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4. That being the fact, accused No.3 filed an application under Sections 306 and 307 of Cr.P.C. asking the Court to grant pardon in his favour and he has also given statement under Section 164 Cr.P.C. before the Magistrate. The learned Magistrate vide order dated 18.03.2019, allowed the application and treated accused No.3 as accomplice by tendering him pardon subject to some conditions. Being aggrieved by the same, the accused/petitioners are before this Court.

5. It is the submission of the learned Senior Counsel that the impugned order is perverse and not sustainable in law. The application for pardoning and making him an approver is not signed by accused No.3. It is his further submission that, when the statement of the accused was recorded under Section 164 Cr.P.C, he was nervous and was not comfortable and as such, the said statement is not a voluntary statement as contemplated under the law. It is his further submission that the said act of accused No.3 is exculpatory in nature. If it is exculpatory in nature, then he cannot be an approver. In order to appreciate the application under Section 306 of Cr.P.C., the said accused must be involved in the said offence throughout. If he is not involved, he cannot be given pardon under Section 306 of Cr.P.C. It is his further contention that, while recording 164 statement, the accused must be comfortable and he has to be explained about the importance of the confession and it may also be used against him. It is his further contention that the Court below, without there being any material on record, has come to a wrong conclusion that accused No.3 has participated in the alleged incident throughout and he is privy to the happenings at the time of incident. But as could be seen from the charge sheet material, he has not done anything and even not committed any offence and has not participated. Under such circumstances, the said accused ought not to have been given the pardon. The Court has not taken all precautions in complying the provisions of Section 306 of Cr.P.C. before tendering the pardon to the accused.

9. Section 306 Cr.P.C. gives power to the Magistrate to record the pardon and 307 Cr.P.C. gives power to the Sessions Judge to record the pardon. It is not in dispute that the Sessions Judge is also having power to record the pardon of the accused under Section 307 Cr.P.C. But while recording the Sessions Judge has to fulfill the condition laid down in Section 306 Cr.P.C.. As per Sections 306 and 307 Cr.P.C., the person in whose favour the pardon has been tendered shall make a full and true disclosure of the whole of the circumstances within his knowledge. If that condition is fulfilled, then it is going to satisfy the ingredients of the said Section and it can be held that the said recording of the pardon is valid. It is always for the prosecution to decide necessity of granting pardon. If it so desires, the Court has to agree for tendering pardon. Although the power to actually grant the pardon is vested with the Court, only the Court has to see that, as on the date of the pardon, proceedings were pending as against accused and if it is there, pardon is perfectly legal and he is competent to give evidence.

10. As could be seen from the records, statement of accused No.3 under Section 164 Cr.P.C has also been recorded and thereafter the impugned order was passed. That clearly goes to show that the judge has not passed the impugned order mechanically. It is well established proposition of law that the technicalities should be kept to a bare minimum. Records indicate that the trial Court in the present case on hand has taken all precautions by complying the provisions of Section 306 Cr.P.C. before tendering the pardon to accused. No doubt the accused/petitioners have raised several contentions including the contention that the said statement of the accused is exculpatory. But as could be seen from the records, column No.17 of the charge sheet discloses that accused No.1 called accused No.3 Nandeesh over phone to assist him and accused No.3 came near Abhiman Bar and the remaining accused were also there in a car; When the said car was proceeding through Shiraguppi, it was struck and the said vehicle was got removed with the help of another vehicle and thereafter they went to land of Shivanand Doddamani to see the place for burning the body and thereafter, they went to Sri. Vijayalaxmi Petrol Pump and got filled 8 liters of petrol and thereafter they laid the bed in the trench and after keeping the dead body, they kept the wood and after pouring the petrol with an intention to destroy the evidence, they lit the fire and thereafter they went away. Throughout all these incidents the accused No.3 Nandeesh was there along with him. It also discloses that, thereafter accused No.1 paid Rupees 5,000/- to accused No.2, who got down near old bus stand at Hubballi and he also paid Rs.5000/- to accused No.4 and he got down at Mahima Residence and there they stayed and on 13.03.2018, at about 11.00 am, went in a car to his service station and washed the said car. Where the approver did not say that he took any active part in assault on the deceased, but his statement clearly shows that he was a privy to or an abetter in the commission of the offence and the Magistrate was fully satisfied that he would make a full disclosure of the fact, it cannot be said that there is violation. This proposition of law is laid down by the Hon'ble Supreme Court in the case of Maghar Singh Vs. State of Punjab reported in AIR 1975 SCC 1320. Para 3 of the judgment reads as under:

11. Keeping in view the ratio laid down by the Hon'ble Supreme Court and the above said facts, it goes to show that accused No.3 was present when all other accused persons have above the said criminal act. It satisfies the condition under the said section.

12. All these materials clearly goes to show that the accused No.3 was privy to the alleged offence and he helped the accused in screening the offence by putting the petrol and burying the body. Under such circumstances, it cannot be held that the statement of the accused No.3 is exculpatory. As per Section 306 Cr.P.C. the crucial aspect which the Court has to see is that, to whom the pardon has been granted, is an accused and whether he is having any say in the matter or not. Even as could be seen from Section 306 Cr.P.C, nowhere it speaks that, before passing any pardoning order, the co-accused must be heard. The right of the co-accused comes into play only when the evidence of the said accomplice was recorded before the Court as a witness. Till then, co-accused persons are not having any right. The only question which has to be answered is whether the pardon is voluntary or not has to be decided. If it is said to be voluntary, then the pardon can be given. If the procedure adopted by the Court while giving the pardon is not a judicial trial and if the said pardon is not in accordance with Section 306 Cr.P.C., the same can be urged only at the time of final hearing. The pardon is granted to the accused to meet out the situation. Where a serious offence is alleged to have been committed by several persons and there were no witnesses to prove the case of the prosecution, then with the aid of the evidence of anyone of the accused persons, who had been granted pardon, can be used to prevent failure of justice. Only because there were no witnesses, the accused cannot be allowed to escape from a lack of evidence. This proposition of law has been also laid down by the Hon'ble Apex Court in the case of Bangaru Laxman quoted supra. At para No.43 of the said judgment, it has been observed as under: