JUDGMENT :

Hon'ble SIKRI, J.—Leave granted.

2. The brief facts leading to the filing of the present appeal by the State, challenging the correctness and legality of order dated 05.03.2013 passed by High Court of Madras, are as follows:

A case was registered on 31.01.2004 against the respondent herein who was then Regional Chief of Housing Urban Development Corporation Ltd., Chennai, along with other co-accused. FIR was submitted to the Principal Special Judge, CBI on the allegation that the respondent herein has dishonestly sanctioned 64 loans which were processed by A-2 to various individuals who sought loans for purchase of plots developed by A-3 (firm) knowing fully well that A-3 was not a reputed promoter under the HUDCO Niwas Scheme. It was further alleged that pursuant to a criminal conspiracy, the respondent sanctioned loans for inflated amounts causing wrongful loss of Rs.21,07,546.50 to HUDCO. After completion of inquiry, a charge-sheet was filed against the respondent and 15 others on 30.01.2006 under Section 120-B read with Sections 420, 467, 468, 471 of the Indian Penal Code (for short the 'IPC') and Section 13(2) read with Section 13(1) of the Prevention of Corruption Act (for short the 'PC Act').

3. As per the appellant, during the course of investigation, five individuals were taken as approvers after recording their confessional statements. Accordingly, an application was filed by the Prosecutor under Section 306 of the Criminal Procedure Code (for short the 'Code') for grant of pardon. This application was entertained by the Metropolitan Magistrate who passed the orders dated 30.01.2006 whereby he granted pardon to those five approvers.

4. Since the case is triable by the Special Judge under the provisions of PC Act, who is of the rank of Sessions Judge, the Metropolitan Magistrate committed the case to the Special Judge. After the committal, the Special Judge framed charges against the respondent herein (who is arrayed as A-1) as well as other accused persons i.e. A-2 to A-15. These accused persons pleaded not guilty. Much thereafter, the respondent and two accused persons (A-1 to A-3) challenged the order of grant of tender of pardon. This challenge was repelled by the trial court vide orders dated 30.08.2012 resulting in dismissing the application of the said accused persons. It was held that Section 306 of the Code does not specifically state that only the Court which inquires into or tries the case should grant tender of pardon and that the perusal of records shows that the evidence has been recorded exhaustively in the questionnaire form in accordance with Section 146 of the Indian Evidence Act. The Sessions Judge also held that the judgment of this Court in Bangaru Laxman vs. State (through CBI) and Another ((2012) 1 SCC 500), that was cited by the respondent herein was distinguishable on facts and hence not applicable to the present case and that the challenge had been filed after a lapse of six years with the object of protracting the proceedings.

5. Feeling aggrieved by the said order, the respondent herein filed Criminal Miscellaneous Revision under Section 397 read with Section 401 of the Code, in the High Court. The primary contention raised by the respondent was that the Metropolitan Magistrate had no authority, power or jurisdiction to entertain application for grant of pardon and it is only the Special Judge who could entertain such an application. The High Court vide its impugned judgment has accepted this plea of the respondent thereby allowing the criminal revision preferred by the respondent. In the opinion of the High Court, it is the Special Judge who will have the powers of a Magistrate, though the authority mentioned in Section 306(1) of the Code includes Magistrate. On that basis, it is held that it is only the Special Judge who is empowered to grant tender of pardon and such an order passed by Metropolitan Magistrate is not lawful. As a consequence, all further proceedings held subsequent t