1. These applications filed under Sections 439 and 482 of the Code of Criminal Procedure seek release of the petitioners from custody in view of the fact that the petitioners have been tendered pardon by the courts concerned in spite of the bar under Section 306(4)(b) of Cr.P.C. contending that the prohibition contained in the said provision cannot override the inherent powers under Section 482 of Cr.P.C. and also that if it is to be held that bar under Section 306(4)(b) of Cr.P.C. is absolute, then it is constitutionally invalid and has to be struck down.

2. First on to the facts of each of these cases. In B.A. No. 7783 of 2012 the petitioner was arrayed as the 11th accused in Crime No. 565 of 2011 of Koipuram Police Station and he is alleged to have committed offences along with the other accused punishable under Sections 120B, 115, 143, 147, 148, 447, 302 and 308 read with Section 149 of the Indian Penal Code. According to the petitioner, as on the date of the commission of the incident he was aged only 18 years his date of birth being 9.11.1993. He was studying in the third semester at Amritha Vidhyalayam Engineering College, Vallikkavu, Kollam. The petitioner had only accompanied his friends to gymnasium on 20.11.2011 and he was unaware of the intention, motive and design of the other persons who were along with him. He had no idea or clue that the persons with whom he had gone were intending to commit criminal offences. Whatever that be, as a result of the act committed by the other accused persons, the petitioner was also roped in and he thus became an accused. He however volunteered to make a full and complete disclosure of all the circumstances within his knowledge relating to the offences and the other persons and accepting his proposal he was tendered pardon. His statement was recorded and the learned Chief Judicial Magistrate tendered pardon to the petitioner on conditions mentioned in the Section.

3. It is pointed out that unfortunately the petitioner was in custody and had not been released on bail at the time when he was tendered pardon. After being tendered pardon, he moved for bail but in view of Section 306(4)(b) of Cr.P.C., his application was rejected.

4. In B.A. No. 8607 of 2012, the petitioner is the 9th accused in Crime No. 766 of 2012 of Pudukkad Police Station and he stands accused of having committed offences punishable under Sections 120B, 143, 147, 148, 341, 324, 326, 302 and 212 read with Section 149 of I.P.C. and also under Section 27 of the Arms Act. The allegations against the petitioner and the co-accused are that on 6.6.2012 at about 11p.m. the accused persons formed themselves into an unlawful assembly and armed with deadly weapons attacked the victim, who succumbed to his injuries. It is pointed out that the petitioner was tendered pardon and at the relevant time he was in custody and had not been released on bail. His subsequent application for bail was rejected in view of the bar under Section 306(4)(b) Cr.P.C.

5. Being satisfied that there is a prima facie case established by the respective petitioners and feeling that the continued incarceration of the petitioners may be unjustified, this Court granted interim bail to the petitioners.

6. The question posed is whether Section 306(4)(b) of Cr.P.C. casts an absolute bar on courts from releasing the person from custody who has been tendered pardon and who at the relevant time was not on bail.

7. In view of the importance of the question involved, Shri Sunny Mathew was appointed as Amicus Curie. Even though in these petitions, Union of India was impleaded and the copies were served on the Standing Counsel, Union of India felt it unnecessary to address the court on the issue involved in these cases.

8. It is the contention of the petitioners that Section 306(4)(b) of Cr.P.C., though couched in a mandatory language, is open to contextual and purposive interpretation and it cannot be treated as one casting an absolute prohibition from a