IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 Crl.RC.No. 9 of 2009() ---------------------- (SUO MOTU REVISION CASE REGISTERED UPON THE ORDER IN CRL.RP. NO.1155/2000 DATED 16.6.2009.) CRA NO.186/2000 OF SESSIONS JUDGE, PATHANAMTHITTA. CC.287/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II,PATHANAMTHITTA. .................... PARTIES: 1. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SAMUL PHILIPOSE S/O.PHILIPSE, THEKKEKKARA VEEDU, POOVAN PARA, MANGARAM MURI, KONNI VILLAGE, KOZHENCHERRY TALUK. 3. KOSHY THOMAS S/O.K.T.THOMAS, KADAKKETHU VEEDU, CHENGARA MUKKU, KUMPLAM POIKA, PUTHUSSERRY MALA MURI, RANNY VILLAGE, RANNY TALUK. PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN ADV. SHRI T.I.ABDUL SALAM ADV. SHRI PHILIP MATHEW THIS CRIMINAL RIVISION CASE HAVING COME UP FOR ADMISSION ON 19/08/2009, ALONG WITH CRL.R.P.NO.1152/2000 AND CONNECTED CASES THE COURT ON THE SAME DAY PASSED 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 Crl.r.c.9/09 2 this criminal reference case is registered. 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 Crl.r.c.9/09 3 5 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.c.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.