STATE Vs. BHOORA

JUDGEMENT

(1.) This revision application raises some points of law.

(2.) Bhoora and thirteen, others are standing their trial under Sections 395 and 396 I. P. C. in the court of the Additional Sessions Judge, Jalore Shri G. D. Badgel. A fresh trial became necessary because of the retirement of Shri Badri Narayan Vyas Additional Sessions Judge in whose court they were originally tried. One Bhalia was granted pardon by the District Magistrate, Jalore on 6-51958 and was examined as a prosecution witness before the committing Magistrate. Since Bhalia did not comply with the terms of pardon, the learned Public Prosecutor on 27-11-1958 submitted an application before Shri Vyas to the effect that as Bhalia has forfeited the pardon he did not want to examine him at the trial. When the trial again began before Shri Badgel, the learned Public Prosecutor expressed his desire to examine Bhalia as a witness. This was objected to on behalf of the accused on the ground that the pardon granted to Bhalia had been withdrawn and he was no longer a competent witness as after the withdrawal of the pardon his position was that of a coaccused. It was further objected that once the prosecution has given up a particular witness it is not entitled to request the court again to examine him on its behalf. These objections found favour with the learned Additional Sessions Judge who did not allow the prosecution to examine Bhalia. The State has come in revision against this order.

(3.) Learned Deputy Government Advocate contends that even though a certificate was issued by the Public Prosecutor that Bhalia had not complied with the terms of the pardon and had forfeited it yet in view of the provisions of Section 337(2), Cri. P. C. the prosecution was bound to examine him as a witness at the trial. In the alternative it is contended that even after the withdrawal of pardon Bhalia remains a competent witness and can be examined against the other accused as he is not being jointly tried with them. As regards the objection that he was given up as a witness on 27th November, 1958, it is urged that as a new trial is taking place it is open to the prosecution to examine him as a witness and the former application to leave him cannot be a bar.