EMPEROR Vs. INTYA SALABAT KHAN

JUDGEMENT

(1.) This is a reference made by the learned Sessions Judge of Khandesh in the following circumstances. Five persons were originally sent up for trial before the First Class Magistrate, West Khandesh, on a charge of dacoity under Section 397, Indian Penal Code. At the beginning of the Magisterial inquiry pardon was granted to one of the accused, named Intya, whom we will hereafter refer to as the "approver"; and the case proceeded against the remaining four accused. The case, however, never went beyond the Magistrate s Court, for in that Court the approver, examined as a witness, denied all knowledge of the alleged dacoity, and in the absence of material evidence against the four accused, they were discharged by the Magistrate under Section 209 of the Criminal Procedure Code. After that was done, the pardon which had been tendered to the approver was withdrawn. The case against him in regard to the dacoity was proceeded with under Section 339 of the Criminal Procedure Code, and it has ended in his being committed for trial to the Court of Session.

(2.) The learned Sessions Judge points out that the result of these proceedings, if they are to terminate where they now stand, is that the four accused persons, who were discharged, will escape ever having been tried upon one material piece of evidence, which was not laid before the Magistrate, but which could be laid before the Court, if the discharged accused are ordered to be re-tried along with the approver. This piece of evidence is a confession which was made by the approver, and which is said to incriminate both himself and the other accused.

(3.) The question which we have to answer is whether we have power to direct that the accused persons, who were discharged, shall be subjected to a re-trial jointly with the approver. We are of opinion that that question must be answered in the affirmative. It is clear that, under Section 437 of the Criminal Procedure Code, in the case of any accused person who has been discharged, we have power to direct farther inquiry. We have also power to direct, if that inquiry should end in the framing of a charge, that the accused person be committed for trial to a particular Court. Prima facie, therefore, we have power to order in the case of these accused persons, who were discharged, that there shall be a fresh inquiry, and if that inquiry ends in the framing of a charge, the four accused persons shall be committed to the Court of Session in Khandesh.