1. This is a reference made by the learned Sessions Judge, Chikmagalur under S.438 Criminal P.C. in Sessions Case No. 18 of 1970.

2. A charge - sheet was filed against accused 1 to 5 who are respondents before this Court, by the Circle Inspector of Police, Koppa Circle in the court of the Judicial Magistrate First Class, Narasimharajapur alleging that they had committed offences under S.302, S.323, S.120 - B(1), 201 read with S.34 and S.203 I.P.C. In the course of the enquiry, the Assistant Public Prosecutor made an application before the learned Magistrate on 26-10-1970 under S.337 Criminal P.C. praying that pardon may be tendered to accused - 3 (respondent - 3) and he may be allowed to give evidence on behalf of the prosecution. The said application was allowed by the learned Magistrate by his order dated 12-11-1970 and permission was granted to treat accused - 3 as an approver on 20-11-1970 and he has been examined on behalf of the prosecution as P.W. 1. Then charges were framed against all the five accused including the approver (accused - 3) under S.302, S.120 - B, 201, 202 read with S.34 I.P.C. by the learned Magistrate, and he recorded the plea of all the accused including the approver (accused - 3). Thereafter the learned Magistrate, by his order dated 19th December, 1970 committed all the five accused including approver (accused - 3) to stand their trial before the Court of Session, Chikmagalur.

3. Before the trial started in the Court of Session, Chikmagalur, the learned public prosecutor filed an application, pointing out the illegality committed by the learned Magistrate in committing the approver (accused - 3) for trial and prayed that the Sessions Court should not act under S.438 Criminal P.C. and recommend to the High Court that the order of committal of the approver (accused - 3) to the Court of Session should be quashed. The learned Sessions Judge, thereafter by his order dated 22nd Feb, 1971 made this reference under S.438 Criminal P.C. recommending that the order committing the approver (accused - 3) made by the learned Magistrate should be quashed.

4. The learned Government pleader appearing on behalf of the State has supported this reference, Shri Deshpande learned counsel appearing on behalf of respondent - 2 (accused - 2) has also supported the reference.

5. It is clear from what has been stated above, pardon was granted by the learned Magistrate by his order dated 12-11-1970. It is also clear from the records that respondent - 3 (accused - 3) was examined as P.W. 1 in the committal proceedings. The learned Sessions Judge has also pointed out that it is not the case of the prosecution that the approver did not give a true account of the case and that at any stage of the enquiry pardon was forfeited by the order of the Court. It is also clear that the Public Prosecutor did not grant any certificate as required under S.339 Criminal P.C. as respondent - 3 in his opinion who had accepted the tendering of pardon, had given wilfully false evidence.

6. S.337 Criminal P.C. reads as follows : -
"S.337. Tender of pardon to accomplice. In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to seven years or any offence under any of the following sections of the Indian Penal Code, namely, S.161, S.165, S.165 - A, 216 - A, 369, 404, 435 and 477 - A, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the, offence, 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