JUDGMENT 1. In this case one Sherati Sheikh was convicted on the 26th January 1914 under sec. 411 of the Indian Penal Code and sentenced to rigorous imprisonment for three months and to a fine of Rs. 40. It appears hat in the first instance the Petitioner and one Mojum Khan were placed on their trial together and that on the 6th November, with the consent of the Court, the Public Prosecutor withdrew from the prosecution of Mojum Khan under sec. 494 of the Criminal Procedure Code. 2. Mojum Khan was thereupon examined as a witness, and it is largely upon this evidence of an accomplice, that the Petitioner has been convicted. 3. It appears also that prior to the trial Mojum Khan had made a confession to a Magistrate and that his confession was subsequently verified by the same or another Magistrate to whom presumably therefore the confessing prisoner made further statements. The confession and these further statements have not been placed on the record, and on this ground copies were refused to the Petitioner. 4. On his behalf it is then contended before us, first, that no formal order of discharge having been recorded in the case of Mojum Khan, his evidence was inadmissible ; and, secondly, that the Petitioner has been prejudiced by the failure of the prosecution to produce the confession and further statements of the said witness. 5. The first contention is based on the case of Banu Singh v. King-Emperor I. L. R. 33 Cal. 1353 (1906), but in the present case it is clear that notwithstanding the inadvertent omission to record a formal order of discharge the accomplice ceased to be on trial with the present Petitioner as soon as the prosecution against him was withdrawn and that being so he became a competent witness. The matters urged against the value of his testimony do not render it inadmissible. 6. There can however be no question that for the purposes of cross-examination and if necessary contradiction, the prior statements of the witness should have been made accessible to the accused, and we are at a loss to understand why the Public Prosecutor should have withheld them and why the trying Magistrate failed to compel their production. 6. There can however be no question that for the purposes of cross-examination and if necessary contradiction, the prior statements of the witness should have been made accessible to the accused, and we are at a loss to understand why the Public Prosecutor should have withheld them and why the trying Magistrate failed to compel their production. We therefore set aside the conviction of and sentence imposed upon the Petitioner and direct that he be retried, the retrial to take place before some other competent Magistrate at Tangail if available, if not at the District head quarters.