Kanta Prashad vs Delhi Administration (and connected appeal)

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 202 and 203 of 1957

Decision Date: 6 February 1958

Coram: Syed Jaffer Imam, Bhuvneshwar P. Sinha

In this matter the appellant, Kanta Prashad, challenged his conviction before the Supreme Court of India, which rendered its judgment on 6 February 1958. The bench comprised Justice Syed Jaffer Imam together with Justice Bhuvneshwar P. Sinha. The case was reported as 1958 AIR 350 and 1958 SCR 1218. The appellant had been tried and sentenced by a Court of Special Judge constituted under the Criminal Law (Amendment) Act, 1952, on charges under sections 120B and 224/109 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947. The conviction was appealed on the ground that the pardon offered to the approver by the District Magistrate, exercised under section 337 of the Code of Criminal Procedure, was beyond the magistrate’s jurisdiction. The argument asserted that section 337 could not be invoked because the offence under section 5(2) of the Prevention of Corruption Act was punishable with imprisonment of up to ten years, and the provision was limited to offences triable exclusively by the High Court or a Court of Session, or those punishable with imprisonment extending beyond ten years. The appellant further contended that the Court of Special Judge, although specially constituted, did not fall within the definition of a Court of Session for the purposes of section 337. The Court examined the relevant provisions of the Criminal Law (Amendment) Act, 1952, particularly sections 8(3) and 9, which declare that, for the purposes of the Code of Criminal Procedure, a Court of Special Judge is to be deemed a Court of Session trying cases without a jury. By applying this statutory construction, the Supreme Court held that the District Magistrate possessed the authority to grant a pardon under section 337 of the Code of Criminal Procedure because the Court of Special Judge was, in law, a Court of Session. Consequently, the pardon tendered to the approver was valid, and the conviction of the appellant stood affirmed. The appeals, numbered 202 and 203 of 1957, were filed by special leave against the judgment of the Punjab High Court (Circuit Bench) at Delhi dated 16 November 1956, which itself arose from the order of the Special Judge dated 31 August 1956 in Corruption Case No. 8 of 1956. The appellant was represented by counsel for the appellant, while the respondent, the Delhi Administration, was represented by counsel for the respondent.

The judgment was pronounced on 6 February 1958 by Justice Imam J. The appellants, who were serving as police constables at the time of the alleged incident, had been found guilty by the Special Judge of Delhi. The convictions were under section 120B and sections 224/109 of the Indian Penal Code, together with section 5(2) of the Prevention of Corruption Act of 1947. For the offence punishable under section 5(2) they received two years of rigorous imprisonment, and they were each sentenced to nine months of rigorous imprisonment for the offences under sections 120B and 224/109. All three punishments were ordered to run concurrently. Their subsequent appeals to the Punjab High Court were rejected, and the present appeals were entertained only by way of special leave.

The prosecution alleged, as set out in the charge, that between 6 November and 16 November 1955 the appellants conspired in Delhi with Ram Saran Das—who later turned approver—M. P. Khare, Nand Parkash Kapur and Murari. The alleged purpose of the conspiracy was to secure the escape from lawful custody of M. P. Khare, who was then an under‑trial prisoner. The prosecution further claimed that each appellant agreed to receive a sum of Rs. 1,000 together with other monetary benefits as illegal gratification for facilitating Khare’s escape, and that they actually accepted the illegal gratification from Nand Parkash Kapur. The findings of the lower courts confirmed that M. P. Khare did escape from lawful custody, that the appellants aided his escape, and that they received money as illegal gratification for their participation.

The counsel representing the appellants advanced five distinct grounds for setting aside the convictions. First, it was contended that the pardon granted to the approver Ram Saran Das by the District Magistrate of Delhi, pursuant to section 337 of the Code of Criminal Procedure, had been issued without proper jurisdiction or authority, thereby rendering the approver’s testimony inadmissible. Second, the counsel argued that the prosecution’s charge of conspiracy to commit an offence under section 224 of the Indian Penal Code was inaccurate, asserting that the correct provision should have been section 222, which is a non‑cognizable offence; consequently, a conviction under section 120B could not be sustained without a sanction under section 196A of the Code of Criminal Procedure. Third, the defence maintained that the prosecution witnesses identified as Mela Ram (PW 6) and Shiv Parshad (PW 7) were themselves accomplices, and therefore their testimony should have been excluded. Fourth, the counsel pointed out that no test identification parade of the appellants had been conducted, an omission that should have affected the reliability of the identification. Fifth, the defence submitted that the charge as framed violated the mandatory requirements of section 233 of the Code of Criminal Procedure, rendering the charge itself invalid.

