KULLAN Vs. EMPEROR

JUDGEMENT

(1.) In this case a pardon was tendered to the appellant by the Committing Magistrate under the orders of the District Magistrate. The appellant was then examined as a witness before the Committing Magistrate and at the trial before the Sessions Judge when he retracted the evidence previously given by him in such a manner as to lead to the acquittal of some of the accused. Thereupon the District Magistrate under whose authority the pardon had been granted, acting apparently on the authority of Queen-Empress V/s. Ramasami 24 M. 321 purported to withdraw the pardon and the appellant was subsequently tried and convicted of dacoity, the offence of which a pardon had been tendered. In the Sessions Court he appears to have pleaded his pardon, and to have relied mainly on the contention that the District Magistrate was not the person authorised to withdraw it. The learned Public Prosecutor has, however, on appeal, very rightly directed our attention to the Bombay decisions in King- Emperor V/s. Bala 25 B. 675 and Emperor V/s. Kothia 30 B. 611 which if they are correct, show that the pardon was still in force and that the trial was illegal.

(2.) The question depends upon the true construction of Section 339 as it now stands in the Criminal Procedure Code of 1898, but with a view of arriving at a correct construction, it seems desirable to trace the various changes by which the section came to assume its present form.

(3.) In England the practice has been and still is to allow an accomplice to turn King's evidence as it is called on a promise of pardon if he makes a full and true disclosure, and if he fails to do so no pardon is granted him, and until a pardon is granted him he cannot plead it in bar of the trial. The King V/s. Garside 2 A. & E. 266. It is there pointed out that the most the Court before which he is indicted could do, if he claimed to have earned his pardon by making a full and true disclosure, would be to adjourn the case to enable him to apply for a pardon. The difficulties which have arisen under the Criminal P. C. could, therefore, never have arisen in England.