their agreement on the lines of his suggestion, accused pleaded guilty to the minor charge whereupon the prosecution withdrew the major charge. We were also informed that the prisoner was sentenced leniently as a result of his pleading guilty in the aforesaid manner. Since the learned Judge had done this in a previous case, we thought there would be nothing wrong in our seeing him in Chamber with regard to the present case with a view to request him that he might deal with our client similarly. 34. "As neither of us knew Mr. Justice Page well enough, we both went, in the first instance, to another learned Judge of this Court to ascertain his views on the propriety of the course we were contemplating; and the said learned Judge unhesitatingly approved of our going in to see Mr. Justice Page....
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....75 and Emperor v. Upendra Nath Das 30 Ind. Cas 113 : MANU/WB/0192/1914 : 19 C.W.N. 653 : 21 C.L.J. 377 : 16 Cri. L.J. 531 (F.B.) on the authority fo Everett v. Yousells (1833) 4 B. and Ad. 681 : 1 N. and M. 530 : 110 E.R. 612, Rex v. Grant (1834) 5 B. and Ad. 1081 : 3 N. and M. 106 : 110 E.R. 1092, Gibbs v. Pike (1812) 9 M. and W. 351 : 12 L.J. Ex 257 : 6 Jur. 465 : 152 K.R. 149 : 1 Dowl. (N.S.) 409 : 60 R.R. 749. (24) (1858) Dears and Bell: 468 : 7 Cox C.C. 454 and R. v. Mellor (1858) Dears and Bell 468 7 Cox C.C. 454. The conclusion I have formed is based on the inherent improbability of the version given by the learned Counsel. A plea of guilty in answer to the charge under Section 394 would be of no avail to the prisoner, if he was still to be tried upon the charge of murder with the consequent possibility of capital sentence. The charge under Section 302 could not, at that stage, be withdrawn by the Trial Judge, though, after evidence had been adduced, he might, if satisfied that there was no evidence to go to the Jury, direct the Jury to return a verdict of not guilty. The object of the Counsel, who sought, and secured the interview with the Trial Judge, must have been to bar....
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.... Bar Association. The facts are beyond dispute and may be concisely stated. 39. Lord William Russell was found murdered in his bed on the 5th May, 1840. His house was occupied only by himself and three servants, a young Swiss valet by name Courvoisier and two women, a cook and a house maid. Suspicion fell upon Courvoisier, and he was sent up for trial on a charge of murder. His Counsel Charles Phillips went to the trial with a full persuation of his innocence and conducted the cross-examination of the witnesses closely and zealously, specially of one of the female domestics, with a view to show that there was as much probability that the witness or the other domestic was the culprit, as the prisoner. At the close of the first day's proceedings, the prosecutors were placed unexpectedly in possession of a new and important item of evidence, by the discovery of the plate of the deceased, which had been missed and was found to have been deposited with a lady a week before the murder. The only question remained, whether Courvoisier was the person who had so left it. If he was, it would increase the probability that it was he, who subsequently committed the murder with the object of....
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.... commit the offence charged, is in substantial agreement with what was adopted by the General Council of the Bar in 1915, as appears from the following extract from the Annual Statement for 1915, page 14 : The Council were asked to advice on the propriety of Counsel defending on a plea of 'Not guilty' a prisoner charged with an offence, capital or otherwise, when the latter has confessed to Counsel himself the fact that he did commit the offence charged. The questions raised were, (1) What is the duty of Counsel under the circumstances? May he, according to modern views defend in such case, and if so ought he to do so? (2) Does the same answer apply where he has already appeared in Court for the prisoner? 42. The Council adopted the following report: 43. "Different considerations apply to cases in which the confession has been made before the Advocate has undertaken the defence and to those in which the confession is made subsequently during the course of the proceedings. 44. "If the confession has been made before the proceedings have been commenced, it is most undesirable that an Advocate to whom the confession has been made should undertake the defence as ....
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....Advocate may not assert that which he knows to be a lie. He may not connive at, much less attempt to substantiate, a fraud. 51. "While, therefore, it would be right to take any objection to the competency of the Court, to the form of an indictment, to the admissibility of any evidence, or to the sufficiency of the evidence admitted, it would be absolutely wrong to suggest that some other person had committed the offence charged, or to call any evidence Avhich he must know to be false having regard to the confession, such, for instance, as evidence in support of an alibi, which is intended to show that the accused could not have done or in fact had not done the act; that is to say, an Advocate must not (whether by calling the 'accused or otherwise) set up an affirmative case inconsistent with the confession made to him. 52. "A more difficult question is within what limits, in the case supposed, may an Advocate attack the evidence for the prosecution either by cross-examination or in his speech to the tribunal charged with the decision of the facts. No clearer rule can be laid down than this, that he is entitled to test the evidence given by each individual witness, a....
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....s types of intellect as were represented by Johnson and Erskine (Boswells' Life of Johnson, Volume I and Campbell's Lives of the Lord Chancellors, Volume VIII). I shall not pursue this matter further or examine the vexed question of the duty of an Advocate who has lost faith in the cause he has been engaged to support. This much appears to me to be incontestable that it is not his duty to approach the Trial Judge and to apprise him that in his opinion the man, whose fate has been entrusted to his care, has no defence to make. I venture to add that if, as Trial Judge, I had been placed in such a predicament, I would, without hesitation, have reported the Counsel concerned to the Chief Justice for disciplinary action, and I would have asked to be relieved of the duty of participating in the trial and of passing sentence upon a man whose Counsel had previously assured me that there was no defence to make. 55. Let me now pass on to an examination of the questions specified in the certificate of the Advocate-General. 56. The Advocate-General has certified that whether the direction and the non-direction (as specified by him) amount in law to misdirection, should be further con....
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....Section 34 in Queen-Empress v. Mahabir Tiwari 21 A. 283 : A, W. N, (1899) 76 : 9 Ind, Dec, (N.s.)876 and as will presently appear, there has been much divergence of judicial opinion on the subject. In my judgment, the question |of the true construction and correct application of Section 34 is beset with graver difficulties than appear at first sight, and as I have arrived at a conclusion contrary to the opinion maintained by Stephen, J., who had made a profound study of Criminal Law, both Indian and English, it is only fair that his views should be stated in his own words. The exposition of these views, concisely set out in his judgment in Emperor v. Nirmal Kanta Roy 24 Ind. Cas. 340 : 41 C. 1072 : 18 C.W.N. 723 : 15 Cri. L.J. 460 was amplified and re-stated by him in the following extract from a letter published by him in the Calcutta Weekly Notces, Volume XVIII, page 222 (ccxxii) short-notes: 59. "The case made by the prosecution which had to be put before the Jury may, for present purposes, be presented in the familiar style of an illustration thus: A and B set out to murder G. Both fire pistols at him. A hits him and kills him. B misses him.' Does B's act come und....
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....tanding ready to assist. 64. "An accessory before the fact is a man who procures, etc., or abets another to commit or in committing a crime, but is not there or thereabouts when it is committed. 65. "An accessory after the fact is a man who helps the criminal to escape; he completes the group, but otherwise it is unnecessary to consider him for present purposes. 66. "I omit any consideration of the non-application of these rules to misdemeanours or treason; but a glance at the cases in Russell (and their number might be indefinitely increased) will show how little our predecessors were open to the reproach of neglecting any technical points that possibly would be available for the defence of prisoners. 67. "Such was the English Law before 1861. But in that year the inconvenience of those clumsy distinctions that had slowly grown up since the time of Hale--it is curious how many inconveniences the English Criminal Law owes to his age, if not to him--was clearly recognised, and advantage was taken of the framing of the Consolidation Acts of that year to correct it. The correction contained in the Accessories and Abettors Act, 24 and 25 Vict., c. 241, is charac....
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....e. (2) A and B are gaolers having charge of Z ultimately. They both omit to furnish Z with food, intending to cause his death. Z dies of hunger. Both A and B have committed culpable homicide. The language of the section has been changed, and the illustrations have been dropped; but I believe the law is as Macaulay planned it. That is, the man who does a thing is principal, and one who puts him on or helps him to do it, is an abettor whether he is present or not; and there are no other parties. 70. "But there remains another little puzzle, and that is Section 114. I need not set out its terms. But what I suspect is that the Commissioners could not help preparing a little resting place for the ghost, they were laying. What they had in their minds was that a principal in the second degree really differed from an abettor, and must be provided for; they, therefore, intended to say that whereas an abettor was to be punished as if he had done the thing (the phrase will bear repetition); if he was present he was to be deemed to have done it, which, after all, was and is English Law. Practically I cannot see that this makes any difference, as the punishment for the thing is all that n....
