The statement of the approver is mandatory before committing the case to the Court of Session under Section 306 of the Code of Criminal Procedure, 1973.

1. - Heard.

2. A case under Sections 147, 149, 30 and 404 of the Indian Penal Code, was registered vide the FIR No. 69/93, at Police Station - Tijara, District - Alwar, against the petitioners and some other co-accused; one of them being Shri Bahadur Singh (the approver). After the investigation of (he case, the chalian was filed by the police in the court of the learned Judicial Magistrate - Tijara, District -Alwar, and prior thereto, Shri Bahadur Singh had been made the approver. The learned Magistrate took cognizance of the offences and committed the case for being tried in the Court of Session. The petitioner moved an application before the learned Additional Sessions Judge, Kishangarhbas (Alwar), stating that the statement of the approver not having been recorded before 'he case was committed, the committal- order was illegal, and prayed that the same be quashed. His application having been rejected, the petitioner has approached this Court by filing this petition.

3. I have heard Shri R.K, Yadav for the petitioner, Shri N.L. Pareek, the learned Public Prosecutor for the State and Shri Manu Bhargava for the complainant Mst. Bakhtawari Devi.

4. The only question to be seen, is as to whether the case in question could be committed by the learned Magistrate to the Court of Session, without recording the statement of the approver. Section 306 of the Code of Criminal Procedure, ("the Code") which deals with the matter, reads as under:-

"306. Tender of pardon to accomplice -

(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a 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 the commission thereof.

(2) This section applies to -

(a) any offence triable exclusively by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952).

(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

(3) Every Magistrate who tenders a pardon under sub- section (1) shall record -

(a) his reasons for so doing;

(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under sub-section (1) -

(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub- section (4), the Magistrate taking cognizance of that offence shall, without making any further inquiry in the case, -

(a) commit it 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;

(ii) to a Court of Special Judge, appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court;

(b) in any other case, make over the case to the Chief Judicial Magistrate, who shall try the case himself."
The bare reading of the above-said provision shows that sub-section (4) thereof makes it obligatory for the learned Magistrate, taking cognizance, to examine the approver as a witness before the case is committed to the Court of Sessions and reading of sub-section (5) there