1. The history of the proceedings in this matter is briefly this: that three appellants together with two others, Nalini and Gouranga were put on their trial before a Special Magistrate acting under the powers conferred on him by Section 25, Bengal Suppression of Terrorist Outrages Act, 1932. The procedure to be followed in such cases is that prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates.
2. The accused were eventually charged with conspiring to commit robbery and dacoity under Sub-section 120-B/392, and 395, Penal Code. At the outset of the proceedings the Public Prosecutor applied to the Special Magistrate for the discharge of Nalini under Section 494, Criminal P. C., so that Nalini might give evidence in the case. As no charge had then been framed against the accused, Nalini was discharged under Sub-section (a), Section 494. Thereupon Nalini went into the box and gave evidence. The accused, who included the three appellants, as they were entitled, reserved their cross-examination until a charge had been framed. Nalini's evidence, although against the accused, amounted to very little.
3. Then the Public Prosecutor, evidently of the opinion that Nalini had not told all he knew and was hostile to the prosecution, applied to the District Magistrate to have Nalini re-committed to take his trial along with the accused.
4. Nalini was thereupon re-committed by the District Magistrate to take his trial with the other accused against whom he had given evidence. Next the Special Magistrate tendered a conditional pardon to the accused Gouranga under Section 337, Criminal P. C., and Gouranga was taken out of the dock, put into the witness box, and he gave evidence in the trial.
5. Nalini thereupon moved a Bench of this Court to have the proceedings against him stayed, and a stay was ordered as against Nalini. The trial against the remaining accused, the three present appellants went on, the evidence against the appellants given by Nalini remained on the record for what it was worth, but the appellants never had the opportunity of cross-examining Nalini.
6. The Special Magistrate found the three appellants guilty and sentenced them each to five years' rigorous imprisonment. From those convictions and sentences the appellant appealed. The Bench of this Court which heard the appeals referred to a Full Bench of this Court a certain question of law for our consideration. This Full Bench acting upon Rule 5, Ch. 7 of the Rules of this Court on the appellate side was unable to accept the partial reference, and thereupon the Bench concerned referred the whole case to us under the Rule above cited.
7. The questions of law referred by the Bench in question were: (1) Whether the Court may consent to the Public Prosecutor withdrawing from the prosecution of any person under the provisions of Section 494 (a), Criminal P. C., for the purpose of obtaining that person's evidence as a witness. (2) Whether the case of Raman v. Emperor 1929 Cal 319 was upon this point rightly decided. (3) Whether a Special Magistrate appointed under Section 24, Bengal Suppression of Terrorist Outrages Act, XII of 1932, has power to tender a pardon under the provisions of Section 337, Criminal P. C., or otherwise (4) Whether the cases of Abdul Majid v. Emperor 1933 Cal 537, and Mohammad Saleudin v. Emperor 1935 Cal 281 and Appeals Nos. 844 and 845 of 1933 were upon this point rightly decided? The first feature which stands out in this case is that Nalini gave evidence against the appellants and then was withdrawn from the witness-box and again made an accused, so that the appellants were thereby prevented from cross-examining him. Section 256, Criminal P. C., and Section 136, Evidence Act, give they accused a right to cross-examine the witnesses who have given evidence against them. It is obvious that the appellants here were deprived of a fundamental right given them by law. The AdvocateGeneral has admitted that the convictions cannot on that ground alone be upheld.
8. The second feature is that Nalini was re-committed to take his trial along with the three appellants in the same proceedings after having given evidence against them. Section 494 (a), Criminal P. C., enacts that after the Public Prosecutor, with the consent of the Court, has withdrawn from the prosecution of an accused, the accused 'shall be discharged in respect of such offence or offences.' It is obvious that if the accused is again charged in the same proceedings with the same offence, the provision that 'he shall be discharged in respect of such offence or offences' has no real effect.
9. In my view the words in question mean shall be discharged from those proceedings and not put back into them. He may be tried again in other proceedings on the same charge, but not in those proceedings. The Advocate-General has stated that he cannot support the convictions on the evidence given, apart from the irregularities mentioned. These convictions clearly cannot stand, That would be sufficient to dispose of this appeal without going into the questions of law which have been formulated for our answer. However in view of the doubt that has been cast by the referring Judges on the cases of Raman v. Emperor 1929 Cal 319, Abdul Majid v. Emperor 1933 Cal 537 and Mohammad Saleudin v. Emperor 1935 Cal 281, and the likelihood of that doubt giving rise to difficulty in other cases, we have thought fit to go into the questions raised. As regards questions (1) and (2), I see nothing in Section 494 which prevents a Public Prosecutor if he thinks it is in the interests of the administration of justice, from withdrawing the case as against one of the accused for the purpose of calling him as a witness against the others. It may well be in the interests of justice that the Public Prosecu for should so withdraw so that such evidence should be given to help to secure a conviction against the others. In the same way for the same reasons it may well be that the Court ought to give its consent to such withdrawal.
10. The English case of Winsor v. The Queen (1866) 1 Q B 289, which was discussed by the referring Bench, deals with this point. In that case two women-Harris and Winsor werein the first instance charged toge ther with murder. The jury disagreed and were discharged. When the retrial came on the accused Winsor was tried alone and Harris was called to give evidence against her without having been first acquitted, or convicted and sentenced, or without a nolli prosequi having been entered against her. Winsor was convicted, and on a writ of error the matter came before a Court of Judges of the Queen's Bench, where the Judges considered the matter. Cockburn, C. J., at p. 312, said:
I equally feel the force of the objection that the fellow prisoner was allowed to give evidence without having been first acquitted, or convicted and sentenced. I think it much to be lamented. In all cases where two persons are joined in the same indictment, and it is desirable to try them separately, in order that the evidence of the one may be received against the other, I think it necessary, for the purpose of insuring the greatest possible amount of truth fulness in the person coming to give evidence, to take a verdict of not guilty as to him, or if the plea of not guilty be withdrawn by him, and a plea of guilty taken, to pass sentence so that the witness may give his evidence with a mind free of all corrupt influence, which the fear of impending punishment and the desire to obtain immunity to himself at the expense of the prisoner might otherwise produce. This objection is not set forth on the record; in a civil case a question as to the reception of evidence may be raised upon a bill of exceptions, but in a criminal case it cannot be raised upon the record so as to constitute a ground of error; we cannot therefore take it into consideration. Whether this circumstance should have any influence elsewhere is a matter upon which it is not for us to pronounce an opinion. Under all the circumstances I am of the opinion that in this case the facts warranted the exercise of judicial discretion. Judgment must be for the Grown.
11. Blackburn, J., at p. 320, said:
I may however observe, although the matter does not come before us, I do not think Harris was an inadmissible witness, but being inadmissible she was completely within the category of accomplices. It would be right to tell the jury to look at her evidence with great caution. I do not doubt that the judge did carefully caution the jury, nor do I doubt there was ample confirmatory evidence. I agree that it would be judicious as a general rule, where the accomplice is indicted that the indictment as to her should be disposed of before she is called as witness, so that the temptation to strain the truth should be as slight as possible. I do not think that this is an obstruction as to the legality of the evidence but is a matter which affects the degree of credit which ought to be given to her testimony.
12. Meller, J. at p. 324, said:
On an application made on the part of the Crown, the prisoner was tried by herself, and Harris, although she had not pleaded guilty, and although no verdict of acquittal was taken was called as a witness. She was, therefore liable herself to be tried. I think the temptation held out by this course, especially by an ignorant witness, to give false evidence, very great, a witness ought always to give evidence without fear of any consequences pending over him. I am however of opinion that the Judge on the second trial had no alternative but to receive the evidence, which I think was clearly admissible, although, subject to strong observation as to its weight.
13. Lush, J. at p. 327, said:
The other objection relates to the admissibility of the evidence of Harris on the second trial. As to that, it is enough to say that in my judgment her testimony was admissible.
14. In Archbold's Criminal Pleading and Practice, Edn. 29 (1934), p. 463, under the heading 'Competency of Witnesses' it is stated:
Where it is proposed to call an accomplice for the Crown, it is the practice, (a) not to include him in the indictment; or (b) to take his plea of guilty on arraignment: Winsor v. The Queen (1866) 1 Q B 289, Winsor v. R. L. R. (1866) 1 Q B 390, or during the trial he withdraws his plea of not guilty; R. v. Tomey 2 Or App R 329; or before calling him either (C) to offer no evidence and permit his acquittal, R. v. Owen 9 C & P 83; or (D) to enter a nolle prosequi, R. v. Feargus O'Connor 4 St Tr (N S) 935.
15. In the same edition of Archbold, at p. 112, it is stated:
A nolle prosequi puts an end to the prosecution, see Gilchrist v. Gardner 12 N S W Rep (Law) 184 and English authorities there cited, but does not operate as a bar or discharge or an acquittal on the merits, Goddard v. Smith 6 Mod 261 and R. v. Ridpath 10 Mod 152, and the party remains liable to be re-indicted. It has been said that fresh process may be awarded on the same indictment, Goddard v. Smith 6 Mod 261, Com. Dig. Indict (K), but this dictum appears not to be law.
16. During the argument before us it was contended that the provisions of Section 343, Criminal P. C., prevented the P. P. from applying for and the Court from consenting to, a withdrawal against one of the accused for the purposes of his giving evidence against his fellow accused. In The Queen-Empress v. Hussein Haji (1901) 25 Bom 422 the same argument was raised, and Candy, J., at p. 425, said:
Reference was also made by the learned Counsel to Section 343; but that evidently refers to the examination of the accused under Section 342.
17. In that case Whitworth, J., differed from Candy, J., but Ranade, J., to whom the case was referred for final decision, agreed on the whole with Candy, J. That question does not arise because there is no evidence here that 'influence by means of any promise or threat or otherwise' was used to the accused person 'to induce him to disclose or withhold any matter within his knowledge.' In Bann Singh v. Emperor (1906) 33 Cal 1353, Mitra, and Holmwood, JJ., delivered a joint judgment in which at p. 1357 they said that:
Section 494 of the Code authorizes the Public Prosecutor as representing a Local Government in this country to withdraw a prosecution against anyone of a number of accused, and thus obtain a verdict of discharge or acquittal so far as such person is concerned. On such a discharge or acquittal he becomes a competent witness against other persons accused of the same offence. The disability to be examined as a witness on oath against the persons who are brought before the Court on the same indictment may thus cease on the withdrawal of the indictment against him.
18. In Emperor v. Har Prosad 1923 All 91 at p. 230 Mears, C. J., said:
There is no provision of Indian statute law nor is there any provision 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 337, Criminal P. C., when it puts into the witness box an accomplice in the commission of the offence to which that section does not apply.
19. The matter was also considered in Raman v. Emperor 1929 Cal 319. In that case the authorities, English as well as Indian, were considered by Dwarka Nath Mitter, J., who said at p. 1030:
My conclusions, therefore, are (1) that Section 337 of the Code does not suggest the idea that the only method of obtaining the evidence of a coaccused against another is by tendering him a pardon with all the safeguards mentioned in the said section; (2) that the language of Section 494 is very wide and gives a discretion to the Magistrate as to whether he would consent to withdrawal of a prosecution by the Public Prosecutor, such discretion to be exercised not arbitrarily, but must be based on correct legal principles, (3) that the Chief Presidency Magistrate has not, in the present case exercised the discretion wrongly in relying on the discretion of the Public Prosecutor in withdrawing the prosecution against Bijay in order that his evidence may be available after his discharge against the petitioner Raman who has been jointly tried with him on charges of I conspiracy and cheating.
20. On principle and authority therefore, I am of the opinion that the answers to questions (1) and (2) must be 'Yes'. I wish however to add this: Section 337, Criminal P. C., which only applies to the offences of a more serious character therein specified, provides safeguards in the interests both of the Crown and the accused. I think in cases where Section 337 is available it is better that the accused should be dealt with under that section. I am however far from saying that even where Section 337 can be applied it is contrary to law to discharge the approver under Section 494 (a). It must be remembered that the approver dealt with under Section 337 gives his testimony with a contingent charge hanging over his head; also that the evidence of an accomplice whether dealt with under Section 337 or discharged under Section 494 (a), or acquitted under Section 494 (b), is the evidence of an approver and as such open to suspicion. I will now deal with questions Nos. 3 and 4. Under the Bengal Suppression of Terrorist Outrages Act, 1932, it is provided in Section 26 (1).
In the trial of any case under this Act, a Special Magistrate shall follow the procedure prescribed by the Code for the trial of warrant cases by Magistrates: Provided that the Special. Magistrate shall not be bound to adjourn any trial for any purpose unless such adjournment is, in his opinion, necessary in the interests of justice. (2) In matters not coming within the scope of Sub-section (1), the provisions of the Code, so far as they are not inconsistent with this Chapter, shall apply to the proceedings of a special Magistrate ; and for the purposes of the said provisions the special Magistrate shall be deemed to be a Magistrate of the first class.
21. Section 34 reads as follows:
The provisions of the Code and of any other law for the time being in force, in so far as they may be applicable and in so far as they are not inconsistent with the provisions of this Chapter, shall apply to all matters connected with, arising from or consequent upon a trial by special Magistrates.
