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Criminal Revision No. 882 of 1968, decided on 17th January 1969.

and Chap. XVIII‑Approver‑Examination of‑Word "trial" in S. 337(2)‑Includes inquiry under Chap. XVIII‑Accused granted pardon can be examined as witness by Magistrate holding inquiry.

In the instant application the only question that called for consideration was whether the Magistrate who was holding the enquiry and who admittedly was not the Magistrate who took cognizance of the offence was competent to examine as a witness one person who was originally an accused but had since been granted pardon under section 337 of the Criminal Procedure Code

Held, the word "trial" has not been defined in the Code of Criminal Procedure, and therefore, the Courts have to go by the ordinary meaning of the word. Taking the dictionary meaning of the word, "trial" includes an enquiry under Chapter XVIII, Criminal Procedure Code. That being so, the Magistrate was fully competent to examine such person as a witness.

Abu Hossain Sarkar for Petitioner.

Nemo for the State.

.‑In this application the only question that calls for consideration is whether the learned Magistrate who is holding the enquiry and who admittedly is not the Magistrate who took cognizance of the offence is competent to examine as a witness one Brojendra Malakar who was originally an accused but has since been granted pardon under section 33 of the Criminal Procedure Code.

Mr. Abu Hossain Sarkar, who has appeared in support of the Rule has drawn our attention to section 337 (2) of the Code of Criminal Procedure which reads as follows:

"Every person accepting a tender under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any."

The facts which have given rise to the question are that one Brojendra Malakar was sent up as an accused under section 396 of the Pakistan Penal Code and while the case was under enquiry under Chapter XVIII of the Criminal Procedure Code he was granted pardon under section 337, Criminal Procedure Code and the learned Magistrate holding the enquiry wanted to examine him as a witness. The petitioner objected to this on the ground that the learned Magistrate was neither the Magistrate who took congnizance of the offence nor the proceeding before him was a trial within the meaning of the said subsection, and as such, he was not competent to examine the said Brojendra as a witness.

The word "trial" has not been defined in the Code of Criminal Procedure, and therefore, we have to go by the ordinary meaning of the word. Taking the dictionary meaning of the word we have no hesitation in saying that "trial" includes an enquiry under Chapter XVIII, Criminal Procedure Code. That being so, we think that the Magistrate is fully competent to examine Brojendra as a witness.

We accordingly discharge the Rule.

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