1. This is an appeal of the Central Provinces Government against a decision of Mr. Prem Narain, Sessions Judge of West Berar, Akola, who on the 6th of March 1922, set aside the conviction of Har Prasad Bhargava, who had been found guilty of an offence tinder Section 161 of the Indian Penal Code by Khan Bahadur Jacob, a Magistrate of the First Class, and who was sentenced by the latter to 2 years rigorous imprisonment and a fine of Rs. 15,000.

2. We now propose to give in chronological order, as far as possible, a summary of the principal events which are said td hive occurred and which culminated is the conviction of Har Prasad Bhargava. In August of 1921 Har Prasad Bhargava was the Subordinate Judge of Akola. On the 9th of August Gajadhar and others filed a suit against Bhagirath and others in the matter of an alleged partnership and claimed from the defendants upwards of Rs. 50,000. On the 29th of August, the plaintiffs filed an application for the immediate attachment of the property of the defendants and for seizure of account-books, alleging in an affidavit reasons why such order should be made. The application came before Har Prasad Bhargava on the 31st of August, and he made an order for the seizure of the account-books and the attachment of all moveable and Immovable property of the defendants, if they failed to furnish security for an amount of Rs. 54,000. The Judge accepted the allegations made by the plaintiffs in their affidavit, and the order was in emphatic terms.

3. Beyond question, this order Caused Bhagirath the gravest anxiety. The books were handed over to an officer of the Court and to furnish security for the Rs. 54,000, Bhagirath borrowed Rs. 20,000 from certain persons land deposited that stim with Sheoraj Mal, who on its receipt agreed to become surety for one month, and one month only. Bhagirath knew that one Mangal Chand was on friendly terms with Har Prasad Bhargava and he determined to approach the Judge through Mangal Chand and to offer him a bribe to secure the reversal of the order of the 31st of August. As between Bhagirath and Mangal Chand there was a difficulty, because is a previous transaction relating to cotton seeds, Mangal Chand was of opinion that Bhagirath had cheated him in respect of 10 bags of cotton seeds, short delivered. Whether Bhagirath had really done this, or the cotton seed had been lost in transit, has no importance in this case. Bhagirath, however, being aware of this ill-feeling, rightly Judged that Mangal Chand might hesitate to help him. He, therefore, chose a mutual friend, by name Radha Kishen, laid the circumstance before him, and asked him to induce Mangal Chand to interview the Judge.

4. Mangal Chand expressed his readiness to negotiate with the Judge, provided Bhagirath undertook to re-place, in the ensuing season, the disputed cotton seed, and, according to Radha Kishen, stipulated for Rs. 500 as his fee.

5. Whether Bhagirath instructed Mangal Chond that nothing else than the complete reversal of the order would satisfy him, or whether he (if that, should in the opinion of the Judge, be impossible), expressed a readiness to give a charge upon his property is not clear. At any rate Mangal Chand, according to his own evidence, had, on the evening of the 7th of September an interview with Har Prasad Bhargava who seems to have told him is general terms that he would do what was wanted on payment of Rs. 2,000. The result of that interview was reported by Mangal Chand to Bhagirath who thereupon paid Rs. 200 to Mangal Chand and quite early on the morning of the 8th of September went to Mangal Chand whilst he was still in bed and handed him over Rs. 2,000. This Rs. 2,000 was made up of 12 notes of Rs. 100 each, which had been paid into his shop by various customers during the preceding day and of Rs. 800 in notes which he had purchased for cash from the firm of Ram Chand-Ramgopal and in this Rs. 800 were also five Rs. 100 notes. Therefore, Mangal Chand had in his possession 17 notes each of the value of Rs. 100. Bhagirath before handing over the 12 notes previously mentioned, took the precaution to write down their numbers. This fact is of prime importance in the case. Bhagirath and Mangal Chand then set out for the house of Har Prasad Bhargava, Mangal Chand entered, Bhagirath remained in the road. Mangal Chand paid over the 17 notes of Rs. 100 each to Har Prasad Bhargava, who thereupon told Mangal Chand that Bhagirath should make an application to have the order of the 31st of August cancelled. We might conclude this question of receipt of money by stating that on the 10th of September Bhagirath handed to Mangal Chand Rs. 200, and on the 14th a further Rs. 100, thus making up the whole Rs. 2,500. These two surras of Rs. 200 and Rs. 100 were paid according to Mangal Chand, on the direct instructions of the Judge, to the shop of Onkar Das Bagdia, the employer of Mangal Chand, with whom Har Prasad Bhargava had an account, and credit entries of the two payments, were made in the said accounts To this we may add that Bhagirath did give to Mangal Chand an undertaking in writing to replace the 10 missing bags of cotton seed in the forthcoming season.

6. Bhagirath lost no time in adopting the suggestion of the judge. He went at once to his Counsel, Mr. Damle, a gentleman of high social position and unimpeachable integrity, and the latter, knowing, of course, nothing of what had happened, went with Bhagirath to the Court of Har Prasad Bhargava. It did not appear to Mr. Damle convenient to file the application on that day. He told Bhagirath that it could not be done and advised him to wait until the 10th of September, two days later. Bhagirath disregarded this advice and managed to file en that day, without the knowledge of Dr. Damle, an application for the cancellation of the order. That application came up for hearing on the 10th. News was brought to Mr. Damle that, the application was coming on. This surprised him a good deal but he proceeded to the Court, and he and Counsel for the plaintiffs addressed the Court on behalf of their respective clients. As often happens in these cases, a middle course was suggested and Mr. Gupta for the plaintiffs said that his clients were willing for the surety to be released, if the defendants were able to disclose Immovable property to the value of Rs. 54,000 and were willing to give a charge upon it, and his clients were also willing, not that the books should be removed from the custody of the Court, but that copies should be made for the use of the defendants at the plaintiffs cost. Mr. Damle, whilst still asking the Court for a decision on the merits of the application stated in effect that, if the previous order could not be set aside in its entirety, then his client was prepared to give a charge for Rs. 54,000 over his Immovable prop arty, and that if the account-books could not be ordered to be returned, his clients would accept the copies as suggested by the plaintiffs. Thereupon the application stood adjourned until 15th of September, the Judge having announced that he would on that day pass an order.

7. On coming oat of Court, Mr. Damle was clearly puzzled as to how it happened that Bhagirath had filed the application on the 8th, and more puzzled still when he; having told Bhagirath that he, Mr. Damle, could not attend on the 15th was informed that that would not matter. Mr. Damle then asked Bhagirath directly if he had approached the judge and was told by Bhagirath that he could take it that way if he liked. In reply to a further question, Bhagirath said he had hopes that his application would be granted. The course which the arguments had taken on the 10th made it an easy task for the Judge to modify his previous order, and he did so modify it along the lines of the suggestions which had been made to him in Court.

8. We entertain no doubt that Bhagirath wanted nothing short of the complete reversal of the order, and the modification was far less than he had hoped to obtain. He was inclined to believe that Mangal Chand had not paid the money to the Judge. At an interview between Bhagirath and Mangal Chand to which the former expressed his dissatisfaction, Mangal Chand agreed to go and see the Judge, and this according to Mangal Chand having been done, the Judge assured him that, when Bhagirath showed his Immovable property to foe worth Rs. 54,000 the surety would be released and he, the Judge, had done all that Bhagirath wanted.

9. At this time the Officiating District and Sessions Judge was Mr. Lachmi Narain. He had known Har Prasad Bhargava for four or five years and was on terms of friendship with him. At some time after 8 oclock on the evening of the 19th of September, Mr. Lachmi Narain received information from a person, whose name in the public interest has not been disclosed, which led him to believe that Gajadhar, who was the plaintiff in the suit already mentioned, was going that night to the house of Har Prasad Bhargava, there to pay him a bribe of Rs. 5,000 in respect of a case in which the litigants came from the village Agar. Mr. Lachmi Narain went at once to the District Superintendent of Police but finding his gate closed proceeded to the bungalow of Mr. James the Deputy Superintendent of Police and together they returned to the house of the Superintendent of Police. His name is Mr. Neilson. Mr. Lachmi Narain narrated what he had been told, and the three of them proceeded towards the house of Har Prasad Bhargava. Enquiries from a waiting tonga-walah showed that Gajadhar had engaged him. Mr. Lachmi Narain went ahead of the other two men into the bungalow of Har Prasad Bhargava. On reaching the verandah he found Har Prasad Bhargava and Gajadhar log ether. At this time it was nearly 11 oclock at night. He appears to have spoken rather sternly to Gajadhar for being there at that time of night, and Mr. Lachmi Narain then returned to the road where Mr. Neilson and Mr. James were standing. The sinister fact of Gajadhar, a litigant in at least two cases pending before Har Prasad Bhargava, being present in the house, confirming as it did, at least, a part of the truth of the information given to Mr. Lachmi Narain, determined these three gentlemen, after some consultation, to procure a search, warrant. Mr. Neilson went to the District Magistrate for that purpose, whilst Mr. Lachmi Narain and Mr. James went into the hall of the bungalow of Har Prasad Bhargava and sat there. After a short time Mr. Lachmi Narain feeling thirsty, went away, leaving Mr. James alone with Har Prasad Bhargava in the house. After having refreshed him-self and rested Mr. Lachmi Narain proceeded on his bicycle to the bungalow of the District Magistrate. By this lime the warrant was prepared, and he and Mr. Nelson returned to the bungalow of Har Prasad Bhargava in a tonga.

