JUDGMENT - Dr. (Smt.) Pratibha Upasani, J.:---Rule. Rule made returnable forthwith. Taken up for final hearing, by consent. 2. This Criminal Miscellaneous Application is filed by the applicant/original accused No. 6 Advocate Anacleto Viegas, being aggrieved by the judgment and Order dated 28th August, 2000 passed by the Additional Sessions Judge, South Goa, Margao in Criminal Revision Application No. 19 of 2000, dismissing the revision application by the present applicant and directing the parties/accused to appear before the trial Court for further proceedings. The said revision was directed against the order dated 3rd March, 2000 passed by the learned Chief Judicial Magistrate, Margao, who by his order dismissed the application of the applicant who himself is an accused in Criminal Case No. 397/S/90/A. 3. Few facts which are required to be stated are briefly narrated as follows :- Initially, a charge-sheet was filed only against one Freddy Dias, who is arraigned as respondent No. 2 herein, in respect of countermanding the election for Mormugao Constituency under No. 157/90 which came to be registered as Criminal Case No. 397/90/B. Subsequently, the said Freddy Dias filed a written plea dated 8th January, 1991 before the learned Judicial Magistrate, First Class in the said case. Subsequently, charge-sheet No. 59/91 was filed against seven persons including the said Freedy Dias which came to be registered as C.C. No. 150/S/91/D and later on another charge-sheet No. 71/91 was filed against all the said persons named in the impugned order, which came to be registered as C.C. No. 188/91/D. It appears that the Cases No. 150/S/91/D and 188/91/D were annexed to the original Criminal Case No. 397/90/D for the purposes of avoiding duplicity. 4. By order dated 2nd April, 1992, the learned Judicial Magistrate, First Class tendered pardon to the accused Freddy Dias, but by order dated 19th March, 1994, the learned Chief Judicial Magistrate allowed the application of the approver, the said Freddy Dias and, accordingly, the said Freddy Dias, on his own application, was directed to face trial. By Order dated 20th September 1994, the learned Chief Judicial Magistrate ordered that charges be framed against all the accused persons offences punishable under sections 193, 199, 465, 468, 471 and 419 read with section 120-B of Indian Penal Code. By Order dated 20th September 1994, the learned Chief Judicial Magistrate ordered that charges be framed against all the accused persons offences punishable under sections 193, 199, 465, 468, 471 and 419 read with section 120-B of Indian Penal Code. The accused No. 6, that is, the present applicant Anacleto Viegas challenged the said order dated 20th September, 1994 passed by the Chief Judicial Magistrate before the Sessions Judge, who by his order dated 5th June, 1998, held that there was sufficient material to frame charges against all the accused persons for only under sections 199, 465, 471 read with section 120-B of Indian Penal Code and that sections 193 and 468 of the Indian Penal Code were not attracted. 5. Thereupon the State filed Criminal Revision Application No. 1 of 1999 before the Sessions Judge assailing the orders of framing of charge dated 13th November, 1998 and 27th November, 1998 and revoking the pardon granted to Freddy Dias. The learned Sessions Judge, by his order dated 26th February, 1999, allowed the said revision application by the State and set aside the charges framed on 13th November, 1998 and 27th November, 1998. The learned Sessions Judge further set aside that part of the Order dated 20th September, 1994 which directed the framing of charge against the accused No. 1 Freddy Dias. The learned Sessions Judge observed that once the accused No. 1 was granted pardon, he was required to be examined as a witness first and would not be tried alongwith the other accused for those offences. The result of the order dated 26th February, 1999 passed by Sessions Judge was that the said Freddy Dias remained as an approver, who was to be examined as a witness by the Chief Judicial Magistrate. The Chief Judicial Magistrate, accordingly, framed fresh charges against all the accused on 6th November, 1999 for offences punishable under sections 199, 465, 471 and 120-B of Indian Penal Code. Subsequently, on 14th January, 2000, the approver Freddy Dias entered the witness box and his examination-in-chief commenced. The position as of today is that his deposition is partly recorded. On 11th February, 2000, the present applicant/accused No. 6 filed application before the Chief Judicial Magistrate where in he prayed to discard the evidence given by the approver Freddy Dias. 6. Subsequently, on 14th January, 2000, the approver Freddy Dias entered the witness box and his examination-in-chief commenced. The position as of today is that his deposition is partly recorded. On 11th February, 2000, the present applicant/accused No. 6 filed application before the Chief Judicial Magistrate where in he prayed to discard the evidence given by the approver Freddy Dias. 6. The contention of the accused No. 6 who is the present applicant is that the tender of pardon granted to Freddy Dias is invalid as it did not fall within the scope and ambit of section 306(2) of the Criminal Procedure Code, 1973, as the offences with which the accused are being tried are punishable with imprisonment that does not extend to seven years. The learned trial Judge came to conclusion that the pardon was granted by the Judicial Magistrate, First Class 'D' Court and hence he could not exercise revisional jurisdiction over the Orders passed by the Judicial Magistrate, First Class. He further observed that once pardon was granted, he could not revoke it unless and until the approver was put into the witness box and that too with certain conditions. Observing this, the Judicial Magistrate, First Class rejected the application of the original accused No. 6/present Anacleto Viegas. 