The legal principle established is that the examination of the approver before making an order of committal is mandatory under Section 306(4)(a) of the Code of Criminal Procedure.

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 to the sessions Court establish that order of committal against accused 1 to 4 was only for the reason that one of the accused was treated as an approver as provided under Section 306 of Code of Criminal Procedure, 1973. Clause (a) of sub­section 5 of Section 306 provides that where a person has accepted a tender of pardon made, under sub-section (1), Magistrate taking cognizance of the offence shall, without making any further enquiry shall commit the case for trial to the Court of Session, if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate. As the cognizance was taken by the Chief Judicial Magistrate as provided under clause (a)(i) of Section 306(5), he is bound to commit the case to Sessions Court. But, sub-section 5 provides that such committal though could be without making further enquiry, shall be, after the approver has been examined as provided under sub-section 4. Sub-section 4 provides that every person accepting tender pardon under sub-section 1 shall be examined as witness in the Court of Magistrate, taking cognizance of the offence and in the subsequent trial, if any. Therefore, before making an order of committal, Chief Judicial Magistrate after accepting a tender of pardon should have examined the approver. As it is not done, procedure is illegal. Order committing the case dated 29/09/2003 in CP 2/2003 is therefore, quashed. Chief Judicial Magistrate, Ernakulam is directed to examine fifth respondent, the original fifth accused, whose tender of pardon has been accepted and thereafter commit the case to the Sessions Court.

4. SC 308/2003 taken cognizance by Special Judge (SPE/CBI)-II, Ernakulam on order of committal in CP 2/2003 is quashed. Special Judge is directed to send back the entire records to Chief Judicial Magistrate, Ernakulam and Chief Judicial Magistrate is directed to commit the case after examining fifth respondent as provided under Section 306(4)(a)(i) of the Criminal Procedure Code, 1973.

Reference is disposed accordingly.