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.... be legitimately made, as was done by the Judicial Committee in Maharajah Ishuree Persad Narain Sing v. Lal Chutterput Sing 3 M.I.A. 100 : 1 Sar. P.C.J. 245 : 18 E.R. 435 and Brown v. McLaehlan (1872) 4 P.C. 543 : 9 Moo. P.C. (N.S.) 384 : 42 L.J.P.C. 18 : 21 W.R. 277 : 17 E.R. 559, when reasonable doubt is entertained as to the true construction of a Statute. The operation may, however, be easily carried too far, and may, in the case of codifying Statutes, lead to results which have been emphatically condemned in decisions of the highest authority; see, for instance, the observations of Lord Herschell in Bank of England, v. Vagliano (1891) App. Cas. 107 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 J.P.676, of Lord Watson in Robinson v. Canadian Pacific Railway Co. (1892) App. Cas. 481 : 61 L.J.P.C. 79 : 67 L.T. 505 and of Lord Macnaghten in Narendra, Nath v. Kamal Basini 23 I.A. 18 : 23 C. 563 : 6 Sar. P.C.J. 667 : 6 M.L.J. 71 : 12 Ind. Dec. (N.S.) 374 (P.C.) : . (33) 35 C. 34 at p. 55 : 6 C.L.J. 273 (F.B.) . The proper course is, in the first instance, to examine the language of the Statute, to interpret it, to ask what is its natural meaning, uninfluenced by considerations ....
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....ere the contrary appears from the context. Section 33 sliows that the word 'act' includes a series of acts and the word. 'omission' includes a series of omissions. Section 34 shows that when a criminal act is done by several persons, each is liable as if he did it alone, provided the act is done in furtherance of the common intention of all. Section 35 shows that when an act, criminal only in respect of knowledge or intention, is done by several persons, each person, joining With criminal knowledge or intention, is liable as if he had done it alone with that knowledge or intention. Section 36 shows that when an offence is the effect partly of an act or partly of an omission, it is one offence only. Section 37 shows that when an offence is committed by several acts, each person intentionally committing one of those acts singly or jointly with others, commits the offence. Section 38 shows that persons jointly engaged in a criminal act may be guilty of different offences. To justify the application of Section 34, it is, consequently, necessary to prove what may be briefly described as a common act and a common intention. The real difficulty emerges when we are called u....
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....e cause, he is responsible. If he awoke into action an indiscriminate power he is responsible. If he gave directions vaguely and incautiously, and the person receiving them acted according to what might be presumed to have been his understanding of them, he is responsible. But, if the wrong done was a fresh and independent wrong springing wholly from the mind of the doer, the other is not criminal therein, merely, because, when it was done, he was intending to be a partaker with the doer in a different wrong. These propositions may not always be applied readily to cases arising, yet they seem to furnish the true rules." 80. This exposition is reproduced by Bishop, with slight variations, in the latest edition of his great work (New Commentaries, 1892, Volume I, Chapter XLV, Section 641). Mr. Mayne, adhered to this view in his work on the Criminal Law of India. (Fourth Edition, 1914, page 238) where the following statement occurs: "Where several persons unite, with a common purpose, to effect any criminal object, all who assist in the accomplishment of that object are equally guilty, though some may be at a distance from the spot where the crime is committed and ignorant ....
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....f one is, in consideration of law, the stroke of all"; see Pleas of Crown by Hale, Volume I, pages 437, 463; Volume II, pages 344, 345; Pleas of the Crown by Hawkins, Volume II, Chapter 29, Sections 21, 22; Pleas of the Crown by East, Volume I, page 70. The theory which 'underlies this view is that if one has the criminal intent and another does the criminal act, the intent not contributing to the act, not strengthening it, and not in any way influencing it, there is in the former person no crime; but it is otherwise if there is a unity of intent and act. 83. The subject, as is fairly clear, is by no means free from difficulty and the principle is analysed with great acute-ness by Collett in his Comments on the Indian Penal Code, 1889, pages 2-5. He sums up his conclusion concisely in the statement "that community of criminal intention determines the community of liability in every instance of accession at the fact," In illustration, he refers to the two contrasted cases, 'viz., the Sissinghurst House case (1673) 1 Hale P.C. 462, where an assistant of a constable was killed by some members of a riotous assembly and R. v. Sarum (1697) Foster 393, where three ....
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.... Queen v. Ruchee 2 W.R. 39 Cr., do not examine the principle, but assume that when two persons take an active part in a murder, they become principals in the first degree, though one of them only may have been the actual killer. This was apparently the opinion of Sir Barnes Peacock, C.J., as indicated in the case of Queen v. Gora Chand 5 W.R. 45 at p. 48 Cr.; 1 Ind Jur (N.S.) 177, where he stated that if several persons go out together for the purpose of apprehending a man and taking him to the Police Station on a charge of theft, and some of the party in the presence of the others beat and ill-treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, those who have to deal with the facts might very properly infer that they were all assenting parties and acting in concert, and that the beating was in furtherance of a common design. On the other hand, all who are present do not necessarily assist by their presence every act that is done in their presence. Markby, J., tqok a similar view in Queen v. Hyder Jolaha 6 W.R. 83 Cr, when he stated that if a master accompanies a servant, knowin....
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.... Cr. L.J. 325Gouridas Namasudra v. Emperor 2 Ind. Cas. 841 : 36 C. 659 : 13 C.W.N 680 : 10 Cri. L.J. 186, Emperor v. Morgan 1 Ind. Cas. 814 : 36 C. 302 : MANU/WB/0002/1909 : 13 C.W.N. 362 : 9 C.L.J. 204 : 9 Cri. L.J. 393, Jhakri Chamar v. Emperor 17 Ind Cas. 1001 : 16 C.L.J. 440 : 13 Cri. L.J. 905Reazuddi v. Emperor : 15 Ind. Cas. 646 : 16 C.W.N. 1077 : 13 Cri. L.J. 502Jamiruddi Biswas v. Emperor : 16 Ind. Cas. 523 : 16 C.W.N. 909 : 13 Cri.L.J. 715, Manindra Chandra Ghose v. Emperor 23 Ind. Cas.1002: 41 C. 754 : 18 C.W.N. 580 : 15 CriL.J. 402 :, Emperor v. Nogendra Nath Sen Gupta 30 Ind. Cas.128 : 21 C.L.J. 396 : 19 C.W.N. 923 : 16 Cri. L.J.576 and In the matter of Faezulla 61 Ind. Cas. 522 : 25 C.W.N.24 : 22 Cri. L.J. 394In some of these cases, the Court declined to apply Section 34, not because the act could not be said to have been done by several persons, but because there was no proof that it had been done in furtherance of the common intention; these cases furnish a clear indication that the Court would have applied Section 34 if a common intention had been proved. In, one of these cases Emperor v. Morgan 1 Ind. Cas. 814 : 36 C. 302 : 13 C.W.N. 362 : 9 C.L.J. 204 : 9 Cri. L.J....
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.... the view contrary to that adopted by Stephen, J. The later decisions in Queen-Empress v. Maganlal 14 B. 115 : 7 Ind. Dec. (N.S.) 535, Subbappa Channappav. Emperor 19 Ind. Cas. 331 : 15 Bom. L.R. 303 : 14 Cr. L.J. 235 cannot be claimed as decisive authorities in support of either of the conflicting views. 88. In Lahore, there has been a similar diversity of judicial opinion. But it is worthy of note that two of the latest cases, viz., Harnam Singh v. Emperor 52 Ind. Cas. 395 : 21 P.R. 25 Cr. L.J. 547 really presents no difficulty on its special facts. 89. In Patna, a similar difference of attitude is traceable through the decisions. In Lachho Singh v. Emperor 38 Ind. Cas. 766 : 18 Cri. L.J. 382, four persons formed themselves into a body with the common object, of beating the complainant, and while two of them assaulted him, the other two stood by, armed with lathis, ready to take part, if necessary; it was ruled that the latter two were equally guilty, with the others, of an offence under Section 323, Indian Penal Code. The later decisions in Ritbaran Singh v. Emperor 46 Ind. Cas. 709 : 19 Cri. L.J. 789 : 4 P.L.W. 120 and Sat-rughan v. Emperor 50 Ind. Cas. 337 : 20 Cri L.J. 289,....
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....position given by Stephen, J. places too narrow an interpretation: upon Section 34, and that the question whether a particular criminal act may be properly held to have been " done by several persons" within the meaning of the section cannot be answered regardless of the facts of, the case. To show that the problem may require, solution in the most diverse circumstances imaginable, we may refer to Breese v. State (186l) 12 Ohio 146 : 80 Am. Dec. 840. In that case the accused had agreed with others to commit a burglary in a store house at night. As a part of the said agreement and to facilitate the breaking and entry and to lessen the chances of detection, it was agreed that the accused should on that night decoy the owner away from the store where he usually slept, to a music party about a mile distant, and detain him there, while the other confederates were to break and enter the store and remove the goods. The parties did, in fact, perform their respective parts of the agreement, and the burglary was successfully committed. The Supreme Court held that the accused was constructively present at the breaking and entry by his confederates and could be convicted as principal....
