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4.6 Countering the arguments, learned Public Prosecutor Mr. Amin submitted that the provisions under Sections 306 and 307 CrPC are with different objects and are independent. The right, as NEUTRAL CITATION R/CR.RA/983/2023 JUDGMENT DATED: 08/08/2023 undefined contemplated under Section 307 CrPC, is totally independent and states that the learned Special Sessions Judge was not even required to send for recording of the statement before the learned Chief Judicial Magistrate. It is stated that rigors of Section 306 CrPC would not be made applicable to the procedure adopted by the learned Special Sessions Judge under Section 307 CrPC and in support of the submission, the learned Public Prosecutor has relied upon a decision of the Hon'ble Supreme Court in Santosh Kumar Satishbhushan Bariya v. State of Maharashtra, with State of Maharashtra v. Sanjeevkumar Mahendraprasad Roy and Another, (2009) 6 SCC 498, wherein, while considering the provisions of Section 306(4) CrPC, in paragraph 34, it is observed as under:

4.9 While against that, learned Public Prosecutor Mr. Amin stated that present case would fall under Section 307 CrPC, where the co- accused has been permitted to be examined as an approver and submits that Section 307 CrPC is invocable at post-commitment NEUTRAL CITATION R/CR.RA/983/2023 JUDGMENT DATED: 08/08/2023 undefined stage, while the provisions of Section 306 CrPC would be applied only at a pre-commitment stage and while granting pardon under Section 307 CrPC, the trial Court is obliged to comply only the requirements of Section 306(1) CrPC and has not to follow Section 306(4) CrPC. For that submission, learned Public Prosecutor Mr. Amin has placed reliance upon a decision in Narayan Chetanram Chaudhary and Another v. State of Maharashtra, (2000) 8 SCC 457.

5.9 The reading of the said conclusion is with the finding that the NEUTRAL CITATION R/CR.RA/983/2023 JUDGMENT DATED: 08/08/2023 undefined say of the co-accused is not required to be considered nor does the accused have any role to play when the question is to be considered by the learned Magisterial for the grant of pardon after hearing a person who applies for pardon. The finding thus, gives a right to the co-accused to cross-examine the accomplice witness, if his statement is recorded by the learned Magistrate and further, clarifies that the co-accused would have a further right if such evidence is thereafter being used by the prosecution at the time of the trial for supporting its case or otherwise at any appropriate stage. 5.10 The Division Bench was dealing only with the provisions of Section 306 CrPC. Section 307 was not dealt with in N. K. Amin (supra). During the course of recording of evidence by the learned Magistrate of the person, who is to become an approver witness, the co-accused would have no right to have his say. The statement so recorded has to be put in evidence and that, accomplice witness would be examined during the trial and it is only during this course of examination of the accomplice witness, the co-accused would have the right to cross-examine him. Once, the accused is granted NEUTRAL CITATION R/CR.RA/983/2023 JUDGMENT DATED: 08/08/2023 undefined pardon under Section 306 / 307 CrPC, he ceases to be an accused and becomes a witness for the prosecution.

5.11 Here, in the present case, the order of tendering pardon was by the trial Court i.e. learned Special Sessions Judge, which is to be considered under Section 307 CrPC. The provision under Section 307 CrPC itself makes it clear that, at any time, after commitment of case and before judgment is passed, the Court to which the commitment is made, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person. The expression, "on the same condition", is related to Section 306(1) CrPC and the only condition that would be applicable while tendering pardon in Section 307 is, assurance of full and true disclosure by the accused as provided under Section 306(1). Section 307 does not even provide for recording of any statement under Section 164 CrPC. The trial Court, after committal of case, at post-cognizance stage, can tender pardon to a person supposed to have been directly or indirectly concerned NEUTRAL CITATION R/CR.RA/983/2023 JUDGMENT DATED: 08/08/2023 undefined in, or privy to, to any such, with a view to obtain at the trial the evidence of such person. If the person tendered pardon fails to comply with the condition as laid down in Section 306(1) CrPC, then such person, would be subjected to trial in accordance to Section 308 CrPC.