1 Cri.Rev.Appl.No.65 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.65 OF 2011 Ashabai Jambuwantrao Dalvi, Age-35 years, Occu-Household, R/o.village-Digras (Khurd), Tal.Basmath, Dist. Hingoli APPLICANT VERSUS The State of Maharashtra, Through Incharge Officer, Police Station, Kurunda, Tal.Basmath, Dist. Hingoli RESPONDENT Mr.P.R.Katneshwarkar, learned counsel for the applicant. Mr.N.R.Shaikh, learned A.P.P. for respondent State. (CORAM : A.V.POTDAR, J.) DATE : 25/04/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard finally at the stage of admission with consent of the parties. 2. By the present revision application, the applicant, who is original accused no.5 in Sessions Case No.34/2010, on the file of Additional Sessions Judge, Basmath, questioned the correctness of the order passed below Exh.49 on 08/03/2011. 2 Cri.Rev.Appl.No.65 of 2011 3. It is contended across the bar that the applicant is the co- accused alongwith other 5 accused in Sessions Case No.34/2010, on the file of Additional Sessions Judge, Basmathnagar, in which charge sheet was filed in connection with CR No.20/2010, for an offence punishable u/s. 302, 307 of The IPC. As the application moved at Exh.49, under the provisions of Section 306 and 307 of The Cr.P.C. to tender the pardon to the applicant, was refused to the applicant, applicant approached this Court in its revisional jurisdiction. It is suffice to say that after completion of investigation by Kurunda Police Station, charge sheet was filed and the trial was committed against the applicant alongwith other accused to the learned Additional Sessions Judge, Basmathnagar. During pendancy of trial, an application was moved at Exh.49 on 06/03/2010, requesting the trial Court to tender pardon to the present applicant, on which order was passed by the learnedAdditional Sessions Judge, which reads as, “In the entire affidavit, the applicant, accused no.5 has not admitted her guilt, hence she cannot be an approver, hence rejected.” The only grievance in this revision application is that before passing such order of rejection of application, say of the prosecution was not obtained and without giving hearing to the prosecution, the order of rejection of application at Exh.49 was passed, which is not permissible in Law. 4. On clear perusal of Section 306 and 307 of The Cr.P.C., it reveals that, “on application of the prosecution, at any time of the trial, before pronouncement of the judgment, order tender of pardon 3 Cri.Rev.Appl.No.65 of 2011 to accomplice can be passed in the interest of justice to bring the true and correct facts about the culpability of the accused in the heinous crimes, which likely to be remained unpunished because of lack of evidence.” It is clear that the say of the prosecution was not obtained in Sessions case No.34/2010. 6. At this juncture, I am not in agreement with the contents of the application filed by the applicant/accused no.5 before the Trial Court, showing her involvement in the commission of the crime. I do not want to express my further opinion, which may cause prejudice to either of the parties, but suffice it to say that before passing such order, either to allow or reject the tender of pardon, it is necessary to hear the prosecution. At this point of time, limited request of the applicant to this Court is that the matter be remanded back to the Trial Court with the directions to hear the prosecution and then to pass the order at Exh.49, in accordance with Law. I have already observed that before passing the order impugned in this revision application, say was not obtained by the learned Lower Court, so also the prosecution was not heard. In view of this, application succeeds. The matter is remanded back to the trial court with directions to hear the prosecution and then to pass order below Exh.49 in accordance with Law. The order passed on 08/03/2011, rejecting the application at Exh.49, is hereby quashed and set aside. 8. Revision application is accordingly allowed in the above terms. Rule thus made absolute. Parties to appear before the Trial Court 4 Cri.Rev.Appl.No.65 of 2011 on 03/05/2011, if no further date is fixed. On appearance of the parties before the Trial Court, the Trial Court is directed to decide the application at Exh.49 in accordance with Law, after giving fresh opportunity to the prosecution. (A.V.POTDAR, J.) khs/APRIL 2011/cri-rev-65-11