N A SUBRAHMANIA AIYAR Vs. QUEEN EMPRESS
N A SUBRAHMANIA AIYAR
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Charles Arnold White, C J -
(1.) The first point of law which is raised in the certificate of the Officiating Advocate-General is with reference to the pardon tendered to the Second accused (paragraph A.). The certificate states as follows:"That, in my judgment, the learned Judge who presided at the First Criminal Sessions of the High Court of Judicature at Madras for 1900, erred in law in deciding that it was competent to him to tender a pardon to D Santos not with standing that none of the offences in respect of which the said N.A. Subrahmania Iyer was being tried, was, with in the meaning of the Criminal Procedure Code, exclusively triable by the High Court."
(2.) The question of the legality of the pardon turns entirely upon the construction of Sections 337 and 338 of the Criminal P. C.. On principle it ft difficult to see why the discretionary power of Judge of a Sessions Court or of a Judge of the High Court to tender a conditional pardon should, when a case has been committed to a Sessions Court or to the High Court, be limited to cases which were, in, the first instance," exclusively triable by the Court of Session or High Court." However, the effect of the words " such offence" in Section 338 is to restrict the scope of the section to the offences referred to in Section 337, viz; offences triable exclusively by the Court of Session or High Court. The offences in the present case were not triable exclusively by a Court of Session or the High Court. It has been expressly decided by the Calcutta High Court that a Sessions Judge cannot tender a pardon to an accused under sectien 338 of the Criminal P. C. when the offence for which he has been committed is not triable exclusively by the Court of Session, Queen Empress V/s. Sadhee Kasal. On the construction of Section 337 and 338, I am constrained to hold that it was beyond the powers of the learned Judge to tender a conditional pardon, and that the learned Judge erred in law in deciding that it was competent to him to tender a pardon to the second accused.
(3.) With reference to the question of the legality of the pardon, the certificate of the Officiating Advocate-General proceeds to state that " therefore " (i.e., by reason of the fact that it was not competent for the learned Judge to tender a pardon to the second accused) "in the judgment of the Officiating Advocate-General, the learned Judge erred in law in admitting the evidence given by the second accused as a witness for the drown and in placing the same before the jury.;
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