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Criminal Appeal No. 281 of 1959, decided on 3rd August, 1959.

[Before amendment by Prevention of Corruption (Amendment) Act (IX of 1950)], S. 5‑Penal Code (XLV of 1860), S. 161‑Offence under S. 5, Prevention of Corruption Act, 1947 prior to its amendment in 1950‑Distinct and separate from offence under S. 161, Penal Code‑Joinder of charges illegal‑Criminal Procedure Code (V of 1898), S. 233.

Under the law, as it stood prior to its amendment by the Prevention of Corruption (Amendment) Act IX of 1950, the offence under section 5 of the Prevention of Corruption Act, 1947 was an offence distinct and separate from the offence under section 161 of the Penal Code, 1860. The trial, therefore, for the offence of criminal misconduct under section 5 of the Prevention of Corruption Act, 1947 and offences under section 161 of the Penal Code, 1860 at the same time amounted to misjoinder of offences rendering the entire trial bad.

Crowr, v. Ghulam Muhammad P L,D 1950 Lah. 479 ref.

, S. 7 and Pakistan Criminal Law Amendment Act (XL of 1958), S. 8‑Evidence taken at Committal stage by Magistrate‑Could not be used by Special Judge as evidence in the trial before him.

Under section 7 of the Pakistan Criminal Law Amend ment Act, 1948 (as also under section 8 of the Pakistan Criminal Law Amendment Act, 1958 which contains an identical provision), the Special Judge is relieved of the necessity of recalling and rehearing a witness whose evidence has already been recorded but may act on the evidence already produced or recorded and continue the trial from the stage which the case has reached. The use of the words "witness", "evidence" and "continue the trial" in the section indicate that the previous evidence upon which the Special Judge may so act is evidence at a trial and not the evidence recorded at a preliminary inquiry under Chapter XVIII of the Criminal. Procedure Code, 1898. Under the Code of Criminal Procedure (whose provisions are made applicable to trials held by a Special Judge in so far as they are not inconsistent with the Criminal Law Amendment Act), a clear distinction exists between a preliminary inquiry and trials. Therefore evidence recorded by the committing Magistrate before commitment of the accused to the Sessions Court cannot be used by the Special Judge as evidence for the disposal of the case pending before him.

‑Meaning of.

The word "trial" itself has not been defined in the Criminal Procedure Code, 1898, but generally it refers to a judicial proceeding which ends in conviction or acquittal Thus in a case where a Magistrate on receipt of a complaint or charge- sheet concludes that the offence complained of is triable by a Court of Session and ultimately commits the accused to stand his trial at the Court of Session, the trial does not begin until the accused persons are at the Sessions and the proceedings before the Magistrate constitute an inquiry only.

Hema Singh and another v.' Emperor A I R 1922 Pat. 644 rel.

S. 342 ‑Proper way of eliciting whether accused wanted to adduce defence evidence.

The Court while examining the accused under section 342 of the Criminal Procedure Code, 1898 should put questions to accused to elicit if he wished to adduce, defence evidence and should give him an opportunity to explain any incriminating circumstance sought to be utilised against him. The mere question to the accused "have you brought any witness in your defence " is not the proper way of eliciting whether the accused wanted to adduce any defence evidence.

P. C. Bose for Appellant.

M. Fazlul Huy for the State.

This appeal is directed against the conviction of the appel lant by the learned Special Judge of the Dacca Division under section 161 of the Pakistan Penal Code and subsection (2) of section 5 of the Prevention of Corruption Act, 1947. The appellant has been sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1,500 or in default to suffer rigorous imprisonment for nine months more in respect of the offence under section 161 of the Pakistan Penal Code, but no separate sentence has been passed in respect of the other conviction.

2. The appellant who was, during the 24th of September 1947, and the 14th of January 1949 an Assistant Sub‑Inspector of Police attached to the Gournadi police‑station of the district of Bakarganj, was charged with having accepted a bribe of Rs. 210 from one Abdus Samad Akon on the 12th and 13th of July 1948, as a reward for releasing him from jail custody, as also for the acceptance of a total bribe of Rs. 700 on the 24th of June 1948, from four persons, namely, Shambhunath Saha, Sarves war, Baidyanath Saha and Anil. He was alleged to have accepted Rs. 100 from Shambhunath Saha, Rs. 500 from Sarveswar and Baidyanath jointly and another Rs. 100 from Anil.