7. Being aggrieved by the said order passed by the Judicial Magistrate, First Class, accused No. 6 filed Criminal Revision Application No. 19 of 2000 before the Additional Sessions Judge, who by his impugned order dated 28th August, 2000 dismissed the said Revision Application. 8. The learned Additional Sessions Judge first of all held that since granting of pardon was an interlocutory order, the revision against such interlocutory order was not maintainable. He also held that since the order of granting pardon to the said Freddy Dias was passed by the Judicial Magistrate, First Class 'D' Court, and since the order directing examination of the said approver was passed by the Sessions Judge, the Chief Judicial Magistrate could not have exercised revisional powers in respect of the above orders and, therefore, there was no illegality or irregularity in the order passed by the Judicial Magistrate, First Class. 9. 9. The third argument before the learned Sessions Judge by the applicant in the said revision was that since the offences with which the accused persons including himself were charged were punishable under sections 199, 465, 471 r/w 120-B of Indian Penal Code and since none of them entailed punishment upto seven years of imprisonment, the pardon granted to the accused No. 1 Freddy Dias was invalid and not sustainable. It was contended that section 306 of the Code of Criminal Procedure, 1973 applies only to an offence which is triable exclusively by the Court of Sessions or by the Court of Special Judge appointed under the Criminal Law (Amendment) Act 1952 or any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. The applicant, therefore, contended that in view of this provision incorporated in section 306(2)(a) and (b) that the pardon granted to the approver Freddy Dias should be set aside and his evidence recorded as approver be discarded. 10. The learned Sessions Judge rejected this argument of the applicant. He was of the view that section 306 of the Code of Criminal Procedure says that pardon can be granted at any stage of the investigation or inquiry of the trial of the offences ...... According to him, when initially pardon was granted, it was a valid tender of pardon since the charges basically framed against all the accused included offences punishable under sections 193 and 468 which entailed punishment upto seven years or more. According to him, once pardon was granted, it could not be revoked unless he was examined as an approver and that his evidence recorded as an approver has to be taken into consideration. Taking this view of the matter, he held that the pardon granted to Freddy Dias was not invalid and dismissed the revision application of the applicant. It is this order which is hurting the applicant, who has approached this Court now by way of filing the Criminal Miscellaneous Application under section 482 of the Code of Criminal Procedure. 11. Mr. Sardessai, the learned Advocate appearing for the applicant, vehemently argued that though initially when the pardon was granted to the said Freddy Dias, it was validly granted, now it has become invalid. 11. Mr. Sardessai, the learned Advocate appearing for the applicant, vehemently argued that though initially when the pardon was granted to the said Freddy Dias, it was validly granted, now it has become invalid. He highlighted the fact that initially when the pardon was granted, all the accused were charged for offences punishable under sections 199, 465, 471 reads with 120-B and also sections 193 and 468 of Indian Penal Code. He further argued that thereafter when orders came to be passed in the two Revisions, one filed by the applicant himself and the one filed by the State, the position which has now emerged is that charges under sections 193 and 468 of Indian Penal Code have been deleted and the remaining sections do not attract the provision of section 306(2) inasmuch as none of these charges entail punishment upto seven years or more. He submitted that this subsequent development has to be considered by the Court because the entire scenario has now changed. The gravity of the offences for which the accused have been charged has now gone and they do not attract the provision of section 306(2)(b) at all and, therefore, the initial tender of pardon which was granted on the basis of those grave offences has now become not only insignificant but absurd. 12. To substantiate his argument Mr. Sardessai relied upon A.I.R. 1960 S.C. 360 (The State v. Hiralal Girdharilal Kothari and others)1. These were three appeals which arose on the three certificates granted by the Punjab High Court in criminal matter. The brief facts were as follows : There was a Government Printing Press at Rashtrapati Bhawan known as Rashtrapati Bhawan Printing Press which was located in the President's estate in New Delhi. One Jacobs was the General Foreman of that Press. Every year the budget proposals were printed at that press under the supervision of Jacobs. As usual, Jacobs supervised the Printing of budget proposals in his official capacity in February 1955 also. It appears that Jacobs entered into a conspiracy to divulge the budget proposals on receiving valuable consideration for the same. Consequently the proposals were divulged to D.O. Chadda and were passed on