Knox and Burkitt, JJ.
1. Chidda, Kallu, Kana, Partap Singh, Sona and Tunya have been convicted of an offence under Section 395 of the Indian Penal Code and have one and all been sentenced to transportation for life. They have all appealed, and their appeals are now before us for decision. One of them, Partap Singh, pleaded guilty in the Court of Session, but in that Court he also pleaded in bar of sentence the fact, that he had obtained what he considered a pardon under Section 337 * of the Code of Criminal Procedure from the District Magistrate of Etah. In his memorandum of appeal here he pleads the same fact in bar of sentence. We will deal with his case first. The dacoity with which he is charged took place in the district of Muttra. The only inquiry connected with it that we know of was conducted from first to last in the district of Muttra After that inquiry had continued for a considerable time in the district of Muttra; after one Balwanta hud been arrested and obtained an offer of pardon from the District Magistrate of Muttra, and had named certain persons, and among them this very Partap Singh, who is himself a resident of Muttra, as having taken part in the dacoity, Partap Singh betook himself to the district of Etah, there presented himself before the District Magistrate, and, by some representations, of which we know nothing, obtained a tender of pardon from that Magistrate. The District Magistrate of Etah was not the District Magistrate before whom the offence of the dacoity was under inquiry, and he was certainly not one of the other persons mentioned in Section 337 of the Code of Criminal Procedure. This being the case, he had no jurisdiction to tender a pardon to Partap Singh. Partap Singh was, however, examined as a witness by the Magistrate of Etah, and it is contended from the fact that he was so examined under a tender of pardon, however wrongly granted, that that tender of pardon cannot now be set aside. The last clause of Section 529 is cited in support of this contention. In our opinion Section 529 refers to quite different circumstances. It is a section which deals with acts done by a Magistrate in no way empowered by law to do those acts; it has no reference to a Magistrate empowered otherwise under the Act to tender pardon, but not possessing jurisdiction over the particular offence. The Magistrate of Etah, as Magistrate of the district Etah, is undoubtedly empowered to tender pardon in respect of offences'inquired into in the Etah district which are covered by the provisions of Section 337 of the Code of Criminal Procedure; hut he has no such jurisdiction in respect of an offence of the same kind committed in the district of Muttra. On the other hand a second or third class Magistrate in the Muttra district not inquiring into the offence or not empowered by the Magistrate of the district, has no power by law to tender a pardon to a person accused of having committed an offence covered by Section 337 within the district of Muttra, but if such a Magistrate should tender a pardon in such a case, his proceedings would not be set aside merely on the ground of his not being so empowered. Under these circumstances the Court of Session was, in our opinion, right in ignoring the pardon tendered by the District Magistrate of Etah to Partap Singh, and the so called pardon cannot be pleaded in bar of sentence. The appeal of Partap Singh is, therefore, dismissed.
[The remainder of the judgment being occupied chiefly with a discussion. of the facts of the case, is not reported--Ed.]
*[Section 837:--In the case of any offence triable exclusively by the Court of Session or
High Court, the District Magistrate, a Presidency Magistrate,
Tender of pardon to any Magistrate of the first class inquiring into the offence, or,
accomplice. with the sanction of the District Magistrate, any other Magistrate,
may, with the view of obtaining the evidence of any person supposed
to have been directly or indirectly concerned in, or privy to, the offence under inquiry,
tender a pardon to such person on condition of his making a full and true disclosure of the whole
of the circumstances within his knowledge relative to such offence, and to every other person
concerned, whether as principal or abettor in the commission thereof.
Every person accepting a tender under this section shall be examined as a witness in the case.
Such person, if not on bail, shall be detained in custody until the termination of the trial by the Court of Session or High Court, as the case may be.
Every Magistrate, other than a Presidency Magistrate, who tenders a pardon under this section, shall record his reasons for so doing; and when any Magistrate has made suck tender and examined the person, to whom it has been made, he shall not try the case himself, although the offence which the accused appears to have committed may be triable by such Magistrate.]