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....aid those who are immediately engaged, to escape. Each person consenting to the commission of an offence and doing any one act which is an ingredient in the crime or immediately connected with or leading to, its commission is a principal: Reg. v. Flatman (1880) 14 Cox C.C. 395 : 42 L.T. 159 : 44 J.P. 314, Todd, J., dissented, though he conceded that if a party watches for his companions, the actual perpetrators, to prevent surprise or favour their escape, or give assistance and is near enough to afford it, if required, he may be deemed constructively present. He referred to the decision in Reg. v. Tuckwell (1841) C. and M. 215, where, in circumstances very similar, the employee who had, in pursuance of an arrangement with his confederate, left the house so as to enable the latter to commit the robbery, had been held by Coleridge, J., to be not a principal in the crime, but an accessory before the fact. To the same effect is the decision in Reg. v. Jefferies (1848) 3 Cox C.C. 85. A third illustration is furnished by the decision in State v. Hamilton (1878) 13 Nevada 386 which carries the law probably to its farthest limit. There a plan was arranged to rob an express train on the roa....
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....de, even at a distance, in order to guard against surprise and detection, and to receive the goods, or a portion of them, after the larceny has been committed, there can be no doubt that the latter would be liable as principal, although he did not see his accomplice do any act towards the commission of the offence. He would be, it is true, an accessory before the fact, by advising and procuring the commission of the felony; and after the fact, by receiving the property after it was stolen; but he would also be a principal, because, at the time when the felony was committed, he co-operated with the chief perpetrator, and aided and abetted him in doing the acts which constituted the crime. 93. I shall not multiply instances to show when a man may be said to participate in a criminal act, lest we get lost in an endless maze of decisions remarkable for refined distinctions such as we find in R. v. Stewart (1814) R. and R. C. 357 and R.v. Dacre (1542) Palmer 35 : 1 Hale P.C. 439. The balance of reason and authority is, in my opinion, againstthe limited interpretation placed by Stephen, J., on Section 34 in Emperor v. Nirmal Kanta Roy 24 Ind. Cas. 340 : 41 C. 1072 : 18 C.W.N. 723 : 15 C....
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....hich all the Judges hearing that case agreed. The substance of the matter is that non-direction when it consists in omission to put the material facts or to put the defence to the Jury is sufficient to cause the Court to quash the conviction, if, the Court comes to the conclusion that it is reasonably probable that the verdict of the Jury was affected thereby: Rex v. Hill (1911) 7 Cr. App. Rep. 26 : App. Rep. 146 and Rex v. Willet (1.53) The points which have been emphasised before us by Counsel for the prisoner may be summarised as follows: (1) Did three or four persons form the party? (2) Did two or three persons go inside the room and fire? (3) Was the prisoner the man who stood outside? (4) Did the prisoner share the murderous intention of the other members of the party? Special stress has also been laid on what has been called the live cartridge incident. The Standing Counsel has urged, on the other hand, that the case as now presented with so much elaboration was not developed in the evidence as elicited by cross-examination of the witnesses for the Crown. He has further maintained that the live cartridge incident was not mentioned when Counsel for the prisoner addressed the ....
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....ts emphasised on behalf of the accused his Counsel finds himself in a difficulty but of a different character. The points whereon such emphasis has been laid in the argument before us were not clearly foreshadowed, indeed, they were very imperfectly indicated in the cross-examination. I have read the summing-up with the care it deserves/ The impression left on my mind is that, taken as a whole, it is what is sometimes designated a charge for conviction. But it cannot fairly be said that the facts were not left to the Jury to decide and that the Judge usurped their function, merely because he gave expression, as he was entitled, to his opinion on the evidence strongly: Rest v. West (1910) 4 Cr. App. Rep. 179 Rex v. Beeley (1911) 6 Cr. App. Rep. 138, Rex v. Frampton (1917) 12 Cr. App. Rep. 202 Rex v. O'Donnell (1917) 12 Cr. App. Rep. 219. We must further remember that as Lord Hatherley said in Prudental Assurance Co. v. Edmonds (1877) 2 App. Cas. 494 it is not fair to criticise every line and letter of a summing-up which has been delivered by a Judge in trying a case, specially when there is a somewhat imperfect record of it. We are not called upon to consider whether this or tha....
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....that though the proof of the case against the prisoner must depend for its support, not upon the absence of explanation on the part of the prisoner, but upon the positive affirmative evidence of his guilt given by the Crown, yet if he is involved by such evidence in a state of considerable suspicion, he is called upon, for his own sake and for his own safety, to state and elucidate the circumstances, whatever they may be, which might reconcile such suspicious appearances with perfect innocence; see Amritalal Hazra v. Emperor 29 Ind. Cas. 513 : 42 C. 957 : 21 C.L.J. 331 : MANU/WB/0250/1915 : 19 C.W.N. 676 : 16 Cri. L.J. 497. The statement of the accused cannot be placed on a higher level than this, and the Court and the Jury are expressly left free to draw such inference from the refusal of the accused to answer or from the answers he gives, as they think just, Mr. Justice Page accurately appraised the function of the statement of the accused, and no exception can be taken on that ground. But his summing up was defective to this extent that it did not at first specifically refer to the statement. The Standing Counsel, however, properly called attention to the point, whereupon Mr. Ju....
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....esh Singh v. Ram Raja (37). In that case, chiefs of several villages collected people together with the preconcerted purpose of plundering the plaintiff's property; all acted with a common purpose of plunder and each co-operated more or less. The Judicial Committee held that where parties go with a common purpose to execute a common object, each and every one becomes responsible for the acts of each and every other, in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. In such a contingency, each and every person, co-operating to any extent in a plunder of this description, is responsible in a civil proceeding to recoup the party plundered for the loss he has sustained. But in a criminal matter, punishment may be apportioned. In the civil proceeding, it is immaterial what share of the plunder one received or whether one was coerced to join in the transaction, although if the matter culminated in a criminal proceeding, where the Judge had to inflict a punishment, all that might be taken into account. In my opinion, it would not be right on principle even to consider the punishment, before it has been determined whether the....
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..... 95. Clauses 25 and 26 of the Letters Patent are, in these terms: 25. And we do further ordain that there shall be no appeal to the said High Court of Judicature; a Forb William in Bengal, from any sentence or order passed or made in any criminal trial before the Courts of original criminal jurisdiction, which may be constituted by one or more Judges of the said High Court. But it shall be at the discretion of any such Court, to reserve any point or points of law for the opinion of the said High Court. 26 And we do further ordain that on such point or points of law being so reserved as aforesaid, or on its being certified by the said Advocate-General, that, in his judgment, there is an error in the decision of a point or points of law decided by the Court of original criminal jurisdiction, or that a point or points of law which has or have been decided by the said Court should be further considered, the said High Court shall have full power and authority to review the case, or such part of it as may be necessary, and finally determine such point or points of law, and thereupon to alter the sentence passed, by the Court of original jurisdiction, and to pass such judgment and sen....
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.... view just indicated as to the function of the Court in the first stage. 104. As regards the third stage, where the Court can alter the sentence passed by the Trial Court, the scope manifestly depends upon the true construction of the term "thereupon." The term "thereupon" may be interpreted as equivalent to "upon final determination of the point of law reserved or certified." Such an unqualified interpretation, if adopted, would lead to the result that even if the point of law reserved or certified has been decided against the prisoner, he would be entitled to invite the Court to alter the sentence. Such an interpretation, in my judgment, would be unreasonable, and would defeat the fundamental restriction that no appeal lies from the sentence or order of the Trial Judge. When a point of law is reserved 'by the Trial Judge or a certificate is granted by the Advocate-General, the purpose is to secure an alteration of the sentence on the hypothesis that it is based on an erroneous view taken by the Trial Judge of a point of law. If no error is established, the reason why the prisoner can claim an alteration of the sentence disappears. The term '....
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....had been decided in favour of the accused that the Court proceeded to consider the question of alteration of the sentence passed by the Trial Court. Where the point reserved or certified was decided agairist the accused, the Court did not proceed further. This is illustrated by the cases of Empress v. Pemantle (1-71). The case of Rex v. Yadali 1 Ind. Jur. 424 stands in a class by itself; there the conviction was proper, but the sentence was illegal, inasmuch as rigorous imprisonment, had been directed where simple imprisonment was prescribed by the Indian Penal Code, This was the error certified, and the sentence was accordingly set right. 108. In cases where the point reserved or certified was decided in favour of the accused, the Court proceeded to consider the evidence on the record, in other words, assumed the functions of the Jury. This class comprises the cases of Queen v. Hurribole Chunder Ghose 25 W.R. 36 Cr: 1 Ind. Dec, (N.S.) 132, the Court, upon consideration of the residue of the evidence, affirmed the conviction and sentence. In the other cases, the Court either set aside the conviction and sentence or affirmed the conviction but modified the sentence. Except in Rex v....
