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3. The complaint came to be lodged being C.R. No. I-5/2012 before Gandhinagar Police Station against the present petitioner and other accused for the offence punishable under section 406, 409, 420, 465, 467, 468, 471, 477A and 120-B of Indian Penal Code. The petitioner came to be arrested in connection there with and was granted regular bail by this Court. Out of remaining +accused one was granted anticipatory bail and others came to be arrested and were granted regular bail on 6/2/2013. The accused no.2 , 3, 4 & 5 moved separate applications to the concerned trial Court along with their affidavits for offering themselves as Approver and sought pardon under provision of section 306 Cr.P.C. and submitted that the affidavits accompanying their applications be treated as their confessional statement under section 164 Cr.P.C. The present petitioner felt aggrieved and submitted an application on 18/2/2013 for an opportunity of being heard. The trial Court without paying heed to the application of the petitioner accepted the application of the original co-accused nos. 2 to 5 and passed an order on 4/3/2013 treating the applicants therein original accused no.2 to 5 to be approver. This order dated 4/3/2013 is subject matter of challenge in this petition moved by the aggrieved co-accused petitioner invoking Article 226 of the Constitution of India read with section 482 of Criminal Procedure Code.

8. Learned counsel appearing for the petitioner invited this Court s attention to the fact that the trial was in respect of 6 accused, out of which as many as 4 accused chose to put up application for seeking pardon invoking provision of section 306 Cr.P.C. and put up their confessional statement with a prayer to treat the same to be confessional statement under section 164 Cr.P.C., and the Court without following due procedure and mandatory provision granted pardon and treated them to be approver vide impugned order which therefore is required to be quashed and set aside. The power of pardoning co-accused after following the mandate of the statutory provision cannot be disputed but the plain reading of cryptic application with accompanying affidavits cannot partake characteristic of section 164 statements so as to invoke successfully power of pardon which in the present case is granted by learned CJM without even touching requisite condition as mentioned under section 306 Cr.P.C., the order impugned therefore is required to be quashed and set aside.

9. Learned counsel for the petitioner invited this Court s attention to the provision of Section 306 Cr.P.C. and contended that a close reading of section 306 would clearly indicate that the power of pardon is to be exercised only in a manner mentioned there under, namely by complying with provision of section 306 (1) and 306 (4) of Cr.P.C. In the instant case as could be seen from the impugned order Ld. CJM has unfortunately treated the affidavits accompanying the applications exhibit nos. 8, 9, 10 and 11 as confessional statement under section 164 Cr.P.C. and based there upon granted pardon in a case for an offence which cannot be classified to be heinous , the pardon power in such a case was not called for.

State of Bihar. In that case this Court after pointing out the object and purpose of enacting Section 306(4) CrPC had held that since the provision had been made for the benefit of the accused it must be regarded as mandatory. It had observed therein that: (SCC p.101 para30) The object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused inasmuch as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing court itself at the very threshold... (emphasis supplied) From this observation it does not follow that the person who is granted pardon must be examined in the presence of the accused and that the accused has a right to appear and cross-examine him at that stage also. As pointed out by this Court in that case the object is to provide an opportunity to the accused to show to the Court that the approver s evidence at the trial is untrustworthy in view of the contradictions or improvements made by him during his evidence at the trial. Considering the object and purpose of examining the person accepting tender of pardon as a witness is thus limited. The proceeding which takes place before the Magistrate at that stage is neither an inquiry nor a trial. Therefore the submission of the learned counsel that Sudipa should have been examined as a witness in open court and not in the chamber and that while she was examined the Magistrate should have kept the accused present and afforded to them an opportunity to cross-examine Sudipa cannot be accepted. The phrase examination of a witness does not necessarily mean examination and cross-examination of that witness. What type of examination of a witness is contemplated would depend upon the object and purpose of that provision. Section 202 CrPC also contemplates examination of witness yet it has been held, considering the object and purpose of that provision, that the accused has no locus standi at that stage. However, it is not necessary to deal with this contention any further as the facts of this case do not support the contention. The record of the Magistrate which was perused by both the courts below and which we have also scrutinised carefully discloses that on 2/2/1992 Sudipa and both the accused were produced before the Magistrate for recording her statement under Section 306 CrPC. On that day, the learned Magistrate, in the presence of the accused, passed an order for producing Sudipa on 4/11/1992 for examining her as a witness. On 4/11/1992 both the accused were present in the chamber of the learned Magistrate and in their presence the statement of Sudipa was recorded under Section 306(4) till 5.00 p.m., and the police was directed to keep all of them present on 9/11/1992 for recording her further statement. On 9/11/1992 her further statement was recorded. Copies of the evidence of Sudipa were supplied to both the accused and that fact was ascertained by the learned Magistrate on 25/11/1992 when all of them were produced before him. The learned Magistrate had thereafter fixed 6/1/1993 as the date for cross-examination of Sudipa. On that day, an application was given on behalf of the appellant for local inspection of the place of offence before crosss-examining Sudipa. That application was granted and the accused were directed to be produced on 3/2/1993 for further cross-examination. The cross-examination of Sudipa was then for different reasons adjourned from time to time and the last date fixed for that purpose was 30/3/1993. On that day the advocate of the appellant did not remain present. The appellant declined to cross-examine her. The lawyer representing Krishnanendu also declined to cross-examine her. Therefore, there is no justification in the grievance made by the learned counsel that Sudipa was examined by the Magistrate in the absence of the appellant and the appellant was not afforded an opportunity to cross-examine her. For this reason it is also not possible to agree with the contention raised by him that the mandatory requirement of Section 306(4) was not complied with.