22. Section 337, Criminal P. C., gives power, in the case of certain offences of which the present is admittedly one, to certain tribunals including Magistrates of the first class of which the Special Magistrate is one, as stated above, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, to 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 the offence and to every other person concerned, whether as principal or abettor, in the commission thereof: By S. I-A the Magistrate shall record his reasons for tendering the pardon. By Sub-section (2) the person accepting the tender of pardon shall be examined ' in the Court of the Magistrate taking cognisance of the offence and in the subsequent trial, if any.' By Sub-section (2-A), in every case where a person has accepted a tender of pardon and has been examined under Sub-section (2), the Magistrate before whom the proceedings are pending shall, if be is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be; (3) such person, unless he is already on bail, shall be detained in custody until the termination of the trial. Section 339 provides for the subsequent prosecution of the person who has been conditionally pardoned if the Public Prosecutor certifies that, in his opinion, such person has not complied with the condition on which the tender was made. It also provides that such person shall not be tried jointly with any of the other accused, and that he shall be entitled to plead at his trial that he has complied with the conditions upon which the tender was made, in which case the prosecution must prove that such conditions have not been complied with; Sub-section (2) provides:
The statement made by a person who has accepted a tender of pardon may be given in evidence against him at such trial.
23. Sub-section (3) provides:
No prosecution for the offence of giving false evidence in respect of such statement shall be entertained without the sanction of the High Court.
24. Sections 339-A and 340, 341 and 342 contain further provisions for the protection of the pardoned person on or in respect of his trial for giving false evidence. In the present case after Nalini, was put back into the dock, Gouranga was tendered a pardon by the Special Magistrate under the provisions of Section 337 and his evidence was received against the three appellants. It is said that the Special Magistrate had no power to tender a conditional pardon under Section 337 to Gouranga because the duty of the Special Magistrate was to try Gouranga and not to pardon him. I cannot accept that view. The Special Magistrate was charged with the duty of trying the appellants together with Nalini and Gouranga. It not infrequently happens in a trial that the only way in which justice can be done is through one of the accused giving evidence on behalf of the Crown, and if this evidence is given according to law, there is nothing wrong in it though as the evidence of an accomplice it is open to suspicion. Section 337 provides the terms on and the machinery by which the pardon, for the purpose of giving evidence, can be granted by the Magistrate, and in my view the Magistrate was acting within his powers in granting the conditional pardon.
25. It was next contended that the Special Magistrate having tendered a conditional pardon to Gouranga was bound, under Section 337 (2-A), to commit the other accused for trial to the Court of Session or the High Court, but that as he was directed to try the accused himself and therefore could not commit them to the Sessions or the High Court, the whole of the provisions of Section 337 are nugatory in this case, from which it follows that if he is to try the accused, he cannot pardon any one of them under Section 337. In my view this contention is not sound. Under Section 26 (2), Bengal Suppression of Terrorist Outrages Act, 1932, the provisions of the Code so far as they are not inconsistent, with this Chapter (that is, Ch. 2), shall apply to the proceedings of a Special Magistrate;' and by Section 34 of the same Act.
The provisions of ten (Criminal Procedure) Code in so far as they may be applicable and in so far as they are not inconsistent with the provisions of this chapter (that is Ch. 2), shall apply to all matters connected with, arising from or consequent upon a trial by Special Magistrates.
26. From that it follows in my view, that the Magistrate may, acting under Section 337 (1) tender a conditional pardon, and under Section 337 (2) examine the pardoned man as a witness in his Court, but must, acting under the Bengal Suppression of Terrorist Outrages Act, 1932, try the accused himself instead of committing him for trial to the Court of Session or the High Court as Section 337 (2-A) of the Code provides. In the case of Abdul Majid v. Emperor 1933 Cal 537 a Special Magistrate tried certain prisoners under the provisions of Ordinance 2 of 1932. The Ordinance provides in Section 37 (1):
In the trial of any case under this Ordinance a Special Magistrate shall follow the procedure laid down in Sub-section (1) of Section 32 for the trial of class by a Special Judge.
27. Sub-section (2)
In matters not coming within the scope of Sub-section (1), the provisions of the Code in so far as they are not inconsistent with this Ordinance shall apply to the proceedings of a Special Magistrate; and for the purposes of the said provisions, the Special Magistrate shall be deemed to be a Magistrate of the first class.
28. Section 52:
The provisions of the Code and of any other law for the time being in force, in so far as they may be applicable and in so far as they are not inconsistent with the provisions of this Ordinance, shall apply to all matters connected with, arising from or consequent upon a trial by special criminal Courts constituted under this Ordinance.
29. It will be noticed that Sub-section 37 and 52 of the Ordinance are respectively essentially the same as Sub-section 26 and 34, Bengal Suppression of Terrorist Outrages Act, 1932. In Abdul Majid v. Emperor 1933 Cal 537, one of the accused was granted a conditional pardon under Section 337 by the Special Magistrate and he then proceeded to give evidence against his co-accused before the Special Magistrate who dealt with the case and sentenced the prisoners. It was objected on appeal that the Special Magistrate had no power to tender a conditional pardon and afterwards dispose of the case himself, instead of sending it to the Sessions or the High Court. The appeal from the conviction was dismissed. Rankin, C, J., at p. 654 said
It is right to notice the contention that was put forward to the effect that the proceedings before the Special Magistrate were bad. It is aid that his having tendered pardon to the approver, Sub-section 2-A, Section 337, Criminal P. C., made it obligatory upon him to commit the accused for trial to the Court of Session. It is not disputed that, under the Ordinance (2 of 1932), he certainly could not commit the accused for trial to any Court of Session. When we look at the Ordinance, we find that there is an oxpress provision that the provisions of the Code are to apply in the case of Special Magistrates so far as they are not inconsistent with the Ordinance, and similar phrasing is used more elaborately in Section 52 and also in connexion with Sessions Judges in Section 32 It makes no difference whatever, sofar as I can see, whether the Magistrate tendering the pardon had been the District Magistrate and not the Magistrate trying the case. The provisions of subs. (2-A) would apply equally, whoever had been the Magistrate tendering the pardon, and it is quite clear that the Special Magistrate is the Magistrate who, under the Ordinance, is to try the case. Unless therefore we were to hold that no approver could ever give evidence before a Special Magistrate, the appellants would not succeed in making the argument logical. But it is quite clear that, in so far as the Ordinance is inconsistent with sub-s (2-A), the Ordinance prevails and there is no ground for supposing that it is impossible for the Special Magistrate to hear the evidence.
30. In my respectful view the judgment of Rankin, C. J., is correct and applies to the present case. Abdul Majid v. Emperor 1933 Cal 537 was followed by S.K. Ghose and Henderson, JJ., in the case of Mohammad Saleudin v. Emperor 1935 Cal 281, and also by Guha and Nasim Ali, JJ., in two unreported cases-Appeals Nos. 844 and 845 of 1933. For the reasons I have given above, I am of opinion that the answer to Questions Nos. 3 and 4, in each case, is 'Yes.'
