Patna High Court
Akhtar Hussain vs Emperor on 25 May, 1925
Equivalent citations: 88IND. CAS.595, AIR 1925 PATNA 526
JUDGMENT Macpherson, J.
1. This application in revision is directed against the conviction of the petitioner by the Deputy Magistrate of Bhagalpur under Section 47-A of the Bihar and Orissa Excise Act, 1915, in respect of being in possession of cocaine contrary to the provisions of that Act and the sentence, imposed upon him of three months' rigorous imprisonment which conviction and sentence were upheld in appeal by the Sessions Judge of Bhagalpur.
2. In support of the rule Mr. Akbari advances two pleas. The first of these is that the conviction is wrong on the merits, or that at all events the Sessions Judge has not adequately examined the evidence adduced to prove that the petitioner was in possession of the cocaine.
3. The prosecution case was that when the petitioner and Sujaet Ali, a prosecution witness left a house in the town of Bhagalpur and were walking along the road an Excise petty Officer and peon came up to them and arrested them, that when the Excise Sub-Inspector arrived soon afterwards, the petitioner dropped a match-box which he had been holding in his hand and which on being picked up by the Sub-Inspector was found to contain a white powder eventually reported by the Chemical Examiner to Government to be cocaine hydrochloride the possession of which by the petitioner is an offence under Section 47-A.
4. Mr. Akbari urges that though there are discrepancies in the prosecution evidence with regard to the time when the petitioner, threw away the match-box, these have only been lightly dealt with by the Appellate Court whereas (he contends) that Court should have inferred from them that the petitioner was not in possession of the match-box or its contents. I have accordingly examined the evidence carefully and find that there are in fact discrepancies. The essential question, however, is whether the petitioner dropped the match-box containing the white powder. On this point there is no discrepancy at all. Indeed the evidence is that Sujaet, when walking with him, saw him carrying something in his hand, that the sixth prosecution witness saw the match-box in his closed right fist before he dropped it and that several other witnesses saw him drop it. The witnesses unconnected with the Excise Department all say that the petitioner dropped the match-box after the Sub-Inspector came and the evidence of the Sub-Inspector is to the same effect. The only evidence to the contrary is that of the petty officer. The learned Sessions Judge has dealt with it and has come to the conclusion that in stating that the petitioner threw down the match-box before the arrival of the Sub-Inspector and that it was lying on the ground when the latter arrived, the petty officer made a mistake. His discussion of the point has been adequate. Moreover, his conclusion is, in my opinion, correct and there is not the faintest doubt that the petitioner was in possession of the match-box containing the white powder.
5. The second contention is that the action of learned Sessions Judge in directing further evidence to be taken under Section 428 of the Cr.P.C. was illegal. When the appeal came up for hearing the Sessions Judge found that some of the connecting links in the evidence to prove the identity of the packet examined by the Chemical Examiner were missing. Considering that additional evidence was necessary on this point he recorded his reasons and directed the Magistrate to take the necessary further evidence on the point. The Magistrate accordingly examined two witnesses. The first, who is the Sub-Inspector of Police in charge of the Magistrate's malkhana, testified that tie received the packet from the Excise Sub-Inspector and had it packed for despatch by post in a packet which was sealed with the private seal of the Trying Magistrate and addressed to the Chemical Examiner, and the second is the constable who despatched the packet by. registered post. It is not denied that this testimony supplies the links which the learned Sessions Judge found missing from the original evidence as to the identity of the material examined by the Chemical Examiner with the white powder contained in the match-box. But Mr. Akbari contends that Section 428 of the Cr.P.C. does not empower the Sessions Court to bring this evidence on the record. He maintains that Section 428 is only to be utilised in a case where there is some evidence upon which the appellant could be convicted though that evidence is not satisfactory, and he suggests that "this is a via media which the Courts in India have worked out for themselves." In support of his contention he cites the decision in Empress of India v. Fateh 5 A. 217 : A.W.N. (1882) 227 : 3 Ind. Dec. (N.S.) 176, the opinion of Sundara Ayyar, J. in Jeremiah v. Vas 12 Ind. Cas. 961 : 30 M. 457 : 10 M.L.T. 506 : (1911) 2 M.W.N. 576 : 22 M.L.J. 73 : 12 Cr.L.J. 591 and the opinion of Sadasiva Ayyar, J. in Varadarajulu Naidu v. Emperor 51 Ind. Cas. 343 : 42 M. 885 : 20 Cr.L.J. 455 : 37 M.L.J. 81 : (1919) M.W.N. 669. In reply the Assistant Government Advocate relies upon the majority view in Varadarajulu Naidu v. Emperor 51 Ind. Cas. 343 : 42 M. 885 : 20 Cr.L.J. 455 : 37 M.L.J. 81 : (1919) M.W.N. 669 and on the terms of Section 428. In my judgment the contention of Mr. Akbari is unfounded and cannot prevail.
