EMPEROR Vs. ALI MIRZA

JUDGEMENT

(1.) In order to determine what charges shall be left to the jury it is incumbent upon me to construe Secs.397 and 398 of the Indian Penal Code. I think that it is desirable that I should state what, in my opinion, is the meaning of these sections, not only because of the general importance of the question, but also because there is no decision as to the construction of either of these sections by the Calcutta High Court, while there have been conflicting decisions in other High Courts in India.

(2.) The issue is whether in Secs.397 and 398 the words "the offender" and " such offender" refer to all persons who combine to commit the specified offences, or whether they refer to those persons only who are proved actually to have " used", or to have been "armed with" deadly weapons.

(3.) The former view received the support of the Allahabad High Court in 1899 in the case of the Queen-Empress V/s. Mahabir Tiwari (1899) 21 All. 263. The decision in that case was followed in two cases by the Punjab Chief Court, Chatar Singh V/s. Emperor of India (1901) P.R. Cr. 39 and Crown V/s. Mohana (1901) P.R. Cr. 42. On the other hand, the latter view was held to denote the true meaning of these words in Queen-Empress V/s. Senta (1899) 28 All. 404 (n). This case was followed in 1906 by the Allahabad High Court in the case of Emperor v. Nageshwar (1906) 28 All. 404 and also in 1911 by the Madras High Court in the case of Arunachella Thevdn V/s. Emperor (1911) 22 M.L.J. 186. <JGN>Page</JGN> 2 of 2