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....s Court in Emperor v. Panchu Das 58 Ind. Cas. 929 : 24 C.W.N. 501 : 31 C.L.J. 402 : 47 C. 671 : 21 Cr. L.J. 849, the question of re-trial has been examined by the House of Lords in Crane v. Director of Public Prosecution (1921) 2 App. Cas. 299 at p. 331 : 90 L.J.K.B. 1160 : 125 L.T. 642 : 85 J.P. 215 : 15 Cr App. Rep. 183 : 65 S.J. 642 : 37 T.L.R. 788; where the decision of the Court of Criminal Appeal in Reg. v. Crane (1920) 3 K.B. 236 : 89 L.J.K.B. 813 : 15 Cr. App. Rep. 23 : 84 J.P. 210 : 36 T.L.R. 673, was affirmed by a majority. Viscount Finlay maintained that the deliberate policy of the Legislature in the Criminal Appeal Act, 1907, is to prevent any further proceedings, such as would have taken place on an award of a venire de novo by the Court of error or the granting of a new trial by the High Court in criminal cases. Lord Dunedin, Lord Atkinson, Lord Sumner and Lord Parmoor took the contrary view, and upon an analysis of Reg. v. Mellor (1858) Dears and Bell. 468 : 7 Cox C.C. 454 and Reg. v. Yeadon (1861) 9 Cox C.C. 91; L. and C. 81 : 31 L.J.M.C. 70 : 7 Jur. (N.S.) 1128 : 5 L.T. 329 : 10 W.R. 64, held that the award of a venire de novo in the event of mis-trial was compete....
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....when alone the question of alteration of sentence can come under consideration. In the third place, even if Clause 26 were construed to include full power and authority to direct a re-trial when there had been no trial in the eye of the law, the question would still remain whether what had happened brought the case within that category. 111. It may seem unsatisfactory that the jurisdiction created by Clauses 25 and 26 of the Letters Patent should be so limited in scope and that its exercise should be subject to such stringent conditions. It must be remembered, however, that these provisions were framed in view of the powers, exercised by the Court of King's Bench under a Writ of Error on the fiat of the Attorney-General and by the Court of Crown Cases Reserved under the Statute of 1848. (For the antecedent state of the, law, reference may be made to the charges of Ryan, C.J., and Grant, J., which are set out in the appendix to the edition of the Supreme Court Rules by Smoult and Ryan). Since then, the Criminal Appeal Act of 1907 has been brought into operation, and yet, notwithstanding the extensive powers of interference conferred on the Court of Criminal Appeal, that Court h....
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....he lines indicated in Section 16 of the Criminal Appeal Act. The importance of such shorthand notes was emphasised by Reading, L.C.J., in Rex v. Dixon (1920) 15 Cr. App. Rep. 96 and by Trevethiri, L.C.J., in Rex v. Roy Monkman (1922) 16 Cr. App. Rep. 115 at p. 116 : 66 S. v. 317 and in the case last mentioned, the following observations were made: "This shorthand note of the proceedings is not clear. In several cases recently this Court has had to complain of the insunleiency of the shorthand notes. It must be understood by shorthand writers that their duty is to take in shorthand everything that occurs at the trial, so that if an appeal is brought, this Court may be able to form as good an opinion as is possible when reading the transcript. An abbreviated note is not sufficient. Everything that occurs at the trial must be taken, in the form of question and answer, which should be numbered, to admit of easy reference." 114. Thomas William Richardson, J.--At the outset I desire to express my concurrence generally with the observations which have been made by the learned Judge presiding in reference to the duties cast upon an Advocate-General by Clause 26 of the Letters Pa....
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....de, are still familiar in England, and were, I think, familiar to Indian lawyers of the middle of the last century, at any rate to those of the Presidency Towns, including Calcutta, where the principal laws were wont to be promulgated. These expressions merely supply a convenient terminology and, when they are understood, I know of nothing in the history of the Penal Code before it became law which throws much, if any, light on the meaning of Section 34.Note.--It may bo convenient if I attach a brief note of so much, of the relevant history as I know. [For this note see pages 417 418 of Ind. Cas.--Ed.] The usual rule applies that the intentions of the Legislature are to be gathered from the words used in the context in which they stand. The Code, however, became law in 1860 and in construing any of its provisions, we are entitled to guidance from the course of judicial decisions, even if there be no authority binding on us as a Full Bench. The terms referred to and their meanings are as follows : 121. A principal in the first degree is the immediate perpetrator of an act, the person, for instance, by whose proper hand a death wound is inflicted. 122. A principal in the second deg....
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....instance to deal with the point which arises as though it were res Integra. 128. Section 34 and the closely connected Sections 35, 37 and 38 were intended to lay down compendiously, in the fewest possible words, some elementary principles of criminal liability. They do not create offences and, given the common intention, in practice it does not signify which section applies in any particular case. As matter of construction they are interpretative Clauses, included in the Chapter of General Explanations; and must be read into the Code definitions of substantivg offences. 129. The precise point for determination, as I conceive, is whether the liability imposed by Section 34 with which we are chiefly concerned extends only to principals in the first degree or whether it also extends to principals in the second degree or accessories at the fact. The narrower view is urged for the accused, the wider one for the Crown. 130. If the narrower view be adopted the liability of accessories at the fact must depend entirely on provisions in the Chapter on Abetment such as Sections 107, 109 and 114. Another way, therefore, of stating the question is this : 131. As the Code does not use the te....
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....tention or state of mind of the doer are satisfied. By definition, therefore, (section 40), a criminal act is ah offence and it, may be an offence under more than one provision. The limit of punishment awardable may depend Oh the quality of the intention with which the act is done and on the effect produced. The offence at its highest is then the complete whole comprising the act done with the concomitant criminal mind, or intent, or mens rea, and the effect produced. An unjustifiable blow is a criminal act and an assault. If it causes death, the offence may amount to murder. If the injury is not fatal, the offence will amount to something less than murder. 137. The following analysis may perhaps be of assistance. 138. An effect, e.g., death, may be caused-- 139. (a) by a single act done by one man, 140. (b) by a series of acts done by one man at the same time and place, e.g., a succession of blows, 141. (c) by acts done by different men at the same time and place, e.g. two men inflict ing separate wounds each of which, apart from the other would be fatal, or one man holding a ladder while another ascends and kills the occupant of the room above. 142. The acts of the differen....
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....Here again it would be open to one of the two men to say that he at his end of the rope did no pulling and the deceased was killed by the rope being sharply jerked by the man at the other end. 148. Similarly, in the cases suggested of several men causing death by drowning by holding a man under water or upsetting him out of a boat. The individuals concerned in these offences do not each and all do the same act. In the case of two men drowning a third, one of the two men might plead that while he only committed an assault by pushing the deceased over the bank, it was the other who held the head of the deceased under the water and so drowned him. 149. The truth is that in all these cases what is single is the effect produced. The different men who take part in the offence may do similar acts. But their acts are not the same. They are different acts. Even if mere similarity were sufficient, it would be impossible to prove. As shown above pleas destructive of similarity, still more of identity, might be put forward in excuse. Murders of the sort suggested are not usually committed in broad daylight in the presence of witnesses able to take stock of the precise part taken by different....
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....he case of Kashi Nath Naek v. Queen-Empress 25 C. 207 : 1 C.W.N. 681 : 13 Ind. Dec. (N.S.) 140 is typical. The) Explanation may have been intended to obviate any difficulty arising out of the expression accessories before the fact. 155. If I am right, then A, B and C being together, if A says to B, "kill C," and B thereupon shoots C, A would be punishable not under Section 109 but under Section 302 construed in the light of Section 34. This result accords with the opinion of Markby, J. in Queen v. Mohamed Asger 23 W.R. 11 Cr. where the word accessory is used as meaning 'accessory before the fact' or abettor. (See also Mayne, Criminal Law, Part II, Section 246). 156. It may be said that " instigation " and " conspiracy" must occur before the offence, even if, in the case of instigation it is only just before. But abettors by these modes seem to be thought of as separated from the commission of the offence not only by time but also by place. Abetment is not thought of as coincident with the offence. If the general term 'abettors' included accessories at the fact, Explanation 2 would be superfluous. Persons who, having previously abetted....
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.... at p. 519 : 90 L.J.K.B. 369 : 121 L.T.46 88 J. P: 93 : 19-L.G.R. 85 : 26 Cox C.C. 693 : 65 S.J. 344 : 37 T.L.R. 291, and'see Collett's Comments on the Indian Penal Code, published in a collected form in 1889]. 160. Section 114, therefore, is not wide enough to include all accessories at the fact. It would not apply for instance where one man is assaulted by several Others and the assault is unpremeditated. It only applies where the accused, if absent, would be liable as an abettor, arid there are many cases in which no such liability can be proved. 161. But supposing that I am wrong arid that a person present aiding and abetting the commission of a criminal act or offence is punishable under Section 109, a conviction thereunder could only be sustained if the part played by the abettor as accessory at the fact could be distinguished from the part played by the principal in the first degree. The principal in the first degree does not, as such, abet the abettors. Section 109 would not supply a general rule that accessories at the fact are equally liable as principals with the principal in the first degree. The result would merely be that Section 109 would to some extent ove....
