BANU SINGH Vs. EMPEROR

JUDGEMENT

(1.) The appellants, except Gouri Singh, are not represented before us. The Advocate-General has appeared to support the conviction.

(2.) The main question argued before us relates to the legality of the conditional pardon to Mohendm Bind and the admissibility of his evidence.

(3.) On the 3 May 1906 we held in an appeal in another case under Section 400, Indian Indian Penal Code, tried by the same Deputy Commissioner of Maubhum, in which the same Mohendro Bind figured as an approver-witness and was given conditional pardon under the same order of the Government, that his evidence was inadmissible. Paban Singh V/s. Emperor (1906)10 C.W.N. 847. An offence under Section 400, Indian Penal Code, is exclusively triable by a Court of Session, and in that case the conditional pardon could have been tendered by the Deputy Commissioner under Section 337 of the Criminal Procedure Code. In the present case, which is triable by a Court of Sessions as well as a Presidency Magistrate or a Magistrate of the first class, no pardon could be given to an accomplice by a Magistrate under Section 337 of the Code, and Secs.337 and 338 do not apply. It was contended in that case that the conditional pardon granted to Mohendro Bind might be considered as a pardon tendered by a Magistrate of the first class in a case exclusively triable by a Court of Sessions, but the argument could not be accepted, as, even if Mohendro Bind could be examined as a witness, the conditional pardon having been legally tendered, the Deputy Commissioner was incompetent under Clause (4) of Section 337 to try the case. We held also that the Local Government could not tender a conditional pardon and thus make the evidence of an accomplice admissible against his co-accused. This last point has been re-argued before us.