10. On Mr. Lachmi Narains departure, Mr. James sat with Har Prasad Bhargava and Gajadhar, and during the period of waiting Har Prasad Bhargava said that he wanted to speak to Mr. James in confidence and asked him to go outside. Mr. James objected to his leaving the house, Har Prasad Bhargava said he could not speak in the presence of Gajadhar. Mr. James told Gajadhar to stand in the verandah. Before going out Gajadhar offered to be searched. Mr. James, declined to do this. Gajadhar went out to the verandah and a moment later Har Prasad Bhargava said to Mr. James Gajadhar is bolting, shall we run and catch him." Mr. James negatived the suggestion and Gajadhar did in fact run away. Har Prasad Bhargava became increasingly nervous at the absence of Mr. Lachmi Narain, and on two occasions wanted to leave the house to search for him. Mr. James stated that he himself was not going to leave the room, neither would he permit Har Prasad Bhargava to do so. Har Prasad Bhargava then suggested that a servant should be sent to look for Gajadhar (sic) "Gajadhar" may possibly be a lerical error for Mr. Lachmi Narain but it is unimportant. As the servant was going out, Har Prasad Bhargava followed the servant and whispered something to him which Mr. James did not hear. A door which had previously been shut was noticed by Mi. James to be open and from the place where he was seated he could see a bed and underneath it certain boxes. The servant was in that room, and he became suspicious of the servants movements. In Mr. Jamess belief, Har Prasad Bhargava got up and seated himself in a chair directly between Mr. James and the open door, so as to shut cut from him a view of the interior of the room. There upon Mr. James told that "that game" would not do with him and that he intended to watch the servant and the boxes. Har Prasad Bhargava enquired whether it was absolutely necessary that the search should be made that very night and proposed that the room should be looked and a Police guard put over it. Being told that the search would take place that night Har Prasad Bhargava said that he would like a friend, who lived in the same compound to be present. The friend was sent for came and asked, why he was wanted. Har Prasad Bhargava did not explain why the lend had been sent for apologised for sending for him and told him to go back to bed.

11. At about 1 oclock in the morning of the 20th of September, Mr. Lachmi Narain and Mr. Neilson returned with a search-warrant. That search-warrant did not specify the sum of Rs. 5,000 as the amount of the bribe which Gajadhar was suspected to have paid to the Judge but did specify Gajadhar by name as the suspected bribe giver. Har Prasad Bhargava was informed of the search-warrant, asked to see it, and was shown it, and Mr. Lachmi then told Har Prasad Bhargava that if he would tell them about the matter and give up any money that he had received or produce any large sums of money that he had in his house, it would obviate the trouble and disgrace of a search. According to Mr. Lachmi Narain, Har Prasad Bhargava told him that he had no money in the house. Mr. Neilson says that in the discussion with regard to the procedure of search Mr. Bhargava said that he had not taken money in his life, and various things like that. He said that we would not find any money. Mr. James confirms these two witnesses, asserting that Har Prasad Bhargava said that he had no large sums of money in his boxes. There is no doubt that Har Prasad Bhargava did deny strenuously that he had received any money from Gajadhar that night or on any other occasion. These seems equally to be no doubt that he denied in the plainest terms that Ay considerable sum of-money would be found in his house. Thereupon with a view to avoid publicity Har Prasad Bhargava was asked to choose whether the Search should be made in the formal manner by the introduction of two independent witnesss, in which event the search of his house would become a matter of general knowledge, or whether he was prepared to allow the search to be made by the three gentlemen then present. He expressed his willingness to the latter course, and thereupon the Search began. The boxes were found to contain clothes. Amongst these clothes certain securities were found with which we need not concern ourselves. No less than Rs. 14,000 were found in notes of various denomination in the pockets of a trouper, a coat and an overcoat, and in all Rs. 15,090 were found. A list of actual number of the notes and the value of them was prepare by Mr. James and signed by Har Prasad Bhargava. Owing to the pressure of time, the individual number of each note was not taken. Whilst these lists were being made out Mr. Lachmi Narain hurried away to catch train for Nagpur to see the Judicial Commissioner. As he was going ha was asked to send a seal from his house and did so.

12. The garments which had contained the notes, the securities and the notes themselves were placed in a box provided by Har Prasad Bhargava, who locked it, sealed it with Mr. Lachmi Narains seal and retained the key and the seal in his possession. The box was taken away to the Police Magazine. Mr. James locked the Magazine and retained the key of that Magazine until the 26th of October on which day the box was opened.

13. When Mr. Lachmi Narain arrived at Nagpur, Mr. Halilfax was acting as Judicial Commissioner, and he suspended Har Prasad Bhargava. He ordered him to come to Nagpur, and he undoubtedly made every proper endeavour to bring home to Har Prasad Bhargava the great importance of his accounting for the possession in his house of so large a sum of money. Har Prasad Bhargava had at the time of the search given to Mr. Lachmi Narain, Mr. Neilson and Mr. James no explanation of any kind as to how it happened that so much money was found; he having a few minutes previously asserted that no money was in the house. He maintained the same attitude of reserve and silence with Mr. Halifax, and on the 21th of September, Mr. Halifax put in writing a pi a n definite question, asking him as to the way in which this money came into his possession, and he warned him that a failure to answer would be very much to his disadvantage. On the 30th of September at an interview with Mr. Halifax, when the inferences to be drawn against Har Prasad Bhargava from his obdurate silence were clearly pointed out to him, he expressed his willingness to put in a written explanation, which would be sent in a sealed envelope, not to be opened unless end until a criminal case was instituted and proceeding started: against him, and he said he would send that explanation during the course of the day. That sealed explanation was before Khan Bahadur Jacob, and we will refer to it at tie proper time.

14. It is now necessary to go back to the 20th of September and succeeding days, and mention one or two other details. Not the least important of these is that on the morning of the 20th of September Ram Partap, the servant of Har Prasad Bhargava, came to Mangal Chand and said that Har Prasad Bhargava wanted to see him. Mangal Chand said the would go to Har Prasad Bhargava but in the meantime Mangal Lal (presumably another servant of the Judge) came with a letter asking Mangal Chand to proceed to Seoni and bring back to Akola the brother of Har Prasad Bhargava, by name Ajudhia Prasad, a Barrister. Manual Chand under took the commission and Ajudhia Prasad came to Akola, had an interview with the Judge, and left immediately for Bombay. It is important to notice that he returned from Bombay to Akola before Har Prasad Bharpava expressed his intention of giving an explanation in a sealed cover. Certain comments were made by the learned Government Advocate as to the object of Mr. Ajudhia Prasads visit to Bombay and the character of the evidence given by him, which we shall discuss later.

15. On the 23rd of September the District Judge caused to be circulated a notice from the Local Government that no proceedings would be taken against any persons giving evidence of having bribed the Judges. The exact text of the telegram sent by Mr. Hallifax to the District Judge was "Inform all concerned in bribery case that no criminal action will be taken by Government against any witness who makes full and true disclosure." On that same day, the 23rd, the members of the Akola Bar Association chose three prominent members, who were to sift such evidence as might be forthcoming and render such assistance to the Police as they might require.