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.... engaged or concerned in a criminal act." The different modes of expression may be puzzling but the sections must, I think, be construed as enunciating a consistent principle of liability. Otherwise the result would be chaotic. 165. To put it differently, an act is done by several persons when all are principals in the doing of it, and it is immaterial whether they are principals in the first degree or principals in the second degree, no distinction between the two categories being recognized. 166. This view of Section 34 gives it an intelligible content, in conformity with general legal notions. The opposing view involves a distinction dependent on identity or similarity of act which, if admissible at all, is wholly foreign to the law, both civil and criminal and leads nowhere. 167. The wider view, therefore, accords with what a priori the law might have been expected to be. The true doctrine that which leads to fruitful and valid legal consequences must depend on the notion of agency or representation. In the offence of criminal conspiracy, (sections 120 A and 120 B) as in civil law, representation is carried a step further. Conspirators are like partners. They are all pr....
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.... I will not say that the judgment is conclusive upon the point before us because Section 34 is not expressly referred to. But dealing with the question of mere presence on the scene, the learned Chief Justice pointed out "that all who are present do not necessarily assist by their presence every act that is done in their presence, nor are consequently liable to be punished as principals." The importance of the observation lies in the use of the word 'principals' as including accessories at the fact. The word was used in the same sense by Mark by, J., in Queen v. Hyder Jolaha 6 W.R. 83 Cr and again in Queen, v. Mohamed Asger 23 W.R. 11 Cr. Later cases explicitly refer to Section 34. A compact and sufficient illustration will be found in Sri. Prosad Misser v. Emperor 4 C.W.N. 193 at p. 196. In that case, a Pathan had killed a Nawab by successive blows with a tulwar. Four other men were present at the time. The Court (Sir Francis Maclean, C.J., and Banerjee J.) observed: " The Judge ought to have called the attention of the Jury to the facts, and then said that it was for them to consider whether, from those facts, they concluded that the criminal act was done b....
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....w on which he felt a doubt for considerationiby a Bench of the Court. 173. The learned Judge recognised that he was departing from tradition. He referred to two Indian cases in which a wider view of Section 34 had been taken. He said that those cases were in accord with Mr. Mayne's paraphrase of the section with which he disagreed. After referring to the history of the matter in England and in India, he expressed the opinion that section 34 was to be read without reference to any doctrines derived from the English Common Law. In substance I agree but I regret that the learned Judge gave no indication of the meaning which he attributed to the section on that footing. 174. The learned Judge then turned to the abetment sections. He stated as to Section 109 that there was no reason for supposing that a man must be absent in order to abet under that section. If he then looked to Section 114 to fill the gap left by his view of Section 34, he was putting a forced construction on one Section to avoid what appeared to him a forced construction of another. 175. Finally, he said: " In reference to English Law, it seems to me that the effect of Sections 109 and 114 is to supersede ....
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.... Section 107. The person aiding at the time but at a distance is an abettor. 178. The treatment of the accessory at the fact as a principle will not be more productive of technicality than his treatment as an abettor. The most glaring and" indefeasible technicalities of English Law seem to have gathered not so much round the principal in the secand degree as round the accessory before the fact. In Sir James Stephen's History of the Criminal Law (II, 234) an excuse is found for those technicalities in the harsh severity of punishment under the old criminal law. Under milder conditions and legislation, the technicalities have for the most part disappeared along with the excuse for them. And happily, in India, under a modern Code, such as the Penal Code, redress by mere technicality is not required. That, of course, is not to say that an accused person is not always entitled as of right to a fair trial according to the established forms of law "In all criminal cases it is necessary that there should be a charge, a finding and a conviction as a foundation for the sentence. Everything should be strictly and accurately pursued; and if in any one of these three points a &qu....
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....r not the deceased had died before the second shot entered his body? Apart from two wounds being inflicted, suppose that the shock and terror of seeing two men fire at him, contributed to the fatal result? Moreover, it is impossible to say what might have happened, if one man alone had set out to accomplish the murder. Without the support, moral and physical, of a comrade, his resolution might have failed him and his pistol remained in his pocket; or diminution of confidence might have interfered with his aim; or again, he might have been successfully resisted and put to flight. It appears to me that this solution cannot possibly have come within the intention or contemplation of the Legislature and is not contemplated by the language of Section 34. The language is compatible with the reasonable solution, namely, that both shots, the shot that took effect, and the shot "that missed, are the joint acts of the two men. Each man in the eye of the law does both acts. The result follows that they are severally but equally liable for the effect produced, in accordance with the principle, I again quote my brother Mookerjee, "that all who participate in the commission of a crime ....
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....cisions in this and other Courts, interrupted in this Court only recently and in effect only once. There is this further to be said that the Penal Code has been amended not a few times and if the prevailing view had been wrong, presumably the Legislature would have taken some opportunity to correct it might be said that we are dealing with settled jurisprudence but if there be a doubt as to the law, our labour will not be in vain if that doubt is dispelled. 183. As to the form of the charge, in my opinion, where an accused is liable under Section 34 as an accessory at the fact and, therefore, as a principal, a charge simply of the offence of murder under Section 302, without express reference to Section 34, is sufficient. As Section 34 must be read into Section 302 of the Penal Code, Section 224 of the Criminal Procedure Code conies into play: "In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable." No doubt, it is always open to the prosecution to state in the charge particulars showing that the accused is charged as an accessory at the fact. But ....
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....at all at the Post Master, and any circumstance, suggestion or argument tending to show that the accused did not fire at the Post Master might also be pleaded for what it was worth as relevant in regard to his intention. 188. In the view of the law taken by the learned Judge, a view of which learned Counsel must have been aware during the trial, the issues were, whether the accused fired at the Post Master and if not, what intention should be imputed to him. The former issue, however important, was subordinate to the latter. The defence was that the accused had no part in any common intention going as far as murder. 189. Now, no one who reads the charge can doubt that the learned Judge put that defence to the Jury not once but several times. The Jury were fully instructed that the charge of murder involved participation by the accused in a common intention not only to rob, but also, if necessary, to kill, the Post Master. The point might have been put less specifically. A common intention to carry out an unlawful design at all costs, even at the cost of overcoming resistance, or evading capture by taking life is sufficient. The Jury were a Special Jury and I see no reason to supp....
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..... But what occurred at the trial was this. A witness, Puma Chandra Dey, spoke to having received the live cartridge and an empty cartridge case (Exhibits X and XI) from another man. He was prepared to indicate the spot where this other man had said he had picked them up. But as the learned Standing Counsel stated that the prosecution were not in a position to produce the other man, the learned Counsel for the accused objected, as he was entitled to do, to hearsay evidence being given. Nothing further was said at the time and there is no evidence where the live cartridge was picked up. The learned Judge's recollection is that during the trial nothingmore was said about these two exhibits and that he told the Jury that they went out of the case. The learned Judge's statement of what took place is conclusive. It is here abundantly confirmed by the fact that the gun-maker, au expert witness, who went later into the witness-box, was not even asked whether, the live cartridge fitted the accused's pistol. Assuming in accordance with what seems to have been the case for the prosecution, that it did fit the pistol, the gun-maker was not questioned as to the circumstances in whic....
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....t went past his left ear. This witness was not cross-examined, and there may have been good reason at the time for not cross-examining him. 195. When I say of these suggestions or any of them that they were afterthoughts, what I mean is that regard being had to the conduct of the case in Court, the suggestion could not have formed part of any instructions given to learned Counsel before the trial or before the witnesses were examined. 196. I have not so far referred to the first part of the accused's statement. Evidence had been given of the finding in an almirah" in the living room occupied by the accused of a bundle which contained tAvo revolvers and three ugly looking daggers. The accused endeavoured to account for the possession of this armoury by saying that the bundle had been given to him for safe custody by a gentleman unnamed. Having stowed away the bundle, he was taken by the same gentleman to his house, where he seems to have been somewhat easily persuaded, to join in an enterprise in the nature of a dacoity. The pressure brought to bear on him was apparently moral, and not physical, but he says he was not in a position to argue. He speaks of four pistols, one....