6. The scope of Section 428 is prima facie not limited by any consideration save that the Appellate Court should be of opinion that additional evidence is necessary and should record its reasons. Indeed Sadasiva Ayyar, J., in his judgment in Varadarajulu Naidu v. Emperor 51 Ind. Cas. 343 : 42 M. 885 : 20 Cr.L.J. 455 : 37 M.L.J. 81 : (1919) M.W.N. 669, wherein he quotes with approval the two earlier views cited on behalf of petitioner, does not deny the power of the Appellate Court to take additional evidence under Section 428 even where it considers that though the prosecution fails on the evidence on record negligence on the part of the prosecution should be excused, but holds that as a matter of discretion the power should only be exercised against the accused in very exceptional cases, for instance in a case where "there is evidence, which, if reliable, proves a relevant fact but the Appellate Court feels a doubt on the point and thinks that additional evidence might throw light which would enable it to arrive at a definite and satisfactory conclusion."
7. But the object of the section is just as much the prevention of the escape of a guilty person through some carelessness or ignorant procedure of the Court Sub-Inspector or the Magistrate as the vindication of the innocence of a person wrongfully accused where the same carelessness or ignorance has omitted to bring on the record circumstances essential to the elucidation of truth. It is indeed impossible on the plain words of the enactment to differentiate between these two cases. And indeed it would, not be a sound exercise of discretion to do so in the circumstances of this country presumably well-known to the Legislature, where justice when it fails does so by erroneous acquittal at least as much as by erroneous conviction. Reference may also be made in this connection to Section 540 of the Cr.P.C. and Section 165 of the Indian Evidence Act. Under the former the Court is empowered at any stage of an inquiry or trial to summon a person as a witness or examine any person in attendance or re-call a person previously examined and it is expressly laid down that the Court shall summon and examine and re-call and re-examine any such person, if his evidence appears to it essential to the just decision of the case. Under the latter the Judge is armed with very extensive powers of asking any question in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant and may order the production of any document in order to discover or to obtain proper proof of relevant facts. It is clear that the Legislature endorsed the view that the English theories that the public have no interest in arriving at the truth and that even criminal proceedings ought to be regarded mainly in the light of private questions between the prosecutor and the prisoner, are not at all suited to India, if indeed they are the result of anything better than carelessness and apathy in England."
