1. This is a reference by the learned Sessions Judge of Mirzapur recommending that the commitment of two persons for trial under Section 395, I.P.C. be quashed.
2. It appears that Poghai and others were charged with dacoity under Section 395, I.P.C. and the District Magistrate tendered a pardon of two of the accused, namely, Raja Ram and Tulshi, under Section 337, Criminal P.C. They were examined as witnesses in the Court of the committing Magistrate. The committing Magistrate has committed not merely the accused persons to the Court of Session but has also committed the two approvers Raja Ram and Tulshi after framing charges against them. The committing Magistrate was clearly under a misapprehension regarding the meaning of Sub-section (2-A), Section 337. The Magistrate interpreted Sub-section (2-A) to mean that he must commit the approvers for trial fro the Court of Session as well as the other persons who are accused in the case. The language of this sub-section has given rise to some misunderstanding, but its meaning has been explained in the case of Bhagwan v. Emperor A.I.R. 1929 Oudh. 190, in which it was held that the meaning of Section 337, Sub-section (2-A) is simply that where a pardon has been granted to one accused who has been examined as a witness, then the case against the other accused must be committed to the Sessions if a prima facie case against the latter is established, and not tried by the Magistrate himself. I have no doubt that this interpretation is correct. The sub-section cannot be reasonably interpreted to mean that the approver must be committed for trial to the Court of Session. The language of the proviso to Section 339, Sub-section 1 confirms this view.
3. I accordingly accept the reference, set aside the commitment of Raja Ram and Tulshi and set aside the charges which have been framed against them.