JUDGMENT

S. Padmanabhan, J.- As many as 14 cases popularly known as 'Mark list Cases' were charge sheeted, before the Chief Judicial Magistrate, Trivandrum, prior to the establishment of the Special Court. At a time when those cases were pending investigation, the investigating officer, in one of the cases (Crime No. 284/CR/80 filed a report M.P. 3656 of 1982 before the Chief Judicial Magistrate, Trivandrum, under section 306 of the Code of Criminal Procedure to tender pardon to one Anandan who was one of the accused in the cases, and to record his statement. The offences are not exclusively triable by the Court of Session. By order dated 26.11.1982 the then Chief Judicial Magistrate Mr. Sadasivan turned down the prayer. He doubted his power to grant the prayer and went on to consider how he was to proceed after tendering pardon and recording the statement.

2. The order was challenged by the State in Crl. R.P. 136 of 1982 before the Sessions Judge, Trivandrum. The Sessions Judge allowed the revision and directed the Chief Judicial Magistrate to accept the report of the investigating officer and proceed according to law. It was also provided in the order that when the Chief Judicial Magistrate tenders pardon he would become incompetent to try the case and that the only other option open to him would be to commit the accused to the Court of Session as enjoined by Section 306 (5) of the Code irrespective of the fact that the offences were not exclusively triable by the Court of Session.

3. The order of the Sessions Judge was not capable of removing the doubts of the Chief Judicial Magistrate. He wrote to this Court on 13.1.1983 referring to the establishment of a Special Court for 'Mark list Cases’ and therefore doubting his further jurisdiction to entertain the charge-sheets and commit the cases to the Court of Session as directed by the Sessions Judge. The matter was taken up in suo motu revision by this Court in Cr. R.C. 2 of 1983 and a Division Bench of this Court by order dated 19.8.1983 held that the Chief Judicial Magistrate was bound to comply with the order of the Sessions Judge and commit the case to the Court of Session as enjoined by Section 306(5). Accordingly Mr. Sadasivan (the then Chief Judicial Magistrate, Trivandrum) tendered pardon to Anandan in the 14 crime cases.

4. Mr. Rajappan, the present Chief Judicial Magistrate, Trivandrum was then Additional Judicial First Class Magistrate-I, Trivandrum. It was he who recorded the confession statement of Anandan under section 164 of the Code as directed by the Chief Judicial Magistrate. At the time of tendering pardon, Mr. Sadasivan recorded the approvers statement during investigation stage. Subsequently three out of the 14 cases were charge-sheeted and they were committed to the Court of Sessions by the present Chief Judicial Magistrate Mr. Rajappan without examining the approver Anandan under section 306(4). Thereafter some other cases were also charge-sheeted.

5. By letter dated 15-12-1984 Mr. Rajappan requested this Court to clarify whether he is competent to entertain these and commit them since he has recorded the confession and since he is cited as a witness in the charge-sheets. For that a reply was already given by this Court on the administrative side. Now by another letter dated 12-11-1986 Mr. Rajappan wants clarification on the following points:

(1) Whether under section 306(4) he should again examine Anandan who was already examined by his predecessor during the investigation stage when tendering pardon.

(2) Whether he is competent to examine Anandan as a witness since his confession was recorded by him in another capacity.

(3) Whether under section 209 he can commit the case without examining the approver as provided in Section 306(4) and if examination under section 306(4) is necessary again whether he could make over the case to any other court for examining the approver and thereafter commit the case to the court of session, and

(4) Section 30