JUDGMENT KAMLESH SHARMA, J.—In this appeal, the State of Himachal Pradesh has assailed judgment dated 8.5.1990 passed by Additional Sessions Judge (I), Kangra at Dharamshala, whereby the respondents were acquitted of the offences under Sections 302, 380, 457, 120-B read with Section 34, I.P.C. 2. The brief facts of the case are that Vipan Chand PW-II made report Ex. PK to the police on 25.3.1988 that shop of Piar Chand PW-12 and residence of Doctor Kewal Krishan, where he was residing along with Vijay Kumar, Gold Smith, were lying open and the dead body of Vijay Kumar was lying in a nearby pasture. He further complained that since the locks of the premises were also found broken open, the culprits had committed theft by breaking open the safe after committing murder of Vijay Kumar. On receipt of this report investigation started, during which the dead body of Doctor Kewal Krishan was recovered on the same day. 3. Autopsy on the dead body of Vijay Kumar was conducted by Doctor K.S. Dhadwal PW-41, who has placed on record his post-mortem report Ex. PV/1 and opined that the cause of death of Vijay Kumar was fracture of temporal bone resulting in injury to his brain, shock and haemorrhage. According to him, those injuries were ante-mortem in nature and sufficient to cause the death of Vijay Kumar in the natural course Similarly, autopsy of the dead body of Doctor Kewal Krishan was conducted by Doctor S.M. Mehta PW-40, who has placed on record his post-mortem report Ex. PU/1 and opined that the death was due to liver injury resulting into shock and haemorrhage. No poison was found in the viscera as per Chemical Examiners Report Ex. PT/5. 4. Accused Sandeep Kumar, who later on turned as approver, was arrested on 26.3.1988. He was also medically examined by Doctor G.N. Sharma PW-20 on 26.3.1988, who issued medico-legal certificate Ex. PW/1 and opined that injuries on his person were caused by sharp-edged weapon. Accused persons, namely, Biru, Amar Singh and Shashi Paul were arrested on 27.3.1988 while accused Surinder Mohan was arrested on 28.3.1988. 5. On 8.6.1988 accused Sandeep Kumar moved an application Ex. PW/1 and opined that injuries on his person were caused by sharp-edged weapon. Accused persons, namely, Biru, Amar Singh and Shashi Paul were arrested on 27.3.1988 while accused Surinder Mohan was arrested on 28.3.1988. 5. On 8.6.1988 accused Sandeep Kumar moved an application Ex. PM/ 1 from the jail where he was in judicial custody, in the Court of Chief Judicial Magistrate, Kangra at Dharamshala expressing his intention to make true disclosure of the facts in relation to the murder of Doctor Kewal Krishan and Vijay Kumar, as he was burdened with guilt. On receiving this application, the Chief Judicial Magistrate issued notice to the Station House Officer of Police Station, Jawalamukhi for 13.6.1988, when accused Sandeep Kumar was produced in custody in the presence of Sub-lnspector/SHO Dilbag Singh and Shri Ram Swaroop Sharma, APP, who did not oppose the application. After explaining to accused Sandeep I Kumar that he was not under obligation to make any statement which could I be used against him, the Chief Judicial Magistrate adjourned the matter to 15.6.1988 and ordered that he be kept in a separate cell from other accused persons. On 15.6.1988, after satisfying himself that accused Sandeep Kumar still wanted to become an approver, the Chief Judicial Magistrate granted him pardon on the condition that he would make true disclosure of the incident. Thereafter, the Chief Judicial Magistrate after granting him further time to reconsider his decision, recorded his statement allegedly under Section 306(4) Cr.P.C. and sent the same in a sealed cover along with his order-sheets to Sessions Judge, Kangra at Dharamshala. Later on during the trial the statement and other proceedings were exhibited as Ex. PM/1 to PM/7. The challan was presented on 22.6.1988 in the Court of the Chief Judicial Magistrate, wherein Sandeep Kumar was shown in column No. 2 being an approver. The Chief Judicial Magistrate summoned the accused persons as well as approver Sandeep Kumar and committed the accused persons to the Court of the Sessions Judge after giving them the copies of the documents by order dated 4.8.1988. Their prayer for giving them copies of the proceedings and the statement recorded under Section 306 Cr.P.C. was rejected as those were already forwarded to the Court of the Sessions Judge. 6. Their prayer for giving them copies of the proceedings and the statement recorded under Section 306 Cr.P.C. was rejected as those were already forwarded to the Court of the Sessions Judge. 