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TMI Blog1987 (4) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Judicial Magistrate to accept the report of the investigating officer and proceed according to law. It was also provided in the order that when the Chief Judicial Magistrate tenders pardon he would become incompetent to try the case and that the only : other option open to him would be to commit the accused to the Court of Session as enjoined by Section 306(5) of the Code irrespective of the fact that the offences were not exclusively triable by the Court of Session. 3. The order of the Sessions Judge was not capable of removing the doubts of the Chief Judicial Magistrate. He wrote to this Court on 13-1-1983 referring to the establishment of a Special Court for 'Marklist Cases' and therefore doubting his further jurisdiction to entertain the charge-sheets and commit the cases to the Court of Session as directed by the Sessions Judge. The matter was taken up in suo motu revision by this Court in Crl. R.C. 2 of 1983 and a Division Bench of this Court by order dated 19-8-1983 held that the Chief Judicial Magistrate was bound to comply with the order of the Sessions Judge and commit the case to the Court of Session as enjoined by Section 306(5). Accordingly Mr. Sadasivan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of Public Prosecutions. 6. The object of the provision for tendering pardon is to get evidence in cases involving grave offences alleged to have been committed by several persons in circumstances making it difficult to get evidence otherwise. Evidence collected by tendering pardon is from a person supposed to have been directly or indirectly concerned in or privy to an offence to which the section applies. What is tendered is a conditional pardon, the condition being 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 in the commission thereof. It involves a contract between himself and the State by which in consideration of the conditional pardon and the consequent conditional exoneration from liability he agrees to make a full disclosure. By the acceptance of the pardon tendered he ceases to be an accused and becomes a witness conditionally. When he resiles from that agreement and breaks the conditions the contract is broken and the State becomes entitled to prosecute him. We are not concerned with those aspects here. 7. The person to whom pardon is tendered must be encou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the committing court. That is one of the reasons why his examination under Section 306(4) in the Court of the Magistrate; taking cognizance is made compulsory. 9. Recording the confession is a judicial act which does not involve the exercise of any discretion to decide anything except ascertaining the voluntary nature of the confession and give the requisite warnings for that purpose. In this particular case even if Mr. Rajappan himself was the Chief Judicial Magistrate and he tendered pardon in that capacity after recording the confession there would not have been any bar for him in examining the approver under Section 306(4) and committing the case under Section 306(5). Except examining the approver he need not make any further enquiry in the case. In this case he only recorded the confession statement as directed by the Chief Judicial Magistrate before whom the case was pending at the investigation stage. Thereafter he transmitted the papers under Section 164(6) of the Code to the Chief Judicial Magistrate who tendered pardon after necessary satisfaction. By chance he subsequently became the Chief Judicial Magistrate, Recording of the confession has not in any way disqualif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence need not be exclusively triable by the Court of Session. The examination of the approver under Section 306(4) is also not exclusive to cases involving offences triable by Court of Session alone. A Magistrate tendering pardon cannot try the case even if the offence is triable by him. After tendering pardon and its acceptance and after examining the approver under Section 306(4) the Magistrate taking cognizance of the offence, without making any further inquiry, will have to commit the case to the Court of Session if the offence is exclusively triable by that Court or to the Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 if the offence is exclusively triable by that Court. If the Magistrate taking cognizance of the offence is the Chief Judicial Magistrate, irrespective of the question whether the offences triable by the Court of Session or not, there is no other option but to commit the case to the Court of Session. If cognizance is taken by any other Magistrate and if the offence is not exclusively triable by the Court of Session or the Special Judge the case will have to be made over to the Chief Judicial Magistrate who shall try the case himself. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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