QUEEN-EMPRESS Vs. RAMASAMI
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Benson, J -
(1.) The facts of the case are stated by the Sessions Judge in paragraph 4 of his letter of reference as follows: The facts of the present case seem to be these--Ramasami, the present accused, was originally charged by the Police with being one of a band of dacoits whose crime was committed on the night of 3 February 1900 at Egattoor. He is said to have made a confessional statement to the Stationary Sub-Magistrate of Trivellore on the 15 -February 1900 (exhibit A). Pardon was tendered to him by the Stationary Sub-Magistrate under the District Magistrate's order (not sent to this Court, but vide Sub-Magistrate's proceedings, dated 15 March). Subsequently, on 7 March 1900 he was examined by the same Sub-Magistrate as fifth prosecution witness at a preliminary enquiry into the dacoity held. under chapter XVIII, Criminal Procedure Code. He then (vide exhibit B) retracted his former statement, protested that he knew nothing about the crime, and asserted that he had made the statement, exhibit A, in consequence of police torture. At the trial in this Court (Calendar Case No. 12 of 1900) before my predecessor Mr. O Farrell and a Jury, he was not put into the witness box as a prosecution witness, nor was his evidence heard at that trial, which ended on 26 April 1900 in the acquittal of the twelve men, who were then tried for the crime. The Police applied on 7 May 1900 to the District Magistrate for withdrawal of the pardon tendered to Ramasami, and on 22 August, 1900 the District Magistrate in his proceedings , Dis. No 756-M of 1900, passed the following order: Ramasami having withdrawn and contradicted his first statement, the pardon tendered to him under Section 337 is hereby withdrawn. Thereupon the police have charged Ramasami before the same Sub-Magistrate for having been one of the dacoits, and Ramasami now stands committed by the Sub- Magistrate for trial by this Court.
(2.) The Sessions Judge considers the commitment illegal and recommends that it be quashed on two grounds. The first is that Section 337 (2), Criminal Procedure Code, requires that every person accepting a tender of pardon "shall be examined as a witness in the case," and that the words "in the case" mean before the Sessions Court and are not satisfied if the witness is examined only in the preliminary enquiry, as in the present case.
(3.) I do not think that this view is correct, I think who words "in the case" are purposely used so as to include the preliminary enquiry and do not refer to the trial only. There are many cases in which there would be no need to examine the approver as a witness before the Court of Sessions, e.g., where the Magistrate discharges the accused, or where the accused dies before the trial, or where the accused pleads guilty before the Sessions Court and is convicted on the plea. Could it be held that if the approver in these cases, when examined at the preliminary enquiry, kept back material evidence within his knowledge, the pardon could not be withdrawn, and that the witness must go scot-free though guilty of the offence of which he had been pardoned on condition-of marking a full disclosure? I can see no reason for such a conclusion. The case relied upon by the Sessions Judge Queen-Empress V/s. Natu I.L.R. 27 Calc. 137 is not an authority which supports his view, for in that case the commitment was quashed for other reasons. The Judges, no doubt, considered that the person to whom tender of pardon was made ought to have been made available for examination before the Sessions Court and gave that as an additional reason for quashing the commitment, but it was not the primary reason. Moreover, in the present case the man was sent up as a witness to the Sessions Court and was available as a witness though not, in fact, examined by either side. On the other band in Queen-Empress V/s. Brij Narain Man I.L.R. 20 All. 529 the Court clearly was of opinion that failure on the part of the approver to fulfil the conditions of the pardon when examined at the preliminary enquiry before the Magistrate was a sufficient reason for at once revoking the sanction and committing the witness to stand his trial for the offence originally charged against him.;
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