31. I agree in the order that my lord the Chief Justice proposes to make in these appeals, setting aside the convictions and sentences of the three appellants concerned in them. Quite apart from any question of regularity or otherwise of the procedure adopted at the trial of the prisoners, the evidence of the approver Gouranga, which forms the backbone of the case against them, is, to my mind, utterly unconvincing. And if that evidence requires corroboration, as in my opinion it does, if the wellestablished rules as to the necessity for corroboration of the evidence of an approver are to be applied, the corroboration, such as there is in the other evidence and circumstances of the case, fails to reach the requisite standard, either in quality or in quantity. On the question of procedure, there was in the trial one irregularity far more serious than others, if any, to which my Lord has referred in his judgment, and which in its character is so fundamental that it is impossible to uphold the result in which the trial ended: I mean the illegality of putting Nalini back into the dock as a co-accused with the prisoners and so depriving them of the opportunity of cross examining him after he had been examined as a witness for the prosecution. It did not matter in the least, so far as this part of the procedure is concerned, that Nalini's evidence, as against the prisoners, amounted to very little; he had been examined as a witness against them and they had an undoubted right to get from him such evidence as they could, by questioning him by way of cross-examination. The adoption of a procedure which put it beyond the power of the prosecution to tender Nalini for such purpose and thus depriving the prisoners of a right which they never lose under the law except under certain specified conditions of which this certainly is not one, has vitiated the trial altogether. These are my views on the matters that have arisen on this reference, apart from the questions which have been specifically referred for our decision.
32. Turning now to the four questions which the referring Bench has formulated for our decision, they may be conveniently dealt with in two groups: Questions (1) and (2) in group 1, and questions (3) and (4) in group 2. The former raises the question whether the Court may consent to the Public Prosecutor withdrawing from the prosecution of any person, under the provisions of Section 494 (a), Criminal P. C., for the purpose of obtaining that person's evidence as a witness. And the latter raises the question whether a special Magistrate appointed under Section 24, Bengal Suppression of Terrorist Outrages Act, 12 of 1932. has power to tender a pardon, under the provisions of Section 337, Criminal P. C., or otherwise. Upon the view that I take of the matters involved in these questions it would be more logical for me to deal with the second matter first. I may say at the outset that I have not been able to understand why the words 'or otherwise' have been appended in Question (3), for I am not aware nor have I heard anything in the course of the arguments before us that there is any power in a Magistrate to tender a pardon under any law other than the provision contained in Section 337 of the Code. For reasons I shall presently give, I am unable to agree with my Lord in answering the question in the affirmative.
33. The jurisdiction of Special Magistrates to try offenders is conferred by Section 25 of the Act the words of which in my opinion are very important. The relevant words are:
(1) Where in the opinion of the Local Government etc. .... there are reasonable grounds for believing that any person has committed a scheduled offence etc. . . the Local Government or the District Magistrate, as the case may be, may, by order in writing, direct that such person shall be tried by a Special Magistrate.
(2) Where in the opinion of the Local Government there are reasonable grounds for believing that any person has committed etc. ... the Local Government, by order in writing, direct that such person shall be tried by a Special Magistrate.
34. There can be no question upon the plain words of the section that what the Special Magistrate may be directed to do by the Local Government or the District Magistrate, as the case may be, is that a person who comes within the purview of the section shall be tried by him. What is the meaning of the word trial' used in connexion with a proceeding in Court? The word is not defined in the Act or in the Code of Criminal Procedure, parts of which have been incorporated into the Act by the Act itself. The word therefore has to be understood in the ordinary lexicographical meaning. 'Trial' is;
the hearing of a cause, civil or criminal, before a Judge according to the laws of the land. 'Trial' is to find out by due examination the truth of the point in issue or question between the parties, whereupon judgment may be given: Wharton's Law Lexicon quoting Co. Litt. 1246.
35. In the Oxford Dictionary the meanings of the word given under the heading 'Law' are:
1. The examination and determination of a cause by a judicial tribunal; determination of the guilt or innocence of an accused person by a Court. 2, The determination of a person's guilt or innocence, or the righteousness of his cause by a combat between the accuser and the accused, etc.,
36. It is this idea of the determination of the guilt or innocence of the person who is tried that forms the fundamental conception of the trial that is held in respect of him. When therefore some competent authority directs that an accused person shall be tried, the trial that is to take place can end only in one or other of the recognised forms in which the trial can terminate: under the Code of Criminal Procedure such forms are,- conviction, acquittal, discharge, i.e. finding him guilty or not guilty or finding that there is no case against him or that the charge is groundless. In my opinion, it is a point of importance to note that the words used in the section are that 'such person shall be tried.' And I am further of opinion that if a Magistrate proceeds to tender pardon to an accused person he stops his trial and does someIthing which he has no jurisdiction to do. He thereby ceases to proceed with the trial of that particular accused person, the object of which is to determine his guilt or innocence and does something which is not covered by the direction under which he has jurisdiction to act. No doubt, in a case in which a prosecutor withdraws from the prosecution of an accused, the trial of that accused is also stopped; but such act is the act of the prosecutor.
37. But it may be said, as indeed it has been said, that there are two other sections of the Act which should not be overlooked-Sub-section 26 and 34.
38. Section 26 says:
(1) In the trial of a case under this Act a Special Magistrate shall follow the procedure prescribed by the Code for the trial of warrant cases by Magistrates: Provided that the Special Magistrate shall not be bound to adjourn any trial for any purpose unless such adjournment is, in his opinion, necessary in the interests of justice; (2) in matters not coming within the scope of Sub-section (1) the provisions of the Code, so far as they are not inconsistent with this Chapter, shall apply to the proceedings of a Special Magistrate, and for the purposes of the said provisions the Special Magistrate shall bo deemed to be a Magistrate of the First ClasSection 34. The provisions of the Code and of any other law for the time being in force, in so far as they may be applicable and in so far as they are not inconsistent with the provisions of this Chapter, shall apply to all matters connected with, arising from or consequent upon a trial by a Special Magistrate.
39. On a reference to these two sections of the Act and especially to the latter, it has been contended on behalf of the Crown that there is no reason why the provisions contained in Section 337, Criminal P. C., should not apply to a trial by a Special Magistrate to the extent that it is not inconsistent with the provisions of Chap. 2 of the Act, in which Sub-section 24, 25, 26 and 34 occur. Now it is agreed on all hands that a Special Magistrate has no power to make an order of commitment to the Court of Session. But it will be seen that that is so, not because of any express provision contained in the Act but only because such Magistrate is only authorised by the provision which lays down his jurisdiction, namely Section 25 of the Act, to try the accused, and for no other reason. To deprive him of his jurisdiction to commit, which as a Magistrate of the First Class trying a warrant case he undoubtedly has under proper circumstances, it is the meaning of the word trial' I have referred to above that is assumed. There it is his duty to try as distinguished from his power to commit for trial, that is relied upon. Why should not then the same meaning of the word 'trial' be appealed to in order to hold that he is not competent to tender a pardon?