8. In India the onus is placed on the Court not merely to listen to the evidence, but to inquire to the utmost into the truth of the matter, and so to secure justice. Accordingly if any restriction is to be placed upon the power conferred on the Appellate Court by Section 423, it certainly cannot be that negligence or inadvertence on the part of the prosecution is to be allowed to effect a mis-carriage of justice, on the contrary the enactment is, like the other provisions referred to, directed to the attainment of justice even at a late stage in the proceedings, by the introduction of further materials which the Court judges to be essential to a just decision of the case. The conditions for the exercise of the power are set out in the section itself, and within these limits it is contemplated that the power will be exercised: The Criminal Law of India is, to use the words of Sadasiva Ayyar, J., "against allowing mere technicalities to stand in the way of a decision on the merits, if it can be reasonably helped" and the Appellate Court is by no means condemned to countenance a mis-carriage of justice because the prosecutor or even the Trial Court fails to realise the necessity of bringing certain evidence on the record, even if that evidence is not purely formal. In this case the evidence cannot be said to be merely formal, though it is of the kind which is not infrequently and in the present instance was so regarded by the parties and even by the Magistrate. There is thus no foundation in principle for the view advanced by Mr. Akbari.
9. Authority also when carefully examined is against the contention. It may here be indicated that all the rulings cited relate to the stage of appeal, not to the stage of revision. A close examination of the case of Empress of India v. Fateh 5 A. 217 : A.W.N. (1882) 227 : 3 Ind. Dec. (N.S.) 176 casts a different light on that decision. In that case the accused had been committed to the Sessions on charges under Sections 471 and 193 and had been convicted only on the former. In appeal Mahmood, J., held that the facts did not constitute an offence under Section 471. When the Government Pleader asked for a conviction under Section 196 and apparently that additional evidence be taken, the Court further held that the facts did not constitute an offence under Section 196. The learned Judge then went on to indicate that not only had the prosecution not insisted on the second charge or supported it by evidence but that it was not even pointed out in appeal what further evidence would be forthcoming against the appellants and remarked that in the circumstances where the accused had been committed to the Sessions on distinctly framed charges the High Court would not, except in very exceptional circumstances, direct that further inquiry should be made or the additional evidence should be taken. Thus Empress of India v. Fateh 5 A. 217 : A.W.N. (1882) 227 : 3 Ind. Dec. (N.S.) 176 clearly falls within the category which I have reference to, where there are special peculiarities which would induce any Court to refuse to put Section 428 in operation. There had been a Sessions trial where no effort had been made to establish one of the charges and the Appellate Court very properly, if I may say so with respect, refused to allow the production in appeal, to establish that charge, of additional evidence which the Public Prosecutor could not even specify at the time when he applied to the Court for action under Section 428. There was thus abundant ground for refusing to act under Section 428 (or rather Section 282 of the Code of 1872 which, for some reason which is not clear, is referred to) without reference to any general proposition as to the intention of Section 428. There was also no occasion for formulating such a proposition and a case is only an authority for what it decides.
10. Then Jeremeah v. Vas 12 Ind. Cas. 961 : 30 M. 457 : 10 M.L.T. 506 : (1911) 2 M.W.N. 576 : 22 M.L.J. 73 : 12 Cr.L.J. 591 was not decided on the observation of Sundara Ayyar, J. which is reminiscent of Empress of India v. Fateh 5 A. 217 : A.W.N. (1882) 227 : 3 Ind. Dec. (N.S.) 176. Moreover, the majority of the, Bench of three Judges in Varadarajulu Naidu v. Emperor 51 Ind. Cas. 343 : 42 M. 885 : 20 Cr.L.J. 455 : 37 M.L.J. 81 : (1919) M.W.N. 669 expressed themselves as follows regarding that observation:
When the Appellate Court has statutory power to prevent such a mis-carriage (of justice) by directing fresh evidence to be taken on the point, I am unable, with great respect, to agree with the observation of one of the learned Judges in Jeremiah v. Vas 12 Ind. Cas. 961 : 30 M. 457 : 10 M.L.T. 506 : (1911) 2 M.W.N. 576 : 22 M.L.J. 73 : 12 Cr.L.J. 591 in so far as it questions propriety of taking action under Section 428 in such a case to supply a defect in formal proof.
