IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Misc. App. No. 515 of 2001 Dharam Singh S/o Sri Ran Singh R/o Village – Bhojawala Police Station Vikasnagar District - Dehradun …..Applicant Versus 1. State of Uttar Pradesh 2. Baldev Singh S/o Prem Singh R/o Village Pachhmi Wala Police Station Vikasnagar District - Dehradun 3. Shri Sajjan Singh S/o Shri Rattan Singh R/o Village Pachhmi Wala Police Station Vikasnagar District - Dehradun 4. Shri Duni Chand S/o Shri Ran Singh R/o Village Bhojwala Police Station Vikasnagar District Dehradun. ... Respondents. Shri T.A. Khan, Advocate for the applicant. Shri Pradeep Lohani, Advocate for the respondents. Hon’ble Prafulla C, Pant, J. By means of this petition, moved under Section 482 of Code of Criminal Procedure, 1973 (for brevity hereinafter the Code), the petitioner has challenged the order dated 09.12.1996, passed by learned IInd Additional Sessions Judge, Dehradun, in Criminal Revision No. 28 of 1996 and order dated 22.02.1996, passed by learned Vth Additional Chief Judicial Magistrate, Dehradun in Criminal Case No. 605 of 1995. 2. Brief facts of the case are that respondent No. 4, filed a criminal complaint against applicant and respondent No. 2 and 3 for their trial in respect of the offences allegedly committed by them, punishable under Section 120- B/467/468/471 of Indian Penal Code, 1860. According to complaint a General Power of Attorney was executed by making forged signature of the complainant and the same was presented before the Sub Registrar to claim full power to manage all the property of the complainant (respondent No. 4). The respondent No. 2 and 3, were alleged to have verified the signature of the complainant on the application and also indentified the imposter alleged himself to be Duni Chand (complainant). Learned Magistrate after enquiry, summoned all three accused persons and recorded the evidence under Section 244 of the Code. Charges were framed against all the three accused persons on 29.10.1991. On 11.07.1995, complainant presented two separate applications, moved by the respondent No. 2 and 3 (both co-accused), tendering pardon on declaration as approver and readiness of their being examined as prosecution witnesses. The third co-accused – Dharam Singh (the present applicant), filed his objections before the trial court, pleading that the application, moved by the complainant on behalf of the co-accused for being declared approver is not maintainable. Learned Magistrate, after hearing the parties, allowed both the applications of the co-accused (respondent No. 2 and respondent No. 3) on 22.02.1996, directing that the said two persons declaring accomplice on the condition that they will adduce evidence of true account of the incident and would not conceal anything from court, failing which they would be tried as accused in respect of the same incident. Aggrieved by said order, accused – Dharam Singh (present applicant), filed a criminal revision No. 28 of 1996, after hearing the parties, which was also dismissed on 09.12.1996, by learned IInd Additional Sessions Judge, Dehradum. Hence, this petition for quashing the orders and the proceedings. 3. I heard Shri T.A. Khan, learned counsel for the applicant and Shri Pradeep Lohani, learned counsel for the respondent No. 4. Others did not contest the proceedings. 4. Before further discussions, it is pertinent to mention here the relevant provisions of law in this regard. Section 133 of Indian Evidence Act, 1872, reads as under:- “ Accomplice- An accomplice shall be competent witness against an accused person; and a conviction is not illegal merely, because it proceeds upon the uncorroborated testimony of an accomplice.” Now, I come to Section 306 of the Code of Criminal Procedure, 1973, which reads as under:- “306. Tender of pardon to accomplice:- (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. (2) This section applies to- (a) any offence triable exclusively by the court of Session or by this Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952): (b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. (3) Every Magistrate who tenders a pardon under sub-section (1) shall record- (a) his reasons for so doing: (b) Whether the tender was or was not accepted by the person to whom it was made. and shal, on application made by the accused, furnish him with a copy of such record free of cost. (4) Every person accepting a tender of pardon made under sub-section (1)- (a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (5) Where a person has accepted a tender of pardon made under Sub-section (1) and has been examined under sub- section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case- (a) commit it for trial- (i) to the Court of Session if the offence is triable exclusively by that Court of if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii) to a Court of Special appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court; (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.” 5. First submission made on behalf of learned counsel for the applicant is that that the complainant’s counsel could not have moved the application on behalf of the respondent No. 2 and 3, who were co-accused for tendering pardon under Section 306 of the Code, Perusal of the annexure 2-A and 2- B, shows that the applications for seeking the pardon were made by the respondent No. 2- Baldev Singh and respondent No. 3- Sajjan Singh and these applications were not moved by the counsel of the complainant but was only presented by said counsel i.e. Shri Mool Chand Singh. Presentation of applications made by counsel of the complainant under Section 306 cannot be said to be moved by the complainant himself. For the purposes of Section 306 of Code of Criminal Procedure, 1973, where a co-accused is seeking pardon, the application could not have moved through the counsel representing all the three accused. As in that case, the counsel of the third accused could have been said to have moved the application against the interest of such third accused person for which he had no such instructions. That is why the respondent No. 2 and 3 moved their separate applications which were presented by the counsel for the complainant. As such, there appears no illegality if the application, made in person by the accused, was presented by the counsel of the complainant and after hearing the parties the court declared them accomplice. 6. Next point argued before this Court on behalf of the applicant is that there is essential requirement of certificate from the public prosecutor against accused on such evidence. In this connection, my attention was drawn to case law reported in Fatta Vs. Emperor A.I.R. (34) 1947 Allahabad 71. I have gone through said case law. The submission of the learned counsel for the applicant is misconceived. The certificate of public prosecutor that “any person who has accepted such tender has, either by willfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made” is required where the approver is to be proceeded for his prosecution on failure of his complying with the condition on which he was declared accomplice/approver. It is not the case here. 7. My attention was also drawn to the principle of law contained in Ram Chand Vs. State A.I.R. 1952 Himachal Pradesh 57, in which the Himachal High Court has held that where there are sufficient number of witnesses with the prosecution, a co-accused should not be declared approver. Ram Chand case (supra) is based on different circumstances as against this case. In said case, there were six witnesses with the prosecution, which is not the case here. Rather here in the present case, the complainant was in England when the alleged crime was committed behind his back. Moreover, in aforesaid case the Himachal High Court was examining the matter as a appellate court and was empowered to re-appreciate the evidence whether a co-accused was rightly declared approver/accomplice or not. But in the present case, in exercise of powers under Section 482 of the Code, this Court cannot re-appreciate the evidence on this issue. 8. On behalf of the applicant- Dharam Singh , it is also argued that learned revisional court erred in law by not considering the aforesaid case law. On perusal of the impugned order passed by the revisional court, I found that since the revision was not maintainable against the interlocutory order, as such the revisonal court did not feel it necessary to discuss the said case law. Principle of law contained in M.M. Kochar Vs. the State A.I.R. 1969 Delhi 21, shows that the decision of the court to tender pardon was a matter of discretion with it. As such, a discretion exercised by the trial court for reasons, cannot be interfered into by this court under the jurisdiction vested in it under Section 482 of the Code. 9. Therefore, for the reasons as discussed above, the petition under Section 482 of the Code is liable to be dismissed. The same is accordingly dismissed. The interim order dated 07.01.1997 is vacated. The trial court shall proceed further with the case. (Prafulla C. Pant, J.) Dt: 03.10.2005 Sweta