6. During the trial, the statement of Sandeep Kumar approver was recorded on oath as PW-29, who has stated that on 24.3.1988 at 10.00 p.m., he came across accused Surinder Mohan and Biru Ram while he was going to attend Jagrata near the Government Dispensary. On the asking of accused Surinder Mohan, he called for Doctor Kewal Krishan from his residence on the pretext that one Nirmla Devi was seriously ill. After walking for some distance, they met accused Surinder Mohan and Biru, who started walking along with them after exchanging formal greetings. After some time accused Amar Singh and Shashi Paul also met them and started walking behind them. When they reached near the Government Dispensary, accused Surinder Mohan and Biru all of a sudden pounced upon Doctor Kewal Krishan. Accused Surinder Mohan put cloth in the month of Doctor Kewal Krishan and draged him to a distance of 10 paces from the road, whereas, accused Biru inflicted a knife blow on the person of Doctor Kewal Krishan, as a result of which he fell down on the ground. Thereafter, accused Surinder Mohan showed knife to Sandeep Kumar and asked whether any other person knew about the fact of his bringing Doctor Kewal Krishan, to which Sandeep Kumar replied that Vijay Kumar was present in the room, when he had brought Doctor Kewal Krishan along with him. Thereafter, as per the statement of Sandeep Kumar PW-29, he protested to caused Surinder Mohan that he had cheated him by calling for doctor Kewal Krishan through him on a false pretext in order to kill him. On the statement of Sandeep Kumar that he would disclose the whole incident to his father and would also make notice, accused Surinder Mohan offered him Rs. 5,000 and threatened him that in case of his making disclosure to any one, he and the other members of his family would be killed. According to Sandeep Kumar he was assaulted by accused Surinder Mohan with the knife when he insisted that he would disclose the true facts to others and he had received injuries on his right hand as well as near his abdomen in his attempt to ward off the knife blow. According to Sandeep Kumar he was assaulted by accused Surinder Mohan with the knife when he insisted that he would disclose the true facts to others and he had received injuries on his right hand as well as near his abdomen in his attempt to ward off the knife blow. However, he was able to snatch the knife and throw it on the ground and thereafter free himself from the clutches of accused Amar Singh and Shashi Paul and run to his House. Sandeep Kumar PW-29 has further stated that when he was standing at the back of hid house and was clearing the blood from his body, he had heard a sound of splash in nearby Nala, where he found the dead body of Kewal Krishna on the next morning. His statement was tested in cross-examination by the accused persons. Ultimately, for the reasons given by the trial Court in paragraphs 62 to 69 of the impugned judgment, his statement was discarded. The other circumstances including the recoveries under Section 27 of the Evidence Act were also not found worthy of credence to connect the accused persons with the alleged commission of crime. Therefore, by giving benefit of doubt the accused persons were acquitted and the approver Sandeep Kumar PW-29 was also discharged. 7. We have heard learned Counsel for the parties and gone through the record. We need not decide this appeal on merits, as we find that the trial of the accused persons was vitiated as the committal of the accused persons by the Chief Judicial Magistrate to the Court of Sessions for trial was illegal, inasmuch as, the statement of Sandeep Kumar approved was not recorded by the Chief Judicial Magistrate in the committee proceedings. From the facts given hereinabove, it is clear that the statement of approver Sandeep Kumar was recorded by the Chief Judicial Magistrate on 15.6.1988 after granting him pardon on the condition that he would make true disclosure of the incident. On 15.6.1988 the challan was yet to be filed before the Chief Judicial Magistrate and the other accused persons were also not summoned to enable them to cross-examine Sandeep Kumar approver. Therefore, statement Ex. PM/2 cannot be treated as statement recorded by the committal Court under Section 306(4) CrP.C, in the absence of which the committal and thereafter the trial was illegal. Therefore, statement Ex. PM/2 cannot be treated as statement recorded by the committal Court under Section 306(4) CrP.C, in the absence of which the committal and thereafter the trial was illegal. For coming to this conclusion, reference to Section 306 Cr.P.C. is necessary, which is:— "306.Tender of pardon to accomplice - (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of 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 whether as principal or abettor, in the commission thereof. (2) This section applies to— (a) any offence triable exclusively by the Court of Sessions or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952); (b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. (3) Every Magistrate who tenders a pardon under sub-section (1) shall record— (a) his reasons for so doing; (b) whether the tender was or was not accepted by the person to whim it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost. (4) Every person accepting a tender of pardon made under sub-section (D- (a) shall be examined as a witness in the Court to the Magistrate taking cognizance of the offence and in the subsequent trail, if any; (b) shall, unless he is already on bail, be detained in custody until