3. It appears that, on the petition of the complainant, originally a charge‑sheet was submitted against four persons on the 16th of August 1949, but, on the 21st of October, 1949, the said case was split up into four separate cases and the case of the present appellant was taken up separately in respect of the above counts by a Magistrate who proceeded to hold an inquiry under Chapter XVIII of the Code of Criminal Procedure and, on the 11th of July 1950, to commit him to the Court of Session to stand his trial there. Thereafter this case appears to have been stayed till the disposal of the main case upto the 7th of February 1953, when it was ordered to be transferred to the Court of the 3rd Assistant Sessions Judge for disposal. Again, on the 3rd of March 1953, that Court adjourned the case sine die. It was only on the 2nd of August 1954, that the case was ultimately transferred to the file of the Special Judge for disposal. Curiously enough, however, it remained pending there after in the Courts of different Special Judges from time to time till the 7th of January 1959, when it ultimately came to be transferred to the learned Special Judge who actually dis posed of the case.

4. This learned Special Judge, on receiving the case, passed the following order on the 8th of January 1959 :‑---

"Perused the record. I shall not recall or rehear any witness, whose evidence has already been recorded. The accused may apply for cross‑examining afresh any P. W. showing reasons for the same. He may also examine D. Ws. if he so likes. 'The prosecution may also examine fresh witnesses showing cause for the same. Names and addresses of witnesses to be cross‑examined or examined afresh must be sent to my headquarters at Dacca within a fortnight from to‑day ".

He also fixed the 27th of April 1959, as the date for the com mencement of the trial. On this date, since no list had been received by him earlier of any fresh witnesses or any witness whom the defence sought to cross‑examine, he heard arguments and closed the case. The judgment was then delivered on the 29th of April 1959.

5. It appears that the evidence which the learned Special Judge treated as evidence in this case was the evidence of some twenty six witnesses recorded by the committing Magistrate at the inquiry stage and certain documents which were put in before him, being in the nature of police diaries of Gournadi police‑station.

6. Although, in so far as the alleged demand and acceptance of bribe from the said Abdus Samad Akon is concerned, the documents disclosed that the said Abdus Samad Akon was actually arrested and produced before the Sub‑Inspector at the thana by another Assistant Sub‑Inspector of Police, Debendra Chandra Das, and then, after investigation by the Sub‑Inspector‑in‑charge, forwarded to Court on the 12th of July 1948, at 9‑30 a.m. The learned Special Judge took the view that the oral testimony of the witnesses should be pre ferred, particularly, because, in the usual course, the prosecu tion would most likely have examined other necessary witnesses in the Court of Session and because no useful purpose would be served by examining prosecution witnesses again after this lapse of ten years. Hence, he thought that since there was no special reason as to why the prosecution witnesses should perjure themselves, their evidence should be believed and the appellant convicted.

7. With regard to the alleged charge of bribe‑taking from the other persons, the learned Special Judge took the view that since there were some eye‑witnesses they should be believed, although there was a serious discrepancy in the evidence of one of the said eye‑witnesses and several of the other material witnesses including persons from whom bribes were alleged to have been taken were not examined even in the committing Court. They were Sarveswar, Baidyanath and Anil, three of the bribe‑givers themselves.

8. Having found that these offences of bribe‑taking under section 161 of the Pakistan Penal Code had been made out, he also held that the offence under the Prevention of Corruption Act was also made out, although the other instances of bribe -taking which were adduced in evidence by the prosecution to show habitual misconduct were mostly disbelieved by the learned Special Judge.

9. The learned Advocate appearing on behalf of the appel lant in this case has taken three preliminary objections to the validity of the trial itself. The first is that there was a serious misjoinder of offences in the present case ; secondly, that the learned Special Judge had convicted on no legal evidence at all and, thirdly, that there had been no examination at all under section 342 of the Cole of Criminal Procedure, nor had the appellant been given any opportunity to call defence evidence.

