This is a petition filed by one of the accused in a murder case (R. C. No. 17 of 1951) for setting aside the order of the Sessions Judge of Madurai directing the release of an Approver (P. W. 1), and for his re-arrest and detention in custody pending disposal of R. C. No. 17 of 1951, and the sessions trial therein, if committal ensues.

I have perused the records and heard Mr. V. Rajagopalachariar, for the petitioner, the learned Public Prosecutor for the State, and the learned counsel for the approver. The learned Public Prosecutor does not oppose the petition and, indeed, supports it. He relies upon the mandatory provisions of section 337(3), Criminal Procedure Code, that an approver, unless he is already on bail at the time he accepts the tender of the pardon (this Approver was not on bail then), shall be detained in custody until the termination of the trial. In this case, even the preliminary enquiry is not concluded, let alone any trial begun in the Sessions Court. There is absolutely no doubt in my mind that neither the inquiring Magistrate nor the Sessions Judge has got the right to set at naught the mandatory provisions of section 337(3), Criminal Procedure Code, bas