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.... common intention the facts are admitted. And it appears to me that the facts, themselves speak so loudly that the defence offered was as desperate as any defence could well be. On the facts it would seem almost as easy to say that the original design was murder, pure and simple, as to say that it was robbery first and murder only if necessary. In the view of the law which we rejected the denial by the accused that he fired at the Post Master might have been regarded as a defence. Otherwise his statement was more like a plea in extenuation. I cannot entertain any doubt as to the justice of the verdict. 199. On a careful and anxious examination of the case, I can only say that to my mind the complaint of non-direction amounting' to misdirection is not sustainable. In my opinion, on the evidence as it stood, the substantial questions and issues involved, for the defence as well as for the prosecution, were fairly put to the Jury." Their minds were not perplexed by a minute discussion of every detail of the evidence, or of every suggestion made at the close of the evidence. After a trial extending over two days, after the accused had made his statement, after the learned Sta....
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....t pressed by the question of law turning on Section 34, it may well be that he would not have granted any certificate on the question of non-direction, particularly if the facts had been more carefully stated in the application submitted to him. 203. There is still an incident which occurred some days before the trial to which I am compelled to make some reference. I do not propose to enter into the details of the incident, for the reason that I am not now prepared, I do not consider it necessary, for any purpose material to the accused, to express an opinion on the, conduct of the learned Counsel in seeking the learned Judge, whether notice of the intention to do so had or had not been given to the learned Standing Counsel. Still less am I prepared to discuss the course taken by the learned'Judge in listening to the learned Counsel and in advising them as he says he did. The questions raised may be questions on which a difference of opinion is possible. They may call for further consideration when the full Court re-assembles after the vacation, not with reference to this case but with reference to the future. The accused is entitled to have any point in his favour considered,....
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.... and had also seen the accused. The accused himself pleaded guilty to the charge of attempted robbery, and he doubtless did so after consultation with his legal advisers. He must then have come to learn their view generally of his case, and I can find no ground for any suggestion that his confidence in them was misplaced in the sense that his Counsel did not afterwards do all that could be done to secure his acquittal on the charge of murder. From what the learned Counsel, Mr. Chatterji, has told us of the substance of his address to the Jury, I do not conceive that he could have said more than he did say. 209. It appears to me that the learned Counsel who appears to have gone to the learned Judge in what they considered to be the interests of their client, did not feel themselves at all hampered by anything which may have fallen from the learned Judge. I have not detected any want of freedom or enterprise in their conduct of the defence or in the mode in which they put before the learned Judge and the Jury the case for the accused on the two crucial questions, the question whether the accused was jone of those who fired at the Post Master and the question of common intention. 21....
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....ion or other error as certified, the certificate was misconceived, and we have no power to interfere. If the merits of the case or the sentence are to be further considered, then that must be not by this Court, but by some other, authority vested with the requisite power." This view) was specifically, endorsed by Woodroffe, J., and by my learned brother Mookerjee, J., and received the concurrence of the other two members of the Bench, Stephen and Holmwood, JJ. 214. As to a re-trial on the merit's, I see no ground for considering whether a re-trial should be directed. But apart from that even if we were accepting and not repelling the learned Advocate-General's certificate, we should have no, power to direct a re-trial, at any rate on any ground short of an illegality which made the trial abortive and no trial at all. The question is concluded by the authorities reviewed by Mookerjee, J., in Emperor v. Panchu Das 58 Ind. Cas. 929 : 24 C.W.N. 501 : 31 C.L.J. 402 : 47 C. 671 : 21 Cr. L.J. 849. 215. I conclude that AVC should pronounce the certificate of the learned Advocate General to be misconceived. I am glad to think that in so concluding I am in agreement with the l....
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....of England will correspond with the Indian Code on these points. 221. The word "accessory" is here used as meaning" accessory before the fact and the reference would appear to be, or may be taken, to be, to the1 recommendation of the English Criminal Code; Commissioners set out in t Sir James Stephen's History of the Criminal Law at page 236, as follows : 222. "Every one is a party to and guilty of an indictable offence who 223. "(a) Actually commits the offence, or does or omits' to do any act, the doing Or omission of which forms part of the offence; or 224. "(b) Aids or abets any person in the actual commission of the offence, or in any such act or omission as aforesaid; or (c) Directly or indirectly counsels or procures any person to commit the offence, or to do or omit any such act as aforesaid. 225. Clause (a) contemplates the offenders known in England as principals in the first degree, the immediate perpetrators of the act done, Clause (6) those known as principals in the second degree or accessories at the fact, and Clause (c) those known as accessories before the fact. In English Law, principals in the first degree and principa....
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.... and thereby he, the said Barendra Kumar Ghose, committed an offence punishable under Section 302 of the Indian. Penal Code. 232. Second, that he, the said Barendra Kumar Ghose, together with certain other persons, at or about the time and in the place aforesaid were jointly concerned in attempting to commit robbery on the said Amrita Lal Roy and that at the time of commiting such robbery voluntarily caused hurt to the said Amrita Lal Roy, and thereby he, the said Barendra Kumar Ghose, committed an offence punishable under Section 394 of the Indian Penal Code. 233. It is stated that the accused pleaded guilty to the aforesaid charge under Section 394, Indian Penal Code, with the reservation that he did not cause hurt to the said Amrita Lal Roy and pleaded not guilty to the charge under Section 302, Indian Penal Code, and thaj; the trial was proceeded with thereafter in respect of the latter charge. 234. The case for the prosecution was as follows: That the accused and three other persons made their appearance at the Sankaritola Post Office at about 3-30 P.M. on the 3rd August, 1923, armed with fire-arms; that three of them, including the accused, entered the Post Office through ....
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....rs were found at premises No. 181, Harrison Road, a Chemist's shop, where the accused was employed. 236. The case for the defence was embodied: in a statement made by the accused in the Court, the main points in which-were; as follows: 237. 1. Three and not four persons went to the Post Office; that the; accused went there with the assured feeling, that no life would be taken by anyone; that, the accused stayed outside whilst the other two went in; and that only two shots were fired inside and not three. 238. 2. That the accused was so taken by surprise on account of the shooting of the Post Master that he was temporarily robbed of locomotion and self-control, and he remained back whilst his two companions ran aWay; that he recovered himself later on hearing the cry of " chor, chor"; that he was running by himself; that he for the first time tried to fire his revolver in course of being pursued; that his pistol did not go of? when he pulled the trigger; that he thereupon remembered his instructions to pull out a portion of the pistol and to release the safety-catch, and as he did so, a live cartridge fell out. 239. 3. That the accused kept on firing in the air as ....
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....you are bound to, find a verdict of guilty. I say if you doubt that it was the pistol of the accused which filed the fatal shot, that does not matter. If you are satisfied on the other hand that the shot was fired by one of those persons in furtherance of the common intention, if that be so, then.it is your duty to find a verdict of guilty. 242. The summing up of the learned Judge was placed before the learned Advocate General for his consideration and it was further represented to him that the learned Judge had "omitted to draw the attention of the Jury to the defence of the ac'cusetl save and except a me;re reference to the statement made by the accused." 243. The learned Advocate General thereafter; by virtue, of the powers entrusted to him by the Letters Patent, bearing date the 28th September, 1865, certified that in his judgment whether the alleged direction and the alleged omission tb direct the Jury did riot ill law amount to a misdirection should be further considered by this Court, and the matter has accordingly come before this Court for consideration. 244. The certificate of the learned Advocate-General raises two questions, namely, whether there was ....
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....een ruled that when the Court qn review holds on the point of law in favqur of the accused, it is competent to the Court to consider the whole case on the evidence and to pass such sentence as shall seem right. The Bombay High Court followed this procedure in the cases of Reg. v. Navroji 9 B.H.C.R. 358 and Imperatrix v. Pitamber Jina 2 B. 61 : 1 Ind. Dec. (N.S.) 469, in each instance although the Court decided the questionof law in fayour of the accused, yet, upon a review of the whole case and an examination of the merits,. affirmed the conviction. In this, Court, the sarne procedure was adopted in the cases of Queen v. Hurribote Chunder Ghose 1 C. 207 : 25 W.R. 36 Cr; 1 Ind. Dec, (N.S.) 132 and Queen-Empress v. Q'Hflra 17 C. 642 : 8 Ind. Dec. (N.S.) 967 (F.B.), in each instance, the point of law was decided, in favour of the accused; but on a review of the whole evidence, while the conviction was affirmed in the former, case, it was set aside in the latter instance. The cases of Queen-Empress v. Shib Chunder Mitter 10 C. 1079 : 5 Ind. Dec. (N.S.) 721 and Emperor v. Upendra Nath Das 30 Ind. Cas 113 : 19 C.W.N. 653 : 21 C.L.J. 377 : 16 Cr. L.J. 561 (F.B.) do not directly touch ....