40. To explain the matter further I give an illustration. The procedure of the trial of warrant cases is detailed in Ch. 21 of the Code. Under Section 254 of the Code, when the Magistrate holding a trial under that procedure finds that a prima facie case has been made out against an accused person, he frames a charge; but he doesso only if he finds that the offence prima facie disclosed is one which he is competent to try and which could be adequately punished by him. But if he finds that the offence disclosed is one which, though he is competent to try cannot be adequately punished by him, he adopts the procedure laid down in Section 208 of the Code, that is to say, being satisfied that there are sufficient grounds for committing the accused for trial frames a charge, and resorts to the procedure in the sections following which lead up to the commitment. Now a Special Magistrate is empowered by Section 27 of the Act to pass any sentence authorized by law, except a sentence of death or of transportation or imprisonment for a term exceeding seven years. If he finds a prima facie case made out and he is competent to try for the offence but cannot adequately punish the offender, he cannot commit the accused to the Court of Session but has got to try the accused all the same, and give him such sentence as he may. Why? Only because he has been asked to try the accused; that is to say determine the question of his guilt and bring the trial to a recognized form of termination. If this meaning of the word trial debars him from making an order of commitment, it is the same meaning which, in my opinion, debars him from tendering a pardon.
41. My second reason for holding that a Special Magistrate cannot avail of the provision as to tendering pardon is that I am not prepared to read Section 337 of the Code except as laying down one complete and indivisible procedure relating to an incident in the trial of the case, namely, as to tender a pardon to an accomplice. I use the expression 'trial of a case' advisedly, because the scheme of the Code, as I understand it, is to deal with offences and cases relating to offences and not with offenders. Under the Code it is the offence of which cognizance is taken and trial is held, it is the cases relating to the offences which are committed to the Sessions and so on. The position is very different under the Act, for under the Act the direction is that it is the person who shall be tried. But be that as it may, an investigation into the history of Section 337 of the Code, tracing its origin to the Code of 1861, and noting the successive changes that it underwent in the Codes of 1872 and 1882 and then in the present Code, has convinced me that the provision first got into the Code as one particular incident in the trial, and that the mere fact that in the Code of 1872 that provision was divided into several paragraphs and later on in the Codes of 1882 and in the present Code the same provision was divided into several Sub-sections would not justify us in reading that one provision as consisting of a group of provisions, separate and separable from one another. For over sixty years, since 1872, every Magistrate tendering a pardon has known that by doing so he is taking a step which, if it succeeds, will deprive him of jurisdiction to try the accused persons other than the accused person who is pardoned and it is only if the step fails that he would be able to proceed with the trial against all the accused persons including him. When he takes the step he expects to get rid of the trial, and it is, therefore, to my mind, a step which cannot be regarded as a legitimate step open to a Special Magistrate to take. Besides the right of the other accused persons to have the case committed, in case the tender of pardon is accepted and the pardoned accused is examined as a witness is a right which is so concommitant to a right to fair trial that in the absence of an express declaration by the legislature to that effect I should not be prepared to hold that the legislature has taken away that right, not openly but by a side wind as it were.
42. I am not prepared, therefore, to take Section 337 of the Code in compartments, and to hold that all the compartments, with the exception of that which ensures the right to have the case committed to the Court of Session, may be availed of by the Special Magistrate. As regards the cases mentioned in Question (4), namely Abdul Majid v. Emperor 1933 Cal 537, Mohammad Saleudin v. Emperor 1935 Cal 281 and Appeals Nos. 844 and 845 of 1933, I find that it is the first one on which the others depended. So far as the first one is concerned it is no doubt a case, not under the Act with which we are concerned but under Ordinance 2 of 1932, but its authority in my opinion is not to be discounted on that ground, for the two pieces of legislation are almost pari materia. On reading the decision with care, however, I have come to be of opinion that the contention that a Special Magistrate has no power to tender a pardon under Section 337 of the Code, which is the question before us, was not the contention urged in that case. What was contended in that case was that a Special Magistrate having tendered pardon to the approver was bound to commit the accused for trial to the Court of Session. This contention was overruled on the ground that unless the Court were to hold that no approver could ever give evidence before a Special Magistrate the appellants would not succeed in making the argument logical because it was quite clear that under the ordinance the Special Magistrate was to try the case. At the end of the decision there is an observation that 'there is no ground for supposing that it is impossible for the Special Magistrate to hear the evidence.'
43. But no reasons are given in support of this proposition, and it does not appear that any ground for that supposition was at all put forward for the consideration of the Court. So far therefore as the second group of questions is concerned, my answers are the following:
44. Question 3.--No.
45. Question 4.--The case of Abdul Majid v. Emperor 1933 Cal 537, if it meant to decide to the contrary, and the other cases referred to in the question, in so far as they did so decide, were wrongly decided. I now take up the first group of questions. So far as this part of the reference is .concerned, I cannot help thinking-and I say this with the utmost deference to the referring Judges-that it discloses some misconception as regards the law such as it undoubtedly is. The proposition contended for is that Section 494 of the Code is not intended to and may not be used for the purpose of obtaining the evidence of an accused. This proposition has been sought to be supported by the following process of reasoning:
46. Firstly, there is Section 337 which makes special provisions for this purpose and contains proper precautions and safeguards under which tainted evidence of accomplices and approvers may be made available; and therefore, it is said-and here I quote the words used in the reference:
If, therefore, in such circumstances it was open to the prosecution with the consent of the Court to proceed by way of Section 494, instead of Section 337, the whole of the salutary safeguards provided in the latter section could be avoided and the section nullified.
47. Secondly, it has been pointed out in the reference that while Section 337 specifically lays down the procedure for taking such tainted evidence and finds place in Chap. XXIV headed 'General provisions as to inquiries and trials' in Part VI:
48. Proceedings in prosecutions, Section 494 comes under Chap. 38 headed 'of the Public Prosecutor' in part 9, 'Supplementary Provisions.'
49. And thirdly, as observed by the referring Judges:
one of our main reasons for holding that Section 494 may not be used for the purpose of obtaining the evidence of an accused persons is that, under (9) thereof, he is merely discharged and not acquitted and thus must give his evidence under fear of further prosecution.
50. So far as the first of these reasons is concerned it seems to have been over-looked that Section 337 is available for obtaining the evidence of approvers not in all trials but only as regards trials concerning some graver offences. Curiously enough, the same misconception appears to pervade the arguments that were addressed to the Court in Raman v. Emperor 1929 Cal 319 in which the position taken up was that 'if Section 494 could serve such a purpose, Section 337 would be redundant.' To make these arguments logical, therefore, it will have to be maintained that the legislature never intended that in case of lesser offences, evidence of approvers and accomplices should be ever availed of. That argument would be too bold to deserve consideration; and indeed the referring Judges have nowhere suggested that that should be the position in law. Such a position would be utterly untenable and would find no support whatever in any decision of any Court in this country, so far; while on the other hand any amount of authority may be cited in support of the position that so long as an acomplice is not jointly tried he is a competent witness at the trial of his confederates, whether such accomplice is not to be tried, or is awaiting trial or has been tried and convicted or acquitted or discharged. If Section 494 may not be used for withdrawing a prosecution as against an accused person who is being jointly tried with others, there would be no means left to examine him as a witness against the others in a case in which Section 337 is not applicable. And if it be permissible to examine an accomplice as such witness when he is not to be tried or has been already tried, whatever the result of such trial may have been, there is hardly any reason apparent why by simply putting him forward as a coaccused for a time the prosecution is precluded from using him as such witness. The existence of Section 337 therefore to my mind does not necessarily exclude the idea of Section 494 being used for a similar purpose.
