EMPEROR Vs. ABANI BHUSHAN CHUCKERBUTTY

JUDGEMENT

(1.) The plea has been raised before us that there is no proper finding that the forfeiture of pardon under Section 339 of the Criminal Procedure Code was incurred in this case, and that, therefore, this Court has no jurisdiction to try the case. Whether we look at the section as it stands, or at the law as laid down by the Bombay and Madras Courts under the present Act, or by this Court under the Act of 1898, there seems to be no doubt that the procedure followed in this case has been the correct procedure.

(2.) The defence has principally relied upon Emperor V/s. Kothia (2), where Beaman J. lays down precisely the procedure which has been adopted in this case as the procedure to be followed. At the termination of the trial in which the pardon is given, the accomplice must be discharged by the Court which tries the case. In this case it was the Special Tribunal. "Then, if so advised, the Crown may re-arrest and proceed against him for the offence in respect of which he was given a conditional pardon. When put upon his trial for that offence, he may plead to a competent Court his pardon, in bar. And that is a plea that the Court would be bound to hear and decide upon before going further and putting him on his defence" Emperor V/s. Kothia (1). It is clear, therefore, that the Special Tribunal could not in any way proceed against him for the offence in respect of which he was given a conditional pardon. It may also be inferred, from the wording of Clause (1906) I.L.R.30 Bom. 611, 621, Section 339 of the present Code of Criminal Procedure, that the forfeiture is incurred ipso facto by the acts of the approver, that is to say, if he either wilfully conceals anything essential or gives false evidence, he does not comply with the conditions upon which the tender was made, and the pardon is forfeited.

(3.) In dealing with the matter, the Court will have to consider whether the approver has or has not complied with the conditions upon which the pardon was tendered, and whether he has made a full and true statement and disclosed the true facts. The only difficulty that can arise is whether the inquiry should be made by the committing Court, or be made before us.