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....t; Mookerjee, J., in the same case stated as follows: -"In the view I take, no error of law has been established, and, consequently, the Court is not called upon to express an opinion as to the propriety of the conviction and sentence, although, as Woodroffe, J., has pointed out, if the Court could examine the case on the merits, there might be matters for careful consideration." 246. The question next arises as to whether the; High Court, on a reference under Clause 26 of the Letters Patent, is entitled to direct a new trial. The cases decided in this Court since the case of Queen v. Hurribole Ghunder Ghose 1 C. 207 : 25 W.R. 36 Cr; 1 Ind. Dec. (N.S.) 132, show can exclusively that the case reserved or certified has got to be finally decided by the High Court on review and that an order for re-trial is not comDete.it [See Emperor v. Panchu Das 58 Ind. Cas. 929 : 24 C.W.N. 501 : 31 C.L.J. 402:47 C. 671:21 Cr. L.J. 849] I think the authorities referred to above are binding on us and that we must proceed upon the footing that there is no power in the High Court to direct a trial. 247. I am not unmindful of the fact that it has recently been held in England that in cases o....
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....d leniently. Mr. Justice Page told learned Counsel that he could give them no information as to what he should do at the trial, but if they were satisfied that the accused was guilty, while it was their duty by cross-examination to test the accuracy of the witnesses for the Crown, they were not entitled to set up any substantive defence in opposition to the case for the Crown. 249. In view of what took place before the trial in Mr. Justice Page's room, it was thought proper that an opportunity should be afforded by the Court to Mr. B.C. Chatterji (Mr. S.K. Sen was absent at the hearing before us) to consider whether he should appear on behalf of the accused at the hearing before us, or whether the accused should not have an opportunity of being 'represented by other Counsel. A short adjournment was granted and arrangements were made so that Mr. Chatterji might interview the accused in the Presidency Jail. Later on, Mr. Chatterji informed us that the accused had definitely stated that he wished him (Mr. Chatterji) to represent him at the hearing before us and to argue the case on his behalf. Thereupon the hearing proceeded. It is unnecessary for me to dwell further on the i....
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....ct itself must be participated in by all the persons entertaining a common intention. And if the word " criminal act " is taken to, denote a series of criminal acts, then the series of criminal acts must, according to learned Counsel for the accused, be participated in by all the persons who have a common intention. It is contended that if these two elements are not satisfied on the evidence adduced by the prosecution, the persons engaged in the doing of the criminal acts of the description referred to herein cann.pt be held to be guuty under Section 30?, Indian Penal Code, It is further contended that the learned Judge impliedly told, the Jury that if three or four persons came into the Post Office with a common intention to rob the, Post Master, and if necessary to kill him, and death resulted from their act, the man who stood outside the Post Office room, and in the courtyard would be equally guilty with the men who were inside the Post Office room, and that in this the learned Judge, was wrong. Jt is argued that if these submissions are correct the learned Judge misdirected the Jury in the passages which haye been quoted above. 252. It therefore, bec.pmes necessary t....
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....Cr.]. In otker words, since a eom-hined act and evil intent eonstjtutp crime and since a thing which a person does through the agency of another is the same in law as though he had performed it himself, one whp contributes his will to a crime, by whomsoever the physical act of wrpng is done, is guilty of the crime; that is to pay, when two or more persons unite to accomplish a criminal act, whether through the physical act of one, or of all, proceeding severally or collectively, each individual whose will contributes to the wrong-doing is in law responsible for the whole, as if the same were performed by himself alone. Numerous illustration's can be given of the application of this doctrine in varying circumstances. Where one assailant slakes a blow which is not fatal and a confederate follows it up with a fatal blow, both are equally liable. If several persons combine to forge an instrument, and each executes by hjnaself a distinct part of the forgery in pursuance of a conilnon intention, they are all equally guilty of forgery, thqugh they niay not be together when the forgery is completed by one of them, adding the signature. [Bee Rfx v. Bingely (1821) R. and R. 446, Rex v. D....
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....e the qases, Queen v. Gora Chand Gopee 5 W.R. 45 at p. 48 Cr.; 1 Ind Jur (N.S.) 177, per Peacock, C.J.; Queen v. Hyder Jolaha (12j per Mark by, J.; Queen-Em.press v. O'Hara, 17 C. 642 : 8 Ind. Dec. (N.S.) 967 (F.B.) per Morris, J.; Khudiram Bose v. Emperor 3 Ind. Cas. 625 : 9 C.L.J. 55 : 10 Cr. L.J. 325, per Brett, J.; Emperor v Morgan 1 Ind. Cas. 814 : 36 C. 302 : 13 C.W.N. 362 : 9 C.L.J. 204 : 9 Cr. L.J. 393' per Holmwood, J.] Gouvidas Namasudra, v. Emperor 2 Ind. Cas. 841 : 36 C. 659 : 13 C.W.N. 680 : 10 Cr. L.J. 186 per Maclean, C.J.; Sri Prosad v. Empress 4 C.W.N. 193 at p. 196, Jamiruddi Biswas v. Emperor 16 Ind. Cas. 523 : 16 C.W.N. 909 : 13 Cr. L.J. 715 per Holmwood, J.; and In the matter of Faezulla (57)]. MO doubt a different view of the scQpe of Section 34 has been taken in the pase of Emperor v. Nirmal Kanta Roy 24 Ind. Cas. 340 : 41 C. 1072 : 18 C.W.N. 723 : 15 Cr. L.J. 460, which w-as cited apparently with approval by the Chief Justice in the case of Emperor v. Profulla Kumar Mqzumdar 74 Ind. Cas. 267 : 50 C. 41 at p. 47; (1923) A.I.R. (C.) 453 : 24 Cr. L.J. 763, and it has been held that Section 34 applies only where a, criminal act is done by several persons....
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.... Court of the true meaning of Section 34, Indian Penal Code, finds support, so far as the Madras High Court is concerned, in the case of Queen-Empress v. Raru Nayar, 19 M. 482 : 2 Weir 745 : 6 Ind. Dec. (N.S.) 1041; so far as the Bombay High Court is concerned, in cases of Imperatrix v. Pitam-bar Jina 2 B. 61 : 1 Ind. Dec. (N.S.) 469 and Emperor v. Chhota-lal Bohar 14 Ind. Cas. 970 : 36 B. 524 : 14 Bom. L.R. 147 : 13 Cr. L.J. 426; and so far as the Allahabad High Court is concerned in the cases of Queen-Empress v. Mahabir Tiwari 21 A. 263; A.W.N. (1899) 76 : 9 Ind. Dec. (N.S.)876, Pamper or v. Nageshwar 28 A. 404; A.W.N. (1908) 61 : 3 Cr. L.J. 322, Emperor v. Bhola Singh 29 A. 282; A.W.N. (1907) 51 : 4 A.L.J. 207 : 5 Cr. L.J. 130, Emperor v. Kanhai 21 Ind. Cas. 657 : 35 A. 329 : 11 A.L.J. 752 : 14 Cr. L.J. 609, Emperor v. Ram Newaz 21 Ind. Cas. 663 : 35 A. 506 : 11 A.L.J. 804 : 14 Cr. L.J. 615, Chandan Singh v. Emperor 43 Ind. Cas. 438 : 40 A. 103 : 16 A.L.J. 11 : 19 Cr. L.J. 150 and Emperor v. Guiab 47 Ind. Cas. 805 : 40 A. 686 : 16 A.L.J. 731 : 19 Cr. L.J. 953. The Patna High Court has taken the same view in the cases of Ritbaran Singh v. Emperor 46 Ind. Cas. 709 : 19 Cr. L.J. 78....
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....ted by making a minute and critical examination, not only of every part of the summing up, but of the whole conduct of the trial. Objections were raised which, if sound, ought to have been taken at the trial. Probably no summing up, and certainly none that attempts to deal with the incidents as to which the evidence has extended, over a period of 20 days, would fail to be open to some objection." To quote Lord Esher's words in Abrath v. North-Eastern Railway Co. (1883) 11, Q.B.D. 440 at p. 453 : 52 L.J.Q.B. 620 : 49 L.T.618 : 32 W.R. 50 : 47 J.P. 692, affirmed on Appeal (1886) 11 App. Cas. 247 : 55 L.J.Q.B. 457 : 55 L.T. 63 : 50 J.P. 659: "It is no misdirection not to tell the Jury everything which might have been told them: there is no misdirection unless the Judge has told them something wrong or unless what he has told them would make wrong that which he has left them to understand. Non-direction merely is not misdirection, and those who allege misdirection must show that something wrong was said or that something was said which would make wrong that which was left to be understood. Every summing up must be regarded in the light of the conduct of the trial and the ....
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.... inside the room had fired. The evidence of Sham Dulal Das, the Post Office clerk, is also to the same effect. The witness, Sitaram, says there were four men; he heard three shots being fired and he saw four men running away. The witness, Jhapsaram, states that he saw four men run away. The point about the number of the men who had formed the party is one of very great importance, because of the description of the clothes the men had on themselv.es as given by the packer and the Post Office clerk. In my opinion, it was most material to know with certainty the exact number of men who had assembled at the Sankaritola Post Office on the afternoon of 3rd August, 1923, because if there were only three men and if out of the three two were inside the room, namely, the man who had the mask on and the man with a striped coat, the third man, who according to the evidence had a white coat, on, must have been, having regard to the plan of the Post Office and of the courtyard, the man who stood outside the Post Office room and near the steps leading thereto; but there is no cross-examination upon this most vital point and it is impossible for me to found my judgment in favour of the accused in ....