11. Similarly the dissentient judgment of Sadasiva Ayyar, J., in that case is not an authority on the point for decision in that case. The majority of the Bench of which he was a member held that the powers given by Section 428 are perfectly general and are subject only to the condition that the Court shall record its reasons, and that where a conviction on a serious charge would, though otherwise sustainable, have to be upset for want, owing to a misconception, of formal proof of sanction, the case was a fit one in which to supply under Section 428 the defect in formal proof of the sanction. The reference to a defect in the formal proofs was all that was necessary for the purposes of that case. Since the appeal must have been allowed if the defect could not be remedied by additional evidence, it follows that the principle supported by the views cited on behalf of petitioner, namely, that the power conferred by Section 428 "is not intended to be exercised in cases in which the prosecution having had ample opportunities to produce evidence" either "have done so and that entire evidence falls short of sustaining the charge" Empress of India v. Fateh 5 A. 217 : A.W.N. (1882) 227 : 3 Ind. Dec. (N.S.) 176 or " have failed to do so " [Jeremiah v. Vas 12 Ind. Cas. 961 : 30 M. 457 : 10 M.L.T. 506 : (1911) 2 M.W.N. 576 : 22 M.L.J. 73 : 12 Cr.L.J. 591 is overruled and has no authority or value behind it.
12. Reference may here be made to the ruling of the Court of Appeal in William James Robinson v. King 12 Cr. App. Rep. 226 as showing that though the power to admit evidence is to be exercised with great care it extends even to the admission of evidence which was not even in existence at the date of the trial and so could not have been produced at all. The Crown sought the admission of evidence to show that the appellant since his conviction had written a letter from prison which had a material bearing, on the case, being indeed an admission that he had committed the crime. The Crown relied upon Section 9 of the Criminal Appeal Act which gives the Court of Criminal Appeal the same powers as the Court of Appeal possesses in civil matters. Reading, L.C.J., said: "It is clear that the Court of Appeal to civil matters has power to admit evidence which would throw material light on the issue. It is a power which must always be exercised with great care. As it is admitted that the evidence will throw a light on the matter in question, we have decided to admit it. The value of the evidence, will be a matter for subsequent consideration."
13. The Indian Legislature has not restricted the powers conferred by Section 428 by reference to the powers under Order XLI, Rule 27 of a Civil Court in appeal but it is clear from decision of the Judicial Committee in Indrajit Pratap Bahadur Sahi v. Amar Singh 74 Ind. Cas. 747 : 4 P.L.T. 447 : 21 A.L.J. 554 : (1923) A.I.R. (P.C.) 128 : 1 Pat. L.R. 345 : 2 Pat. 676 : 33 M.L.T. 233 : 45 M.L.J. 578 : 18 L.W. 728 : 25 Horn. L.R. 1259 : 28 C.W.N. 277 : 39 C.L.J. 318 : 50 I.A. 183 (P.C.) that in a civil appeal even where the Appellate Court itself has discovered an inherent lacuna or defect, the Court may admit evidence to fill up the gap or remedy the defect.
14. The powers given by Section 428 are certainly not less than are given to a Civil Court in the matter of admission of evidence at the appellate stage and Courts of Appeal ought not to circumscribe them where the Legislature has not seen fit to do so.
15. A further point is that there is a distinction between the case where a Court of Criminal Appeal is asked to take action under Section 428 and the case where such Court having taken such action, interference with its order is sought in revision. Even where it might itself, in the exercise of its discretion as the Appellate Court, have declined to admit such evidence, the Court of revision will by no means always interfere with order of the Appellate Court allowing additional evidence. To justify interference in revision the Court must be satisfied that the Appellate Court committed an error of law which has prejudiced the accused on the merits. But in this case I am satisfied that not only has there been no error of law and no prejudice on the merits but further that a proper discretion has been exercised and indeed that a failure to take the additional evidence which was "essential to the just decision of the case" would have constituted a grievous disregard of the interests of justice. Accordingly the second plea also fails.
16. The Rule is accordingly discharged. The petitioner must surrender forthwith to undergo the unexpired portion of his sentence.