SHASHI RAJBANSHI Vs. EMPEROR

JUDGEMENT

(1.) The accused Atlanta, Nani, Shashi, Gopal, Srikanta and Bolai were tried along with seven others, who have been acquitted, with having committed the offence of dacoity.

(2.) The trial took place before the learned Sessions Judge of Murshidabad and a Jury. The six appellants before us were convicted and each sentenced to undergo seven years rigorous imprisonment. Against that conviction and sentence they have appealed to this Court. The principal point that has been argued on this appeal is as to the legality of the trial before the learned Sessions Judge. It appears that the accused Shashi was tendered and accepted a pardon under Section 337 of the Code of Criminal. Procedure, on the 21st of April 1914, whilst the proceedings were pending before the Committing Magistrate. The Magistrate subsequently forfeited the pardon granted to Shashi and the magisterial inquiry was recommenced from the stage at which it was interrupted as against Shashi by the tender and acceptance of the pardon. The Magistrate committed all the accused for trial. Shashi having raised, before the learned Judge, a plea in bar on the ground that he had received a pardon, the learned Judge took a special verdict from the Jury in the first instance as to whether Shashi had forfeited his pardon. The Jury having returned a verdict that he had done so, the learned Judge then continued the trial against all the accused.

(3.) Against this procedure two points have been urged on the appeal before us: (i) that the procedure of the Magistrate in recommencing the magisterial inquiry against Shashi, from the stage it was interrupted by the tender and acceptance of the pardon, and the commitment of Shashi to take his trial with the other accused was illegal; and (ii) the taking of a special verdict of the jury as to whether the pardon, granted to Shashi had been forfeited was also illegal. On the first point, authorities have been cited showing that when the approver deviates from the condition of his pardon in the Sessions Court, he cannot be removed from the witness-box and placed in the dock as an accused, I should have thought that such a proposition did not require any authority. It is obvious that the Court of Sessions could not try a person who had not been committed for trial.