TaxTMI 
TaxTMI 
1938 (7) TMI 15
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..... Kochar, who was plaintiff in a suit in the Court of the Senior Subordinate Judge based on a promissory note. The plaintiff succeeded against two of the defendants, both before the Subordinate Judge and on appeal. Meantime complaints had been made by Durga Das, the defendant, against whom the case was dismissed, that his signature to the promissory note had been forged. On 14th May 1928, the District Magistrate, acting on a police report, directed the issue of warrants against six persons, including the appellant and two other persons Sain Dass and Vishwa Mitter. On 3rd June 1928, the District Magistrate had brought before him Sain Dass, who was then in custody and read over to him a document which had been enclosed with a letter sent to him by the Local Government. The letter, which was in answer to a communication from the District Magistrate on the question of obtaining evidence from one or more of the accused persons, was in the following terms: Subject : Grant of a promise of pardon to Sain Dass son of L. Nagar Mal. Sir, In reply to your unofficial note No. 751, dated 19th May 1928, I am directed by the Governor in Council to state that Sain Dass ma....
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....ing the appellant and one other of the accused guilty under Sections 120-B, 467 and 471, Penal Code, and imposing on the appellant and the other accused who was found guilty, a sentence of rigorous imprisonment for five years. This sentence was confirmed on appeal with a variation in respect of the conviction. During the proceedings it was clear that the Special Magistrate did not intend to commit the accused to the Sessions Court as required by Section 337. Not only did he sanction the discharge of Sain Dass and Vishwa Mitter under Section 494, but he framed charges against the appellant before the examination of the witnesses was completed, under Section 254, instead of proceeding under Sections 206-210, which apply to committal for trial. The appellant objected to this course, claiming that he was entitled to be committed for trial under Section 337, but his objections were overruled eventually by a Divisional Bench of the High Court consisting of Bhide and Coldstream JJ., who on 29th October 1934, delivered judgment, rejecting the objection with the result that the trial continued and was concluded before the Magistrate as already stated. 4. The question is whether Section 3....
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....d in the proceedings. That Section enables the Public Prosecutor with the consent of the Court to withdraw from the prosecution before the jury return a verdict or where there is no jury, before judgment is pronounced, whereupon the accused shall be discharged if the withdrawal is made before a charge has been framed, or if it is made after a charge has been framed or no charge is required, he shall be acquitted. The respondent claims that it was under Section 494 that the charge was withdrawn by the Public Prosecutor, that this was done with the consent of the Court, and accordingly that the accused has no right to claim that he is entitled under Section 337 to trial by the High Court or a Sessions Court, while the approver cannot claim the benefit of the procedure for his trial provided by Sections 339 and 339-A. Under Clause (a) of Section 494 the approver is merely discharged, which means that he may again be put on trial for the same offence. 6. It is clear that in the case of each of the two approvers, Sain Dass and Vishwa Mitter, the application to withdraw was made and the consent of the Court was given as under Section 494. But the issue to be determined here is whether....
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....ion 337 falls under Chap. 24, which deals with general provisions as to inquiries and trials. Section 494 falls under Chap. 38, which is headed "of the Public Prosecutor," that is to say, the former Section deals with the action of a judicial, the latter with that of an executive officer. Section 494 says nothing about pardons at all. It gives a general executive discretion to withdraw from the prosecution subject to the consent of the Court, which may be determined on many possible grounds, one of which no doubt is that the person in respect of whom the charge is withdrawn may be willing to give evidence. But the whole procedure and the various consequences under Section 494 differ from those under Section 337. No doubt, at a later stage in the present proceedings, the prosecution sought to bring themselves under Section 494, by purporting to take action under it, but it was then, in their Lordships' judgment, too late to change the position either as against the appellant or as against either of the approvers. 7. It is said that the Local Government did not intend to act under Section 337, but if their overt acts are such as to be only capable of being referred to that Sec....