16. On the evening of the 26th of September, Bhagirath with two companions came to consult Mr. Damle in connection with another case, not that of Gajadhar against Bhagirath. At the conclusion of this particular business, Mr. Damle asked Bhagirath to remain behind as he wished to speak to him privately, He asked Bhagirath whether he knew that the house of Har Prasad Bhargava had been searched, whether he knew that Gajadhar was found at the house of Har Prasad Bhargava," that the search was instituted by Mr. Lachmi Narain, and whether he was aware of the undertaking given by Government not to prosecute any witness who ma de true disclosure. Bhagirath replied that he knew all of those things. He was then asked if he was the man who had given the information to Mr. Lachmi Narain as to the intended visit of Gajadhar on the night of the 19th of September and the alleged intended bribe. To that he made no answer. Mr. Damle seems to have said to Bhagirath that the search of the house was a good thing for the litigant public, and Bhagirath agreed that it was. Mr. Damle, who had, of course, in his mind the curious proceedings with reference to the application tiled on the 8th, heard on the 10th and decided on the 15th, pressed Bhagirath about this. He explained that he Mr. Damle, was one of the three members appointed by the Bar Association to look into the matter. He referred to the effect of the Governments Undertaking and eventually Bhagirath told Mr. Damle the story which forms the backbone of the criminal charge ultimately preferred against Har Prasad Bhargava. He explained the giving of the Rs. 2,500 to Mangal Chand and the promise of an order in his favour, of his dissatisfaction with the orders of his interview with Mangal Chand at which Mangal Chand said that of Rs. 2,500 he had given the Judge Rs. 2,000 and then and there he, Bhagirath, having come to the interview, quite unaware that Mr. Damle would touch on this matter, produced a note-book and showed to Mr. Damle the numbers of 12 notes each of the value of Rs. 100 which he said he had himself written in that book, and he stated that these were amongst the rotes handed by him to Mangal Chard for delivery to the Judge. Bhagirath added that it was probable that those notes might be found in Har Prasad Bhargavas possession. Mr. Damle took the beak, locked at the numbers and saw that they were written in ink. Mr. Damle wished to retain possession of the book but Bhagirath could not at the moment make up his mind a s to whether he was going to make disclosure or hold his tongue and he Went away. He did cot return to Mr. Damle to say whether he would give evidence but by the 4th of October the Police, acting on information, interviewed him. He then landed over a slip of paper (Exhibit P. III) and late in the same day through this nephew Phul Chand made over a note-book (Exhibit P.-V) to Inspector Anant Ram Joshi. When giving evidence before Khan Bahadur Jacob, Bhagirath said that (Exhibit P.-V) was the very book which he had shown to Mr. Damle and he stated that the page upon which the numbers were written by him had become loose and he had instructed Phul Chand to rewrite the numbers of the notes on a firm sheet of the same book, and that that had been done. That was done en the fame day, namely, 4th of October on which day undoubtedly Bhagirath did hand to the Police a slip of paper containing the numbers of 12 notes. Of that latter fact there can be no question. Mr. Damle is of opinion that the book which he took in his hand was bock with a paper cover, whereas this took has a flexible leather over. There has been considerable argument on the question of the non-production of the page upon which the numbers were originally written in with ink which we will deal later. The fact, however, is undoubted that Bhagirath wag able to hand to the Police Inspector on the 4th of October a piece of paper (Exhibit p.m.) en which was written a detailed specification of 12 notes each of Rs. 100 by their serial numbers and places of original issue.

17. On 19th of October, Har Prasad Bhargava tendered his resignation to the Local Government on the ground of alleged ill-health. That resignation was rot accepted.

18. On the 22nd of October, Har Prasad Bhargava having apparently learnt that the Police had numbers of certain notes, asked that these numbers might be disclosed to him. The Police, however, preferred that the box should be opened and the numbers of the notes then and there readout and compared with tie list. A meeting was arranged for the 26th of October, and on that date Har Prasad Bhargava attended, and there were present Mr. Lachmi Narain, Mr. Neilson, Mr. James, Mr. Rachpal Singh, the Deputy Superintendent of Police, Mr. Abdul Rahim, Khun Sahib Arnan Khan and Anant Ram Joshi of the C.I.D. The box having been brought from the Police Magazine was examined by Har Prasad Bhargava, a comparison made of the seal and its imprint with the original seal, and Har Prasad Bhargava produced the key and opened the box. No suggestion was made by him that the box had been in any way tampered with. The taking of an inventory was commenced. The number of each note was called out and taken down and there were found to be in the box 10 notes each of Rs. 100 in value which exactly corresponded with the numbers given on the slip (Exhibit P. III) by Bhagirath to the Police en 4th of October. These 10 notes were absolutely correct both as regards the serial number of the note and as regards the letters and figures which are placed upon the note for the purposes of identifying the place of original issue, and, as regards value also. When the note for Rs. 100 and numbered P. D/37-25092 (found in the box) was read out, it was remarked that in the list given by Bhagirath, as aforesaid, there was a number P. D/37-27092, that is to say the figure 7 was on the slip whereas it should have been 5 to make it in conformity with the note found; Again, when T.D/81-89981 (also found in the box) was read out there was found on the slip T.D/89-88981, Therefore, there was a discrepancy between the serial number of the note and also 89 was given instead of 81 as the denominator over T.D. When the fact became officially known that the numbers of ten of the notes found in the box tallied precisely with the numbers given by Bhagirath and that as regards two others there were discrepancies of a minor character, which might be attributed to carelessness in copying, 1he Government ordered the prosecution of Har Prasad Bhargava.

19. The case for the prosecution was prepared with the utmost care. Every witness who could throw any light upon the charge was put into the witness-box. Ancillary matters, such for instance as the purchase of notes worth Rs. 800 from the shop of Ram Chand-Ram Gopal to supplement the Rs. 1,200 available in Bhagiiaths shop on the evening of the 7th of September, were put before the Magistrate, as were each and every of the matters to which we have hitherto re, f erred.

20. Har Prasad Bhargava was asked by the learned Magistrate at the proper time, and in the proper way whether he received in his capacity as a public servant a bribe of Rs. 2,000 from Bhagirath. He adopted the same course before the Magistrate as he adopted before the acting Judicial Commissioner. He wished to reserve his statement and his answers until he had heard the whole of the prosecution evidence, including cross-examination. He alleged, however, that he was wholly innocent, and the evidence relating to the alleged bribery was false, concocted, fabricated and obtained under very extra-ordinary circumstances. We must mention at once that his attitude of silence in this matter has extended even up to this day as to the circumstances under which the evidence was false, concocted, fabricated. Beyond his mere assertion there is no trace or suggestion of any truth in this allegation. When examined u/s 364 of tow Code of Criminal Procedure, he reserved his answers as to whether 10 specified notes bearing specified numbers were found amongst the notes at his house, also as to whether the notes and securities were on the 26th of October found in the box which had been locked and sealed in his pre t nee, whether be had the key and seal always, with him, whether the looked and sealed box was opened in his presence, and although, he had on 26th of October signed the inventory which correctly Recorded the numbers of these ten notes, he reserved his answer to the question as to whether the numbers of the 10 notes of Rs. 100 each tallied with the numbers which Mr. Anant Ram Joshi who was the C.I.D. Inspector, had read out.

21. The prosecution called upwards of 40 witnesses, and these witnesses if truthful, presented an overwhelming case against Har Prasad Bhargava. The question for our decision is precisely the same as that which was before Khan Bahadur Jacob and Mr. Prem Narain. Does the evidence show beyond any reasonable doubt that Har Prasad Bhargava on the dates alleged revived in all a sum of Rs. 2,000 as a bribe from Bhagirath through the had of Mangal Chand We have listened to the evidence and arguments for 2 days, and we are satisfied without the slightest doubt of any kind that the answer to that question must be in the affirmative and that the admirable judgment of the learned Magistrate, Khan Bahadur Jacob, is correct. In this Court Har Prasad Bhargava had the advantage of the advocacy of Mr. Dillon, and appreciating as we did the great difficulties with which he had to contend principally as regards the assertion by Har Prasad Bhargava that no money would be found in his house, the immediate finding of the money, the giving of the slip by Bhagirah to the Police on the 4th of October, the fact that that slip contained accurately the numbers of 10 notes found in Har Prasad Bhargavas box, and the amazingly determined silence throughout of Har Prasad Bhargava, we encouraged Mr. Dillon to elaborate his dents case from any point of view, in any direction, in any way that the could. He chose the line which had for some leas on appeared convincing to Mr. Prem Narain, that is to say he picked out from this record of 70 printed foolscap pages of evidence and voluminous accounts and other documents some discrepancies in the evidence of the various witnesses. As regards Bhagirath and Mangal Grand, Mr. Dillon rightly said that if we disbelieved them the whole case would fall to the ground. But we see no reason whatever to disbelieve them. Bhagirath was undoubtedly a litigant in the Court of the Judge. He was undoubtedly seriously oppressed by the order of attachment. He knew of the friendship between Mangal Chand and the Judge, a friendship evidenced by the fact that on the morning of September 20th, it was Mangal Chand and not any other person that the Judge chose to send to Seohi for his brother. That there were on the evening of the 7th of September amongst the monies taken during the day twelve 100 rupee notes, admits of no doubt. That Bhagirath bought Rs. 800 worth of notes from Ram Chand-Ram Gopal is proved, and these were the notes worth Rs. 2,000 which Bhagirath says he handed to Mangal Chand on the morning of the 8th of September. Mangal Chand produce of the undertaking by which he secured the promise of Bhagirath to make good the 10 bags of cotton seed. Mangal Chand says that he handed over 17 notes, each of the value of Rs. 100 to the Judge on the morning of the 8th. Neither Mangal Chand nor the Judge knew that Bhagirath had taken the numbers of the 12 notes which he found to be in his shop on the evening of the 7th, amongst other monies as the result of the days trading.