10. So far as the first point is concerned, the contention is that, since the prosecution accusation itself was that bribe was taken from at least four persons, there were four separate offences of bribe‑taking and, even if the accusation under the Prevention of Corruption Act be treated as a single offence, there were altogether five offences that were tried together in this case in contravention of sections 233 and 234 of the Code of Criminal Procedure.

" 11. The committing Magistrate, it appears, framed the following charges :‑--

(1) That you, between the 28th and 29th day of Ashar, 1355 B. S., corresponding to the 12th and 13th day of July, 1958, at Gournadi, P. S. Gournadi, district Bakarganj, as a public servant, committed the offence of criminal misconduct in the discharge of your duty by corrupt and illegal means or by otherwise abusing your position as a public servant obtained for yourself and for your manjhi a sum of Rupees two hundred and ten (Rs. 210) as pecuniary advantage or obtained for yourself and for your manjhi one gold necklace, 8 pairs of gold churis, one pair of gold earring and one silver gote, which were valuable things, from P. W. 1 Abdus Samad Akon and thereby committed an offence punishable under section 5 (2) of Act Il/47, continued by the East Bengal Act IX/50, etc.

(2) That you, between the 28th day and 29th day of July 1948, at Gournadi, P. S. Gournadi, district Bakarganj, being a public servant, accepted or obtained or agreed to accept or obtain from P. W. 1 Abdus Samad Akon a sum of Rupees two hundred and ten for yourself and for your manjhi as gratification other than legal remuneration as a motive or reward for doing or forbearing to do an official act or for showing or forbearing to show in the exercise of your official functions favour or disfavour to the said P. W. 1 Abdus Samad Akon and thereby committed an offence punishable under section 161, P. P. C., read with Act II/47, etc.

(3) That you, on or about the 28th day of Ashar, 1355 B. S., corresponding to the 12th day of July 1948, at Diasur, P. S. Gournadi, district Bakarganj, as a public servant, com mitted the offence of criminal misconduct in the discharge of your duty by corrupt and illegal means or by otherwise abusing your position as a public servant obtained for yourself a sum of Rupees two hundred and eighty (Rs. 280) as pecuniary advantages from P. W. 11 Chuttu Bibi, mother of P. W. 13 Ismail and thereby committed an offence punish able under section 5 (2) of Act II/47, continued by the East Bengal Act IX/50, etc.

(4) That you, on or about the 8th day of Ashar, 1355 B. S., corresponding to the 12th day of July 1948, at Diasur, P. S. Gournadi, district Bakarganj, being a public servant, accepted or obtained or agreed to accept or obtain from P. W. 11, Chuttu Bibi, mother of P. W. 13 Ismail, a sum of Rupees two hundred and eighty (Rs. 280) for yourself as gratification other than legal remuneration as a motive or reward for doing or forbearing to do an official actor for showing or forbearing to show in the exercise of your official functions favour or disfavour to P. W. 11 and P. W. 13 and thereby committed an offence punishable under section 161 of the Pakistan Penal Code read with Act II/47, etc.

(5) That you, on or about the 10th day of Ashar, 1355 B. S., corresponding to the 24th day of June 1948, at Palordi (Bejoypur), P. S. Gournadi, District Bhakatganj, as a public servant com mitted criminal misconduct in the discharge of your duty by cor rupt and illegal means or by otherwise abusing your position as a public servant obtained for yourself a sum of Rupees seven hundred (Rs. 700) as a pecuniary advantage from P. W. 16 Sambhunath, Sarbeswar and Anil (brother of Sambhu) and thereby committed an offence punishable under section 5 (2) of Act 11/47 continued by the East Bengal Act IX/50, etc.