51. As regards the second reason, it should not be overlooked that the Code only deals with such matters as have a direct bearing upon the procedure which obtains in it. Section 337, with its provision for tendering pardon, examining the pardoned accused as a witness if he accepts the pardon, and so on, lays down the procedure for these purposes; and such procedure appropriately finds mention in Ch. 24, headed 'General Provisions as to enquiries and trials' in Part 6, 'Proceedings in Prosecution.' Section 494 concerns withdrawal of prosecutions which, except for the consent which the Court may or may not give for the purpose, is a matter falling within the authority and function of the Public Prosecutor and so not inaptly it has been placed in Ch. 38 headed, 'Of the Public Prosecutor' in Part 9 'Supplementary Provisions.' I am not of opinion that any assistance is derivable for our present purposes from the fact that the sections are placed as stated above. As regards the third reason all I desire to state is that the Indian Legislature has nowhere, except in Section 337 of the Code, shown any such anxiety as it has been credited with by the referring Judges, namely that it intended to exclude evidence given by an accused person under fear of further prosecution. However salutary the principle may be that a person who is under fear of further prosecution should not be trusted to give true evidance, that principle finds no expression in any enactment. And even according to the procedure contained in Section 337 the pardoned approver is not totally free from the apprehension of a further prosecution. The referring Judges have expressed the view that Mitter, J., was under a misapprehension in his appreciation of the English law on the subject. My Lord has already dealt with this matter in his judgment. In construing the provisions of this Code in which the procedure to be followed has been detailed, we need not assume that the principles of English criminal law either substantive or procedural, were intended to be adhered to. On the contrary as pointed out by Lord Halsbury, L. C., in Riel v. The Queen (1885) 10 A C 675, that the words of the statute by virtue of which the Indian Legislature has enacted the Indian Acts, 'are words under which the widest departure from criminal procedure as is known and practised in this country (meaning England) have been authorized in Her Majesty's Dominions.' I have had occasion to consider the terms of Section 494 in Giribala Dasi v. Madar Gazi 1932 Cal 699, and I then said:
The legislature not having defined the circumstances under which a withdrawal is permissible it would not be right to attempt to lay down any hard and fast rule circumscribing the limits within which the withdrawal may be made. . . Section 494, in my opinion, contemplates action to be taken, more often than not upon circumstances extraneous to the record of the case: inexpediency of a prosecution for reasons of State, necessity to drop the case on the ground of public policy, credible information having reached the Government as to the falsity of the evidence by which the prosecution is supported and other matters of that description.
52. I adhere to the view that I thus expressed of the general scope of Section 494. If the prosecution, in order to avail of the evidence of an accused ss against his co-accused, consider it necessary to withdraw from the prosecution as against him the section, in my opinion, would warrant such a course on the ground of public policy. But the withdrawal is dependent on the consent of the Court; and therefore the Court in order to see whether it should consent or not will have to enquire into the reasons which prompt the withdrawal. And if the Court finds that Section 337 with its statutory safeguards is open to be availed of it will be a sound exercise of its discretion to withhold consent. So also I should think the Court would be justified in withholding consent if it finds that the expected evidence will not be relevant or material or necessary. Similarly perhaps would the Court be right in refusing to consent if it finds that the accused in whose favour the withdrawal is proposed was the principal offender and the purpose will be equally achieved if the case as against some other accused who took a lesser part in the offence is allowed to be withdrawn. But no hard and fast rule can possibly be laid down for the guidance of the Courts as regards a matter which is essentially a matter of discretion.
53. It will be noticed that question (1) of the Reference is confined to Clause (a), Section 494. Apparently the referring Judges were of the view, and that obviously is the correct view, that none of the reasons upon which their view of Clause (a) is based will support such view in respect of Clause (b). It is clear, therefore, that if that view is to be accepted it will have to be held that one part of the section may be legitimately used for getting the evidence and the other cannot. The correct view to take of Section 494, in my opinion, is to hold that a withdrawal under that section either under Clause (a) or under Clause (b) is a simple withdrawal unconditioned and unconditional. The Court is concerned only with the question whether the ground for the proposed course is such as would justify it in giving its consent. If the Court finds that the object of withdrawing from the prosecution is to avail of the evidence of the particular accused and the circumstances of the case are such that it would further the ends of justice to have his evidence and that Section 337 is inapplicable, the Court will not be wrong in giving its consent. What the public prosecutor will or will not do thereafter, in a case in which the withdrawal has been under Clause (a) with the effect of a discharge, is a matter which is no concern of the Court. But I think it is only fair that I should say that I have never in my experience come across any case, except this one, in which when the evidence of the discharged accused has failed to reach the required standard he has been again put on his trial for the same offence. If a public prosecutor who makes an application for withdrawing from prosecution against some accused person has some idea concealed in his mind that in case that accused does not give true and proper evidence he will again put him up for trial for the same offence, then he entertains in his mind a desire or a hope that-is unknown to the law, which it is his duty to respect. And a course of that kind, though there is nothing expressly said against it anywhere in the law, would produce what in my view would be a most unseemly spectacle. Unfortunately such treatment was meted out to Nalini in the present case.
54. My answers to the first group of question are the following :
55. Q. 1. Yes, but not in a case in which Section 337 of the Code may be availed of.
56. Q. 2. Yes, because Raman v. Emperor 1929 Cal 319, was a case in which Section 337 of the Code was not applicable.
57. It follows from the answer that I have given to the four questions referred that, if I were to decide these appeals upon the points raised in these questions, I would have held that it was illegal on the part of the Special Magistrate to examine Gouranga as a pardoned accomplice, and therefore his evidence could not be used against the appellants; and that Nalini was rightly allowed to be examined as a witness on his discharge under Section 494 of the Code. But in any case, as I have already said, Nalini not having been tendered for cross-examination, the whole trial was vitiated.
58. Since the facts have been set out in full in the judgment of my Lord the Chief Justice I need not recapitulate them. The learned AdvocateGeneral concedes that the evidence on the record does not justify him in asking the Court to affirm the conviction of the appellants. He also conceded that the course taken by the prosecution in reviving the proceedings against Nalini in such circumstances that the appellants were deprived of their right of cross-examination is an irregularity, which, apart from the merits of the case, makes it impossible for the Crown to succeed. The only course therefore open to us is to allow the appeals and acquit the appellants. I have no doubt that in these circumstances we should, strictly speaking, be justified in declining to answer the questions propounded by the Division Bench. On the ground the appeals can be disposed of without answering them. I think however that it is not desirable to take this course, first because it was not until we had heard an elaborate argument on behalf of the appellants on the points raised by the Division Bench that the Advocate-General informed us of the position taken up by the Crown, and secondly, because I understand that the same points arise in appeals now pending, and it appears reasonably certain that sooner or later the decision of a Full Bench will be necessary.
