( 1 ) THE State of Gujarat is before this Court being aggrieved by order dated 4-1-2007 passed below application, exhibit 1 in Sessions Case No. 87 of 2006 by the learned Sessions Judge, Patan, whereby the learned Sessions Judge was pleased to dismiss the application, Exh. 1 dated 9-11 -2006 filed under Sec. 307 of the code of Criminal Procedure (hereinafter referred to as "the Code") praying that he be tendered a pardon. Rule, Mr. Naik, learned advocate appearing for the respondent waives service of rule. The respondent has also approached this court by filing Criminal Revision Application no. 27 of 2007 challenging the very same order wherein this Court issued rule on 25-1-2007 returnable on 28-2-2007.

( 2 ) WHEN the matter came up for consideration the learned APP prayed for time on the ground that he has received instructions to challenge the order impugned. The matter was adjourned from time to time. The state has filed the present Criminal Revision Application.

( 3 ) BRIEF facts of the case are set out in para 2 in the Revision Application (Criminal revision Application No. 105 of 2007 ). Para 2 is reproduced for ready perusal:

"the application submits that the brief facts of the case that FIR being I-CR-14 of 2006 under Sections 302, 404, 201. 120 of indian Penal Code was registered against respondent and other accused persons. The case was committed to the Sessions Court, which was registered as Sessions Case No. 66/06. However, the present accused kanubha Kantuji surrendered on 9-10-2006 and supplementary charge-sheet was submitted and thereafter, it was committed to the Sessions Court, which was registered as sessions Case No. 87 of 2006 in Sessions case No. 66 of 2006 charge was framed against the accused persons and 21 witnesses were examined. Sessions Case No. 66 of 2006 was for waiting for further evidence. The respondent accused Kanubha kantuji Zala submitted an application under Section 307 of Cr. P. C. at Exh. 1 by speed post in Sessions Case No. 87 of 2006, prior to framing of charge. In Sessions Case No. 66/06 and Sessions Case No. 87/06 the accusation against accused persons were that they have hatched criminal conspiracy for committing murder of Dhaval Bharatbhai modi and putting the criminal conspiracy in action by inflicting knife inquires on several part of body of Dhaval Bharatbhai Modi and Dhaval Bharatbhai sccumbed to the injuries on 16-1-2006. There was an accusation against all these accused that with a view to screening the evidence dead body of dhaval was removed from scene of incident to other place and it was thrown near bank of river passing near Vadavali Village of chanasma Talati and after throwing dead body of Dhaval near bank, the petrol was sprinkled on it and it was put on fire. And thereafter they have removed belonging of this Dhaval including his gold ring, etc. and the motor cycle of deceased Dhaval was also taken away. In commission of abovesald offence other vehicle,. e. Motor Cycle and auto-rickshaw were utilised and now in this sessions Case No. 87/06, the accused kanubha Kanuji Zala has submitted an application under Section 307 of Cr. P. C. , which has been sent from Sub-Jail, Patan as stated hereinbefore. "

( 4 ) THE learned APP submitted that the learned Sessions Judge has committed an error in dismissing the application without appreciating the true scope of Section 307 of the Code. Section 307 of Code reads as under :

"power to direct tender of pardon.- At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person. "

( 5 ) THE learned APP submitted that the learned Judge confused with the provision of Section 306 of Code. Section 306 of Code provides for tender of pardon to accomplice. Sub-section (1) of Section 306 o

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