22. Mr. Damle corroborates Bhagirath with regard to the conversation between them on the 10th of September, in which Mr. Damle asked Bhagirath definitely if he had approached the Judge. Bhagirath and Mr. Damle are agreed that on the 26th Mr. Damle without any previous intimation, kept Bhagirath back alter his consult a on had finished and questioned him in the manner we have described. The Police, Phi Chand and Bhagirath are in agreement when-they say that the slip containing the ten correct numbers was handed to the Inspector by Bhagirath on the 4th of October. When Mr. Dillon had to approach this question of the ten numbers, he dealt with it in this way. He said definitely that there were only two alternatives, one was that the case of the prosecution was true, the other was that Har Prasad Bhargava has in fact engaged in some honest but undisclosed transaction with some body unnamed had unknown, whereby he had acquired these ten notes, and that in some unexplained way Bhagirath had come to know of these numbers and had given them to the Police in the belief that those notes would he in Har Prasads possession. The immense difficulty in the way of that explanation is that if it were the fact, Har Prasad Bhargava would himself know with whom lie had been doing so substantial a business as to receive the notes of Rs. 100 each, end it must be said at once that this suggestion was not put to Bhagirath in cross-examination, nor is it supported by the slightest shred of evidence, and indeed as we shall see later when the so-called explanation of Har Prasad Bhargava contained in the sealed envelope was opened, that explanation, kept back as it was Until the last moment, was most designedly vague and is regards the material paragraph is most certainly untrue. The one outstanding feature of this matter is that the plain direct evidence of Bhagirath and Mangal Chand has never been and cannot be effectively challenged It is Said that Mangal Chand has made the evidence of his negotiations with the Judge as regards the terms of the de sired order, fit in with the order sheet. That is, of course, possible, but the much more probable view is that at his inter view with the Judge it was made quite clear by the Judge that he, having spoken in such emphatice terms when passing the order of the 31st of August, and having ex pressed his belief in the plaintiffs affidavit, could not rescind the order in its entirety, and Mangal Chand, even if he were exceeding his instructions which he received from Bhagirath, may well have discuss ed with the Judge the charge on the Immovable properties as a security and the release of the surety.

23. Mr. Prem Narain seems to us to have been looking at the matter, not in abroad manner at all but to have been seeking for tiny discrepancies such as must inevitably occur, and on thereto hove come to the conclusion that Bhagirath and Mangal Chand were rot telling the truth. A comparison of his judgment and his reasoning with that of the judgment end reasoning of Khan Bahadur Jacob will show how much greater care and thought the latter gave to his decision than did Mr. Prem Narain. Mr. Prem Narain omitted to make any reference to the incidents to which Mr. James had spoken when he was left alone with Har Prasad Bhargava, on the night of the 19th of September. He omitted to make any reference to the appeals of Har Prasad Bhargava to Mr. Lachmi Narain to save his honour. He omitted also the most important statement that Har Prasad Bhargava averted that no money would he found in the house. He does not discuss the immense significance and bearing of the fact that by some means or ether Bhagirath was able to furnish to the Police on the 4th of October the slip containing the number of ten notes in every way correct. He looks with great gravity upon the circumstances, already pointed cut by us, that, of the 12 notes on the slip Exhibits P-III) one was incorrect in one figure and the other incorrect in two He does not discuss 1he likelihood of these being mistakes, made either in tie original pencil entry or made when copying out the slip or in making the original entry. He does not consider whether they were clerical errors, although the frequency pf clerical errors in almost every document copied in this country might easily have led him to that conclusion. On the other hand he assumes TD/89 88901 to have been an invented number because evidence was given to 6how that the note of that particular number had been destroyed by the Currency Office of Madras on the 20th of January 1920. Be makes no mention of the conduct of Ear Prasad Bhargava who obstinately from the first withheld all information, and who as we shall slow not only set up in the scaled envelope a designedly incomplete statement lacking in particularity but cross-examined a witness to bring out a story which he must have known to have been untrue. Without wishing to do Mr. Prem Narain any injustice, we have an uncomfortable feeling that he did not deal with these aspects of the case, because he appreciated that they were unanswerable and that a consideration of them led ineyitably to a conclusion of guilt. His manner of dealing with the entries in the account books of Bhagirath is" very curious. He could hardly have supposed that Bhagirath would enter first Rs. 200 then Rs. 2,200, then Rs. 200 and finally Rs. 100 under the description of expenses incurred in bribing the Judge by the hand of Mangal Chand. Bhagirath chose one of the customary methods employed in this country when bribes are given. Mr. Prem Narain can hardly fail to be aware that the bribe giver either makes no mention at all in his books of account of the alleged bribe, or he enters it in the name of non-existent person, or he incorporates it into the account of a man who is actually engaged in transactions with him, making later on a corresponding credit entry in favour of that person. Bhagirath in substance chose the latter method.

24. We may as well now discuss the entries in Bhagiraths books in relation to the whole transaction. On the morning of Wednesday, the 7th of September 1921, the cash balance with which his firm opened its business was Rs. 192-5-6. The firm does a very considerable business as is evidenced by the fact that they received from various named sources over Rs. 12,000 on that day, and paid out over Rs. 7,000. The actual money remaining over at the end of the day was Rs. 3,193 cash, Rs. 1,202-8 notes (being made up of 12 notes of Rs. 100 and a single note of Rs. 2-8) and 54 change. There were certain items which were included in what is called a suspense account, and amongst those appears "Subju-patel 200." Bhagirath has explained that he took that 200 from the shop, entered it in the name of Sabju Patel with whom his firm had some dealings, and that was the first 200 paid to Mangal Chand. In the suspense account of the 8th of September there is an item of Rs. 2,201 in the actual name of Bhagirath. The has a special significance, because according to Bhagirath he took 12 notes from the shop, of which we have already spoken, and bought Rs. 800 worth of notes with cash. There was manifestly plenty of cash in the shop to enable this to be done. The 1 which makes the figure Rs. 2,201 was the actual rupee paid by him at the rate of 2 annas per 100 for the notes, and witnesses have been called whose books have been produced, who have amply proved this transaction of the buying of these notes. On the 8th of September Bhagirath transferred from the name of Subju Patel in the suspense account the sum of 200 to himself, Bhagirath, adding to it the Rs. 2,000 plus I, making thus shall Rs. 2,201. The sum of Rs. 2,200 was up to that date, the 8th of September, the mathematically exact amount which according to his story and that of Managal Chand, had been handed over. On the 9th the sum entered appears in this suspense account still in the name of Bhagirath viz.: Rs. 2,201. Two hundred more was paid on the 10th to Mangal Chand and appropriated by him, as he says, to the reduction of a liability of Har Prasad Bhargava in respect of the shop of Onkar Das, and on the 10th 6t September the figure in the books against Bhagirath has been increased from Rs. 2,201 to Rs. 200 and at this date appears, riot in the suspense account, but as a debit against Bhagirath in his personal ledger. On the nth September an entry is made, debiting Sheoji Patel of Barga on with Rs. 2,200 cash paid through Bhagirath on the 9th of September in Bargaon, and a further entry of 200 paid on the 10th September, presumably at Akola. Bhagiraths own ledger account is formally adjusted by a corresponding entry on the opposite side of the cash-book. Bhagirath has explained that this was an entry which cloaked up the real nature of the transaction, and that in fact the firm never advanced any of these monies to the man who is described as Subju Patel, Sheoji Patel, who when giving evidence described himself as Sabju Uddin. Sabju Uddin corroborated Bhagirath and laid that he had borrowed none of this money. It was not suggested is Bhagirath that he went to Bargaon, some three stations away from Akola on the 9th of September, and it is evident from locking at the complete account which we have got here, that in cases where any expenses were inured in mating journeys these expenses are entered. The story is, there-fore, intelligible and in consonance with ones experience in these matters, and the entries in the account-book in respect of this item entirely corroborate the story of Bhagirath.