59. In considering the first two questions we must of course leave out of account the irregularities which occurred subsequent to the consent given by the Special Magistrate to the application of the Public Prosecutor to withdraw from the prosecution of Nalini under Section 494, Civil P. C. In other words we must assume that Nalini never again became a coaccused with the present appellants, and that the present appellants had all the opportunities of cross examining him that the Code provides in the trial of warrant cases by Magistrates. I turn now to the first question:
60. (1) Whether the Court may consent to the Public Prosecutor withdrawing from the prosecution of any person, under the provisions of Section 494 (a), Criminal P. C., for the purpose of obtaining that person's evidence as a witness. The question is framed in precise language and rightly so, we are only called upon to consider those cases, where the circumstances are such that, if the Court in its discretion permits the Public Prosecutor to withdraw, the result of such permission will be that the accused is discharged under Section 494 (a). I wish to emphasize this because the appellants have sought to establish a proposition much wider than is necessary for a negative answer to the question. It is plain that what impressed the Division Bench was that, in their opinion, no reliance can be placed upon the evidence of a witness who, being discharged and not acquitted, is still in jeopardy of again being accused and ultimately convicted of the offence in respect of which he was originally an accused. They say (pp. 117, 126):
The witness would give his evidence well knowing that under Section 494 (a) he had only been discharged, and that be remained liable to be harassed with another trial unless his evidence were considered by the prosecution to be satisfactory and favourable to their case. This was what happened to Nalini in the present case. Evidence given under such an apprehension would not be likely often to be reliable.
61. The appellants however argue that at no stage of a trial before a Magistrate should the Public Prosecutor be permitted to withdraw from the prosecution of one of a group of accused for the purpose of obtaining his evidence against the others. They base their contention not so much on the quality of the evidence so obtained, as on the apprehensions, which, it is suggested, the consent of the Magistrate will cause in the minds of the remaining accused. It is pointed out that where a Magistrate tenders a pardon under Section 337 (1), Criminal P. C., the Magistrate, if he thinks that there are reasonable grounds for believing that the accused is guilty of an offence, must under Sub-section 2-A commit him for trial to the Court of Session or High Court even although the case is one triable by himself. It is suggested that the reason for this is that in giving his consent to the withdrawal the Magistrate is ' helping the prosecution', and that thereafter the remaining accused persons will suspect, possibly quite unjustifiably, that the Magistrate has made up his mind as to their guilt.
62. Reference was made to Paban Singh v. Emperor (1906) 10 C W N 847, where it was held that a Magistrate, specially empowered under Section 30, Criminal P. C., to try cases exclusively triable by a Court of Session, could not after tendering a pardon under Section 337 (1) try the case himself, and that he was subject to the restrictions imposed by Section 337 Sub-section 4, as it then.stood. This case does not appear to me to throw any light on the matter. I asked counsel for the appellants whether, if the proposition for which he was arguing was correct, it did not follow as a result, that it would be impossible in a trial before a Magistrate for the prosecution to tender the evidence of an approver except in those cases covered by Section 337 (1). In reply to my question counsel stated that it would always be open to the prosecution to have the accused tried separately, in which case each accused person would be a competent witness against or on behalf of such of his fellow accused as were being tried in different proceedings but for the same offence: Empress v. Durant (1899) 23 Born 213, Akhoy Kumar Mookerjee v. Emperor 1919 Cal 1021. I can only say that if such a course is legal, as it apparently is, the objections to it are fully as strong as any that can be urged against permitting withdrawal from the prosecution under Section 494. With regard to the narrower question propounded by the Division Bench, there is nothing in the Code to suggest that the legislature has intended to fetter the discretion of a Court in giving its consent to withdrawal under Section 494 where the circumstances are such that the accused will be discharged and not acquitted. The discretion however is a judicial discretion, and it appears to me that in cases, where it is open to the prosecution to obtain the approver's evidence by applying for the tender of a conditional pardon under Section 337 (1), the Magistrate must keep the provisions of that section before him when he exercises his discretion. I am disposed to go further, and to say that as a general rule the discretion will be wrongly exercised in such cases if the consent is given before the charge is framed. For reasons that I shall give shortly I am of opinion that the Magistrate in this case had power to tender a conditional pardon under Section 337 (1). No grounds have been suggested why the Magistrate should not.have tendered a conditional pardon to Nalini, and I am therefore of opinion that he exercised his discretion wrongly.
63. Subject to the observations I have made I would answer questions 1 and 2 in the affirmative. I would remark that the case of Raman v. Emperor 1929 Cal 319 was one to which Section 337, Criminal P. C., had no application. I would also draw attention to and express my agreement with the observations of Meares, C.J. and Piggott, J., in Emperor v. Har Prosad 1923 All 91:
There is no provision in Indian Statute Law, nor is there any principle of natural justice, which makes an accomplice, as such, an incompetent witness in respect of the offence in the commission of which he was an accomplice. The prosecution is not evading the provisions of Section 337, Criminal P. C., where it puts into the box an accomplice in the commission of an offence to which that section does not apply.
64. I have now to consider Questions Nos. 3 and 4. (3) Whether a Special Magistrate appointed under Section 24, Bengal Suppression of Terrorist Outrages Act 12 of 1932, has power to tender pardon, under the provisions of Section 337, Criminal P. C., or otherwise. (4) Whether the cases of Abdul Majid v. Emperor 1933 Cal 537 and Mohammad Saleudin v. Emperor 1935 Cal 281, and Appeals Nos. 844 and 845 of 1933 were upon this point rightly decided. The relevant provisions of the Bengal Suppression of Terrorist Outrages Act, 1932 are the following: Under Section 24, the Local Government has power to invest any Presidency Magistrate and certain Magistrates of the First Class with the powers of a Special Magistrate. Under Section 25 the Local Government has power by order in writing to direct that a person suspected of committing certain offences (including the offences with which these appellants were charged) or offences under the Arms Act, 1878 be tried by a Special Magistrate. Under Section 26, Sub-section 1 in the trial of any case under the Act such Special Magistrate is to follow the procedure prescribed by the Criminal Procedure Code for the trial of warrant cases by Magistrates. SubSection 2, Section 26, is as follows:
In matters not coming within the scope of Sub-section (1) the provisions of the Code, so far as they are not inconsistent with this Chapter, shall apply to the proceedings of a Special Magistrate and for the purposes of the said provisions the Special' Magistrate shall be deemed to be a Magistrate of the First Class.
65. The only other relevant section is Section 34:
The provisions of the Code and of any other law for the time being in force, in so far as they may be applicable, shall apply to all matters connected with, arising from or consequent upon a trial by Special Magistrates.
