IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 CRL.REF.No. 9 of 2009(E) ---------------------------------- SC.308/2003 of IV ADDL. DISTRICT COURT, ERNAKULAM CP.2/2003 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .............................................. PETITIONER: ------------------- SUO MOTU BY PUBLIC PROSECUTOR SRI.AMJAD ALI. RESPONDENT(S): ------------------------ 1. EDWARD JOHN, FORMER ASSISTANT GENERAL MANAGER, SBT, OVERSEAS BRANCH, COCHIN. 2. JAYARAJ, MANAGER (AGRICULTURE), ZONAL OFFICER, SBT, COCHIN. 3. P.V.DEVAKUMAR, APPROVED VALUER, LAXMI NIVAS, PIRAYIRI, PALAKKAD. 4. KUTTIAH, MANAGING PARTNER, M/S. JBJ PLANTATIONS (PVT.)LTD., COCHIN. 5. P.I.VAKKACHAN, MANAGING PARTNER, JBJ GROUP ESTATES, AMBAZHAKKAD, RESIDING AT PUTHENVEETTIL HOUSE, AMBAZHAKKAD, PALAYAMPARAMBU, MUKUNDAPURAM TALUK, TRICHUR DISTRICT, KERALA. 6. STATE/C.B.I., REP. BY ADV. M.V.S.NAMBOODIRI ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P FOR R3 ADV.DR.GEORGE ABRAHAM FOR R5 THIS CRIMINAL REFERENCE HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------------------ CRL. Reference Case NO. 9 OF 2009 ------------------------------------------------------ Dated 9th September 2009 O R D E R Chief Judicial Magistrate, Ernakulam committed C.P.2/2003 to the Sessions court, under clause (a)(i) of Sub Section 5 of Section 306 of Code of Criminal Procedure as against accused 1 to 4 after accepting tender of pardon and treating the original fifth accused, the fifth respondent herein, as an approver as provided under Section 306 of Code of Criminal Procedure. Learned Sessions Judge took cognizance of the case as S.C.308/2003 and made it over to Special Judge (SPE/CBI)-II, Ernakulam. Learned Special Judge on going through the records found that though original fifth accused was granted pardon and made an approver, he was not examined as is mandatory under Section 306(4)(a) of Code of Criminal Procedure and finding that Sessions Judge cannot interfer with the order of committal, reported it to this court to exercise the power, based on which this criminal reference case is registered. Crl.R.Case 9/09 2 2. Learned counsel appearing for fifth respondent and learned counsel appearing for third respondent and learned counsel appearing for C.B.I were heard. 3. Order passed by Chief Judicial Magistrate, Ernakulam in C.P.2/2003 dated 29/9/2003 whereunder, case was committed to the sessions court establish that order of committal against accused 1 to 4 was only for the reason that one of the accused was treated as an approver as provided under section 306 of Code of Criminal Procedure. Clause (a) of Sub Section 5 of Section 306 provides that where a person has accepted a tender of pardon made, under sub section (1), Magistrate taking cognizance of the offence shall, without making any further enquiry shall commit the case for trial to the court of Session, if the offence is triable exclusively by that court or if the Magistrate taking cognizance is the Chief Judicial Magistrate. As the cognizance was taken by the Chief Judicial Magistrate as provided under clause (a)(i) of Section 306(5), he is bound to commit the case to Sessions court. But, Sub section 5 Crl.R.Case 9/09 3 provides that such committal though could be without making further enquiry, shall be, after the approver has been examined as provided under Sub Section 4. Sub Section 4 provides that every person accepting tender pardon under sub Section 1 shall be examined as witness in the court of Magistrate, taking cognizance of the offence and in the subsequent trial, if any. Therefore, before making an order of committal, Chief Judicial Magistrate after accepting a tender of pardon should have examined the approver. As it is not done, procedure is illegal. Order committing the case dated 29/9/2003 in C.P.2/2003 is therefore, quashed. Chief Judicial Magistrate, Ernakulam is directed to examine fifth respondent, the original fifth accused, whose tender of pardon has been accepted and thereafter commit the case to the Sessions court. S.C.308/2003 taken cognizance by Special Judge (SPE/CBI)-II, Ernakulam on order of committal in C.P.2/2003 is quashed. Special Judge is directed to send back the entire records to Chief Judicial Magistrate, Ernakulam and Chief Judicial Magistrate is directed to commit the case after examining fifth Crl.R.Case 9/09 4 respondent as provided under Section 306(4)(a)(i) of Code of Criminal Procedure. Reference is disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE. uj.