25. The next matter is as regards the Rs. 100 which was the final payment made on the 14th of September. The name of a man Phul Chand appears in the suspense account of the 12th of September in respect of a sum of Rs. 33; and on the 15th of September there is an item which shows that Rs. 100 cash was obtained from the firm of Sheo Lal Surajbhan. As far as that days account goes, this sum of money simply appears amongst the cash in hand at the close of the day and Phul Chands suspense account still stands at Rs. 33 only. On the 16th of September the same sum of Rs. 100 appears again as cash received from Sheo Lal Surajbhao but this entry is obviously made through an oversight, and is indeed so described in the books and is adjusted by a corresponding entry on the debit side. The payment of Rs. 100 being according to the evidence, the last instalment of the bribe remained to be adjusted and this was done by increasing Phul Chands suspense account from Rs. 33 to Rs. 133.

26. In the Trial Court there was no clear elucidation of the precise circumstances under which these entries relating to this Rs. 100 came to be made. We could suggest more than one explanation but it is not incumbent on us to theorise in the absence of direct evidence. We think it sufficient to say that the oversight" of the person or persons responsible for these, entries of September 15th and September 16th before they got this item satisfactorily adjusted, seems to us Just the sort of accident which was bound to occur sooner or later, when people were engaged in preparing a series of account-book entries which should record the payment of a bribe without anywhere disclosing it as such. Phul Chand, therefore, was shown as a debtor to the extent of Rs. 133. On the 28th of September that entry against him was wiped out and Bhagiraths name substituted.

27. Thus it appears that all these separate sums of money amounting to Rs. 2,500 do find a record in the business books of the firm of Bhagiraths in the amounts and under the date on which Mangal Chand has asserted the acceptance of like amounts.

28. To say as Mr. Prem Narain does that the book entries contradict Bhagiraths evidence borders, in our opinion, on the perverse.

29. If in truth Bhagirath did lend to Sabju Uddin Rs. 2,400 as prima facie appears from his looks, it is a singular circumstance that he should be willing to go into the witness-box and swear positively that he never lent that money, and thus destroy all hopes of its ultimate recovery. Sabju Uddin jays that he had previously told Bhagirath that he might want Rs. 2,000. It turned out later that he wanted Rs. 750 only. Having heard of the attachment order he decided not to go to Bhagirath to borrow money but went elsewhere. We believe Sabju Uddin and further are of opinion that as regards the books of Bhagirath they fully confirm his evidence.

30. It will be remembered that the last Rs. 300 payable to the Judge was not received direct by him but was, according to Mangal Chand, paid over to the shop of Onkar Das at the Judges request. Managal Chand says that he paid these two sums over. Unquestionably, the fact is, that the receipt of the Rs. 200 and of the Rs. 100 are duly credited in the books of Onkar Das on proper dates and, therefore, Onkar Das admitted as against Har Prasad Bhargava the reduction of his indebtedness by Rs. 300. There is, however, a discrepancsr in the manner in which the Rs. 100 was paid and the defence have relied on it as they are entitled to do so. It is stated in the pakka rokar "Credited in the name of Har Prasad Bhargava Sahib Sub-Judge, cash paid in person." Har Prasad Bhargava does not suggest anywhere that he paid Rs. 100 or any other sum to the shop of Onkar Das as asserted in that entry, but there is the fact, vouched for by Mangal Chand and other witnesses that Rs. 300 was brought by Mangal Chand to the shop of Onkar Das in instalments of Rs. 200 and Rs. 100 with the request that they should be credited to the account of the Subordinate Judge, in the books of that firm and that this was done.

31. We now come to another matter in which the Judge, Mr. Prem Narain, has in our view over-estimated the effect of the evidence. It must strike any body as a regrettable circumstance that the original entry in ink which Bhagirath showed to Mr. Damle on the 26th of September in his note-be ok, should not have been available on the trial of this matter. The position of Bhagirath after the 26th of September was that be was taking time to make up his mind whether he should communicate to the Police the matters which he had disclosed to Mr. Damle. He had not made up his mind by the 4th of October, and on that day Ganesh Prasad, the head constable, sought him out. Bhagirath says, I at once felt that I must have been called in connection with the notes. He then describes that the original page w1h the writing in ink was lose and because he thought that the Police might make trouble with him because of the looseness of the page, he took down himself the numbers on a slip (subsequently Exhibit P-III) and get Phul Chand to copy in the note-book the numbers " as I did not want to produce the loose sheet before the Police, because when I showed the book to Mr. Damle the sheet was not loose." This was, of course, an exceedingly foolish thing to do, because, as it happens there world have been nothing suspicious in the working loose of the sheet of the book. We have submitted the book which was produced as Exhibit P-V to a are full examination. It is a small book about 5 inches by 4, and originally about half an inch thick, covered in common flexible dark brown leather. It contains a large number of rough entries relating to Bhagirths trade operations, and there are certainly not less than five peaces where a one-half sheet has been wholly torn out, with the result that the corresponding half sheets, whether written upon or unused, a re actually loose or become loose very easily. Therefore if the loose sheet had been left in its place it would probably have appeared that the cause of its looseness was the tearing oat at some time previously of the corresponding half sheet at the other side of the book;--that is to say, if the numbers were written on the right hand side of the book, there would have proved on examination to have been no corresponding half sheet on the left band side of the book, the took being made up of sheets of paper folded in half and sitched together.

32. Bhagirath having handed over the slip with the 12 numbers upon it to the Police and Phul Chand having copied as he believed, the 12 numbers from the loose leaf, Bhagirath tore tap the loose leaf. The book was handed to Police and Bhagirath and Phul Chand say positively that the book is the same, although the original pare is not there. Mr. Dames view that the book is not the same is guardedly expressed. He states that the note-book shown to him by the Police is not the note-book which he saw on the 26th September, and he then gives his reasons and as this has been considered by the defence to be an important matter, we set out exactly what he says:

The note-book as far as my recollection goes bad a brown coloured paper covering. The size was like the size of Exhibit P.-V but I cannot say if it was so thick. As I do not find the double row of entries in ink in the book and there are only 11 numbers in this book and the cover is different, I am inclined to say that the proper notebook has not been produced. The two main reasons which inclined Mr. Damle to believe that the book was not the same, were that he thought that the book shown to him had a paper cover and may not have been so thick as the one produced by the Police. We have come to the conclusion that the book shown to Mr. Damle and the book produce a by Bhagirath is one and the same, and that Bhagirath and Phul Chand have told the truth about this matter. Except on credibility it is not of great importance in the case, because there is the outstanding fact which cannot be too often repeated that Bhagirath was on the 4th of October, the flay on which the book was handed over to 1he Police, able to furnish to them a list of the numbers of 10 notes entirely correct and of two notes incorrect in the manner which we have described. Curiously enough in the pencil entry in the book itself there are only n entries. It happened that there were a series of notes P. D./37 25092, 25093. 23094. In the book P.D./37 25094 appears, but not 25093, and it looks as if the figure 3 was written first and the figure 4 written over it. At all events the fact is that P. D./37 25093 does not find a place in the book but it was on the slip handed by Bhagirath to the Police Officer and was in fact found in Har Prasad Bhargava s box on the 26th of October. Khan Bahadar Jacob took pains to make clear his belie in the reliability of Bhagirath and Mangal Chand. We believe in the truth of their evidence also, and we accept without hesitation the account which Mr. Lachmi Narain, Mr. Neilson and Mr. James have given. No attack appears to have been made upon any of these latter witnesses nor could any attack conceivably be made. We have previously adverted to the conduct of Har Prasad Bhargava, and we propose now to consider how he shaped his case before Khan Bahadur Jacob, before the Sessions Judge and finally before us.

33. It will be remembered that on the 27th of September a letter was sent at the instance of the Acting Judicial Commissioner to Har Prasad Bhargava enquiring inter alia, "in what way and when each of the notes of Rs. 14,000 or Rs. 15,000 found in your bungalow on the night of the 19th come into your possession." He was told that if he wished to make answer he was given time until the 29th of September in which to do so. On the 30th of September Har Prasad Bhargava called on the Acting Judicial Commissioner and said he would submit his explanation in a sealed cover not to be opened unless and until a criminal case was instituted against him and not until the trial had actually commenced. The explanation was sent and the sealed envelope was opened in the course of the criminal trial. It contained the following paragraph:

2. The notes found with me on the 19th instant belong to me, Rs. 9,900 and odd worth were deceived by me from my Bombay broker in the last Mohurram holidays In settlement of accounts and include the sum of Rs. 7,000 on pledge of Hokam Chand Mill Shares and Rs. 4,000 worth notes were received by me from another Bombay broker of mine in the first week of August last on account of money due to me on an advance made last year. The rest of the money consisted of my savings. It is not possible form to remember and account for each note separately.

