The District Magistrate had the authority to tender a pardon under S. 337 of the Code of Criminal Procedure in a case concerning an offense triable exclusively by the Special Judge, as the Court of Special Judge was deemed to be a Court of Session for the purposes of the Code and the Act.

Judgment

JAFER IMAM J. : The appellants, who were police constables at the time of the occurrence, were convicted by the Special Judge of Delhi under S. 120-B and S. 224/109 of the Indian Penal Code and S. 5 (2) of the Prevention of Corruption Act, (2 of 1947). They were sentenced to two years rigorous imprisonment under S. 5 (2) of the Prevention of Corruption Act, 1947 and to nine months rigorous imprisonment under each of the Ss. 120-B and 224/109 of the Indian Penal Code. The sentences of imprisonment were directed to run concurrently. Their appeals to the Punjab High Court were dismissed and the present appeals are by special. Leave.

2. The case of the prosecution, as stated in the charge, was that the appellants had conspired at Delhi with Ram Saran Das, the approver, M. P. Khare, Nand Parkash Kapur and Murari between the 6th and 16th of November, 1955 to bring about the escape from lawful custody of M. P. Khare, an undertrial prisoner, and that they had also agreed to accept Rs. 1,000 each and other pecuniary advantages as illegal gratification for rendering the escape of M. P. Khare from lawful custody and that in pursuance of the said conspiracy they had abetted the escape of M. P. Khare and that they had accepted the illegal gratification from Nand Parkash Kapur. It is clear from the findings of the Courts below that M. P. Khare escaped from lawful custody and the appellants had enabled him to do so and that they had received money as illegal gratification for the part they had played in enabling M. P. Khare to escape from lawful custody.

3. The learned Advocate for the appellants had submitted five points for our consideration in support of his contention that the conviction of the appellants must be set aside (1) the pardon tendered to the approver Ram Saran Das by the District Magistrate of Delhi under S. 337 of the Code of Criminal Procedure was without jurisdiction and authority. Consequently, the evidence of the approver was not admissible (2) on the case of the prosecution, the offence of conspiracy to commit an offence under S. 224 of the Indian Penal Code had not been committed but that offence, if at all, was one under S. 222 of the Indian Penal Code. As an offence under S. 222 of the Indian Penal Code is a non-cognizable offence no conviction under S. 120-B of the Indian Penal Code could be had in the absence of a sanction under S. 196-A of the Code of Criminal Procedure (3) Prosecution witnesses Mela Ram, P. W. 6, and Shiv Parshad, P. W. 7. were accomplices on their own showing and as such their testimony could not be taken into consideration (4) no test identification parade of the appellants had been held (5) the charge, as framed, contravened the mandatory provisions of S. 233 of the Code of Criminal Procedure.

4. Points 3, 4 and 5 may be disposed of at the outset. We have examined the evidence of Mela Ram and Shiv Parshad and find nothing in their evidence which establishes them as accomplices. It does not appear that before the High Court it had ever been urged that these witnesses were accomplices and their evidence could not be taken into consideration to corroborate the approver. It was, however, urged that these witnesses were unreliable because they had knowledge that an attempt would be made to enable M. P. Khare to escape from lawful custody and yet they informed no authority about it. As to the reliability of these witnesses the Courts below were entitled to believe them and nothing of any consequence has been placed before us to convince us to take a different view from that taken by the Courts below.

5. As for the test identification parade, it is true that no test identification parade was held. The appellants were known to the police officials who had deposed against the appellants and the only persons who did not know them before were the persons who gave evidence of association, to which the High Court did not attach much importance. It would no doubt have been prudent to hold a test ident