JUDGMENT

Mitra and Holmwood, JJ. - 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 3rd May 1906 we held in an appeal in another case u/s 400, 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. Emperor 10 C.W.N. 847. An offence u/s 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 u/s 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 u/s 337 of the Code, and Sections 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.

4. The question of the authority of a Local Government in British India to tender a conditional pardon to an accomplice for the purpose of his being examined as a. competent witness against persons, who are being tried for an offence, of which the accomplice is himself, by his own confession, guilty, is one of some difficulty. Neither the Code of Criminal Procedure nor any other Statute or Act confers such a power on a Local Government in India. The method of approvement by special proclamation in the London Gazette or otherwise by which in England pardon is sometimes promised upon certain conditions has its foundation in the common law of England. The method is not now approved of, and is in disuse, as the promise of pardon by proclamation in the Gazette doss not give the party a legal right to exemption from punishment. The strict performance of the condition gives only an equitable title to a recommendation for mercy; Russel on Crimes, 6th Edition, Vol. III, 642-3; R. v. Rudd(1775) Cowp. 331. In cases of treason or felony, conditional pardon may be tendered by the Justices before commitment, and it; has to be approved of by the Court of Sessions. This practice seems to be the foundation of the procedure laid down by our Code in Sections 337 and 338. It seems to us that Local Governments in India cannot, from their very constitution, exercise the powers, which the common law of England vests in the Crown or the Secretary of State in England. Our Code of Procedure is exhaustive; it has given certain powers to the Local Governments and the Governor-General in Council, but the power of tendering conditional pardon is given only to Magistrates of certain classes and Sessions Judges in particular kinds of cases. In Beg. v. Hanumanta ILR (1877) Bom. 610 Melvill J. seems to be of opinion that the tender of pardon in this country must he in conformity with the Code of Criminal Procedure, which, and which alone, should regulate trials in criminal cases. The tender of a conditional pardon by the Local Government, even if it was actually tendered by a proper officer and accepted by Mohendra Bind, would not by itself make him a competent witness and his evidence admissible.

5. The law, however, is we