34. This paragraph appearing as it does, over the signature of a Judge, who as evidenced by an order in the Bhagirath case, was aware of the importance of particularity, impresses us unfavorably. A regards both these alleged transactions why in each case was not the full name and address of the alleged broker given instead of their identity being vaguely referred to as "my Bombay broker" and "another Bombay broker of mine" an d why was not each transaction (if either had any existence) vouched for by documents such as accounts, letters, etc. To these questions Mr. Dillon has been unable to give a ay answer. The fact is that in our belief, the statement is untrue. At the trial nothing would have been easier than these most vital allegations to be proved. The Government-Advocates suggestion, when deiling with what we regard as the most unsatisfactory evidence of Mr. Ajudhia Prasad, was that the latter went to Bombay to secure the assistance of Trokeri and to fabricate a defence but that he was unsuccessful. A perusal of Mr. Ajudhia Prasads evidence shows that he was very unwilling to answer any question as to his doings in Bombay. Having said that he went to Bombay to take legal opinion regarding the search of his brothers house he was asked, "beyond obtaining legal opinion did you do any other business." He replied "the question is indefinite and so I cannot answer." He was then asked "did you do anything relating to money matters of your brother, or yours, or other brothers." To that he gave the following reply, "the question is indefinite and I have not understood it and 1 cannot answer it." The Court then took him in hand and extracted some kind of a reply. In cross-examination Mr. Ajudhia Prasad stated that Har Prasad Bhargava was arranging to provide him with Rs. 20,000 and was going to bring it to Seoni where he, Har Prasad Bhargava, was expected to arrive before the 20th of September. If that is a true statement liar Prasad Bhargava would not on the night of the 19th have denied that he had any money in the house but would have said at once that he had a very large sum which he had collected for the purpose of taking to his brother. He, would also, in that event, have had no difficulty in demonstrating the sources from which it had been obtained. We have, however, no doubt that the story of the suggested loan by Har Prasad Bhargava to Mr. Ajudhia Prasad is false.

35. The prosecution put into the witness-box one Hazari Lal for the formal proof of a document. Under cross examination by the defence he disclosed a remarkable story which Khan Bahadur Jacob has described as "transparently false" and with which description we agree. Mr. Dillon showed good judgment in not referring to it in any way. Hazari Lal lives at Seoni--the same place at which Mr. Ajudhia Prasad resides. He says that at sometime before the 15th of September he had previously seen Har Prasad Bhargava and had been asked by him to bring some money from "Murari Lal of Bombay," that Har Prasad Bhargava had given him a letter authorizing him to collect it, that he had handed over the letter to "Murari Lal" and had received in return about Rs. 9,930. He says that about the 15th or 16th of September he handed to Har Prasad Bhargava at Akola the money so obtained. Amongst the notes were 70, each of the value of Rs. 100 and for some reason which he does not give he had Written down the value and currency number of all the notes including these 70. Referring to the paper on which these numbers are alleged to have been written he said "I think that either I tore off the paper and left at Bhagdias shop or left the paper under the gaddi of Onkar Das Bhagdias shop. Mangal Chand sits on the same gaddi."

36. At this stage ft need hardly be said that "Murari Lal," was not called to give evidence of his transactions with Har Prasad Bhargava; or to produce the letter or books of account, nor is there any reliable evidence which suggests that "Murari Lal" has any existence in fact. The underlying suggestion appears to be that Mangal Chand found the pieces of papers which contained amongst others the numbers of the 70 notes of Rs. 100 each, communicated some at least of these numbers to Bhagirath, told him they had been paid to Har Prasad Bhargava, and thus enabled Bhagirath to supply information to the Police, by means of Exhibit P-III. In cross-examination no question of this kind was put to Mangal Chand, and as a proved friend of the Judge, Mangal Chand was hardly likely to engage in a conspiracy, to ruin him. If he had originally given the numbers innocently to Bhagirath nothing would have been easier for Mangal Chand to explain in Har Prasad Bhargavas interest, the remarkable manner in which Bhagirath came to know of the number of the notes subsequently found in Har Prasad Bhargavas possession.

37. Again we emphasise that if in truth Har Prasad Bhargava had received Rs. 9,900 only a day or two before the Search, that fact must have been fresh in his mind on the evening of September 19th; and similarly the alleged facts in relation to the Rs. 4,000.

38. In his written statement he objected to the jurisdiction of the Court and denied the taking of any money from Mangal Chand on behalf of Bhagirath as a bribe. He attributes the "raid" of his house to a visit paid a few days before by Mr. Lachmi Narain to Sir Henry Drake-Brockman, the Judicial Commissioner, and says that Mr. Lachmi Narain was determined to make him a "scapegoat." He refers to the undertaking on the part of the Government not to prosecute witnesses as "a temptation, unknown to law"; and asserts that his answers contained in the sealed cover will give the source from which he obtained the money found in his possession on the night of the 19th of September. His explanation, which we have already set out in full, was, in our opinion, wholly untrue and designedly vague. He concluded his written statement by saying "under the circumstances I do not propose to give any evidence." To that resolution he adhered and in view of the strength directness and precision of the prosecution case, emphatic denials and wholly unsupported charges of conspiracy appear to us to have been the only course open to Har Prasad Bhargava.

39. In the Courts of Khan Bahadur Jacob and Mr. Prera Narain and before us he raised certain points of law.

40. The Trying Magistrate, in his very careful and well-considered judgment has dealt at length with all the pleas taken by the accused. The procedure adopted by the Sessions Judge Mr. Prem Narain with regard to this matter seems to us most unsatisfactory. He reserves all questions of law until after he has elaborated his conclusion that the evidence on the record does not warrant the conviction of the accused on the charge as framed. He then sets forth a formidable list of the "points of law raised in the memorandum of appeal," in respect of which he remarks that "very lengthy arguments were addressed to me on them from both sides." Re decides none of them, holding that it is unnecessary to do so in view of the decision already pronounced upon the facts. Two of the pleas thus left undetermined are against tae jurisdiction of the Trial Court; others impeach the admissibility of the most material evidence in the case, while others again raise questions of law as to the manner in which the testimony of Bhagirath and Mangal Chand should be regarded, in view of the admitted fact that they are in the position of accomplices in the commission of the offence charged. Now it is clearly illogical that a verdict of acquittal should be recorded as the ultimate result of a trial in respect of which it has not been finally determined that it was held before a Court of competent jurisdiction." It must also be exceedingly difficult for any Judge to arrive at a correct appreciation of the value of certain evidence, if he enters on the task while the back of his mind is still pre-occupied with a doubt whether that evidence ought to have been admitted into the record. We cannot help wondering whether a certain subconscious pre-occupation of the judicial mind with a set of legal conundrums, which the learned Sessions Judge was not anxious to solve, may not have contributed to the unsatisfactory manner in which he has handled the evidence and the erroneous conclusion he has drawn from it. The question of jurisdiction has not been and could not be seriously argued before us. The sanction of the Local Government of the Central Provinces, reproduced at page 5 of our printed books, was quite sufficient to remove the bar imposed by Section 195(1)(a) of the Code of Criminal Procedure to the cognisance of the alleged offence by any Court of otherwise competent jurisdiction. u/s 177 of the same Code the proper place for the trial was Akola, in the absence of any order expressly transferring the case for trial to some other Sessions Division. The Magistrate, Khan Bahadur E. Jacob, was duly invested with territorial jurisdiction at Akola and the case was properly instituted in his Court. The record before Us does not explain why one complaint was filed before the said Magistrate at Nagpur on the 28th of October 1921, and a further complaint at Akola on 7th of November 1921, but this procedure could not have the effect of ousting his jurisdiction. Questions regarding the admissibility of evidence should ordinarily be raised at the time when such evidence is tendered. In the Trial Court the witness Bhagirath was examined on the 12th of November 1921 and cross-examined on the 2nd of December 1921. The witness Mangal Chand was examined on the 13th of November 1921; further examined on the 14th of November 1921, and cross-examined on the 2nd of December 1921. The accused was twice examined by the Court and put in a written statement in his defence on the 15th of December 1921. Even this statement contains no express plea against the admissibility of the evidence of these two witnesses. It is only from the judgment of Khan Bahadur Jacob that we gather that it was argued before him that "as Mangal Chand and Bhagnath had not been pardoned u/s 337 of the Criminal Procedure Code, nor had the prosecution against them been withdrawn, they were not competent witnesses." In the memorandum of appeal to the Sessions Court there is a plea that "the evidence obtained" by means of "the undertaking on the part of the Local Government, otherwise described as amnesty not only has no value" but is inadmissible"; there are also pleas against the admissibility of "the entries in the account be as of Bhagirath and Mangal Chands master" as also of the memorandum Exhibit P-III handed by Bhagirath to the Investigating Police Officer and the entry containing the numbers of the currency notes in Bhagiraths note-book, Exhibit P-V. There is a general plea that the Trial Court admitted and recorded "irrelevant and inadmissible evidence both documentary and oral in spite of objections" and reserved its decision on the same. It has not been shown to us, and is not apparent from our examination of the record, that the question of the competence of Bhagirath and Mangal Chand to give any evidence at all was raised in the Trial Court at the proper time, that is when the witnesses were tendered for examination. The Magistrate purports to deal with it as an argument addressed to him when the defence finally summed up their cast. It was no doubt open to him to consider, even at that stage, whether he had not made a mistake in examining Bhagirath and Mangal Chand at all; this he has don;, and has held that the men were competent witnesses. The Sessions Judge has not decided the question at all. The argument addressed to us on the point when properly analysed seems to involve three distinct propositions:

