JUDGMENT - BRAHME P.S., J.:---Heard Mr. Gandhi, the learned Counsel appearing for the applicants and Mr. Mirza, the learned A.P.P. for the non-applicant-State.

2. The present application is preferred by the applicants original accused in the Sessions Trial No. 200 of 1994 challenging the order passed by the Sessions Judge, Akola on 2-2-1999 whereunder the Sessions Court has quashed and set aside the order of committal passed by the Judicial Magistrate, First Class, Murtizapur, dt. 5-12-1994 and remanded back the entire proceedings to the Judicial Magistrate for holding the committal proceedings as per law.

3. Applicants were, in fact, tried before the learned Sessions Judge for the charge of committing murder of one Ramesh Ahire. One Lalita Ashok Tayade and her husband Ashok Tayade were also charge-sheeted along with the present applicants in Crime No. 202 of 1994 for murder of victim Ramesh. In that, Ashok Tayade was already discharged under section 169 of the Code of Criminal Procedure by the Court in pursuance of the report made by the Investigating Officer. As per the prosecution case, victim Ramesh was done to death by the applicants and accused Lalita. Accused Lalita was granted bail on 31st August, 1994 by the Judicial Magistrate, First Class, Murtizapur. After that, on 16-9-1994, she appeared before the Chief Judicial Magistrate, Akola with a prayer in the application that she wanted to be an approver and prosecution witness and as such, she sought pardon. The Investigating Officer gave his no objection and on 16-9-1994 itself, her statement was recorded by the incharge, Chief Judicial Magistrate, Akola wherein she made all the disclosures about the same. After completing investigation on 16-11-1994, the Investigating Officer filed charge-sheet against three persons including accused Lalita and the present applicants. It was specifically mentioned in the charge-sheet that accused Lalita was tendered pardon and that she was examined as an approver and prosecution witness. On 5-12-1994 the learned Magistrate, Murtizapur committed the case to the Court of Sessions against both the accused.

4. Before the learned Sessions Judge, after the charge was framed, both the accused were tried and in that, prosecution examined in all 12 witnesses including accused Lalita to whom pardon was granted. Statements of accused under section 313 of the Code of Criminal Procedure were recorded. Counsel for the accused were heard who pointed out that committal Magistrate has not recorded statement of Lalita, approver as required under section 306(4)(a) of Cri.P.C. It was pointed out that it is mandate of law that the approver, when pardon has been tendered has been under section 306(1) Cri.P.C. must be examined as a witness before the Magistrate who takes cognizance of the case and who commits the case to the Court of Sessions. It was also submitted that when such an approver was examined as a witness before the committal Court, the accused also gets an opportunity and right to cross-examine the witness and to point out, if possible, that there is no material against the accused and the case is not fit for committal to the Court of Sessions. The learned Sessions Judge, after considering the submissions of the Counsel for both sides, came to the conclusion that due to non-examination of Lalita as a witness before the Magistrate taking cognizance of the offence, committal proceedings itself is vitiated and therefore, the learned Sessions Judge passed the impugned order remitting the matter back to the Judicial Magistrate for holding committal proceedings.

5. Mr. Gandhi, the learned Counsel appearing for the applicants, vehemently submitted that the course adopted by the learned Sessions Judge in remitting the matter to the initial stage of taking cognizance by the Magistrate and then in committing the case to the Court of Sessions itself is not permissible in law as the irregularity and defect in the prosecution case was apparently sufficient to vi

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