Das Gupta, J. - (1.) The four persons who are the petitioners in Revision No. 783 of 1953 and Kunjalal Goenka who is a petitioner in Revision No. 784 of 1953 and one Muhammad Yusuf were prosecuted for offences under Section 120B read with Sections 420, 467/471 and 403/34, I. P. C. The enquiry under Chapter 18, Criminal P. C., commenced in the court of Mr. P. Ghose, Presidency Magistrate, Calcutta. After some witnesses had been examined, pardon under Section 337, Criminal P. C. was tendered to Mahammad Yusuf and he was examined as a witness in the case. After the prosecution had examined its remaining witnesses and the defence had examined four witnesses the learned Magistrate passed the following order : "On perusal of the evidence both oral and documentary and hearing the arguments of the learned Public Prosecutor and the learned Counsel and Advocates representing the different accused it appears to me that no offence exclusively triable by the High Court sessions has been made out during the enquiry and instead offence for framing charges Under Section 420/120B, I. P. C. and 420, I. P. C. have been made out, which offences do not come within the ambit of the provisions of Section 337, Cr. P. C. and as such the pardon tendered to accused Md. Yusuf under that section loses its legal force and he reverts to his former position as an accused arid his evidence taken during the Enquiry as P. W. 17 after tendering pardon Under Section 337, Cr. P. C. will stand expunged. No offence on evidence having been made out against accused Kunjalal Goenka and Harbans Narain Singh they are ordered to be discharged Under Section 209, Cr. P. C. Framed charge Under Section 120B/420, I. P. C. against accused (1) Narsingdas Lakhotia, (2) Amarchand Lakhotia, (3) Jagabandhu Bose and (4) Md. Yusuf, framed charge Under Section 420, I. P. C., against accused Narsingdas Lakhotia. Charges having been explained to them they pleaded not guilty and claimed to be tried. The trial of the aforesaid offences will proceed in this court assuming the character of a warrant procedure case. To 10-11-52, for cross-examination of the P. Ws. except P. W. 18 who will be recalled as a remaining P. W. as he was examined after accused. Mr. Yusuf was tendered pardon Under Section 337, Cr. P. C. and examined as a witness. Recall other P. Ws. for cross-examination. Accused Md. Yusuf is to find fresh bail of Rs. 6000/- with 2 sureties of like amount. Other accused as before." On 11-11-1952 the learned Magistrate amended the charge to one under Section 120B read with Sections 420 and 406, I. P. C. against the petitioners Narsingdas Lakhotia, Amarchand Lakhotia, Jagabandhu Bose and under Sections 406 and 420, I. P. C. against Narsingdas Lakhotia. He also framed a charge under Sections 120B/420/406, I. P. C. against Muhammad Yusuf. On being moved by Muhammad Yusuf this Court set aside the order revoking the pardon tendered to him and also the order framing charges against Muhammad Yusuf.
(2.) In disposing of the Rule the following observations were made by Mitter, J.: "Under Sub-section (2A), when 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." It is to be noticed that the question whether the Magistrate had power to proceed with the trial of the other accused was not for consideration before the Court. The observation in the concluding portion "That being so, the learned Magistrate concerned has no power to proceed with the trial of the other accused" must be treated to be obiter dictum.
(3.) Apparently, however, in view of this observation the learned Magistrate to whom the case was transferred felt himself bound to treat as a nullity the orders passed by the Magistrate Mr. Ghose on 30-10-1952 discharging Kunjalal Goenka and Harbans Narain Singh and the other order framing charges for different sections for trial in the Magistrate's Court. The conclusion is recorded by the learned Magistrate in these words : "The result is that the order directing framing of charges for trial in this court or the order of discharge in favour of the 2 accused is both erroneous and without jurisdiction and must be treated as non-existent. This jurisdiction was assumed on 30-10-52 and whatever was done since that date must also be treated as such, and this court must proceed as if no such Jurisdiction was assumed and no such order passed. There being no valid order of discharge, the two accused Kunja Lal Goenka and Harbans Narain Singh must be treated as accused standing trial before me.";