(I) That Bhagirath and Mangal Chand being on their own testimony accomplices in the commission of the offence to which they deposed, could not be examined as witnesses against the accused, because the case did not fall under the provisions of Section 337 of the Code of Criminal Procedure, and there is no other section of tint Code under which "the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, the offence under inquiry" can be examined at all.

(II) That Bhagirath and Mangal Chand were not merely accomplices, but were, by reason of the complaint filed is the Court of Khan Bahadur E. Jacob "accused per sons" along with Har Prasad Bhargava, and u/s 5 of the Indian Oaths Act X of 1873, it is not lawful to administer "an oath or affirmation to the accused person." In this connection it was suggested that the proper course for the Magistrate to have followed would have been to issue process against these men, along with Har Prasad Bhargava, and for the Local Government to "withdraw from the prosecution" of these two persons u/s 494 of the Criminal procedure Code.

(III) That the evidence of Bhagirath and Mangal Chand was obtained after the Government of the Central Provinces had issued, and caused to be published, a declaration that no prosecution would be instituted by the said Government against any person who came forward with evidence that he ha d paid or offered a bribe to Har Prasad Bhargava; that the issue of such a declaration was "illegal" and that no evidence obtained in consequence or tendered on the strength of such a declaration was legally admissible.

41. Now the first of these contentions rests upon an obvious fallacy. This fallacy is almost sufficiently exposed by the very terms of the second contention; but it re-appears, in substance, as the only arguable basis for the third contention. Section 337 of the Code of Criminal Procedure empowers certain Courts of Justice, viz., Magistrates exercising certain powers or specially empowered ad hoc by an order of sanction, to pass a judical order, the effect of which is that a "person supposed to have been directly or indirectly concerned in, or privy to, the offence under inquiry" who chooses to accept the pardon tendered by the said order, can give his evidence "as a witness in the case", with the knowledge and assurance that the order will operate as a bar to his own subsequent prosecution or trial for the offence in respect of which the pardon was tendered, or for any other offence of which he appears to have been guilty in connection with the same matter." Under certain circumstances set forth in Section 339, the order tendering the pardon may cease to have this effect; but this will only be when it has been superseded by a judicial finding that the pardon has been forfeited. The points to be noted are that Section 337 is an empowering section that it is addressed to certain Courts of Justice, and has noting to do with the powers or discretion of an executive authority, such as a Local Government, in the matter of instituting or refraining from instituting, any prosecution; and that the legislature has seen fit to limit its operation to "the case of any offence triable exclusively by the Court of Session or High Court." We are dealing here with the case of an offence punishable u/s 161 of the Indian Penal Code, which is triabls by the "Court of Session, Presidency Magistrate or Magistrate of the First Class." Admittedly Section 337 of the Criminal Procedure Code has no application to the case now before us. The result is that no Court of Justice had any authority to pass in favour of Bhagirath or Mangal Chand any order which either of them could plead as a. bar to his own subsequent prosecution were such prosecution to be instituted. If they chose to come forward and give evidence without the protection of any such judicial order that was their own look out. There is no provision of Indian Statute Law, nor is there any principle of natural justice, which makes an accomplice, as such an incompetent witness at the trial of another person in respect of the offence in the commission of which he was an accomplice. The prosecution is not evading the provisions of Section 337 of the Criminal Procedure Code, when it puts into the witness-box an accomplice in the commission of an offence to which that section does not apply. The practical difficulty in such a. case is for the prosecution to feel any confidence that an accomplice will give true evidence. The Trial Court is undoubtedly entitled to inquire into any measures which those responsible for the conduct of the prosecution may have taken to overcome this difficulty. It will carefully consider the question what bearing the evidence as to the measures so taken in a particular case may have on the credibility of the accomplice witness concerned, on the value to be attached to his testimony. A refusal to admit his evidence on to the record, merely because he was an accomplice and because the case was one outside the purview of Section 337 of the Criminal Procedure Code would be a clear error of law.

