A.D.V. Reddy, J.
1. The appellant had been convicted by the Sessions Judge Kurnool of the offence under Sections 147. I. P.C. and 302 read with 149. I. P.C.
2. The case for the prosecution was that he along with four others formed themselves into an unlawful assembly on the night of 29th July. 1969 at 11 P. M. at the tea stall of one Bengari Narsanna, situate near Molagavalli Railway Station with the common object of causing the death of one Hariiana Narasanna a porter at Molagavalli Railway Station, and in pursuance of the said common object, committed the murder of the said Narasanna the same night.
2A. The present accused was granted pardon under the provisions of Section 337 Cr. P.C. and he was examined as a witness in Sessions Case No. 1/69 That case ended in conviction in spite of this accused who was examined as a witness turning hostile and not conforming to his confessional statement. Thereafter on a certificate issued by the Public Prosecutor, a fresh case was registered against the present accused and he came to be tried in Sessions Case No. 70 of 1969 and has been convicted of the offence under Sections 147. I. P.C. and 302 read with 149I. P.C.
3. In the case of this type, provisions of Sections 339 and 339A. Cr. P.C. are attracted. Under proviso to Section 339 the accused who was charged and subsequently prosecuted, is entitled to plead that he had complied with the conditions on which the tender of pardon was made and it shall be the burden of the prosecution to prove that such conditions have not been complied with. Section 339-A further stipulates that when such a person is brought to trial in a Court of Session even before the charges are read out and explained to the accused under Section 271 Sub-section (1). the accused shall be asked whether he pleads that he has complied with the condition on which tender of pardon was made and if the accused does so plead the Court shall record the plea and proceed with the trial, and the Court before judgment is passed in the case should find whether or not the accused has complied with the conditions of the pardon, and if it is found that he has so complied he shall be acquitted. This is not an idle formality. This provision has been introduced to ensure that once pardon has been tendered under Section 337 he shall not be prosecuted for the offence in case he has complied with the conditions of the pardon. It is for the Court to satisfy itself as to whether the conditions have been complied with or not. It is therefore mandatory on the court to question the accused and elicit the answer in this regard even before framing a charge under Section 271 Sub-section (1) of the Cr. P.C. This has to be done even if the committing Magistrate has found that the pardon has been forfeited as pointed out in King Emperor v. Bala (1901) I. L. R. 25 Bom 675; and followed in Re Madiga Pothugadu AIR 1916 Mad 290 16 Cri. L.J. 234). See also Horilal Mohanlal v. Emperor AIR 1940. Nag 77 40 Cri. L.J 956. Admittedly in this case no such precaution was taken. The Sessions Judge appears to have overlooked the provisions of Section 339-A of the Cr. P.C. Only in the judgment the Sessions Judge has chosen to say that the accused has not complied with the conditions of pardon. But that is not enough. It may be that if the accused had been questioned he would have come forward with the proper explanation as to whether he had complied with the conditions of pardon. It was for the Court to consider before delivering Judgment, whether he had really complied with the conditions.
4. As the procedure prescribed had not been followed, we are constrained to hold that the trial is vitiated. The conviction is therefore set aside and the case is remanded to the Court of Sessions Judge. Kurnool, for retrial of the case in the light of the observations made above.