66. What we have to decide is whether the provisions of Section 337 (1), Criminal P. C., giving a Magistrate power to tender a pardon on condition that the person to whom the pardon is tendered do make a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence, and the provisions of Section 337 (2) directing that every person accepting such a tender shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence, are inconsistent with the Bengal Suppression of Terrorist Outrages Act: for if they are not inconsistent they will apply to trials by Special Magistrates by reason of Sub-section 26-(2) and 34 of the Act. The appellants submit that a broad interpretation is to be given to the word 'provisions' in Sub-section 26 (2) and 34. Section 337, Criminal P. C., provides a definite machinery, whereby in certain cases the prosecution may obtain the evidence of an approver against his co-accused in cases tried by a Magistrate.
67. First there is the tender of the pardon, then, if it is accepted, examination by the Magistrate, then, if a prima facie case against the accused is made out, committed to the Court of Sessions or the High Court. It is argued that if Section 337 cannot be applied in its entirety then its provisions are 'inconsistent' with the Bengal Suppression of Terrorist Outrages Act within the meaning of Sub-section 26 (2) and 34 of the Act. I agree with the contention that it makes no difference whether the section is subdivided into numbered Sub-sections, as it is now, or not so sub-divided, as was the case before 1923. In my opinion however the various powers and directions given to Magistrates by Section 337 are so distinct and independent that each is a provision within the meaning of the Local Act. The position would be different if under the Code as soon as the conditional pardon were accepted the Magistrate at once lost seizin of the case, and was bound to transfer it or commit the accused to another Court. This however is not so, for under Sub-section 2 the Magistrate has then to examine the person who has accepted the pardon, and his evidence becomes evidence in the case. Neither the power to tender the pardon, nor the obligation to examine the recipient of the pardon, can reasonably be said to be inconsistent with the Local Act, though the obligation to commit the accused to another Court is admittedly so. Two other arguments must be noticed. It has been suggested that the Special Magistrate is only clothed with power to 'try' the accused under Section 25 Local Act and not with the power to 'pardon.' This argument seems to me to construe 'try' and 'trial' in an artificial and unnecessarily narrow fashion. Section 337, Criminal P. C., is part of Ch. 24 which contains 'General Provisions as to Inquiries and Trials,' and the power to tender a pardon can be exercised 'at any stage of the investigation or inquiry j into, or the trial of the offence.' In this case four persons were being tried together, and in my opinion the Special Magistrate authorized under Section 25 (1) had all the powers which the Code confers on Magistrates trying such cases, save such powers as are clearly inconsistent with the Local Act. Finally the appellants base an argument on a comparison of the Bengal Suppression of Terrorist Outrages Act, 1932, with the Bengal Criminal Law Amendment Act 1925. It is pointed out that by Section 7 of the earlier Act, the provisions of the Code, so far only as they are not inconsistent with the provisions of, or the special procedure prescribed by, or under the Act shall apply to the proceedings of Commissioners appointed under the Act, and such Commissioners shall have all the powers conferred by the Code on a Court of Sessions exercising original jurisdiction. Under Section 5 (1) the Commissioners have power to take cognizances of offences without the accused being committed to them for trial, and in trying accused persons they are to follow the procedure prescribed by the Code for the trial of warrant cases by Magistrates. By Section 8 (1) Commissioners are given power to tender pardon. By Sub-section (2) where the pardon has been tendered and accepted before the order for trial by Commissioners has been made, the provisions of Section 337 (2) and (3) are to apply as if the accused person had been committed for trial to the Commissioners.
68. It is argued that Sub-section 1, Section 8 shows that in the opinion of the Legislature Section 7 did not confer upon Commissioners the power to tender pardon given by Section 338, Criminal P. C. to the Court of Sessions and the High Court. I do not think any guidance can be obtained from the former Act, as the construction of the Act with which we are dealing seems reasonably clear. It may be the words 'after commitment' and 'the Court to which commitment is made' in Section 338, Criminal P. C. seemed to the legislature likely to create a difficulty and that for greater caution Section 8 was inserted in the Act of 1925. I have therefore arrived at the conclusion that questions 3 and 4 must be answered in the affirmative.
69. The case Abdul Majid v. Emperor 1933 Cal 537, which is referred to in question 4 and which has been followed in the subsequent cases, was a case tried under Ordinance 2 of 1932, the relevant provisions of which correspond to Sub-section 26 and 34, Bengal Suppression of Terrorist Outrages Act 1932. The argument is not reported, and it was suggested that the point now raised by the Division Bench was not decided in that case. It was sought to be inferred from certain observations of Rankin, C. J., that the case only decides that a Special Magistrate, who has tendered a pardon, has no power to commit for trial under Sub-section 2-A of Section 337. Criminal P. C., This view is perhaps confirmed by what is, in my opinion, an inaccurate and unsatisfactory head-note. Reading the whole of the learned Chief Justice's judgment I have no doubt at all that so ridiculous a submission as that the Magistrate had such a power was never made to him, and that the point decided by that Division Bench was substantially the same as the point formulated by the Division Bench making this reference.
M.C. Ghose, J.
70. I agree with my Lord the Chief Justice.
71. I agree that these appeals must be allowed on the merits, but that we should not therefore decline to answer the questions propounded by the Division Bench, though we are strictly speaking entitled to do so. I am of opinion that all the questions so propounded must be answered in the affirmative. On the first question: Section 494, Criminal P. C., contains no reference to the object of withdrawing from a prosecution. It simply empowers the Public Prosecutor, with the consent of the Court, to withdraw proceedings, and defines the effect of this procedure. In the case which we are called on to consider, that effect is the discharge of the accused. The section does not deal with what may happen after that discharge or lay down any considerations which apply to the exercise of the Court's discretion to grant or refuse consent.
72. In view of the provisions of Section 337, the evidence of an accomplice is available to the prosecution, and the Court cannot be said to make an improper use of its discretion in consenting to the discharge of an accused on the ground that it is proposed to examine him as a witness. Nothing in the Code expressly limits the discretion given by Section 494 and the position that a discharge for the purpose of obtaining the evidence of an accused is contrary to the spirit of the Legislature does not appear to me to be in the least degree a sound position. It has been said that such a procedure is by way of bargain and should not be allowed; secondly that it must tend to affect the confidence of the accused on trial in the impartiality of the Court. Now the law provides for a conditional pardon in specific cases. I do not therefore think that there is anything contrary to its spirit if the Court consents to the withdrawal of a charge in order that the accused may be put into the witness box. Further, the Court, in the exercise of its discretion, cannot refuse to consider the interests of all the parties who are before it. I agree however that in cases to which the provisions of Section 337 apply, it is a better exercise of discretion on the part of the Magistrate to use that section instead of Section 494. With regard to the third question referred by the Division Bench, the answer depends on the interpretation of a statute which modified the previous law governing the conduct of criminal trials. I agree with the interpretation placed on the relevant sections of that statute in the judgment of Panckridge, J., and cannot usefully amplify what has there been said.
73. The result is that the appeals are allowed, the convictions quashed and the accused are acquitted. The appellants, as they are on bail, will be discharged from their bail bonds. This order however does not entitle the appellant Saroj Bhusan Roy alias Topa Roy to be released if he is undergoing imprisonment in respect of some other offence.