1. This rule is directed against an order of the Chief Presidency Magistrate by which he allowed the Public Prosecutor to withdraw a criminal prosecution pending against Bijoy Bhusan Bose and further allowed him to be examined as a witness. The order discharging Bijoy was made under Section 494, Criminal P.C. It appears that the said Bijoy Bhusan Bose along with several others including Raman who is the petitioner before this Court was sent up to take his trial on a charge of conspiracy to cheat under Section 120-B read with Section 420, I.P.C. On 20th December 1928 before any evidence was gone into the Public Prosecutor wanted to withdraw the case against Bijoy and to examine him as a witness against the petitioner Raman. This prayer of the Public Prosecutor was allowed, Bijoy was discharged and he was subsequently examined for the prosecution.
2. It is contended in this rule: (i) that the order of withdrawal is bad in law as no reasons have been given by the Chief Presidency Magistrate and (ii) it was not open to the trying Magistrate to permit the withdrawal of the prosecution against Bijoy in order to examine him as a witness against his co-accused viz., the petitioner.
3. In support of ground 1 taken, two decisions of this Court have been referred to: they are the cases of Umesh Chandra Roy v. Satish Chandra Roy  26 C.L.J. 208, and Jagat Chandra Roy v. Kalimuddin : AIR1924Cal382 . These cases undoubtedly lay down that the order on an application for withdrawal made by the Public Prosecutor under Section 494, Criminal P.C., is passed by the Court in its judicial capacity and the Court must give and record its reason so that the High Court may be in a position to say whether the discretion vested in the Court has been properly exercised. The learned Deputy Legal Remembrancer appearing for the Crown has contended that these decisions are wrong as Section 494 nowhere says that reasons should be recorded and he relies on the decision of the Patna High Court in the case of Gulli v. Narain A.I.R. 1924 Pat. 283. We are bound, however, by the decisions of our own Court and we think that as the order under Section 494 is a judicial order the Court should record reasons in order to enable the High Court to judge whether the order of the withdrawal has been rightly made. In this case, however, the Magistrate has given his reasons for allowing the withdrawal and he states in effect that the withdrawal is allowed in order that Bijoy who was indicated jointly with the petitioner might give his evidence against the latter. This leads me to consider ground 2 raised as to whether this is a sufficient and good reason for allowing an withdrawal. The argument of the petitioner is put in this way :-It is said that S, 337, Criminal P.C., is the only section which lays down the procedure which is to be followed in the case of certain offences with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to the said offences and this provision seems to import the idea that it is only in particular cases that evidence of a co-accused is available against the other and is so available under certain conditions and safeguards and that it could not have been the intention of the legislature to allow a co-accused to depose against another except under the safeguards mentioned in Section 337. We are unable to agree with this contention. Section 494 of the Code stands by itself. The effect of the section is that as soon as an accused is discharged under that section he is taken away from the category of an accused parson and becomes under the general principles of law a competent witness against his co-accused. The question is :- Is there anything wrong in law in allowing the Public Prosecutor to withdraw the prosecution against Bijoy in order that he may call him as a witness for the prosecution.
4. It appears that so far back as 1840 Erskine, J., cited a passage from Hale P. C 118 that:
when the accomplice has been joined in the indictment, and before the case comes on it appears that his evidence will be required, the usual practice is, before opening the case, to apply to have the accomplice acquitted : see. Regina v. Lyons 9 Carr. & P. 555.
5. In the same case Erskine, J., cited another passage from Lord Hale which runs as follows:
Where a party had been joined in the indictment and is was intended to call him as a witness for the prosecution it was formerly the practice to enter nolle prosequi as to him.
6. The learned Deputy Legal Remembrancer has drawn our attention to the case of Queen v. Owen 9 C. & P. 83 where three persons were indicted for a rape and were also indicted for the murder of the party alleged to have been ravished and where before the trial on the indictment for rape the counsel for the prosecution asked to have one of the prisoners acquitted in order that he might call him as a witness against the others, Williams, J., held notwithstanding opposition by counsel for the other prisoners, that in cases of this kind the Court will, if it sees no cause to the contrary entrust it to the discretion of the counsel for the prosecution to determine whether he will have a prisoner acquitted before the trial commences to call such prisoner as a witness against the other prisoners. Williams, J., having conferred with Alderson B, said:
I had little doubt as to the course I ought to take, and my learned brother entirely agrees with me that this is a matter very much of ordinary occurrence. In cases of this kind, the Court if it sees no cause to the contrary, is in the habit of relying on the discretion of the learned Counsel who conduct the prosecution. I shall, therefore, in this case entrust it to the discretion of the learned Sergeant to determine whether he will have the prisoner Owen acquitted before the case is gone into or not. I think it almost of course.
