HORILAL MOHANLAL GOND Vs. EMPEROR

JUDGEMENT

(1.) THE appellant Horilal has been convicted of an offence punishable under Section 302, I.P.C., and sentenced to death subject to confirmation of this Court, by the Additional Sessions Judge, Chhindwara. Horilal had been prosecuted along with Bhagchand and Hiralal for murdering Dhanaram and his wife Mt. Kela. Horilal received pardon and was examined as an approver in Sessions Trial No. 25 of 1938. The Sessions Judge was of opinion that Horilal did not state the truth and thereby failed to comply with the conditions of his pardon. He therefore directed the Public Prosecutor, Seoni, to consider the desirability of taking action under Section 333, Criminal P.C. On the certificate of the Public Prosecutor that he had forfeited the condition of his pardon, criminal proceedings for the original offence were started against him in the Court of the Head Quarters Magistrate First Class, Seoni, who committed the case to the Sessions Court for trial on the charge of murdering Dhanaram and his wife Mt. Kela. In view of the grave irregularity that has occurred in the trial of this case, the conviction and sentence must be quashed and a retrial ordered.

(2.) UNDER Section 339-A which was newly added by Section 88, Criminal P.C. (Amendment) Act 18 of 1923, it is imperative on the Court of Session to ask the accused, before the charge is read out and explained to him under Section 271(1), Criminal P.C., whether he pleads that he has complied with the conditions on which the tender of the pardon was made and to record his plea and proceed with the trial, and the assessors should before judgment is passed be called upon to express their opinion on the question whether or not the accused has complied with the conditions of his pardon. If the Court with the aid of the assessors finds that the accused has complied with the conditions of the pardon, it is incumbent on the Court to pass a judgment of acquittal. In the present case the exigencies of this imperative provision of law have escaped the attention of the learned Additional Sessions Judge. It was his duty to explain to the accused the terms of Section 339-A, Criminal P.C, and invite him to plead, record his plea and call upon the assessors to deliver their opinion on that plea and then to record his own finding. The failure to perform that duty vitiates the trial. Under the proviso to Sub-section (1) of Section 339 the accused is entitled to plead, before he is tried for the offence in respect of which the pardon was tendered, that he has complied with the conditions of his pardon, in which case the onus lies on the prosecution to prove that such conditions have not been complied with. It is clear that the trial for the offence in respect of which the pardon was granted could not begin until the requirements of Section 339-A, Criminal P.C,. were carried out in limine, and the judgment of conviction could not be delivered unless the Court with the aid of assessors found that the accused had failed to comply with the conditions of the pardon. As pointed out in Anupsingh v. Emperor (1933) 20 AIR Lah 910 it was necessary for the Court to examine the facts of the case in which the accused had testified as an approver, and determine the complicity of the accused before it could be decided that he had forfeited his pardon. In Itwari v. Emperor (1929) 16 AIR Oudh 256 the trial was held to be illegal and a retrial was ordered on account of the failure to conform to the provisions of Section 339-A, Criminal P.C. We quash the conviction and the sentence and direct that the appellant shall be again tried according to law with advertence to the remarks made above.