2. Bhoora and thirteen others are standing their trial under sec. 395 and 396 I. P. C. in the court of the Additional Sessions Judge, Jalore Shri G. D. Badgel. A fresh trial became necessary because of the retirement of Shri Badri Narayan Vyas Additional Sessions Judge in whose court they were originally tried. One Bhalia was granted pardon by the District Magistrate, Jalore, on 6th May, 1958 and was examined as a prosecution witness before the committing Magistrate. Since Bhalia did not comply with the terms of pardon, the learned Public Prosecutor on 27th November, 1958 submitted an application before Shri Vyas to the effect that as Bhalia has forfeited the pardon he did not want to examine him at the trial. When the trial again began before Shri Badgel, the learned public prosecutor expressed his desire to examine Bhalia as a witness. This was objected to on behalf of the accused on the ground that the pardon granted to Bhalia had been withdrawn and he was no longer a competent witness as after the withdrawal of the pardon his position was that of a co-accused. It was further objected that once the prosecution has given up a particular witness it is not entitled to request the court again to examine him on its behalf. These objections found favour with the learned Additional Sessions Judge who did not allowed the prosecution to examine Bhalia. The State has come in revision against this order.

3. Learned Deputy Government Advocate contends that even though a certificate was issued by the public prosecutor that Bhalia had not complied with the terms of the pardon and had forfeited it yet in view of the provisions of sec. 337 (2) Cr.P.C. the prosecution was bound to examine him as a witness at the trial. In the alternative it is contended that even after the withdrawal of pardon Bhalia remains a competent witness and can be examined against the other accused as he is not being jointly tried with them. As regards the objection that he was given up as a witness on 27th November, 1958, it is urged that as a new trial is taking place it is open to the prosecution to examine him as a witness and the former application to leave him cannot be a bar.

4. Mr. M.C. Bhandari for the accused urges that the provisions of sec. 337 (2) Cr. P.C. do not apply when on the basis of Bhalias statement before the committing court his pardon was withdrawn. In such a case the prosecution is not bound to examine him as a witness in the sessions court. It is further urged that Bhalia was accused of the same offence and it was only because of the pardon granted to him that he became a competent witness. As soon as the pardon was withdrawn that immunity disappeared and he became an accused person as before and could not be examined as a witness against the other accused. In support of their respective contentions both sides have cited cases on the point. Learned Government Advocate has referred to Mahla Vs. Emperor (1), Chet Singh and other Vs. Emperor, (2), Akhey Kumar Mukerjee Vs. Emperor, (3), and Emperor Vs. Karamalli Gulamalli, (4) Shri M.C. Bhandari on the other hand has referred to In re Arusmani Goundhan, (5), Queen-Empress Vs. Ramasami (6), Nayeb Shahana Vs. Empress (7) and Queen Empress Vs. Ganga Charan, (8).

5. In Mahlas case, (1) it was held that: —

"An approver must be examined as a witness in the Court of Committing Magistrate and at the subsequent trial of every person tried for the same offence. Failure to comply with provisions of sec. 337(2) is an illegality and not a mere irregularity in procedure and makes a trial void."

This case in not directly in point. In this case one Harnamsing was granted a pardon and he appeared as a witness against Mukhtars, Dhanna and Bakhtawar accused. But the result of that was that the accused persons were acquitted and the learned trial Judge held that neither the accused persons nor the approver were present at the murder. One Mahla was subsequ