the termination of the trial. (4) Every person accepting a tender of pardon made under sub-section (D- (a) shall be examined as a witness in the Court to the Magistrate taking cognizance of the offence and in the subsequent trail, if any; (b) shall, unless he is already on bail, be detained in custody until the termination of the trial. (5) Where a person has accepted a tender of pardon made under Subsection (1) and has been examined under Sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,— (a) commit it for trial— (i) to the Court of Sessions if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court; (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself." 8. Sub-section (1) of Section 306Cr.P.C. enables Chief Judicial Magistrate or Metropolitan Magistrate at any stage of the investigation or inquiry or trial or Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, to tender pardon on the condition of 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, whether as principal or abettor in the commission thereof. According to sub-section (2) this provision applies to offences triable exclusively by Court of Sessions or by the Court of Special Judge as also any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. Sub-section (3) requires every Magistrate who tenders pardon under sub-section (1) to record his reasons for so doing and to record whether tender was or not accepted by the person to whom it was made. Sub-section (4) requires that every person accepting a tender of pardon shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in a subsequent trial, if any, and unless he is already on bail, be detained in custody till the termination of trial. Subsection (5) deals with procedure to be adopted thereafter. Sub-section (4) requires that every person accepting a tender of pardon shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in a subsequent trial, if any, and unless he is already on bail, be detained in custody till the termination of trial. Subsection (5) deals with procedure to be adopted thereafter. Sub-clause (i) of Clause (a) of Sub-section (5) requires committal to the Court of Sessions if the offence is triable exclusively by that Court of if the Magistrate taking cognizance is the Chief Judicial Magistrate. The case in hand was required to be committed to the Court of Sessions by the Chief Judicial Magistrate. 9. The examination of Section 306 Cr.P.C. makes it clear that in the first stage Magistrate concerned has to apply his mind to the question whether it is a fit case for tendering pardon and if he decides to grant pardon, he must record his reasons for doing so and also whether it is accepted or not and thereafter his function is over. The further requirements are laid down in Sub-sections (4) and (5) to be gone into not by the Magistrate who tenders pardon but by the Magistrate taking cognizance of the offence. Sub-section (4) requires that every approver shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial and Sub-section (5) requires the cases to be committed for trial to the Court of Sessions or to be made over to the Chief Judicial Magistrate for trial as the case may be. If both the functions i.e. recording of pardon and committal are required to be discharged by the Court of the same Magistrate, he must follow the procedure of tendering pardon and thereafter examination of the approver as witness in the committal proceedings. After the accused is granted pardon, he becomes a witness and his examination by the Magistrate taking cognizance of the offence is a statutory requirement, as provided under Subsection (4), as laid down in Sardar Iqbal Singh v. State (Delhi Administration): AIR 1977 SC 2437, Sanjay Gandhi v. Union of India, AIR 1978 S.C 514 and State (Delhi Administration) v. Jagjit Singh, AIR 1989 SC 598. 10. 10. In the case of State (Delhi Administration) v. Jagjit Singh (supra) interpreting Sub-section (4) of Section 306 Cr.P.C. the learned Judges have categorically held that the moment the pardon is tendered to the accused he must be presumed to have been discharged whereupon he ceases to be an accused and becomes a witness. It is further observed that under sub-section (4) of Section 306 Cr.P.C. there is obligation on the prosecution to examine the approver both in the committing Court as well as in the trial Court. This decision is further followed in Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420, wherein the decisions in Kalu Khoda v. State, AIR 1962 Guj. 283 (FB), In re Ramasamy and others, 1976 Cri. L.J. 770 (Madras) and U. Vijayaraj v. State 1986 Cri. L.J. 2104 (Andhra Pradesh) were also approved reiterating that:— "A bare reading of clause (a) of Sub-section (4) of Section 306 of the Code will go to show that every person accepting the tender of pardon made under sub-section (1) has to be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Sub-section (5) further provides that the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case commit it for trial to any one of the Courts mentioned in Clause (i) or (ii) of Clause (a) of Sub-section (5), as the