Hon'ble BHANDARI, J.—By this criminal misc. petition, a challenge is made to the order dated 16.12.2014, whereby, application submitted by the petitioner under section 306 CrPC for pardon was dismissed as was filed without first making a request to the prosecution to examine the petitioner as their witness.

2. It is stated that dismissal of the application is not proper. The court should have first sent it to the prosecution for their comments and thereupon to decide the application. The court dismissed the application mainly on the ground that before filing it, prosecution was not requested to produce accused-applicant as their witness. The court failed to consider scope of section 306 CrPC while passing the order, thus impugned order may be quashed with a direction to the court below to accept the application.

3. To appreciate the scope of section 306 CrPC, this court requested Mr Mahendra Singh, learned Advocate to assist the court.

4. Learned counsel Mr Mahendra Singh referred the judgment of the Hon'ble Supreme Court in the case of “Lt Commander Pascal Fernandes vs. State of Maharashtra & ors”, (AIR 1968 SC 594). Therein, para 15 explains the process on an application under section 306 CrPC.

5. A further reference of the judgment in the case of “A Devendran vs. State of TN”, ((1997) 11 SCC 720) has also been given. Therein, para 13 explains the issue as to how the court should proceed as and when application under section 306 CrPC is filed.

6. The last judgment is in the case of “Jasbir Singh vs. Vipin Kumar Jaggi & Ors” (2001) 8 SCC 289). Therein, referring to the earlier judgment in the case of Lt Commander Pascal Fernandes (supra), the issue has been answered.

7. According to learned counsel Mr Mahendra Singh, as and when application under section 306 CrPC is filed by the accused himself and not by the prosecution, the court should seek comments of the prosecution. In view of above, the court below should have first referred the request to the prosecuting agency as the court itself should not enter the ring as a veritable director of the prosecution. According to him, such applications are generally filed by the prosecution to bring home the truth, that too, in heinous offence.

8. Learned counsel for the petitioner Mr Kapil Prakash Mathur has referred the judgment in the case of “State of Himachal Pradesh vs. Surinder Mohan & ors”, (AIR 2000 SC 1862). Reference of para 11 is given where procedure has been explained. The similar issue has been decided by this court in the case of “Satish & anr vs. State of Rajasthan”, (2007 CrLJ 3672). The prayer is accordingly to quash the impugned order and accept the application moved by the accused petitioner under section 306 CrPC.

9. Learned PP has opposed the petition.

10. I have considered rival submissions of the parties and perused the record.

11. The application under section 306 CrPC was filed by the accused petitioner to seek pardon. He has shown himself to be not only one of the co-accused but an eye witness also. The application aforesaid was dismissed as the prosecution was not approached to produce him as their witness. It was also on the ground that two witnesses have already been examined by the court.

12. Before going through the reasoning given by the court below to find out as to whether it is legally sustainable or not, it would be gainful to refer the judgments cited at the Bar.

13. Learned counsel Mr. Mahendra Singh, assisting the court, has referred the judgment in the case of Lt Commander Pascal Fernandes (supra). Para 15 of the said judgment would be relevant and is quoted thus -

“15. In this case the Special Judge made no effort to find out what Jagasia had to disclose. The English law and practice is (a) to omit the proposed approver from the indictment, or (b) to take his plea of guilty on arraignment, or (c) to offer no evidence and permit his acquittal, or (d) to enter a nolle prosequi. In our criminal jurisdiction there is a tender of a pardon on condition of full d

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