Order.- The Deputy Superintendent of Police, Bodhan, conducted a raid on Hotel Navrang at Bodhan on 12th November, 1977. He found some persons playing cards. He filed a charge-sheet against the eight accused, under sections 3 and 4 of the Andhra Pradesh Gaming Act, 1974, in C.C. No. 535 of 1977 in the Court of the Judicial First Class Magistrate, Bodhan. They appeared in the Court. They were examined under section 251, Criminal Procedure Code, accused 4 and 8 admitted the offence. Thereafter, the prosecution filed an application to examine accused 4 and accused 8 as witnesses under section 13 of the Andhra Pradesh Gaming Act, 1974. That petition was allowed by the Magistrate. Questioning his order, the accused have filed this petition 2. It is submitted by the learned Counsel for the petitioners that section 13 of the Andhra Pradesh Gaming Act, 1974,has no application to the facts of this case, for accused 4 and accused 8 are accused of the offence, that they had admitted the guilt and they cannot be there-after taken as witnesses by the prosecution. 3. Section 13 of the Andhra Pradesh Gaming Act, 1974, reads as follows: “13. Any person who is concerned in gaming contrary to the provisions of this Act, and who is examined as a witness before a Magistrate on the trial of any person for a breach of any of the provisions of this Act and who upon such examination, makes true and faithful discovery to the best of his knowledge of all things as to which he is so examined, shall thereupon receive from the said Magistrate a certificate in writing to that effect and shall be freed from any prosecution under this Act for any thing previously done in respect of that particular gaming”. An analysis of the section shows that a person must be concerned in gaming contrary to the provisions of the Act. He should be examined as a witness before the Magistrate. It should be in the trial of a person for the breach of any of the provisions of the Act. He must make a true and faithful discovery to the best of his knowledge of all things to which he is examined. Thereupon, he will receive a certificate from the Magistrate to that effect. Then he will be freed from prosecution under the Act for anything done in respect of such gaming. He must make a true and faithful discovery to the best of his knowledge of all things to which he is examined. Thereupon, he will receive a certificate from the Magistrate to that effect. Then he will be freed from prosecution under the Act for anything done in respect of such gaming. The section does not contemplate an accused being examined as a witness in his own trial. It contemplates of a person who is concerned in gaming examined as a witness in the trial of another person. Otherwise, the words in the section “in the trial of any person” and “shall be freed from any prosecution under this Act for anything previously done in respect of that particular gaming” will have no meaning. A person cannot be both an accused and a witness at the same time. He can be either an accused or a witness. In this case accused 4 and accused 8 were already on trial. Therefore, I agree with the learned Counsel for the petitioners that A-4 and A-8 cannot be examined as witnesses under section 13 of the Andhra Pradesh Gaming Act, 1974. 4. The learned Public Prosecutor relied upon sections 10 and 11 of the Public Gaming Act, 1867, and the decision in Mahadeo Prasad Vishnu v. Emperor1. Section 10 of that Act provides that a Magistrate can examine as a witness any person found in a gambling house and brought before him. Section 11 is practically in the same terms as section 13 of the Andhra Pradesh Gaming Act. 1974. Sections 10 and 11 of the Public Gambling Act, 1867, do not show that the Magistrate can examine an accused as a witness, when he still continues to be an accused. 5. In Mahadeo Prasad Vishnu v. Emperor1, it has been held by Nanavatti, J., that the procedure prescribed under the Public Gambling Act, 1867, is a special one and overrides the general law as to the procedure connected with pardon laid down in the Criminal Procedure Code. In that case, the Magistrate, granted pardon to one Mata Prasad and used his evidence against the applicant therein, Mahadeo Prasad Vishnu. Nanavatti, J., approved his action. The facts are not very clear. From the judgment, I gather that Mata Prasad was an accomplice and he accepted the pardon tendered to him by the trying Magistrate under section 10 of the Public Gambling Act, 1867. Nanavatti, J., approved his action. The facts are not very clear. From the judgment, I gather that Mata Prasad was an accomplice and he accepted the pardon tendered to him by the trying Magistrate under section 10 of the Public Gambling Act, 1867. But, that decision does not lay down that an accused can be examined as a witness under section 11 of that Act, when he still continues to be an accused. Further, we do not have a section similar to section 10 in the Andhra Pradesh Gaming Act, 1974. Therefore, that decision is of no assistance to the prosecution in this case. 6. In Queen-Empress v. Hussein Haji2where the Public Prosecutor with the consent of the Court withdrew from the prosecution of two out of several accused persons tried jointly for an offence under section 4 of the Gambling Act (Bombay Act IV of 1887) and the two accused were thereupon discharged under section 494 of the Criminal Procedure Code (V of 1898) and then examined as witnesses for the prosecution, the Bombay High Court held that the persons so discharged were competent witnesses under section 10 of that Act. 7. In Bahilal Balwant v. Emperor1, it was held that a Magistrate is not justified under section 10 of the Bombay Prevention of Gambling Act in examining an accused person while he is still in the position of an accused person and had not obtained an order of discharge or acquittal. 8. Those decisions also support my conclusion that an accused cannot be examined as a witness while he still Continues to be an accused. 9. Consequently, I set aside the order of the learned Magistrate permitting the prosecution to examine A-4 and A-8 as prosecution witnesses. Accordingly, the revision is allowed.