minal Appeals Nos 202 and 203 of 1957
Appeals by special leave from the judgment and order dated November 16 1956 of the Punjab High Court Circuit Bench at Delhi in Criminal Appeals Nos
31 D and 506 C of 1956 arising out of the judgment and order dated August 31 1956 of the Court of the Special Judge at Delhi in Corruption Case No 8 of 1956
D R Kalia and K L Arora for the appellant in Criminal Appeal No 202 of 1957
D R Kalia and Raghu Nath for the appellant in Criminal Appeal No 203 of 1957
H J Umrigar and R H Dhebar for the respondent in both the appeals
February 6
The Judgment of the Court was delivered by IMAM J
The appellants who were police constables at the time of the occurrence were convicted by the Special Judge of Delhi under section 120B and section 224109 of the Indian Penal Code and section 52 of the Prevention of Corruption Act 2 of 1947
They were sentenced to two years  rigorous imprisonment under section 52 of the Prevention of Corruption Act 1947 and to nine months  rigorous imprisonment under each of the sections 120B and 224109 of the Indian Penal Code
155 1220 The sentences of imprisonment were directed to run concurrently
Their appeals to the Punjab High Court were dismissed and the present appeals are by special leave
The case of the prosecution as stated in the charge was that the appellants had conspired at Delhi with Ram Saran Das the approver M P Khare Nand Parkash Kapur and Murari between the 6th and 16th of November 1955 to bring about the escape from lawful custody of M P Khare an undertrial prisoner and that they had also agreed to accept Rs 1000 each and other pecuniary advantages as illegal gratification for rendering the escape of M P Khare from lawful custody and that in pursuance of the said conspiracy they had abetted the escape of M P Khare and that they had accepted the illegal gratification from Nand Parkash Kapur
It is clear from the findings of the courts below that MP Khare escaped from lawful custody and the appellants had enabled him to do so and that they had received money as illegal gratification for the part they had played in enabling MP Khare to escape from lawful custody
The learned Advocate for the appellants had submitted five points for our consideration in support of his contention that the conviction of the appellants must be set aside 1 the pardon tendered to the approver Ram Saran Das by the District Magistrate of Delhi under section 337 of the Code of Criminal Procedure was without jurisdiction and authority
Consequently the evidence of the approver was not admis sible 2 on the case of the prosecution the offence of conspiracy to commit an offence under section 224 of the Indian Penal Code had not been committed but that offence if at all was one under section 222 of the Indian Penal Code
As an offence under section 222 of the Indian Penal Code is a non cognizable offence no conviction under section 120B of the Indian Penal Code could be had in the absence of a sanction under section 196A of the Code of Criminal Procedure 3 Prosecution witnesses Mela Ram PW 6 and Shiv Parshad PW 7 were accomplices on their own showing and as such their testimony could not be taken into consideration 4 no test 1221 identification parade of the appellants had been held 5 the charge as framed contravened the mandatory provisions of section 233 of the Code of Criminal Procedure
Points 3 4 and 5 may be disposed of at the outset
We have examined the evidence of Mela Ram and Shiv Parshad and find nothing in their evidence which establishes them as accomplices
It does not appear that before the High Court it had ever been urged that these witnesses were accomplices and their evidence could not be taken into consideration to corroborate the approver
It was however urged that these witnesses were unreliable because they had knowledge that an attempt would be made to enable MP Khare to escape from lawful custody and yet they informed no authority about it
As to the reliability of these witnesses the courts below were entitled to believe them and nothing of any consequence has been placed before us to convince us to take a different view from that taken by the courts below
As for the test identification parade it is true that no test identification parade was held
The appellants were known to the police officials who had deposed against the appellants and the only persons who did not know them before were the persons who gave evidence of association to which the High Court did not attach much importance
It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence but failure to hold such a parade would not make inadmissible the evidence of identification in court
The weight to be attached to such identification would be a matter for the courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course
It is true that no separate charges were framed under sections 120B 224109 of the Indian Penal Code and section 52 of the Prevention of Corruption Act 1947
Separate charges should have been framed as required by section 233 of the Code of Criminal Procedure
In our opinion the irregularity committed in this case was 1222 cured by the provisions of section 537 of the Code
It is to be noticed that it was urged before the Special Judge that separate charges should have been framed and that a single charge should not have been framed but the objection had been abandoned by the Advocate for the accused when the Special Judge told him that if it was his contention that the accused had been prejudiced by this form of the charge he would frame separate charges under separate heads and then proceed with the trial
Furthermore when the charge was framed the public prosecutor had urged that charges under separate heads for each offence should be framed and that they should not be joined together under one head
The Advocate for the accused however had urged that the charge as framed was correct
It seems to us that when the charge was being framed the Advocate for the appellants desired
that the charge as framed should stand and the public prosecutor s objection should be overruled
It cannot be now urged that the appellants were prejudiced by the charge as framed
Indeed the Advocate for the appellants abandoned this objection and there is nothing in the High Court s judgment to show that this contention was again raised
We cannot permit such a question to be raised at this stage
It seems to us therefore that there is no substance in the submissions made on behalf of the appellants with reference to the above mentioned points 3 4 and 5
With reference to the second point even if it is assumed that the offence alleged against the appellants does not come under section 224 of the Indian Penal Code but under section 222 of the Indian Penal Code it has to be remembered that this would be of academic interest in this case if the appellants have been rightly convicted under section 52 of the Prevention of Corruption Act 1947
It also does not appear from the judgments of the Special Judge and the High Court that it had been contended that there was no sanction under section 196A of the Code of Criminal Procedure and consequently the court could not take cognizance of the offence under section 120B of the Indian Penal Code
Whether a sanction had been granted under section 196A 1223 was a question of fact which ought to have been urged at the trial and before the High Court
It is impossible at this stage to go into this question of fact
Furthermore this question also is one of academic interest if the conviction and sentence of the appellants under section 52 of the Prevention of Corruption Act 1947 are affirmed
Coming now to the first point urged on behalf of the appellants it would appear that the District Magistrate of Delhi granted a pardon under section 337 of the Code of Criminal Procedure to Ram Saran Das the approver in consequence of which Ram Saran Das was examined as a witness by the Special Judge
It was urged that the District Magistrate could not grant a pardon when the case was triable by the Court of Special Judge constituted under the Criminal Law Amendment Act 1952
The offence under section 52 of the Prevention of Corruption Act 1947 is punishable with imprisonment for a term which may extend to seven years or with fine or with both
It was not an offence which was punishable with imprisonment which may extend to ten years
The provisions of section 337 enabled a District Magistrate to tender a pardon in the case of any offence triable exclusively by the High Court or a Court of Session or any offence punishable with imprisonment which may extend to ten years or any offence punishable under section 211 of the Indian Penal Code with imprisonment which may extend to seven years or any offence under sections 216A 369 401 435 and 477A of the Indian Penal Code
These provisions of section 337 at the time that the pardon was tendered were inapplicable as the present case was not covered by its terms
It is pointed out that the High Court erred in supposing that the District Magistrate could grant pardon in a case where the offence was punishable with imprisonment which may extend to seven years or more and which was triable exclusively by the Court of Session
The Code of Criminal Procedure at the time that the pardon was granted spoke of an offence punishable with imprisonment for a term which may extend to ten years and not seven years
The amendment to section 337 of the 1224 Code which came into effect in January 1956 spoke of an offence punishable with imprisonment which may extend to seven years but this amendment could have no application to a pardon tendered on 1 12 55
It seems to us however that the District Magistrate had authority to tender a pardon under section 337 of the Code of Criminal Procedure with reference to a case concerning an offence triable exclusively by the Special Judge and therefore we need not consider whether the offence was punishable with imprisonment which may extend to seven years
Under section 83 of the Criminal Law Amendment Act of 1952 it is expressly stated that for the purposes of the provisions of the Code of Criminal Procedure 1898 the Court of Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors
Section 9 of that Act provides for an appeal from the Court of the Special Judge to the High Court and states that the High Court may exercise as far as they may be applicable all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure 1898 as if the Court of the Special Judge were a Court of Session trying cases without a jury
It would seem therefore that although a Special Judge is a court constituted under the Criminal Law Amendment Act yet for the purposes of the Code of Criminal Procedure and that Act it is a Court of Session
Accordingly we are of the opinion that although the offence was triable exclusively by the Court of the Special Judge the District Magistrate had authority to tender a pardon under section 337 of the Code of Criminal Procedure as the court of the Special Judge was in law a Court of Session
It was however suggested that the proper authority to grant the pardon was the Special Judge and not the District Magistrate but it seems to us that the position of the Special Judge in this matter was similar to that of a Judge of a Court of Session
The proviso to section 337 of the Code of Criminal Procedure contemplates concurrent jurisdiction in the District Magistrate and the Magistrate making an enquiry or holding the trial to tender a pardon
According to the 1225 provisions of section 338 of the Code even after commitment but before judgment is passed the Court to which the commitment is made may tender a pardon or order the committing Magistrate or the District Magistrate to tender a pardon
