Grimwood Mears, C.J. and Piggott, J.
1. [After discussing the facts, their Lordships proceeded.] Two of the pleas left undetermined are against the jurisdiction of the trial court, others impeach the admissibility of the most material evidence in the case, while others again raise questions of law as to the manner in which the testimony of Bhagirath and Mangal Chand should be regarded, in view of the admitted fact that they are in the position of accomplices in the commission of the offence charged. Now it is clearly illogical that a verdict of acquittal should be recorded as the ultimate result of a trial in respect of which it has not been finally determined that it was held before a court of competent jurisdiction. It must also be exceedingly difficult for any Judge to arrive at a correct appreciation of the value of certain evidence, if he enters on the task while the back of his mind is still preoccupied with a doubt whether that evidence ought to have been admitted on to the record. We cannot help wondering whether a curtain sub-conscious pre-occupation of the judicial mind with a set of legal conundrums, which the learned Sessions Judge was not anxious to solve, may not have contributed to the unsatisfactory manner in which he has handled the evidence and the erroneous conclusion he has drawn from it. The question of jurisdiction has not been and could not be seriously argued before us. The sanction of the Local Government of the Central Provinces, reproduced at page 5 of our printed books, was quite sufficient to remove the bar imposed by Section 197(1) of the Code of Criminal Procedure to the cognizance of the alleged offence by any court of otherwise competent jurisdiction. Under Section 177 of the same Code the proper place for the trial was Akola, in the absence of any order expressly transferring the case for trial to some other Sessions Division. The Magistrate, Khan Bahadur E. Jacobs was duly invested with territorial jurisdiction at Akola an? the case was properly instituted in his court. The record before us does not explain why one complaint was; filed before the said Magistrate, at Nagpur, on the 28th of October 1921, and a further complaint, at Akola, on the 7th of November, 1921, but this procedure could not have the effect of busting his jurisdiction. Questions regarding the admissibility of evidence should ordinarily be raised at the time when such evidence is tendered. In the trial court the witness Bhagirath was examined on the 12th of November, 1921, and cross-examined on the 2nd of December, 1921. The witness Mangal Chand was examined on the 13th of November, 1921, further examined on the 14th of November, 1921, and cross-examined on the 2nd of December, 1921. The accused was twice examined by the court and put in a written statement in his defence on the 15th of December, 1921. Even this statement contains no express plea against the admissibility of the evidence of these two witnesses. It is only from the judgment of Khan Bahadur Jacob that we gather that it was argued before him that 'as Mangal Chand and Bhagirath had not been pardoned under Section 337 of the Criminal Procedure Code, nor had the prosecution against them been withdrawn, they were not competent witnesses.' In the memorandum of appeal to the Sessions Court there is a plea that 'the evidence obtained' by means of 'the undertaking on the part of the Local Government otherwise described as amnesty,' not only 'has no value,' but 'is inadmissible'; there are also pleas against the admissibility of the entries in the account books of Bhagirath and Mangal Chand's master,' as also of the memorandum, Exhibit P. III, handed by Bhagirath to the ' investigating Police Officer, and the entry containing the numbers of the currency notes in Bhagirath's notebook, Exhibit P. V. There is a general plea that the trial court admitted and recorded 'irrelevant and inadmissible evidence both, documentary and oral, in spite of objections', and reserved its decision on the same. It has not been shown to us, and is not apparent from our examination of the record, that the question of the competence of Bhagirath and Mangal Chand to give any evidence at all was raised in the trial court at the proper time, that is, when the witnesses were tendered for examination. The Magistrate purported to deal with it as an argument addressed to him when the defence finally summed up their case. It was no doubt open to him to consider, even at that stage, whether he had not made a mistake in examining Bhagirath and Mangal Chand at all. This he has done and has held that the men were competent witnesses. The Sessions Judge has not decided the question at all. The argument addressed to us on the point, when properly analysed, seems to involve three distinct propositions-
(i) That, Bhagirath and Mangal Chand being, on their own testimony, accomplices in the commission of the offence to which they deposed, could not be, examined as witnesses against the accused, because the case did not fall under the provisions of Section 337 of the Code of Criminal Procedure, and there is no other section of that Code under which 'the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, the offence under inquiry' can be taken at all.
