1. This is an application by the Government of Bombay against an order made by the Chief Presidency Magistrate committing an approver, Nana Amrita Savant, who had accepted a pardon tendered him by the same Magistrate, to stand his trial in the Sessions Court on charges under Sections 120B, 467, 471 and 109 of the Indian Penal Code. We asked for a report from the Chief Presidency Magistrate, and his commitment of the approver as well as the other accused in the case appears to have been deliberate, for his view is that Section 337, as amended by Act XVIII of 1923, now enables the Sessions Court to deal with an approver, in case he does not comply with the conditions of his pardon and forfeits it, without a fresh enquiry and commitment by a Magistrate.
2. We think that this was not the intention of the amendment. The section now reads:
In every case where a person has accepted a tender of pardon and has been? examined under Sub-section (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be.
3. In the learned Chief Presidency Magistrate's view the word 'accused' in the section includes the approver ; but if this were so, he would not be referred to in the first six words of the section as a 'person' and then further on in the same sentence referred to as 'the accused'. It is clear chat the section contemplates two individuals, one, the ' person' who accepts the pardon ; and the other, the ' accused 'some one who has to stand his trial, and against whom evidence is to be given by the 'person'. The real object of the change appears to have been that where a Magistrate tenders a pardon to an accused person who so becomes an approver, the remaining accused shall be committed to the Sessions and the Magistrate becomes incompetent to try the case himself, provided he is satisfied that a prima facie case has been made out against the accused, though he can of course discharge him under Section 209, if he thinks that this has not been done. This view is further supported by the terms of Section 339 of the Criminal Procedure Code.
4. We think that the learned Chief Presidency Magistrate's reading of Section 337(2A) is wrong and that the commitment of the approver in this case was illegal. We, therefore, set aside the order of commitment and make the rule absolute.