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1. Aggrieved by the order dated 8th August, 2016 passed by the learned CMM declining the prayer of the applicants to not commit the case for trial to the Court of learned Sessions Judge and the order dated 18th October, 2016 passed by the learned Special Judge dismissing the revision petition, the petitioners prefer the present petition.

2. RC No. CY1 2009 E 0006 under Sections 405/418/420/486/34 & 120B IPC read with Section 63 of the Copyright Act and 66B of the IT Act was registered on the complaint of Microsoft India Ltd. wherein a charge- sheet was filed before the learned ACMM. On 13 th December, 2012 the learned ACMM recorded the statement of Krishna Kumar, one of the co- accused and granted him pardon subject to the condition that in case he fails to disclose true and correct facts in terms of his statement recorded under Section 164 Cr.P.C. during the course of trial, appropriate order would be passed. Learned ACMM took cognizance of the offence vide order dated 13th December, 2012 where after the statement of approver Krishna Kumar was recorded by the learned CMM from 9th July, 2014 to 27th May, 2016 under Section 306(4) Cr.P.C. Vide the impugned order dated 8 th August, 2016 the learned CMM committed the case for trial to the Court of Sessions. The petitioners preferred a revision petition against the order dated 8 th August, 2016 which was dismissed vide impugned order dated 18 th October, 2016.

3. Emphasizing on the provision of Section 306(5) Cr.P.C. learned Senior counsel for the petitioner submits that after the statement had been recorded by the learned ACMM and a pardon granted to the co-accused Krishna Kumar the case could not have been committed to the learned Sessions Court for trial but ought to have been committed to the Court of learned CMM who erroneously recorded the second statement of the approver Krishna Kumar.

4. Reliance is placed on the decision of the Supreme Court in Dilip Sudhakar Pendse & Anr. Vs. Central Bureau of Investigation Crl.A. 966/2013 decided on 16th July, 2013. It is contended that committal of the trial to the Court of Sessions has materially prejudiced the petitioners inasmuch as they lose a right of filing a revision petition against the order on charge or an appeal in case of conviction. The reasoning of the learned Special Judge that since the learned CMM examined the approver under Section 306(4) Cr.P.C. it would defeat the objective of Section 306 Cr.P.C. if the trial is conducted by the same Court is erroneous and illegal.

5. Learned Spl. PP for the State on the other hand submits that the issue stands settled by the Division Bench of Bombay High Court in the decision reported as 1979 (81) BOM LR 184 State of Maharashtra Vs. Shanti Prasad Jain. Referring to the decision of a Single Judge of Tamil Nadu High Court reported as 1987 Crl.L.J. 1012 V. Krishnaswami Vs. State of Tamil Nadu it is contended that committal under Section 306 Cr.P.C. can be made only by a judicial authority of a lower rank to a judicial authority of a higher rank.

6. The issue which arises for consideration in the present petition is whether after a statement of the co-accused Krishna Kumar was recorded by the learned ACMM and a subsequent statement was recorded under Section 306 (4) Cr.P.C. by the learned CMM, whether the case was required to be committed to the Court of Sessions for trial or retained by the learned CMM.

7. Before adverting to the rival contentions, it would be appropriate to note Section 306 Cr.P.C.

"306. Tender of pardon to accomplice.