ORDER 1. This is a reference by the learned; Sessions Judge at Saharanpur. It arises in the following circumstances : The opposite party Fatta, was committed to the Court of the learned Sessions Judge along with several other persons to take his trial on a charge under S. 397, Penal Code,. Soon after the trial opened, it was found that Fatta had originally been tendered a pardon by the Committing Magistrate, but that pardon had been subsequently withdrawn and he had been committed along with the other accused persons to the Court of Sessions. The admitted facts of the case are that the Committing Magistrate in this case tendered a pardon to Fatta on 8-1-1945. This pardon could not but have been tendered under S. 337, Criminal P.C. It appears that he was examined as a witness in Court on the same date and he then denied that he had participated in any dacoity. Upon this statement, the learned Magistrate immediately withdrew the pardon tendered to Fatta and puff him in the dock along with the other accused persons and eventually committed him to the Court of Sessions. When the learned Judge found that Fatta had thus been given a pardon which had been withdrawn, he separated his case from that of the other accused persons. The other accused persons were tried in due-course. With regard to Fatta the learned Sessions Judge has made this reference with the recommendation that the commitment proceeding in relation to him should be quashed. 2. The ground, upon which the reference is based, is that the Committing Magistrate had no jurisdiction to withdraw the pardon tendered to Fatta. The learned Judge has referred to the provisions of Ss. 337 and 339, Criminal P.C., and has made certain other points, but the real ground, upon which his reference is based, is that which we have already mentioned, namely, that the Committing Magistrate having once tendered a pardon to Fatta under S. 337, Criminal P.C. It had no jurisdiction in law to withdraw it. Fatta is represented by counsel who naturally supports the reference. We have heard learned counsel for the Crown, but we find that the ground taken by the learned Sessions Judge is absolutely unassailable. Fatta is represented by counsel who naturally supports the reference. We have heard learned counsel for the Crown, but we find that the ground taken by the learned Sessions Judge is absolutely unassailable. The learned Committing Magistrate has furnished an explanation which we have also considered, but we find that he has totally ignored the real point in the case and the provisions of S. 339, Criminal P.C. According to him,' when he examined Fatta as a witness, and Fatta stated that he knew nothing about the dacoity, the legal result of his denial was that he reverted to his original position as an accused and "the pardon thus came to an end ipso facto." We need only say that in arriving at this conclusion the learned Magistrate was hopelessly wrong. Once it is admitted that a pardon was tendered to Fatta under S. 337, Criminal P.C., it necessarily follows that there must be some legal authority for withdrawing that pardon and the question really is whether the Committing Magistrate was really armed with such authority. For that purpose it is essential to refer to the provisions of S. 339, Criminal P.C., for there is no other provision in law which can govern the question which arises in the present case. Section 339 runs as follows : Where a pardon has been tendered under S. 337 or S. 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was BO tendered, or for any other offence of which he appears to have been guilty in connection with the same matter......... 3. 3. It is clear from the language of S. 339 that the whole and sole basis of the prosecution of a person, to whom pardon has been tendered under S.337, Criminal P.C., for the offence in respect of which the pardon is tendered, is a certificate by the Public Prosecutor that in his opinion "any person who has accepted such tender has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made." Until this condition laid down by S. 339 is fulfilled, there can be no valid basis for the prosecution of a person to whom a pardon is tendered under S. 337, Criminal P.C., for the offence in respect of which the pardon has been so tendered. The position appears to us to be so clear that it is not really necessary to refer to any authorities on this point, but we find that the same view has been taken by a Division Bench of the Bombay High Court in the case of Emperor Vs. Maria Basappa, AIR 1925 Bom 135 The learned Judges have held in that case that "sub-s. (1) of S.339 as amended by the Act of 1923 makes the certificate by a Public Prosecutor the sole basis of a prosecution of an approver and therefore, an approver cannot be prosecuted at the instance of or on a suggestion by the presiding Judge that he should be so dealt with." From the explanation furnished by the learned committing Magistrate it appears that he did not realise the importance of the provisions contained in sub-s. (1) of S. 339, Criminal P.C. At the very end of his explanation he has referred to this matter and has made the following observation : The P.I. was the Public Prosecutor for my Court and he agreed to the decision arrived at by me in respect of patta. 4. Even from this observation it is clear that the learned Magistrate thought that he had some authority to arrive at some decision which is obviously wrong. As we have already pointed out, the basis of a prosecution in such a case is wholly and solely the certificate of the Public Prosecutor and this condition cannot possibly be fulfilled by the Public Prosecutor agreeing with the opinion of the Magistrate. As we have already pointed out, the basis of a prosecution in such a case is wholly and solely the certificate of the Public Prosecutor and this condition cannot possibly be fulfilled by the Public Prosecutor agreeing with the opinion of the Magistrate. The result, there, fore, is that we accept this reference and quash the commitment proceeding in respect of Fatta. We leave it to the authorities concerned to proceed in accordance with the law.