Lancelot Sanderson, C.J.
1. In this case in my judgment the Rule should not be made absolute.
2. I think this is a case of considerable importance, although it is not likely that many similar cases will arise in the future. We have already expressed our judgment that this Court would have jurisdiction to make the Rule absolute, if we thought right in our discretion to make it absolute. We have given our reasons for that judgment. But under the circumstances of this case, in my judgment, it will not be right in the exercise of our discretion to make the Rule absolute, and the reasons for that conclusion may be shortly stated as follows: I do not think that Mr. Chuckerbutty put it much too high, when he summarized the position by saying that in directing this evidence of Mr. N.G. Roy to be taken in this case, the Court was to a certain extent impliedly informing him that he would not be prosecuted in respect of the charge any further. It must be remembered that the object of the remand was as follows: Mr. N.G. Roy had made a statement before he was discharged by the Magistrate, giving a long account of these somewhat complicated circumstances. Apparently, though I have not read his judgment, the learned Magistrate had relied to a large extent upon that statement in coming to the conclusion that the other three accused were guilty of conspiracy. The learned Judges of the High Court thought he was not entitled to use that statement made by one who was an accused person at that time against the other three accused, and, therefore, they directed the case to be re-heard and the evidence of Mr. N.G. Roy to be taken on oath; and, if I remember rightly what was read by Mr. Bose as to the directions with regard to the remand, it was expressly stated that Mr. N.G. Roy should be called as a witness and then he could be cross-examined by the accused or those representing them upon his statement in the witness-box in order that the Court might be in full possession of the evidence to enable it to do justice in the case. It was not remanded in any sense whatever in order to enable Mr. N.G. Roy to try to exculpate himself, because he had already been discharged by the Magistrate, and at that time there was no charge hanging over his head at all. Now, under those circumstances, would it be right for this Court to make this Rule absolute? First of all, I have this fact in my mind that when the hearing of the appeal was continued the High Court was in possession of the evidence which had been given by Mr. N.G. Roy. I cannot disguise from myself the fact that in the judgment of the learned Judges reference is made to the evidence of Mr. N.G. Roy and the conclusion is arrived at that the evidence which he had given could not in some respects be accepted. Further at the time of granting the Rule it was stated that Mr. Roy had been examined on oath and had had an opportunity of stating his version of the case in the witness-box, but much of his evidence could not possibly be accepted. I think it would be hard for any learned Judge to say whether the evidence given under those circumstances and with such a view expressed about it had or had not any influence upon his mind when he directed the Rule to issue. At all events, in view of the fact that the evidence was before the learned Judges when the Rule was issued, can I say that it is clear that the Rule would have been issued just the same if that evidence of Mr. N.G. Roy had not been before them? I am not satisfied that I can say so. Then there is what seems to me a more important view of this case and that is this: although the evidence of Mr. N.G. Roy, given under the direction of the Court, could not be used against him if he were to be re-tried, there is no doubt whatever that the prosecution are in possession of the evidence which he gave. They know exactly what he said and it may well be that the evidence which he has given may be of considerable assistance to them in framing a case of complicity in the conspiracy against him.--I do not say it would; I do not say it would not; it is sufficient for me to say that it may be of considerable assistance in framing their case against him. There is also the other point that his evidence was used by the Division Bench of the High Court for the purpose of coming to the conclusion that a conspiracy had in fact taken place between the three accused who were convicted. The learned Counsel for Mr. N.G. Roy has argued that if further proceedings are directed against Mr. N.G. Roy, the prosecution would start with this important fact in their favour that a conspiracy between the three convicted men had been established and, when that fact has been established apparently to some extent by the evidence which Mr. N.G. Roy has himself given under the direction of the Court, I do not think that it would be right under those circumstances to make this Rule absolute.
3. One further point which I desire to mention is that it is admitted that the statement which Mr. N.G. Roy made before he was discharged could be put in evidence against him, if he were to be tried again and it is possible, though again I do not say that it would follow as a necessary consequence, that some of the answers which he has given in examination by the prosecution or cross-examination by the accused may have afforded material for the prosecution to show that some part or parts of his statement made before he was discharged were unreliable; that is one instance I had in my mind when I said that the evidence may have afforded material for the prosecution for supporting or framing the charge against Mr. N.G. Roy. This, in my opinion, would be contrary to the traditions of justice in criminal cases.
4. For these reasons I think that this Rule should be discharged,
5. As I was one of the Judges who issued the Rule, I should like to add a few remarks. After thinking over the case I have come to the conclusion that I ought to agree with the learned Chief Justice in holding that the Rule should be discharged. Mr. Chuckerbutty's main argument on behalf of Nanda Gopal Roy, broadly stated, is that under the circumstances it would not be fair to Nanda Gopal Roy for this Court, after having directed him to be examined as a witness, to order him to be prosecuted in the same matter, and it is not possible for me to hold that there are not grounds for taking the view that it would be unfair to the accused, for the reasons which have been given by the learned Chief Justice; I do not wish to repeat them. One other remark I wish to add and that is that in issuing the Rule we had no intention of suggesting that the evidence given by Nanda Gropal, when he was examined as a witness, was to be used in the proceedings that might be taken against him; and I very much regret that the learned Vakil who appeared in support of the Rule should have argued as though he was under the impression that that was our intention. I agree that the Rule should be discharged.