7. In Winson v. Queen  1 Q.B. 289, Cockburn, C.J., said:
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 truthfulness 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 mind free of all the 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.
8. In this case which was carried to the Exchequer Chamber on a writ of error from the Queen's Bench it was held that where two prisoners are indicated jointly for a felony and plead not guilty, but one only is given in charge to the jury the other is an admissible witness although his plea of not guilty remains on the record undisposed of: See Winsor v. Queen  1 Q.B. 390.
9. In Russell on Crimes, p. 2114 (8th Edition) it is stated that it is a common practice after the indictment has been founded on the accused arraigned to offer no evidence against the accomplice and on his acquittal to call him for the Crown. In R. v. Rowland Ry. & M. 401 upon an indictment for conspiracy the Court allowed an acquittal to be taken against some of the defendants in order that they might be called as witnesses for the prosecution. In Queen v. Payne  1 Cr. C.R. 349 Cock-burn, C.J., stated that this was a convenient rule and practice: see 354-55. In Phipson on Evidence the learned author states that to render co-defendant competent to be called by the prosecution, each co-defendants must have been acquitted, or have obtained a nolle prosequi or have pleaded guilty: see p. 453, 5th edition. It is the right of the Crown at any stage of a trial but before judgment is pronounced, to enter a nolle prosequi. Section 333 gives the power to the Advocate General in cases tried before the High Court. In other cases the Public Prosecutor performs a similar function (S.494.)
10. In the case of withdrawal by the Public Prosecutor the consent of the Court is necessary under the Criminal Procedure Code. The result of the authorities is that where the Court is considering whether the Chief Presidency Magistrate has rightly made the order of discharge under Section 494 or not, one test and a very important test is whether in coming to a decision it has taken into consideration extraneous circumstances which ought not properly to have been taken into account. The present question may usefully be approached with decisions cited in mind.
11. 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 co-accused 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 the 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 on withdrawing the prosecution against Bijoy in order that his evidence might be available after his discharge against the petitioner Raman who was being jointly tried with him, on charges of conspiracy and cheating. For the reasons given above I think this Rule should be discharged.
12. It remains to notice an argument of the learned Deputy Legal Remembrancer that the High Court ought not to interfere against an order of discharge of an accused person at the instance of a third party. It seems to me, however, that when such an order has the effect of operating to the detriment of such third person he has right to apply in revision against such an order.
13. I agree with my learned brother in discharging this rule. In my judgment, however, decision of this Court referred to by my learned brother laying down that in giving consent under Section 494 the Magistrate is bound to record his reasons in writing have to be, on a proper occasion, reconsidered. To hold so would be to improve upon the legislature and to introduce into the section some words not used by the legislature, which seem to have been intentionally omitted as in some other eases expressly used Sections 204, 219, 250, 253, 341 and other sections. It seems to me that it is a matter between the Public Prosecutor and the Magistrate and neither of them need assign any reason to record. But in this case the reason is given.
14. On the main question I do not think that Sections 337 and 494, Criminal P.C, should be read together and held that the former governs the latter and abridges in any way the wide words of Section 494. Section 337 appears in another connexion and deals only with granting pardon to an under trial prisoner in some serious cases. If he satisfies the condition of the pardon he gets acquitted; if not, he may be tried for the offence, But if a case is withdrawn under Section 494 the accused, if he is discharged, may be tried for the offence which he admits in his examination as a witness to have committed; and if he is acquitted he cannot be retried even though he refuses to give hoe evidence for the prosecution. The learned Counsel for the petitioner concedes that it would be a correct procedure first to withdraw the case against Bijoy and then to put him in the witness-box. The objection, therefore, is to the form and not to the substance of the matter. The Rule is discharged.