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.... SSirear; that he omitted to read and explain to the Jury the various sections of the Indian Penal Code on which the charge against the accused was based and that he did not explain to the Jury the bearing of Exhibits 10 and 11 when coupled with the evidence pfp. If Sircar. Many of the points indicated above fade into insignificance if the importance of the last point is once realised. The suggestion therein' is that not until the accused had run away into Mohendra Sircar Lane, did a live cartridge fall out of the automatic pistol that he was carrying, that this live cartridge had not fallen out beforp because the accused had forgotten to release the safety catch on the pistol and further that if Exhibit 10 is that live cartridge which had fallen out of the accused's pistol, then the inference may safely be drawn that the accused had not fired at all until he was chased. In thp first place, it is noteworthy that the suggestion that has now been made before us was never made before the Trial Judge and Jury. In the second place, having regard to, what happened at the trial when the witness, Punio Chandra De, was examined, and having regard to the facts which haye been stated ....
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....e occasion; for the present I prefer not to say anything further on the Same. But I have this satisfaction that all the facts in connection With this trial have been made known to us. The extreme importance bf avoiding any grounds for suspicion in trials, civil and criminal, cannot be too strongly emphasised; suspicion feeds on secrecy and the best Way to get fid of suspicion is to let all the facts b'e known. That has been done in this case. The object of a trial is the administration of justice in a Court as free from doubt or Chance of miscarriage as merely human administration of it can be--not in the interest of either the Crown or the accused. I have tried to steadily keep this in view and the conclusion I have come to is that the two points raised on the learned Advocate-General's fiat fail and that this application should be dismissed. 271. A.H. Cuming, J.--I have given my best attention to the elaborate arguments that have been addressed to us by Mr. Chattetji and the Standing Counsel and after giving them my most careful consideration am of opinion that this" certificate of the learned Advocate-General is misconceived and this application for review under Cl....
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....e offence. They are merely declaratory of a principle of law and in charging an accused person it is not necessary to cite them in the charge. If, therefore, the view of the law given by the learned Judge to the Jury fall within anyone of these sections it will be sufficient. Taking first of all Section 34 I am not prepared to accept the extremely restricted view which has been urged by the learned Counsel. The expression criminal act includes also a series of acts. 279. A criminal act may well consist of parts each of which is more or less necessary to the accomplishment of the act. Thus one man may keep guard at the door, while another man holds the victim and a third man kills him. Or one man may be there in order by his presence to encourage, support or protect the man who is actually killing the victim. They would to my mind be all of them doing: some parts of the act because it may well be that without their support the act could not be done. They must, therefore, be considered to be all doing the act though each is executing a different part of the act. 280. Further, if the expression act includes a series of acts then all the different acts of the conspirators such as kee....
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....g present. The learned Judges, one of whom was Stephen, J., held that both master and servants were guilty applying the principles of Section 34 and that Section 114 was not applicable. Now in this case it will be seen that the two men did different-parts of the criminal act which was the sale of the ganja for one handed out the ganja and another took the money. It cannot, therefore, be said that they each did the whole act for they each did a distinct part of the criminal act. 285. In the case of Khudiram Base v. Emperor 3 Ind. Cas. 625 : 9 C.L.J. 55 : 10 Cri. L.J. 325, Brett, J., states: We may add that even if such had been the case the guilt of the accused would have been equal. If he and Dinesh went that night with the intention of committing murder by means of the bomb and if in prosecution of this common object the accused stood by and held the heavy articles and the coat of Dinesh so as to facilitate the commission of the offence by Dinesh and to facilitate his escape afterwards, and if Dinesh threw the bomb the accused (Khudiram) would be equally guilty with Dinesh of committing the offence of murder (section 34, Indian Penal Code). 286. In the case of Nibaran Chandra ....
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....ortion of the charge is that one person stood outside the room (which was the defence set up by the accused). He contends that the learned Judge should have specifically put to the Jury that they should consider whether the man who stood at, the door could be affixed with the same intention as those who entered the room, and whether he could be held to know that murder would be done. 292. The accused's case in his statement is that he was the man who stood outside. 293. The answer to this argument must, I think, depend on the facts of the case. The evidence shows that three men entered the Post Office and the fourth stood on the step. He was within a foot or two of the three who actually entered the Post Office door. This man Was accord ing to the evidence armed With a pistol and the accused who contends that he was this man also admits he was so armed; In view of his proximity to the other three and the fact he was also armed, it is difficult to set how: the learned Judge Could have differentiated his case from the Other threes or asked the Jury to do so and separately consider it. 294. Mr. Chatterji has next Contended that the learned Judge omitted to put they defence of t....
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.... Coiinsel then argues that the learned Judge did not put to the Jury the argument and comments that he (Counsel) had advanced in support of the accused's case. But it seems to me that it is imposing an impossible task on the Judge to ask him to repeat again to the. Jury every argument and comment put forward either by the defence or the prosecution's Counsel. 299. The Jury had these arguments in their mind for the defence had in this case the right of reply. The contention that the Judge should in such Circumstance endeavour to repeat to the Jury the arguments they had just heard is imposing on him all impossible mnemonic feat and which could only Confuse the Jury for it is difficult to see how the Judge could put them exactly as the Counsel did. The probable result of such an attempt could only be an inaccurate version of what Counsel said. Section 297 provides that the Judge must put the evidence for the accused to the Jury and as far as I can see this is what the learned Judge did. I cannot find that beyond his own state-in eut which was put to the Jury there is any evidence on his behalf which could have been put to the Jury and which was not put. Putting-the accused&#....
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....ing certified by the Advocate-General that in his judgment there is an error in the decision of a point or that a point requires to be further considered, the High Court shall have full power to review the case or such part as may be necessary and finally determine such point or points of law and thereupon to alter the sentence passed and to pass such judgment and sentence as the High Court may seem right. 307. The expression "thereupbn" would, I think, show that it is only where there has been an error in law that the High Court has any power to re-open, review and deal with the case. If there had been no error in law I do not think there can be any power to deal with the case further. Otherwise the position would become this. An accused person who could obtain a certificate that there had been an error in law or that the law required to be further considered, even though unsuccessful, could obtain an appeal on the severity of his sentence while the accused person in whose favour a certificate could not be obtained would not enjoy the same privilege. Such an anomalous position could not be contemplated. 308. A little further consideration would show that what the Advoc....
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....of law has been established and consequently the Court is not called upon to express an opinion as to the propriety of the conviction and sentence although as Woodroffe, J., has pointed out if the Court could examine the case on the merits, there might be matters for careful consideration." 314. Two cases have been brought to my notice in which on a certificate from the Advocate-General the Full Bench did interfere with the question of sentence: Rex v. Sheikh Taleb 2 Ind. Cas. 931 : 10 C.L.J. 13 : 10 Cri. L.J. 193 and Emperor v. Narayan Raghunath Patki 32 B. 111 : 9 Bom. L.R. 789 : 6 Cr. L.J. 164 : 2 M.L.T. 414. 315. But an examination of these two cases makes it at once apparent that they are distinguishable and in fact support my opinion. In the case of Rex v. Sheikh Taleb 2 Ind. Cas. 931 : 10 C.L.J. 13 : 10 Cri. L.J. 193 it was found that evidence had been wrongly admitted. This mis-reception of evidence was held to be a point of law. Then the case was re-opened and reviewed. The Court excluded the inadmissible evidence and dealt with the case. 316. In the other case, Emperor v. Narayan Raghunath Patki 32 B. 111 : 9 Bom. L.R. 789 : 6 Cri. L.J. 164 : 2 M.L.T. 414, the sam....
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....udicial pronouncements in the Calcutta High Court and other High Courts in India. With respect to the facts I will content myself with saying that if the charge was sound in law, arid the Jury accepted the evidence which was adduced before them, the issue of fact, in my opinion, was as simple an one as ever was tried. The Jury found an unani mous verdict; it was adverse to the accused, and there was ample evidence to support it. 324. In these proceedings the Court has decided that there was no misdirection or non-direction as set out in the certificate of the learned Advocate-General. The certificate, therefore, is misconceived, and, in my opinion, the jurisdiction of this Court is exhausted, and the matter is at an end. 325. Certain other questions relating to procedure and the conduct of Counsel who had appeared for the accused, were canvassed at some length before us, but as to these I express no opinion. With great respect I take leave to postpone consideration of these matters until they can effectively be determined. In my opinion, this is not a suitable occasion, and this Court is not the proper Tribunal for disposing of them. 326. There is only one other matter to which ....