In considering the matters raised under points three, four and five, the Court decided to address them immediately. The evidence presented by the witnesses Mela Ram and Shiv Parshad was examined carefully, and the Court found that their testimonies did not contain any facts that would classify them as accomplices to the alleged offence. Moreover, the Court observed that, before the High Court, no party had ever argued that these two witnesses were accomplices whose statements should therefore be excluded as corroborative material for the approver’s evidence.

Nevertheless, counsel contended that the two witnesses were unreliable because they were aware of a planned attempt to help M.P. Khare escape from lawful custody, yet they failed to inform any authority about this plan. Regarding this allegation of unreliability, the Court held that the lower courts were entitled to accept the witnesses’ statements, and nothing of persuasive significance has been placed before this Court that would justify departing from the view taken by the trial courts.

The issue of a test identification parade was also raised. The Court acknowledged that no such parade was conducted. It noted that the accused were already known to the police officers who had testified against them, while the only individuals who did not know the accused prior to the incident were those who testified about the accused’s association with others—a point that the High Court did not give much weight to. The Court agreed that it would have been prudent to arrange a test identification parade for witnesses who were unfamiliar with the accused before the occurrence, but it stressed that the absence of such a parade does not automatically render the identification evidence inadmissible. The appropriate weight to be given to that identification evidence, the Court said, is a matter for the fact‑finding courts, and this Court will not re‑evaluate the evidence unless there are exceptional reasons that compel such a step.

Concerning the framing of charges, the Court observed that separate charges under sections 120B, 224/109 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947, were not individually framed as required by section 233 of the Code of Criminal Procedure. The Court recognized that this irregularity existed, but held that it was cured by the remedial provisions of section 537 of the Code. The Court further noted that, before the Special Judge, counsel had argued that separate charges should have been framed and that a single charge was improper. However, when the Special Judge indicated that, if prejudice was complained of, he would re‑frame separate charges under separate heads, the counsel for the accused withdrew the objection. At the time the charge was framed, the public prosecutor had also insisted that each offence be charged separately, not merged under a single head, whereas the counsel for the accused maintained that the charge as framed was correct. The Court concluded that, when the charge was being prepared, the counsel for the appellants preferred that the charge remain as it had been framed, and that the objection to the single charge had effectively been abandoned.

In this case the Court observed that the objection raised by the public prosecutor had to be overruled, and it could no longer be contended that the appellants had been prejudiced by the manner in which the charge had been framed. The Court noted that the counsel for the appellants had withdrawn this objection and that the judgment of the High Court contained no indication that the issue had been revived. Consequently, the Court declined to permit the matter to be raised at this stage and held that the submissions made on behalf of the appellants on points three, four and five lacked any substantive basis. Turning to the second point, the Court stated that even if it were assumed that the offence alleged against the appellants fell under section 222 of the Indian Penal Code rather than section 224, such a distinction would be of merely academic interest because the appellants had been properly convicted under section 5(2) of the Prevention of Corruption Act, 1947. The Court further observed that the judgments of the Special Judge and the High Court did not allege a lack of sanction under section 196A of the Code of Criminal Procedure, and therefore the trial court could not be said to have lacked jurisdiction to take cognizance of an offence punishable under section 120B of the Indian Penal Code. The question of whether a sanction under section 196A had been obtained was a factual issue that ought to have been raised at the trial and before the High Court, and it was not appropriate to revisit that factual issue at this juncture. Moreover, the Court considered that this factual question was also of academic relevance only if the conviction and sentence under section 5(2) of the Prevention of Corruption Act, 1947 were upheld. Regarding the first point raised by the appellants, the Court noted that the District Magistrate of Delhi had granted a pardon to Ram Saran Das, the approver, under section 337 of the Code of Criminal Procedure, after which Ram Saran Das was examined as a witness before the Special Judge. It was argued that the District Magistrate lacked authority to grant such a pardon because the case was triable by a Special Judge established under the Criminal Law (Amendment) Act, 1952. The Court explained that the offence under section 5(2) of the Prevention of Corruption Act, 1947 carried a maximum imprisonment of seven years, or a fine, or both, and therefore did not fall within the category of offences punishable with imprisonment of up to ten years. Section 337 empowered a District Magistrate to extend a pardon only in cases triable exclusively by the High Court or a Court of Session, or in offences punishable with imprisonment up to ten years, or in offences punishable under section 211 of the Indian Penal Code with imprisonment up to seven years, or in offences listed under sections 216A, 369, 401, 435 and 477A of the Indian Penal Code. The Court therefore concluded that the provisions of section 337 applicable at the time the pardon was granted were not applicable to the present case.