(6) That you, on or about the 10th day of Ashar, 1355 B. S., corresponding to the 24th day of June 1948, at Palordi (Bejoypur) P. S. Gournadi, district Bakarganj, being a public servant, accepted or obtained or agreed to accept or obtain from P.W. 16 Sambhunath, Sarbeswar and Anil (brother of Sambhu) a sum of Rupees seven hundred (Rs. 700) for yourself as gratification other than legal remuneration as a motive or reward for doing or forbearing to do an official act or for showing or forbearing to show in the exercise of your official functions favour or disfavour to Mahendra, Anil and other male and female inmates and thereby committed an offence punishable under section 161 of the Pakistan Penal Code read with Act 11/47, etc."

12. Before the learned Special Judge, the two charges in respect of criminal misconduct and bribe from Chuttu Bibi and Ismail were, however, only pursued in so far as the offence under the Prevention of Corruption Act was concerned. The learned Judge does not appear to have either set down as a point for determination any charge under section 161 of the Pakistan Penal Code in respect of the alleged bribe taken from Chuttu Bibi and Ismail. Even so, there were at least six separate and distinct charges joined together, on the charges as framed by the learned Magistrate.

13. It will be further noticed that in the charges framed by the learned Magistrate the alleged bribe of Rs. 700 has been taken as a lump sum figure forming the subject‑matter of a single charge, although the prosecution case itself was that it was obtained from four different persons. Only the amount of Rs. 500 given by Shar veswar and Baidyanath appears to have been jointly given.

14. It is not necessary for me in this case to decide whether such a charge under section 161 of the Pakistan Penal Code for a lump sum, when such a lump sum constitutes a collection from various persons on the same day, can be treated as a single offence or not. But it is clear that on the charges, as framed by the Committing Magistrate and tried by the learned Special Judge, there was a serious misjoinder. The learned Advocate appearing on behalf of the State has also not seriously disputed it.

15. The alleged offences in this case were again said to have been committed in the year 1948. In order to constitute criminal misconduct under section 5 of the Prevention of Corruption Act, 1947, it was then necessary that habitual acceptance or obtaining or agreeing to accept or attempting to obtain be established. Under the law, as it then stood, the offence under section 5 of the Prevention of Corruption Act has been held to be an offence which is distinct and separate from the offence under section 161 of the Pakistan Penal Code and, therefore, the trial for the offence of criminal misconduct under section 5 of the said Act and offences under section 161 of the Pakistan Penal Code at the same time offended against the provisions of sections 233 to 239 of the Criminal Procedure Code. This was the view taken in the case of Crown v. Ghulam Muhammad (P L D 1950 Lah. 479). The word "habitually" was deleted by the Amending Act, of 1950, namely, Act IX of 1950, but, prior to this amendment, there can be no doubt that the offence was, in fact, a distinct and a separate offence from that under section 161 of the Pakistan Penal Code.

16. The misjoinder, therefore, of offences was in this case a serious one and rendered the entire trial bad.

17. Again, so far as the second objection is concerned, I am of the view that this too must prevail. Under the Criminal Law Amendment Act, 1948, it was provided by section 7 that a Special Judge, unless he otherwise decides, shall not be bound to recall or re‑hear any witness whose evidence has already been recorded or to re‑open a proceeding already held but may act on the evidence already produced or recorded and continue the trial from the stage which the case has reached. Under the Criminal Law Amendment Act, 1958, an identical provision is incorporated in section 8 of the latter Act. Both these sections are preceded by a description of the subject‑matter of the section which is as follows:

"Bar on trial de novo."

18. It will be noticed that under the section the Special Judge is relieved of the necessity of recalling and re‑hearing a witness whose evidence has already been recorded but may act on the evidence already produced or recorded and continue the trial from the stage which the case has reached. The use of the words "witness", "evidence" and "continue the trial" seems clear to indicate that the previous evidence upon which the learned Special Judge may so act is evidence at a trial and not the evidence recorded at a preliminary inquiry under Chapter XVIII of the Code of Criminal Procedure.

