( 1 ) THESE are four Criminal Revision Applications together with an application No. 89 of 1962 for bail by the accused in sessions Case No. 15 of 1961.

( 2 ) ON the 19th of September 1960 at about 10-0 P. M. the accused Kalu Khoda Taj Mahomed Siddi and five others were said to have committed dacoity at the house of one Mohanlal Narbheram in the village Tatenia Amreli District. The accused Taj Mahomed and five others were chargesheeted in respect of the aforesaid offence in the Court of the learned Judicial Magistrate First Class Dhari under sections 395 398 read with section 109 of the Penal Code and section 19 (e) of the Arms Act. That case was numbered as Criminal Case No. 804 of 1960. The accused Kalu Khoda could not be chargesheeted at that time as he was absconding and therefore a separate chargesheet had to be lodged in the Court of the same learned Magistrate being Criminal Case No. 405 of 1961. It was only on the 23rd of Match 1961 that the accused Kalu Khoda was arrested. One of the accused persons Nanji Suleman was in the meantime tendered pardon by the sub-divisional Magistrate Amreli. The learned committing Magistrate examined some of the witnesses in case No. 804 of 1960 against Taj Mahomed and others but the prosecution did not examine the approver Nanji Suleman. In respect of the case against the accused Kalu Khoda no witnesses were examined at all by the prosecution not even the approver Nanji Suleman. The orders committing the accused Taj Mahomed and others and Kalu Khoda were respectively passed on the 17th of January 1961 and 16th of May 1961 committing them in respect of the aforesaid offence to the Court of Session Amreli.

( 3 ) ON the 6th of June 1961 the learned Public Prosecutor filed an application in both the Sessions Cases being Sessions Cases Nos. 6 and 15 of 1961 praying that a reference should be made to this Court for quashing the committal orders passed by the learned committing Magistrate on the ground that contrary to the provisions of sub-section (2) of section 337 of the Code of Criminal Procedure the approver Nanji Suleman had not been examined in the Court of the committing Magistrate in both the cases. In the alternative it was prayed that one months adjournment should be granted in both the cases to enable the State to file Revision Applications to this Court for the purpose of quashing the aforesaid committal orders. It is in these circumstances that these applications have come up for hearing before us.

( 4 ) THE accused Kalu Khoda in his application No. 89 of 1962 has prayed that he should be released on bail as the illegality if any in the aforesaid committal orders was due to the failure on the part of the prosecution to examine the approver and the quashing of the committal proceedings as also the committal orders would mean that he would have to remain for a long time in custody as an under trial prisoner for no fault of his.

( 5 ) THE learned Assistant Government Pleader contended before us that the two committal orders passed by the learned Magistrate Dhari should be quashed as they had been passed in breach of the mandatory provisions of sub-section (2) of section 337 of the Code. He contended that section 207 of the Code would have no application to these cases that the provisions of section 207a (4) are general provisions while the provisions of sub-section (2) of section 337 are special provisions applicable to cases where a person is tendered pardon and has accepted such pardon and therefore it is mandatory that such a person must be examined before a committal order can be passed in such a case. He also contended that the breach of the provisions of sub-section (2) of section 337 would constitute illegality it being a breach of mandatory and not directory provisions and consequently section 537 would have no application in such a case.

( 6 ) THE accused Kalu Khoda and others though served did not appear either in person or through an advocate and as these