JAYANT PATEL, J. The present petition under Sec. 482 of Cr.P.C., preferred by C.B.I., is directed against the order dated 26-8-2010 passed by the learned Additional Chief Judicial Magistrate, Special Court for C.B.I.\No. 2 (hereinafter referred to as "the learned Magistrate" for the sake of convenience) in Application below Exh. 53 preferred by the respondent Nos. 3 and 4 herein: (original accused No. 1 and 5 respectively), whereby, the learned Magistrate has made a reference to this Court under Sec. 395 of Code of Criminal Procedure (hereinafter referred to as "Cr.P.C./Code" for the sake of convenience) to decide the question as to whether the application made by Shri N. K. Amin under Sec. 306 is constitutionally legal or not.

2. The short facts relevant for the purpose of the present petition are as under :

(1) In connection with the encounter of Sohrabuddin Sheikh and the elimination of his wife Kauserbi, which was being investigated by the State Police (vide F.I.R.-C.R. No.5 of 2005), the Apex Court entrusted the investigation to C.B.I., which took over the investigation on 1-2-2010 and registered the case being R.C. No. 4(S)/2010-MUM as per the decision of the Apex Court reported at Rubabbuddin Sheikh v. State of Gujarat, 2010 (1) GLR 466 (SC) : 2010 (2) SCC 200. It appears that thereafter C.B. I. investigated into the matter and filed charge-sheet on 23-7-2010, but/as per C.B.I., it is a preliminary charge-sheet and the further investigation is still in progress. As per C.B.I., the Apex Court has directed to complete the investigation within a period of three months.

(2) It appears that on 26-7-2010 Shri N. K. Amin-original accused No. 12 preferred an application Exh. 8 under Sec. 306 of Cr.P.C., for grant of pardon and to be considered as an approver and he declared in the application that he is ready and willing to give statement under Sec. 164(2) of Cr.P.C., so as to become an approver in the above case and desired to disclose true and material facts pertaining to the offence. It appears that on the very day i.e. 27-7-2010 the application Exh. 9 was also submitted by A-12 praying before the learned Magistrate that since he is in the same Central Jail together with the other accused, he may be assaulted by the other accused or the attempt shall be made to kill him, and therefore, he may be transferred at other place in the judicial custody. On 27-7-2010, the learned Special Public Prosecutor for C.B.I. by submitting an application Exh. 14 declared before the Court that there is danger of life of A-12 in the judicial custody, and therefore, the Court may pass order as deem fit, so that the accused is not harmed and as the accused is in judicial custody, the Court has power to shift him to other jail. On 10-8-2010, the learned Special Public Prosecutor as well as Dy. Special Prosecutor, C.B.I., S.I.T. in reply to the application of A-12 under Sec. 306 of Cr.P.C., declared as under :

"That in view of the application filed by Mr. N. K. Amin - accused No. 12 for grant of pardon, it is respectfully submitted that the application be allowed on the strict condition of his making full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in' commission of offence."

Hence, on the above condition, the application be allowed.

3. On the very day, the application was also made by A-12 to the learned Magistrate stating that he has submitted the application Exh. 8 for tendering pardon and as the applicant wants to make full and true disclosure relative to the offence under Sec. 164(1) read with sub-sec. (5) in support of the application under Sec. 306 of Cr.P.C., for tendering pardon to him, he be permitted to give statement under Sec. 164(2) of Cr.P.C., in connection with the offence. The learned Special P. P. for C.B.I. made endorsement as under :

"It is admitted that the statement of the accused be recorded in accorda