19. The provisions of the Code of Criminal Procedure have been made expressly applicable to trials held by Special Judges, who are in the same position as the Sessions Courts, in so far as they are not inconsistent with the provisions of the Criminal Law Amendment Act. Under the Code of Criminal Procedure, a clear distinction exists between a preliminary inquiry under Chapter XVIII and trials under Chapters XX, XXI, XXII and XXIII of the said Code. Under section 4, clause (k) of this Code, an inquiry includes every inquiry other than a trial conducted under the Code by a Magistrate or a Court. This definition is really in the nature of an explanation of the term and it discloses that an inquiry is clearly distinguished from a trial by the framers of the Code. The word "trial" itself has not been defined in the Code; but generally it refers to a judicial proceeding which ends in conviction or acquittal. Thus, in a case where a Magistrate on receipt of a complaint or charge‑sheet concludes that the offence complained of is triable by a Court of Session and ultimately commits the accused to stand his trial at the Court of Session, the trial does not begin until the accused persons are at the Sessions and the proceed ings before the Magistrate constitute an inquiry only. I also find support for this view from a decision of a Division Bench of the Patna High Court in the case of Hema Singh and another v. Emperor (A I R 1922 Pat. 644).

20. If this were not so, and Special Judges were entitled to use even the statements of witnesses recorded in the Committing Court as evidence at trials as Sessions Judges themselves, then grave and serious injustice may be caused not only to the accused but also to the prosecution. The Magistrate holding an inquiry under Chapter XVIII is not concerned with determining the guilt of the accused. He has only to see whether a prima facie case has been made out against him. It is true that he may even weigh evidence to some extent in order to determine whether there is any evidence upon which any Court could conceivably convict but this is not the same thing as determining the guilt or innocence of the accused.

21. Similarly, it is common knowledge that at the commit ment stage witnesses for the prosecution are not generally cross -examined to any great length. Again, the statements recorded in the Committing Court do not automatically become evidence even in the Sessions Court, but they have to be made so by having them put fn under section 288 of the Code of Criminal Procedure and it is only when that is done that it can be treated as evidence in the case for all purposes but subject to the provisions of the Evidence Act.

22. For these reasons, I am of the view that the evidence at, the committal stage could not have been used by the learned Special Judge as evidence in the case in the trial before him. The proceeding before the Committing Magistrate could, by no stretch of imagination, be treated as the stage from which a trial could be continued further, for, as I have indicated earlier, no trial having commenced in the Court of the Committing Magistrate, the ques tion of the continuance thereof could not arise in the Court of the Special Judge.

23. These two objections are, in my view, sufficient to render the trial wholly bad and defective in the present case, but I must further point out that there is also considerable substance in the complaint regarding the 342‑examination of the accused. It is curious that the question that this learned Special Judge put to the accused in his 342‑examination was not as to whether he wished to adduce any defence evidence but "Have you brought any witness in your defence ". It is no wonder that the complaint is made that he was not given any opportunity to adduce defence evidence. No question at all was put to him to elicit if he wished to adduce any defence evidence. Whether he made an application earlier or not to adduce defence evidence he could not be deprived of the right to adduce defence evidence after he had been called on to plead in the case. The learned Special Judge could not arbitrarily take away this right.

24. The examination with regard to the salient features of the case is equally, in my view, defective, for, all that he was asked was that "you have heard the charges that have been brought against you to the effect that you realised Rs. 210 and a total sum of Rs. 700 on two respective days from certain persons while you were holding the post of Jamadar at the Gournadi police‑station and thereby committed an act of criminal misconduct by misusing your official position." To this he answered that he was innocent. Nothing from the evidence was put to him, nor was he given an opportunity to explain any incriminating circumstance sought to be utilised against him.

25. For these reasons, I am of the view that the conviction and sentence of the appellant must be set aside. The question, however, that arises now is whether I should order a re‑trial in this case.

26. As I have already indicated, the charge‑sheet was sub mitted as long ago as August 1949, and ten years have already elapsed. The learned Special Judge himself has noted in his judg ment that no useful purpose will now be served by examining the witnesses after this long lapse of time. Hence, a re‑trial would amount to nothing more than mere harassment of the appellant before me. He has been sufficiently harassed and there would be no point in sending this case back for a re‑trial at this stage.

27. I, therefore, acquit the accused of the charges levelled against him and direct that he be now discharged from his bail bond. The fine, if realised, should also be refunded to him.

K. B. A. Appeal accepted.

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