Sasidharan Nambiar, J.

1. Chief Judicial Magistrate, Ernakulam committed CP 2/2003 to the Sessions Court, under clause (a)(i) of sub-section 5 of Section 306 of Code of Criminal Procedure as against accused 1 to 4 after accepting tender of pardon and treating the original fifth accused, the fifth respondent her in, as an approver as provided under Section 306 of Code of Criminal Procedure. Learned Sessions Judge took cognizance of the case as SC 308/2003 and made it over to Special Judge (SPE/CBI)-II, Ernakulam. Learned Special Judge on going through the records found that though original fifth accused was granted pardon and made an approver, he was not examined as is mandatory under Section 306(4)(a) of Code of Criminal Procedure and finding that Sessions Judge cannot interfere with the order of committal, reported it to this Court to exercise the power, based on which this criminal reference case is registered.

2. Learned counsel appearing for fifth respondent and learned counsel appearing for third respondent and learned counsel appearing for CBI were heard.

3. Order passed by Chief Judicial Magistrate, Ernakulam in CP 2/2003 dated 29/09/2003 whereunder, case was committed t