(ii) That, Bhagirath and Mangal Chand were not merely accomplices but were, by reason of the complaint filed in the court of Khan Bahadur E. Jacob, 'accused persons' along with Har Prasad Bhargava, and under Section 5 of the Indian Oaths Act, No. X of 1873, it is not lawful to administer 'an oath or affirmation to the accused person.' In this connection it was suggested that the proper course for the Magistrate to have followed would have been to issue process against these men, along with Har Prasad Bhargava, and for the Local Government to 'withdraw from the prosecution' of these two persons under Section 494 of the Criminal Procedure, Code.
(iii) That the evidence of Bhagirath and Mangal Chand was obtained after the Government of the Central Provinces had issued, and caused to be published, a declaration that no prosecution would be instituted by the said Government against any person who came forward with evidence that he had paid or offered a bribe to Har Prasad Bhargava; that the issue of such a declaration was 'illegal,' and that no evidence obtained in consequence, or tendered on the strength of such a declaration, was legally admissible.
2. Now, the first of these contentions rests upon an obvious fallacy. This fallacy is almost sufficiently exposed by the very terms of the second contention, but it reappears, in substance, as the only arguable basis for the third contention. Section 837 of the Code of Criminal Procedure empowers certain courts of justice, namely, Magistrates exercising certain powers, or specially empowered ad hoc by an order of sanction, to pass a judicial order, the effect of which is that a 'person supposed to have been directly or indirectly concerned, in, or privy to, the offence under inquiry,' who chooses to accept the pardon tendered by the said order, can give his evidence was a witness in the case,' with the knowledge and assurance that the order will operate as a bar to his own subsequent prosecution or trial for the offence in respect of which the pardon was so tendered, or for any other offence of which he appears to have been guilty in connection with the same matter. Under certain circumstances set forth in Section 339, the order tendering the pardon may cease to have this effect, but this will only be when it has been superseded by a judicial finding that the pardon has been forfeited. The points to be noticed are that Section 337 is an empowering section, that it is addressed to certain courts of justice, and has nothing to do with the powers or discretion of an executive authority such as a Local Government, in the matter of instituting, or refraining from instituting, any prosecution, and that the legislature has seen fit to limit its operation to 'the case of any offence triable exclusively by the Court of Session or High Court.' We are dealing here with the case of an offence punishable under section Kit of the Indian Penal Code, which is triable by the 'Court of Session, Presidency Magistrate or Magistrate of the First Class.' Admittedly, Section 337 of the Criminal Procedure Code has no application to the case now before us. The result is that no court of justice had any authority to pass, in favour of Bhagirath or Mangal Chand, any, order which either of them could plead as a bar to his own subsequent prosecution, were such prosecution to be instituted. If they chose to come forward and give evidence without the protection of any such judicial order, that was their own look-out. There is no provision of Indian statute law, nor is there any principle of natural justice, which makes an accomplice, as such, an incompetent witness at the trial of another person in respect of the offence in the commission of which he was an accomplice. The prosecution is not evading; the provisions of Section 837 of the Criminal Procedure Code when it puts into the witness-box an accomplice in the commission of an offence to which that, section does not apply. The practical difficulty in such a case is for the prosecution to feel any confidence that an accomplice will give true evidence. The trial court is undoubtedly entitled to inquire into any measures which those responsible for the conduct of the prosecution may have taken to overcome this difficulty. It will carefully consider the question what bearing the evidence as to the measures so taken in a particular case may have on the credibility of the accomplice witness concerned, 6n the value to be attached to his testimony. A refusal to admit his evidence on the record, merely because he was an accomplice, and because the case was one outside the purview of Section 337 of the Criminal Procedure Code, would be a clear error of law.