case may be. Section 209 of the Code deals with the commitment of cases to the Court of Sessions when offence is tried exclusively by that Court. The examination of accomplice or an approver after accepting the tender of pardon as a witness in the Court of the Magistrate taking cognizance of the offence is thus a mandatory provision and cannot be dispensed with and if this mandatory provision is not complied with it vitiates the trial. As envisaged in Sub-section (1) of Section 306, the tender of pardon is made on the condition that an approver shall make a full and true disclosure of the whole of the circumstances within this knowledge relating to the offence. As envisaged in Sub-section (1) of Section 306, the tender of pardon is made on the condition that an approver shall make a full and true disclosure of the whole of the circumstances within this knowledge relating to the offence. Consequently, the failure to examine the approver as a witness before the committing Magistrate would not only amount to breach of the mandatory provisions contained in clause (a) of Sub-section (4) of Section 306 but it would also be inconsistent with and in violation of the duty to make a full and frank disclosure of the case at all stages. Thus breach of the provisions contained in clause (a) of sub-section (4) of Section 306 is of a mandatory nature and not merely directory and, therefore, non-compliance of the same would render committal order illegal. 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 so that he may take steps to show that the approvers evidence at the trial was untrustworthy in case there are any contradictions or improvements made by him during his evidence at the trial It is for this reason that the examination of the approver at two stages has been provided for and if the said mandatory provision is not complied with the accused would be deprived of the said benefit. This may cause serious prejudice to him resulting in failure of justice as he will lose the opportunity of showing the approvers evidence as unreliable," (Emphasis supplied) 11. it may also be pointed out that the Magistrate taking cognizance of the offence has to examine the approver in accordance with the provisions of the Evidence Act and the Code of Criminal Procedure. It is provided under Section 273 of the Code of Criminal Procedure that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceedings shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. It is provided under Section 273 of the Code of Criminal Procedure that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceedings shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. Section 137 of the Evidence Act provides that the examination of a witness by the party who calls him shall be called his examination-in-chief and the examination of a witness by the adverse party shall be called his cross-examination. Therefore, it is clear that the prosecution has to examine the approver before the committal Court as provided under sub-section (4) of Section 306 Cr.P.C, which will be his examination-in-chief and the accused persons have a right to cross-examine him to ensure fairness. For holding this view we have taken support from the observations of learned Judges of the Supreme Court in Sanjay Gandhi v. Union of India (supra) that:— "The Committing Magistrate... has no power to discharge the accused. Nor has he power to take oral evidence save where a specified provision like Section 306 enjoins. From this it follows that the argument that the accused has to cross-examine is out of bounds for the Magistrate, save in the case of approvers." (Emphasis supplied) 12. Applying the ratio of these judgments to the facts of the present case, we have no hesitation to hold that the statement Ex. PM/2 recorded by the Chief Judicial Magistrate before filing of the challan in his Court without summoning the accused persons was not the statement recorded under Section 306 (4) Cr.P.C. Admittedly, no statement of Sandeep Kumar as the approver was recorded by the Chief Judicial Magistrate during the committal proceedings, which vitiates the committal of accused persons to the Court of Sessions and consequently their trial by the Sessions Judge. For this reason alone, the impugned judgment acquitting the respondents does not call for interference in the present appeal. For this reason alone, the impugned judgment acquitting the respondents does not call for interference in the present appeal. Had this defect been pointed out during the course of the trial, we would have remanded the case of the Chief Judicial Magistrate for holding committal proceedings afresh by recording statement of Sandeep Kumar approver under Section 306 (4) Cr.P.C. This course cannot be adopted for another reason that since the offence was committed on 23.3.1988 and the respondents were acquitted by the impugned judgment on 8.5.1990, the retrial after fresh committal will not be in the interest of justice and fair play. 13. In the result, the appeal is dismissed. Bail bonds furnished by the respondents are discharged. Appeal dismissed. -