KASEM ALI Vs. EMPEROR

JUDGEMENT

(1.) Thirty four persona were placed on their trial on a charge under Section 401 of the Indian Penal Code. The trial was held by a Magistrate specially authorized under Section 30 of the Code of Criminal Procedure. The trial lasted a long time, in the course of which 314 witnesses were examined. The Magistrate acquitted two of the accused and convicted the rest. Three of them were sentenced to more than four years rigorous e imprisonment, and they have appealed to this Court under Section 408(b) of the Code.

(2.) The facts of the case are briefly as follows: Proceedings under Section 110 of the Criminal Procedure Code were taken in the year 1917 against Mason Haji and others including two of the appellants, Munshi and Jaban, Mason Haji made a confession which led to an enquiry, and the Local Government appointed M. Mufizur Rahman to verify the confession made by Mason. M. Mufizur Rahman then recorded the confession of Mason at a greater length than it was taken down before, and went on to verify the statements made to him. The accused ware then sent up for trial. On the 14th June 1918 the charge against Mason was withdrawn by the Public Prosecutor under Section 494 of the Criminal Procedure Code and he was discharged. Mason s confession formed the basis. of the present charge. The learned Magistrate has, in an exhaustive judgment, dealt with the whole evidence in the case, and he has considered separately the case of each individual accused. The evidence against each accused has been separately detailed in the judgment, and it is unnecessary to repeat it.

(3.) Several points have been argued by the learned Counsel who appeared on behalf of the appellants. The first argument is that the Magistrate in discharging Mason did not give judicial consideration to the case, and, therefore, the order of discharge is illegal and has no legal effect. As to this argument I need only say that, upon the reported decisions, it is enough that the accused person had been discharged before he gave his evidence and was not on his trial when such evidence was given. This, in my opinion, is quite sufficient to make his evidence admissible.