3. This is made all the more obvious by the second of the contentions addressed to us on behalf of the accused. We are not disposed to repel the contention that the Magistrate would have been within his jurisdiction if, on the complaint laid before him, he had caused process to issue against Bhagirath and Mangal Chanel as well as against liar Prasad Bhargava. These persons would then have come before the, Magistrate as co-accused in the same case. The Magistrate could still, in his discretion, have proceeded to try the three accused either jointly or separately. The words 'as the court thinks fit' in Section 239 of the Criminal-Procedure Code are of the widest possible import. It is to be presumed that the court will 'think fit' to adopt, in each particular case, whichever course it regards as most conducive to the ends of justice. We are not concerned to decide a point which has not arisen, but we must certainly not be understood to hold that if the Magistrate, after issuing process against Har Prasad Bhargava, Bhagirath and Mangal Chand, had thought fit to try Har Prasad Bhargava first, the other two would thereby have become incompetent witnesses, at his trial, whether for the prosecution or for the defence. If he had elected to enter upon a joint trial, the Public Prosecutor could, with the consent of the court, have withdrawn from the prosecution of Bhagirath and Mangal Chand. Beyond question, these two could then have been put into the witness-box against Har Prasad Bhargava. No one would even have suggested that, after an order of discharge or acquittal had been passed in respect of them, either of them continued to occupy the position of 'the accused person' within the meaning of Section 5 of the Indian Oaths Act (No. X of 1873). From a legal point of view the only difference in the case now before us is that neither Bhagirath nor Mangal Chand was ever an 'accused person' at the trial in which his evidence was tendered, within the meaning of the said section. The real effect of the argument addressed to us on behalf of the accused on this point is that there is a method by which the prosecution, keeping strictly within the four corners of the Code of Criminal Procedure, might, with the consent of the court, have put Bhagirath and Mangal Chand into the witness-box against Har Prasad Bhargava, each of them fortified by a judicial order of acquittal which would have barred their subsequent prosecution. They actually gave evidence without any such shield, though relying upon an extra-judicial undertaking that the Local Government would not direct their prosecution. Whether their testimony is entitled to greater or less credit on this account is a question to be considered; but it has nothing to do with the admissibility of the testimony. There is abundant case law in support of the propositions which we have laid down. In Mohesh Chunder Kopali v. Mohesh Chunder Dass (1882) 10 C.L.R. 553 principles were laid down which would, beyond all question, make Bhagirath and Mangal Chand competent witnesses for the defence, if the present accused had sought to produce them as such at his trial. The same is the effect of the decision in Queen-Empress v. Tirbeni Sahai (1898) I.L.R. 20 All. 426. In a very old case which has never, so far as we know, been dissented from but was quoted with' approval by a Bench of the Calcutta High Court in 1906 vide Banu Singh v. Emperor (1906) I.L.R. 33 Calc. 1353--we refer to the case of Queen v. Behary Lull Base (1867) 7 W.R. (Cr. R.) 44--it was contended that the evidence of a certain witness for the prosecution was inadmissible 'because he had been, at one time, charged before the Magistrate as au accomplice and had neither been acquitted nor pardoned.' The High Court repelled this contention and held that 'there is no law or principle which prevents a person, who has been suspected or charged with an offence, but discharged by the Magistrate for want of evidence, being afterwards admitted as a witness for a prosecution'. An even stronger case is that of Queen-Empress v. Mona Puna (1892) I.L.R. 16 Bom. 661. The accused was on his trial on a charge of burglary, and the police tendered in evidence against him a man whom they had previously arrested on suspicion of complicity in the same offence. The Court was of opinion that the police had acted improperly in releasing this man, but nevertheless held him-to be a competent witness for the prosecution. It was laid down that 'the accused' in Section 342 of the Criminal Procedure Code means 'a person over whom the Magistrate or other court is exercising jurisdiction,' and reference was made to the provisions of Section 118 of the Indian Evidence Act (No. I of 1872). The whole of the argument applies a fortiori to the facts of the present case and to the contention founded upon Section 5 of the Indian Oaths Act (No. X of 1873). Two cases have been quoted on the other side. In Empress of India v. Asghar Ali (1879) I.L.R. 2 All. 260, the facts were so different that we cannot treat any of the remarks incidentally made by the learned Judges as laying clown principles applicable to the facts now before us. There had been, in that case, a breach of the clear provisions of Section 337 of the Code of Criminal Procedure and it was difficult to see how the High Court could deal with the testimony of a witness tendered in contravention of those provisions otherwise than by rejecting it altogether. We were referred also to a case decided at Lahore, Mahandu v. King-Emperor (1919) 21 Crim. L.J.R. 599 : 57 Indian Cases 167. We think it sufficient to say that, in so far as the principles laid down in that case seem to us inconsistent with those in Queen-Empress v. Mona Puna (1892) I.L.R. 16 Bom. 661 we are in agreement with the latter.
