1. This is an application by three persons under Section 215 of the Code of Criminal Procedure praying that their commitment to the Court of Session for offences punishable under Sections 120 B and 457 read with Section 381 of the Indian Penal Code be quashed. The learned Counsel for the petitioners has taken three main points in this case:
(1) that the pardon that was tendered to Kapur Chand was illegal:
(2) that the offence with which the accused are charged does not fall within the definition of house-breaking; and
(3) that there was no evidence to warrant the accused being committed to the Court of Session to stand their trial
2. As regards the first point urged, Mr. O'Neill on behalf of the petitioners says that as the Magistrate had, upon the application of three out of the five accused persons, postponed the case he had become functus officio, and therefore, could not under the provisions of Section 337 of the Code of Criminal Procedure tender pardon to Kapur Chand. He has based his argument on the ground that under Section 526(8) of the Code of Criminal Procedure the Court had to adjourn the case, and having adjourned the case the Magistrate could do nothing in the matter. I am of opinion that there is no force in this contention. Section 337 of the Code of Criminal Procedure does not require that a trial or an enquiry should be in progress when the pardon is tendered. The Magistrate was the only Magistrate who had jurisdiction to enquire into the case and although he had postponed the investigation or enquiry he had not ceased to be the Magistrate who would be or was investigating or enquiring into the offence which the accused persons are said to have committed. My attention has been drawn to the case of Kishori Gir v. Ram Narayan Gir  8 C. W. N. 77. I am of opinion that case has no bearing on the question of the competency or otherwise of the Magistrate granting the pardon.
3. As regards the second point taken, I have not gone into the facts of the case to see whether the prosecution has made out a case or not but for the purpose of coming to the conclusion whether a charge under Section 457 could or could not be framed against the accused. I have examined the allegation made on behalf of the prosecution against the accused. It is impossible for me to say that upon the statement of facts the Court could not frame a charge under Section 457 read with Section 881. It will be a matter for the Court trying the accused to decide what facts the prosecution have proved to bring the offence, if any, within the purview of that section.
4. The third point which Mr. O'Neill has very strenuously argued before me is that I should quash the commitment under Section 215, Criminal P. C. Under that section it is only on a question of law that the High Court would be justified in quashing a commitment. It has also been urged by the learned Counsel for the petitioners that if the case does not come within the purview of Section 215 I should, acting as a Court of revision under Section 439, set aside the commitment. I decline to do so. I am of opinion that to test whether there is or is not evidence for a Judge to decide and to quash a commitment it is unnecessary to accept the evidence for the prosecution. Whether the evidence is believed or disbelieved at the trial is a matter with which I am not concerned. The main evidence against the accused, as it appears from the order of commitment, is that one of the persons concerned in the theft has been granted a pardon and being an accomplice his evidence is not entitled to weight. The real test in deciding as to whether there is evidence which could fairly be acted upon is to see whether a Judge at a trial held with the aid of jurymen could say that there was no evidence which could go before a jury. Whether an accomplice can be believed or whether the evidence of an accomplice has been corroborated is a matter for decision at the trial. I cannot, sitting as a revisional Court, decide whether the statement of Kapur Chand should or should not be believed. Mr. O'Neill has referred me to a number of cases and he has submitted that the universal practice is not to believe the testimony of an approver unless it is corroborated in material particulars. One of the cases he has referred to in his argument is the case of Abdul Karim v. Emperor  1A. L. J. 110. At p. 113 I find the following observation of Mr. Justice Banerji:
I am, therefore, unable to regard him as an accomplice of such an exceptional kind as would justify the Court in dispensing with the necessity of the confirmatory evidence which is ordinarily required in the case of an accomplice.
5. Section 133 of the Indian Evidence Act, to my mind, clearly lays down that the evidence of an accomplice only can be acted upon, in spite of the Section 114, Illustration (b) of the Evidence Act It is thus impossible for me to hold that the evidence of an accomplice uncorroborated cannot be said to be evidence against an accused. In fact the ruling referred to above to my mind implies that an accomplice may give such evidence that no corroboration at all would be required. I am, therefore, unable to say that there is any evidence against the petitioners which could not go to a jury.
6. A number of other cases have been referred to but no useful purpose would be served by discussing all those cases.
7. Mr. O'Neill has pressed before me specially the case of Raja Singh and has argued that the Magistrate who committed the case to Session did not believe implicitly the statement of the accomplice while dealing with the case of Raja Singh, and he has further submitted that the principle laid down in Akbar Ali v. Raja Bahadur : AIR1925All670 has not been understood by the learned Magistrate. I am unable to accept that contention. The Magistrate has not taken upon himself the responsibility of disbelieving or believing entirely the statement of the approver but Mr. O'Neill argues that inasmuch as the Magistrate has sought to find corroboration of the evidence of the approver it shows that he only partially believed the approver and did not implicitly rely on him. This will be a matter for the Court that decides the case to consider but I am of opinion that the function of a Court of revision is not to sit in judgment over the order of a Magistrate committing a case to the Court of Session. Great stress has been laid before me on the case of Lachman v. Juala  5 All. 161. What has been laid down by Mahmood J., in that case has no bearing upon the present petition inasmuch as the observations that were made were made upon an application by a complainant to set aside the findings of a Magistrate who had declined to commit the accused person to the Court of Session and after examining the evidence and the circumstances of the case Mr. Justice Mahmood declined to act upon that evidence and to set aside the order of the Magistrate. For these reasons I am of opinion that there is no force in this application and I dismiss it.