The Court observed that the provisions of section 337 that were in force when the pardon was offered did not apply to the present case because the case did not fall within the categories listed in that section. It noted that the High Court had been mistaken in assuming that a District Magistrate could grant a pardon in a matter where the offence was punishable by imprisonment of up to seven years or more and where the trial was exclusively before a Court of Session. At the time the pardon was granted, the Code of Criminal Procedure referred to offences punishable by imprisonment for a term which could extend to ten years, not seven years. Although an amendment to section 337, which became effective in January 1956, altered the language to refer to offences punishable by up to seven years, that amendment could not affect a pardon tendered on 1‑December‑1955. Nevertheless, the Court held that the District Magistrate possessed the authority to grant a pardon under section 337 of the Code of Criminal Procedure with reference to a case that was triable exclusively by the Special Judge. Consequently, the Court did not need to examine whether the offence was punishable by up to seven years. The Court explained that section 8(3) of the Criminal Law (Amendment) Act 1952 expressly provided that, for the purposes of the Code of Criminal Procedure, 1898, a Special Judge was to be deemed a Court of Session trying cases without a jury or assessors. Section 9 of the same Act allowed an appeal from the Special Judge to the High Court and permitted the High Court to exercise, insofar as applicable, all powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure as if the Special Judge were a Court of Session. Accordingly, although the Special Judge was created under the Amendment Act, for the purposes of the Code of Criminal Procedure it functioned as a Court of Session. The Court therefore concluded that, even though the offence was triable only before the Special Judge, the District Magistrate was empowered to grant a pardon under section 337 because the Special Judge’s court was, in law, a Court of Session. The suggestion that only the Special Judge, and not the District Magistrate, could lawfully grant the pardon was rejected; the Court found that the Special Judge’s position was analogous to that of a Judge of a Court of Session. Moreover, the proviso to section 337 contemplated concurrent jurisdiction for the District Magistrate and the Magistrate conducting the inquiry or trial to tender a pardon, supporting the view that the District Magistrate’s authority was valid in this context.

Section 338 of the Code of Criminal Procedure provides that even after a person has been committed but before a judgment is rendered, the court to which the commitment was made may either grant a pardon itself or may direct the magistrate who made the commitment or the District Magistrate to grant a pardon. Consequently, the District Magistrate possessed the authority to grant a pardon after a commitment, provided that the court to which the commitment had been made gave such direction. Section 8(2) of the Criminal Law (Amendment) Act 1952 additionally conferred upon the Special Judge the power to grant a pardon. The grant of this power to the Special Judge did not extinguish the District Magistrate’s existing power to grant a pardon under section 337 of the Code. At the time when the District Magistrate exercised the power to grant a pardon, the matter had not yet been placed before the Special Judge. Therefore, the contention that the District Magistrate lacked authority to grant a pardon to Ram Saran Das, the approver, and that consequently the approver’s testimony should have been excluded, was found to be without merit. The findings of the High Court established that the appellants had committed the offence defined in section 5(2) of the Prevention of Corruption Act 1947, and no sufficient basis was identified to hold that the appellants had been wrongly convicted under that provision. Accordingly, the appeals were dismissed.