Mukand Singh and others vs King-Emperor

On the 28th February the petitioners were convicted by the Ad ditional Sessions Judge, Lahore, of offences punishable under S. 302 read with S. 120 I. P. C. and were sentenced to death. These convictions and sen tences were confirmed on appeal by the High Court of Judicature at Lahore on the 25th June 1926.

The case for the prosecution was that in the Punjab there had been a con spiracy known as the Babbar Akali con spiracy; that the objects of the con spiracy were to terrorize such persons as were loyal and supporters of Govern ment so that they might refrain from giving information to Government about the movements and activities of the conspirators. If such persons paid no heed to the warnings given them, their ears and noses were to be cut off and if this measure failed they should be ''reformed" or in other words mur dered; and that in pursuance of the conspiracy, murders, decoity and other crimes were committed including the murders on the night between the 10th and 11th April 1924, with reference to which the petitioners had been con victed.

The petitioners and 23 other accused were tried jointly by the learned Ad ditional Sessions Judge on the eight charges shortly stated as :

(1) That they between January 1922 and September 1924 at......and various other places jointly and severally agreed and engaged with one another and with some or all of the persons named and described and others to do or to cause to be done certain illegal acts, to wit;

(i) import and possess arms and ammunition, and to go about armed;

(ii) commit and attempt to commit murder;

(iii) cause grievous hurt; and (iv) commit robbery and dacoity; which are offences punishable under S. 19 and 20 of the Indian Arms Act (11 of 1878), and Ss. 302, 307, 326, 392, 394, 395, 396, 397 and 398 I. P. C. with, death, transportation or rigorous impri sonment for a term of two years or more and thereby committed an offence puni shable under S. 120-B and 109 I. P. C.

(2) That they in conspiracy with some or all of the persons named in the Schedule during the above-mentioned period, at the places aforesaid, in pur suance of the afore-mentioned conspiracy did :

(i) go about armed without a license in contravention of the provisions of S. 13 Indian Arms Act;

(ii) had in their possession or control fire-arms, ammunition or military stores in contravention of the provisions of S. 14 Indian Arms Act, and in such a manner as to indicate an intention that such act may not be known to any public servant and thereby committed offences punishable under S. 19 and 20 Indian Arms Act (11 of 1878) read with S. 120-B, 109, 114, 115 and 116 I. P. C.

(3) That they, in conspiracy with some or all of the persons named and in pursuance of the aforesaid criminal conpiracy committed murders and among others caused the death of 7 persons between March 1923 and April 1924, and thereby committed offences punishable under S. 320 read with Ss. 120-B, 109, 114, 115 and 116 I. P. C.

(4) That they, in conspirancy with, some or all of the persons named, in pursuance of the aforesaid Criminal Conspiracy inter alia, did certain acts with such intent or knowledge and in such circumstances that if by those acts they had caused the death of the speci fied persons between the night of 15th and 16th July 1923 and 10th and 11th April 1924, committed offences punish able under S. 307 read with Ss. 120-B, 109, 114, 115 and 116, I. P. C.

(Charges 5 to 8 specified various offences viz. those of grievous hurt, robbery and dacoity.)

In support of the case for the pro secution, the prosecution relied on the evidence of an approver and the re tracted confessions of each of the peti tioners. The learned Judges of the High Court stated that the conviction of each of the petitioners was based on the evidence of the approver which as to the actual commission of the murders was corroborated by the confessions of the accused which had however been withdrawn. That with reference to the confessions it was submitted in the Courts in India that they were false and not voluntary and that they were not recorded in accordance with the provisions of S. 164, Criminal P. C., inasmuch as the explanation which the Magistrate must give under Cl. 3 of S. 164 before recording the confes sions had not been given and because the Magistrate had not complied with the section in stating in his memorandum at the foot of the con fession that he had explained to the accused that he was not bound to make a confession and that if he did so, any confession that he might make might be used as evidence against him and that he believed that the confessions were made voluntarily.

In order to cure the non-compliance with the provisions of S. 164, Criminal P. C., the Magistrate himself was called as a witness under S. 533 of the Code in order to state that before recording each confession he had given the neces sary warning to each accused and that in each instance he was satisfied that the confession was made voluntarily

It was also submitted on behalf of the petitioners that the trial was bad owing to the fact that there had been a misjoinder of charges.

The learned Judges of the High Court held that charges 2 to 8 merely recited the various incidents or offences com mitted from time to time by various members of the conspiracy in pursuance of the conspiracy and that there was no illegality in the joint trial and they confirmed the convictions and sentences. The petitioners applied for special leave to appeal to His Majesty in Council. It was contended that the joint trials of the petitioners on 8 different charges which amongst others included 7 charges of murder, 2 charges of attempted murder, 4 charges of robbery, 2 charges of causing grievous hart, and 11 charges of dacoity, spread over a period of more than twelve months was contrary to the provisions of the Criminal P. C. dealing with joinder of charges, and to the decision of their Lordships of the Judicial Committee of the Privy Council (Subramania Iyer v. King-Emperor 1902 25 Mad. 61 : 28 I. A. 257 : 10 M. L. J. 147 : 8 Sar. 160 (P. C.) and that the non-compliance of the learned Sessions Judge with the provi sions of the Criminal P. C. dealing with the joinder of charges was a violation of the fundamental principles of na tural justice and the procedure adopted by the Courts in India vitiated the trial.

Viscount Dunedin merely said that the petition must be dismissed.