42. This is made all the more obvious by the second of the contentions addressed to us on behalf of the accused. We are not disposed to repel the contention that the Magistrate would have been within his jurisdiction if on the complaint laid before him he had caused process to issue against Bhagirath and Mangal Chand as well as against Har Prasad Bhargava. These persons would then hare come before the Magistrate as co-accused in the same case. The Magistrate could still, in his discretion, have proceeded to try the three accused either jointly or separately. The words "as the Court thinks fit" in Section 239 of the Criminal Procedure Code pre of the widest possible import. It is to be presumed that the Court will "think fit" to adopt, in each particular case, whenever course it regards as most conducive to the ends of justice. We are not concerned to decide a point which has not arisen but we must certainly not be understood to hold that if the Magistrate, after issuing process against Hat Prasad Bhargava, Bhagirath and Mangal Chand, had thought fit to try Har Prasad Bhargava first, the other two would thereby have become incompetent witnesses at his trial whether for the prosecution or for the defence. If he had elected to enter upon a joint trial, the Public Prosecutor could, with the consent of the Court, have withdrawn from the prosecution of Bhagirath and Mangal Chand. Beyond question, these two could then have been put into the witness-box against Har Prasad Bhargava. No ore would even have suggested that, after an order of discharge or acquittal had been passed in respect of them, either, of them continued to occupy the position of "the accused person" within the meaning of Section 5 of the Indian Oaths Act (X of 1873). From a legal point of view the only difference in tie case now before us is that neither Bhagirath nor Mangal Chand was ever an "accused person" at the trial in which his evidence was tendered within the meaning of the said section. The real effect of the argument addressed to us on behalf of the accused on this point is that there is a method by which the prosecution, keeping strictly within the for corners of the Code of Criminal Procedure, might, with the consent of the Court, have put Bhagirath and Mangal Chand into the witness-box against Har Prasad Bhargava, each of them fortified by a judicial order of acquittal which would have barred their subsequent prosecution. They actually gave evidence without any such should though relying upon an extra-judicial undertaking that the Local Government would not direct their prosecution. Whether their testimony is entitled to greeter or less credit on this account is a question to be considered; but it his nothing to do with the admissibility of the testimony. There is abundant case-law in support of the propositions which we have laid down. In Mohesh Chunder Kopali v. Mohesh Chunder Dass 10 C.L.R. 558 principles were laid down which would, beyond all question, make Bhagirath and Mangal Chand competent witnesses for the defence, if the present accused had sought to produce them as such at his trial. The same is the effect of the decision in Queen-Empress v. Tirbent Sahai 20 A. 426 : (1898) A.W.N.102 : 9 Ind. Dec. (N.S.) 632. In a very old case which has never, so far as we know, been dissented from, but was quoted with approval by a Bench of the Calcutta High Court in 1906 vide Banu Singh v. Emperor 33 C. 1353 : 10 C.W.N. 962 : 4 Cri.L.J. 145--we refer to the case of Queen v. Behary Lall Bose 7 W.R. Cr. 64--it was contended that the evidence of a certain witness for the prosecution was inadmissible "because he had been at one time charged before the Magistrate as an accomplice and had neither been acquitted nor pained." The High Court repelled this contention and held that "there is no law or principle which prevents a person, who has been suspected or charged with an offence, but discharged by the Magistrate for want of evidence, being afterwards admitted as a of evidence, being afterwards admitted as a witness for a prosecution." An even stronger case is that of Queen-Empress v. Mona Puna 16 B. 661 : 8 Ind. Dec. (N.S.) 919. The accused was on his trial on a charge of burglary, and the Police tendered in evidence against him a man whom they had previously arrested on suspicion of complicity in the same offence. The Court was of opinion that the Police had acted improperly in releasing this man, but nevertheless held him to be a competent witness for the prosecution. It was laid down that "the accused" in Section 342 of the Criminal Procedure Code means "a potion over whom the Magistrate or other Court is exercising jurisdiction" and reference was mace to the provisions of Section 118 of the Indian Evidence Act (I of 1872). The whole of the argument applies a fortiori to the facts of the present case and to the contents founded upon Section 5 of the Indian Oaths Act (X of 1873). Two cases have been quoted on the other side. In Empress of India v. Asghar Ali 2 A. 260 : 4 Ind. Jur. 250 : 1 Ind. Dec. (N.S.) 727 the facts were so different that we cannot treat any of the remarks, incidentally made by the learned Judges, as laying down principles applicable to the facts now before us. There had been on that case a breach of the clear provisions of Section 337 of the Code of Criminal Procedure and it was difficult to see how the High Court could deal with the testimony of a witness tendered in contravention of those provisions otherwise than by rejecting it all together. We were referred also to a case decided at Lahore which is to be found in the case of Mahandu v. Emperor 57 Ind. Cas. 167 : 1 L. 102 : 1 L.I.J. 182 : 23 Cri.L.J. 599 : 89 P.L.R. 1920. We think it sufficient to say that, in so far as the principles laid down in that case seem to us inconsistent with those in Queen-Empress v. Mona Puna 16 B. 661 : 8 Ind. Dec. 919 we are in agreement with the latter. In what has already been said, we have in substance anticipated the third contention on the point pressed upon us on behalf of the accused. In a case to when we have referred above, Banu Singh v. Emperor 33 C. 1353 : 10 C.W.N. 962 : 4 Cri.L.J. 145, the learned Judges held that "a Local Government in India has no power to tender a conditional pardon to an accomplice for the purpose of his being examined as a competent witness against others accused with him." If this pronouncement only means that the Legislature in India has prodded no method, outside the scope of Section 337 or Section 495 of the Criminal Procedure Code, by which a Local Government can provide an accomplice witness with a judicial order which he can subsequently plead in bar of his own prosecution, should such prosecution be instituted, it is undoubtedly correct. It seems to us obvious at the same time that a discretion to refrain from instituting a prosecution in any particular case is inherent in any authority to which the law has entrusted the power to institute a prosecution. Nor can any law prevent a person or body of prisons exercising such authority from determining beforehand how that discretion shall be exercised upon the happening of a certain contingent event. If such determination is communicate before hand to any person or body of persons, whom it may concern, we can find no provision in the Indian Statute Law which lays down that the competence of such person or persons to testify as witnesses in a Criminal Court a boat any matter referred to in such communication is thereby effected. As regards the point actually decided in Banu Singh v. Emperor 33 C. 1353 : 10 C.W.N. 962 : 4 Cri.L.J. 145 we are not concerned to say whether or not we should have passed the sane order upon the facts than before the Calcutta High Court; they are sufficiently distinguishable from the facts of the present case. We are brought back to the conclusion which we have already indicated. The Government of the Central Produces could undoubtedly hive elected to follow a different procedure. They might have instituted a prosecutor against Bhagirath and Mangal Chand and have withdrawn the same under faction 491 of the Code of Criminal Procedure. If this had been done before framing a charge the resulting judical order would have been one of discharge; if it could conceivably have been done after a charge bud been framed, an order et acquittal would have followed, plead-able and the provisions of Section 403 of the Criminal Procedure Code in but of any subsequent prosecution. The question whether the testimony of Bhagirath and Mangal Chand would have been entitled to more credit if 1hey had given their evidence after such order of discharge or acquittal in their favour is one which, as we have already said, has nothing to do with that of their competence to testily. In apprising their evidence we bear in mind that it was given in 1 el a nee upon a promise made on behalf of the Local Government that no prosecution would be instituted against them in respect of the offence to the commission of which they testified.

43. The admissibility of certain documentary evidence produced by Bhagirath and Manual Chard was challenged in the memorandum of appeal to the Sessions Court upon certain grounds independent of the general question of the competence of these witnesses to testify at nil. Little was said in argument before us in support of these contentions, but it is well that we should deal with there. We are satisfied that the account-books of the firm of which Bhagirath is a member, and those of the firm of which Mangal Chand is a servant, which were produced in corroboration of their test money are books properly kept in the regular course of business; the relevant entries in the same are admissible in evidence for the propose for which they have used.

44. Two documents--Exhibits P-III and P.-V--were put in evidence in connection with Bhagiraths deposition in order to corroborate his assertion that he Lad used twelve currency notes of one hundred rupees each, bearing specified numbers, in order to made up the amount of the bribe paid by him. It was certainly open to the prosecution to lead evidence to prove that Bhaghirath had made out a 1st of these twelve notes, specifying the said notes in detail, and had communicated that list to other persons at 9 time when he could not possibly know that those particular notes had been found in the possession of liar Prasad Bhargava on the night between the 19th and 20th. September 1921. If Bhagriath is a competent witness at all, he was undoubtedly entitled to produce the memoranda 3 in the book Exhibit. P-V and to depose that it was in existence twenty-two days before the 26th of October 1921, on which date it was or the first time ascertained what were the numbers of the notes recovered from Mr. Har Prasad Bhargava on the night between 19th and 20th of September.

45. We cannot conclude this judgment, long as it already is, without expressing our high approval of the promptitude with which the Local Government acted and the course they took. Cases of tee acceptance of bribes, whether by Judicial or Executive Officers, are invariably most difficult of detection and in proper cases an under taking not to prosecute, the offerer of a bribe is, in our opinion, a most salutary procedure.

46. On the other hand a Judge approached by an intending bribe giver is by no means Unprotected. He can always take appropriate steps to secure evidence by which proceedings under the Criminal law can be instituted against the offender. He can, for instance, stipulate that the money is to be paid direct to him at a certain time and certain place and he can without difficulty arrange for the whole transaction to be beard and in part witnessed by concealed third persons who will intervene at the proper moment. A "trap" of this kind is perfectly justifiable and is in Indian bungalows especially easy to arrange. The Acting Judicial Commissioner is to be congratulated upon the steps which he took; while Mr. Lachmi Narains conduct is deserving of the highest commendation. He had to undertake a most painful task in -respect of a man with whom he had been on friendly terms for some four or rive years, and we have no doubt that, he and Mr. James and Mr. Neilson did, as it is said they did, their duty most sympathetically. We have already described Mr. Damle as a gentleman of unimpeachable honour and integrity, and in this case he showed a high standard of professional honour. Fur from anybody in the case having put forward false, concocted or fabricated evidence or having engaged in any conspiracy against Har Prasad Bhargava, the whole record, shows that the contrary is the case. The conviction of Har Prasad Bhaygaya fey Khan Bahadur Jacob was right beyond any possibility of doubt and his judgment is a most admirable summary of the facts, while his arguments lead irresistibly to the conclusion of guilt, We set aside the order of acquittal and u/s 423(1)(a) of the Code of Criminal Procedure we find Har Piasad Bhargava guilty of the offence with which he was charged and pass upon him the same sentence which was passed by Khan Bahadur Jacob on the 4th of January 1922, namely, years rigorous imprisonment and a fine of fifteen thousard " rupees. We also confirm the order regarding the disposal of the notes and the exhibits in the case. This order will be certified to the Court of Session at Akola, in order that Kar Prasad Bhargava may be required to surrender to his bail and the sentence be carried out according to law.

47. Mr. Dillon has made an appeal to us to pass a lighter sentence and has pointed out that the sentence passed upon Kar Prasad Bbargava is, as he describes, a ciushing sentence. There is no doubt that we have power to lessen the period of imprisonment. We have power to reduce the fine or sweep it away. But in cur opinion the sentence was a proper sentence, and Judicial Officers throughout India most understand that, they are convicted of taking bribes from people, who are bound to bring their cases for decision before them, they must be punished in the most stern and exemplary manner. We are, therefore, unable to accede to the request of Mr. Dillon, because we are of opinion that the punishment in this case is the right and proper punishment.