(1.) THESE are three criminal appeals Nos. 43 of 1950, 45 of 1950 and 46 of 1950 arising out of a trial of five accused persons â€ " Nirmal Prosad Barua, Pulin Chandra Das, Chandra Kanta Bhandar Kayastha, Anilesh Chandra Ghose, and Jyotsna Chakravarty â€ " who were convicted and sentenced to various terms of imprisonment by the learned Ses. J., L. A. Districts, at a trial held with the aid of a Jury. Under Section 477A, I. P.C. the applt. Chandra Kanta Bhandar Kayastha was sentenced to R. I. for one year, and Under Section 120B and Section 420, I. P.C. he was sentenced to R. I. for four years. The remaining 4 applts., namely, Nirmal Prosad Barua, Pulin Ch. Das, Anilesh Chandra Ghose, and Jyotsna Chakravarty, were each sentenced to R. I, for four years Under Sections 420 and 120B, I. P.C. the sentences being ordered to run concurrently. The sentence of the applt., Chandra Kanta Bhandar Kayastha, Under Section 477A, I. P.C. was ordered to run consecutively with the sentences passed upon him Under Sections 420 and 120B, I, P.C. Appeal No. 43/50 is by Anilesh Chandra Ghose, Appeal No. 45 of 1950 is by Nirmal Prosad Barua, and Appeal No. 46 of 1950 by the remaining 3 accused persons. All the 5 applts. were sent up under a Charge -sheet filed before the Committing Mag. Under Sections 420, 120B, 477A and 408, I. P.C. While the case was pending before the Committing Mag., an appln. was made by the learned Govt. Advocate for the grant of pardon to one Bhudhar Gogol, Cashier of the Gauhati Bank, Ltd. The Committing Mag. granted pardon to Bhudhar Gogol and ultimately committed the case to the Ct. of Session Under Sections 120B and 420, I. P.C.
(2.) AS we propose to order a retrial it is not necessary to set out the facts of this case.
The grounds upon which the applts. seek an acquittal or, in the alternative, a re -trial, are these:
1. That the pardon tendered to the Approver was not granted in accordance with law. 2. That the offence of cheating, if any, fell within the purview of Section 417, I. P.C. and not Section 420, I. P.C. and as an offence Under Section 417, I. P.C. is punishable with less than 2 years' R. 1, sanction was a condition precedent under the provisions of S 196B sic; Section 198 A ?, Cr. P.C. for the prosecution of the applts. 3. That the joint trial of the 5 applts. for the various offences was in contravention of the provisions of Section 239, Cr. P.C. 4. That the Jury had not been empanelled in accordance with law. 5. That the learned Judge has misdirected the Jury on questions of law and fact â€ " a misdirection which has resulted in an erroneous verdict. In view of our decision to order a re -trial it is unnecessary to deal with the question of the applicability of Section 239, Cr. P.C. nor is it necessary to deal with' the question as to whether or not the Jury were properly empanelled. We will confine our decision to the remaining 3 points.
(3.) THE provisions relating to pardon are contained in Sections 337 to 399, Cr. P.C. It was contended on behalf of the applts. that as the applts. were committed to the Ct. of Session Under Sections 420 and 120B, I. P.C. and not Under Section 477A, I. P.C. the Committing Mag. acted without jurisdiction in tendering pardon to the approver. The plain answer to this contention is that the question of tender of pardon is not to be decided with reference to the charges under which an accused person is committed to the Ct. of Session. It depends upon the question as to whether or not the offence alleged against an accused person or persons is one which is mentioned in Section 337, Cr. P.C. As we have observed, the Police sent up a Charge -Sheet against the applts. Under Section 477A, Penal Code, in addition to other offences, and S 477A, I. P.C. is expressly refd. to in Section 337, Cr. P.C. under which section a Dist. Mag., a Presidency Mag., a sub -divisional Mag. or any Mag. of the First Class may, at any stage of the investigation or inquiry into, or the trial of the offence, tender a pardon to an accused person. The Committing Mag. in this case was undoubtedly a Mag. of the First Class and had, therefore, jurisdiction to tender pardon under the provisions of Section 337, Cr. P.C. to the Approver.;