It would seem therefore that the District Magistrate is empowered to tender a pardon even after a commitment if the Court so directs
Under section 82 of the Criminal Law Amend ment Act 1952 the Special Judge has also been granted power to tender pardon
The conferment of this power on the Special Judge in no way deprives the District Magistrate of his power to grant a pardon under section 337 of the Code
At the date the District Magistrate tendered the pardon the case was not before the Special Judge
There seems to us therefore no substance in the submission made that the District Magistrate had not authority to tender a pardon to Ram Saran Das the approver and consequently the approver s evidence was inadmissible
The findings of the High Court establish the offence of the appellants under section 52 of the Prevention of Corruption Act 1947 and we can find no sufficient reason to think that the appellants were wrongly convicted thereunder
The appeals are accordingly dismissed
Appeals dismissed


Summary:
 Aggrieved by his non inclusion in the Select List for promotion of State Police Service officers to the IPS cadre though two of his junior officers had been selected Hiranyalal respondent in both the appeals filed a Civil Rule in the Guwahati High Court which stood transferred to the Central Administrative Tribunal Guwahati
The Tribunal held respondents non selection bad in law on the ground that the Selection Committee had taken into consideration certain adverse remarks in his Confidential Character Rolls which had not been communicated to the respondent till the date of the meeting of the Selection Committee and which were later expunged on his representation
The Tribunal however went a step further and on the basis of its own assessment of the respondent s Confidential Rolls assumed that he was entitled to be characterised very good and should be deemed to have been selected
After taking this view the Tribunal passed the operative order directing the respondent to be appointed to the Indian Police Service with effect from the date on which his immediate junior was appointed
It is this operative order which is being mainly challenged in these appeals by the Union Public Service Commission and the State of Assam
The Tribunal also held that it was obligatory on the part of the 303 Selection Committee to have recorded the reasons for superseding those who were senior
Allowing the appeals  HELD 1 The Selection Committee could not have taken into consideration the adverse remarks entered in the records which had not been communicated to the respondent and in any case could not have taken into consideration these remarks which were subsequently set aside by the State Government
306B C 2 The legal effect of the setting aside of the adverse remarks would be that the remarks must be treated as non existent in the eye of law
The Selection Committee had therefore fallen in error in taking into account these adverse remarks which in the eye of law did not exist and which could not have been lawfully taken into consideration
306C D 3 The jurisdiction to make the selection vested in the Selection Committee
How to categorize in the light of the relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee
The Tribunal could not make a conjecture as to what the Selection Committee would have done or to resort to conjectures as to the norms to be applied for this purpose
306DEG 4 The Tribunal could not have substituted itself in place of Selection Committee and made the selection as if the Tribunal itself was exercising the powers of the Selection Committee
307A B 5 The Tribunal should have directed that the Selection Committee reconsider the matter on the footing that there was no adverse remarks against the respondent and make a proper categorization on the basis of the records by ignoring the adverse remarks but by applying the same standard and test adopted by it
308E F 6 The Selection Committee shall reconsider the impugned select list prepared in 1983 as if it was deciding the matter on the date of the selection on the footing that the adverse remarks made against the respondent which were subsequently set aside did not exist in the records and shall consider the question as to whether he would have been appointed or Respondent No 11 Shri Sardar Pradeep Kar would have been appointed on the basis of the categorization to which each of them was entitled having regard to the CC Rolls ignoring the adverse remarks against Respondent No 1 which were subsequently quashed 304 and if the respondent s claim is accepted on reconsideration in the light of the aforesaid exercise the order of appointment should provide for his appointment with effect from the date on which he would have been appointed if he was selected when the original selection was made in 1983 and he should be given all the benefits
310E G 7 The Selection Committee was making a selection and when some one was selected in preference to the other it could not be said that it amounted to supersession of a junior by a senior
The concept of supersession is relevant in the context of promotion and not in the context of selection
309E F 8 The Tribunal has committed an error in taking the view that the law enjoined the Selection Committee to record the reasons and failure to do so would vitiate the selection
It appears that the Tribunal did not properly realise the effect of the relevant provision having been amended at the time when the Selection Committee made its selections
309F G 1 Gurdial Singh Fijji vs State of Punjab  2 State of Mysore vs Syed Mahmood   3 Ram Das vs Union of India  referred
4 State of Gujarat vs section Tripathy 1986 2 SCC III 1973 distinguished