Mahomed Yusuf vs The State

Mitter, J.—This Rule involves the interpretation of Section 337 of the Code of Criminal Procedure.

The facts which led to the making of this application were as follows: On January 2, 1952, the Petitioner and several others were arrested by the police upon charges under Sections 420/467/471/120B and 403/34 of the Indian Penal Code. Shortly thereafter, the Petitioner made a confession before a Magistrate. In the course of the enquiry, the Petitioner prayed for pardon by a written application in which he made a full disclosure of his own acts and those of his co-accused in the commission of the offences alleged against them. The Petitioner''s confession previously made before a Magistrate was then duly proved and the learned Magistrate making the enquiry tendered pardon to the Petitioner u/s 337 of the Code. Thereafter, the Petitioner was examined as a witness for the prosecution. After he had been cross-examined, the learned Magistrate considered the evidence in the case, oral as well as documentary, and came to the conclusion that it did not disclose any offence triable exclusively by the High Court or court of sessions, or any other offence which came within the ambit of Section 337. Accordingly, the learned Magistrate purported to revoke the pardon tendered to the Petitioner and ordered that his evidence be expunged from the record. The learned Magistrate then framed a charge u/s 120B read with Section 420 of the Indian Penal Code against the Petitioner and several others. It was at this stage that the Petitioner moved this Court and obtained this Rule.

Two questions fall to be determined (i) whether in the circumstances disclosed, the learned Magistrate had jurisdiction to tender pardon to the Petitioner, and (ii) whether he could revoke it except under the provisions of Section 339 of the Code.

As to the first point, it is clear from the section that a Magistrate making an enquiry into an offence specified in the section has jurisdiction to tender pardon to an accused if the facts alleged constitute that offence. This jurisdiction is not affected by any subsequent finding that no offence triable exclusively by the High Court or court of sessions is made out. To the same effect was the decision of the Allahabad High Court in Bholanath v. Emperor AIR (1839) (All.) 567. That being the position, it seems to us that where a pardon has been tendered under circumstances which prima facie disclosed an offence specified in the section, the person who accepted the pardon could only be tried upon a certificate of the public prosecutor in terms of Section 339. There does not appear to be any provision for revoking or forfeiture of pardon in any other circumstance. In the case before us, the gleamed Magistrate had not only no jurisdiction to revoke the pardon but also no jurisdiction to order the Petitioner''s trial jointly with the others or at all. In our ''view, the two orders concerned were made in breach of the respective provisions of Section 337 and Section 339 and must, therefore, be set aside.

Under Sub-section (2A), where a person has accepted a tender of pardon and has been examined as a witness, the Magistrate, if he believes that a prima facie case against the other accused is established, should commit such accused to the sessions court or to the High Court, as the case may be, and has no power to try the case himself, even if he is otherwise competent to do so. That being so, the learned Magistrate concerned has no power to proceed with the trial of the other accused.

In the result, this application succeeds and the Rule is made absolute.

Sen, J.

I agree.