The main legal point established in the judgment is the compliance with the pre-requisites of Section 306 of the Code of Criminal Procedure for granting pardon and the interpretation of the order dated 15th February, 2013, which remitted the matter back to the learned Magistrate for complying with the requirement of Section 306(4) of the Code of Criminal Procedure.

Revati Mohite Dere, J.

1. By this petition, preferred under Section 482 of the Code of Criminal Procedure and Article 227 of the Constitution of India, the petitioner has impugned the order dated 10th January, 2006 by which pardon was tendered by the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai, to the respondent no.2 herein; and the order dated 22nd September, 2014 passed by the learned Additional Chief Metropolitan Magistrate, in C.C.No.525/PW/2005, by which the application of the petitioner seeking compliance of the order dated 15th February, 2013 passed by the High Court in Writ Petition No.1309 of 2012, was dismissed. According to the petitioner, the learned Magistrate in compliance with the order dated 15th February, 2013, ought to have taken fresh cognizance, by giving the petitioner, an opportunity of being heard, on the application for grant of pardon to the main accused (respondent no.2 herein).

2. At the outset, we may note a few facts as are necessary for deciding the present petition;

On 23rd August, 2003 Dr.Asha Goel, a Canadian National of Indian origin was found murdered in a flat belonging to her brother – Suresh Agarwal, at Malabar Hill, Mumbai. Pursuant thereto, at the behest of Suresh Agarwal, the brother of the deceased, the Malabar Hill Police Station, registered C.R.No.93 of 2003 against unknown persons, alleging offences punishable under Sections 302, 397, 452 r/w 34 and 120B of the Indian Penal Code. As there was no progress in the investigation, the case was transferred to the DCB, CID, Unit – II, Mumbai. Thereafter, accused came to be arrested and on completion of the investigation, charge-sheet came to be filed. Before the case was committed to the Court of Sessions, original accused no.1 i.e. respondent no.2 herein gave his confession, which was recorded by the learned Metropolitan Magistrate on 26th and 27th September, 2005. On 28th December, 2005, cognizance was taken and process was issued against the accused persons, copies were supplied under Section 207 of Code of Criminal Procedure and the matter was adjourned to 19th January, 2006, for committal of the case under Section 209 of the Code of Criminal Procedure.

On 9th January, 2006, the prosecution preferred an application under Section 306 of the Cr.PC., before the learned Additional Chief Metropolitan Magistrate for grant of pardon to Pradeep Prabhakar Parab, respondent no.2 herein, which was granted. Thereafter, the case was committed to the Court of Sessions and the matter was posted for framing of charge by the learned Sessions Judge on 29th February, 2006. In the meantime, the petitioner preferred an application seeking his discharge from the said case, which was rejected by the learned Sessions Judge. Being aggrieved by the said order, the petitioner approached this Court, by filing Writ Petition No.1309 of 2012 and sought his discharge from the case. The principal ground on which discharge was sought, was that the procedure as contemplated under Section 306(4)(a) of Cr.PC was not complied with. The learned Special Public Prosecutor sought time to examine the said lacuna. In the meantime, the prosecution preferred an application before the learned Sessions Judge and sought permission to examine the approver under Section 306(4)(a) of the Cr.P.C, before the learned Magistrate, however the said application was rejected. Being aggrieved by the said order, the State filed a Writ Petition No.2421 of 2012 in this Court. Both the aforesaid Writ Petitions came up before the learned Single Judge of this Court, who vide order dated 15th February, 2013, allowed the petition filed by the State. The learned Single Judge quashed and set aside the committal order and remitted the matter to the learned Magistrate for complying with the requirement of Section 306(4) of the Code of Criminal Procedure. As the committal order was set aside, the Writ Petition preferred by the Petitioner seeking his discharge was dis