4. In what has already been said, we have, in substance, anticipated the third contention on this point pressed upon us on behalf of the accused. In a case to which we referred above, that of Banu Singh v. Emperor (1906) I.L.R. 33 Calc. 1353 the learned Judges held that a Local Government in India has no power to tender a conditional pardon to an. accomplice for the purpose of his being examined as a. competent witness against others accused with him. If this pronouncement only means that the Legislature in India has provided no method, outside the scope of Section 337 or Section 494 of the Criminal Procedure Code, by which a Local Government can provide an accomplice, witness with a judicial order which he can subsequently plead in bar of his own prosecution, should such prosecution be instituted, it is undoubtedly correct. It seems to as obvious, at the same time, that a discretion to refrain from instituting a prosecution, in any particular Case, is inherent in any authority, to which the law has entrusted the power to institute a prosecution. Nor can any law prevent a person, or body of persons, exercising such authority from determining beforehand how that discretion shall be exercised upon the happening of a certain contingent event. If such determination is communicated beforehand to any person or body of persons whom it may concern, we can find no provision in the Indian statute law which lays down that the competence of such person or persons to testify as witnesses in a criminal court about any matter referred to in such communication is thereby affected. As regards the point actually decided in Banu Singh v. Emperor (1906) I.L.R. 33 Calc. 1353 we are not concerned to say whether or not we should have passed the same order upon the facts then before the Calcutta High Court; they are sufficiently distinguishable from the facts of the present case. We are brought bade to the conclusion which we have already indicated. The Government of the Central Provinces could undoubtedly have elected to follow a different procedure. They might have instituted a prosecution against Bhagirath and Mangal Chand and have withdrawn the same under Section 494 of the Code of Criminal Procedure. If this had been done before framing a charge, the resulting judicial order would have been one of discharge; if it could conceivably have been done after a charge had been framed, an order of acquittal would have followed, pleadable under the provisions of Section 403 of the Criminal Procedure Code in bar of any subsequent prosecution. The question whether the testimony of Bhagirath and Mangal Chand would have been entitled to more credit if they had given their evidence after such order of discharge or acquittal in their favour, is one which, as we have already said, has nothing to do with that of their competence to testify. In appraising their evidence we bear in mind that it was given in reliance upon a promise made on behalf of the Local Government that no prosecution would be instituted against them in respect of the offence to the commission of which they testified.
5. The admissibility of certain documentary evidence produced by Bhagirath and Mangal Chand was challenged in the memorandum of appeal to the Sessions Court, upon, certain grounds independent of the general question of the 'competence of these witnesses to testify at all. Little was said in argument before us in support of these contentions, but it is well that we should deal with them. We are satisfied that the account books of the firm of which Bhagirath is a member, and those of the firm of which Mangal Chand is a servant, which were produced in corroboration of their testimony, are books properly kept in the regular course of business; the relevant' entries in the same are admissible in evidence for the purpose for which they have been used.
6. Two documents, Exhibits P. III and P. V, were put in evidence in connection with Bhagirath's deposition in order to corroborate his assertion that he had used twelve currency notes of one hundred rupees each, bearing specified numbers, in order to make up the amount of the bribe paid by him. It was certainly open to the prosecution to lead evidence to prove that Bhagirath had made out a list of these twelve notes, specifying the said notes in detail, and had communicated that; list to other persons at a time when he could not possibly know that those particular notes had been found in the possession of Har Prasad Bhargava on the night, between the 19th and 20th of September, 1921. If Bhagirath is a competent witness at all, he was undoubtedly entitled to produce the memorandum in the book Exhibit P. V and to depose that it was in existence twenty-two days before the 26th of October, 1921, on which date it was for the first time ascertained what were the numbers of the notes recovered from Har Prasad Bhargava on the night between the 19th and 20th of September.
10. We set aside the order of acquittal and, under Section 423(i)(a) of the Code of Criminal Procedure, we find Har Prasad Bhargava guilty of the offence with which he was charged and pass upon him the same sentence which was passed by Khan Bahadur Jacob, on the 4th of January, 1922, namely, 2 1/2 years' rigorous imprisonment and a fine of fifteen thousand rupees. We also confirm the order regarding the disposal of the notes and the exhibits in the case. This order will be certified to the Court of Sessions, at Akola, in order that Har Prasad Bhargava may be required to surrender to his bail and the sentence be carried out according to law.