HAJI AYUB MANDAL Vs. EMPEROR

JUDGEMENT

(1.) In Appeal No. 626, the appellant is Haji Ayub Mandal and in Appeal No. 668 the appellants are Nityananda and Deresh. The last named persons have preferred Appeal No. 668 from jail, but the appeal of Haji Ayub Mandal (No. 626) has been placed before us at considerable length by Mr. Basu. The two sets of appellants were convicted by the learned Sessions Judge of Murshidabad and a jury under Section 395 of the Indian Penal Code and the learned Judge agreeing with the verdict of the jury sentenced the appellant Haji Ayub Mandal to four years, the appellant Nityananda to five years and the appellant Deresh to two years rigorous imprisonment.

(2.) It appears from the evidence on the side of the prosecution that on or about the 18 of March 1923 there was a dacoity in the house of one Radhaballav who resided in village Goas, police station Raninagar in the district of Murshidabad. On the 19 of March one Jamini Kanta Saha, a nephew of Radhaballav, lodged the fir3t information report at the thana about the occurrence. Then followed a police investigation but nothing came out of that because the police were unable to trace the persons who had taken part in the dacoity. In July 1925, however, the police, who had mean while been engaged in investigating into the circumstances leading to the occurrence, submitted a charge sheet against Ayub and three other persons and they were committed to the Sessions Court to take their trial for having committed an offence punishable under Section 395 of the Indian Penal Code.

(3.) One of the accused was a man named Jorap. In the Court of the committing Magistrate, Jorap was tendered a pardon under the provisions of Section 337 of the Code of Criminal Procedure, and he accepted such pardon. Thereafter he was examined as a witness for the prosecution; but although he was examined as a witness for the prosecution, after a pardon had been tendered to him and after the pardon had been accepted by him it appeared that when the case reached the Sessions Court his name was still in the category of the accused. On the first day of the trial in the Sessions Court there were, therefore, before the learned Sessions Judge and the jury four accused, i.e., Ayub, the two appellants in Appeal No. 668 and Jorap. They were asked to plead and after their pleas had been taken the Public Prosecutor drew the attention of the learned Sessions Judge to the fact that the accused Jorap who was in the book had been tendered a pardon, that he had accepted such pardon, and that in the events which had happened the case against this accused was to be deemed as having been withdrawn. The learned Sessions Judge's attention being drawn, he recorded the following order: As it appeared from the order sheet of the -committing Magistrate, dated 23 November, 1925, that a pardon was tendered to and accepted by Accused No. 4, Jorap Mandal, ha was removed from the dock. He will remain in custody as before till the termination of the trial.