to certain businessman of Bombay, including one Nandlal More and Hiralal G. Kothari through one A.L. Mehra. All that was done against the provisions of the Official Secrets Acts, No. XIX of 1923. Consequently the proposals were divulged to D.O. Chadda and were passed on to certain businessman of Bombay, including one Nandlal More and Hiralal G. Kothari through one A.L. Mehra. All that was done against the provisions of the Official Secrets Acts, No. XIX of 1923. Further an offences was committed under the Prevention of Corruption Act, No. II of 1947, also inasmuch as money was paid to Jacobs for divulging the budget proposals. The same thing happened in February 1956 with respect to the budget proposals for 1956-57. This was discovered on 9th March 1956, and a case was registered under section 165-A of the Indian Penal Code, section 5(2) of the Prevention of Corruption Act, section 5 of the Official Secrets Act and section 120-B, Indian Penal Code and investigation started on 10th March, 1956. Thereafter pardon was tendered to A.L. Mehra by the Additional District Magistrate on 23rd March, 1956, under section 337 of Criminal Procedure Code, 1898. The four offences mentioned above were specified in the order of the Additional District Magistrate tendering pardon to Mehra. Thereafter owing to technical legal difficulties a complaint under section 5 of the Official Secrets Act A read with section 120-B of the Indian Penal Code was filed against the persons involved and it was stated in that complaint that proceedings with respect to the charge under section 5(2) of the Prevention of Corruption Act would be taken separately. Proceedings then began before a Magistrate on that complaint. No proceedings were started in so far as offences under section 5(2) of the Prevention of Corruption Act and section 165-A of the Indian Penal Code were concerned. In the course of those proceedings before the Magistrate, the Prosecution wanted to examine Mehra as an approver. Thereupon the accused persons objected that as the proceedings before the Magistrate were only under section 5 of the Official Secrets Act and section 120-B of the Indian Penal Code, Mehra could not be examined as an approver and in consequence the case could not be committed to the Court of Sessions but should be disposed of by the Magistrate himself. The Magistrate held that Mehra could be treated as an approver and proceedings before him were therefore in the nature of commitment proceedings. The Magistrate held that Mehra could be treated as an approver and proceedings before him were therefore in the nature of commitment proceedings. Thereupon there was a revision to the Sessions Judge who took the view that as the proceedings before the Magistrate were under section 5 of the Official Secrets Act read with section 120-B of the Indian Penal Code and as no pardon could be tendered under section 337 of the Criminal Procedure Code (old) for these offences, Mehra could not be treated as an approver and had to be examined as an ordinary witness and the proceedings must be held to be trial proceedings before the Magistrate and not commitment proceedings. He therefore recommended to the High Court that the order of the Magistrate be set aside. The High Court upheld the view of the Sessions Judge and ordered accordingly. It granted certificates under Article 134(2)(c) of the Constitution and the matter reached the Apex Court. The only question before the Apex Court was whether the view of the Magistrate was correct and whether Mehra could be treated as approver and examined as such for the purposes of the proceedings before him. The Supreme Court after considering section 337 of Criminal Procedure Code, 1898 ( the provisions of which are pari materia with section 306 of the 1973 Criminal Procedure Code) came to the conclusion that pardon could be granted only with respect to an offence which fell in one of the categories mentioned in section 337(1). Those categories are given below :--- "337(1)(i) Any offence triable exclusively by the High Court or Court of Session; (ii) Any offence punishable with imprisonment which may extend to seven years (or with a more severe sentence); (iii) Any offence under any of the following sections of the I.P.C.: 161,165, 165-A, 316-A, 369, 401, 435 and 477-A." It was not disputed that an offence under section 5 of the Official Secrets Act read with section 120-B of the Indian Penal Code read with section 337 did not fall within any of those categories and no pardon could be tendered to any person. After construing provisions of section 337(1), the Supreme Court stated that pardon could only be tendered with respect to the three categories of offences mentioned therein and none other. After construing provisions of section 337(1), the Supreme Court stated that pardon could only be tendered with respect to the three categories of offences mentioned therein and none other. In the case at hand, it held that as section 5 of the Official Secrets Act read with section 120-B of the Indian Penal Code did not fall within any of those categories, no pardon could be tendered with respect to that offence and, therefore, Mehra, to whom pardon had been tendered, could not be examined as an approver in the proceedings which were concerned only with an offence under section 5 of the Official Secrets Act read with section 120-B of the Indian Penal Code. 13. Mr. Sardessai, the learned Advocate appearing for the present applicant/original accused No. 6, argued vehemently that the ratio of in the above referred judgment applied to the facts of the present case very squarely. Highlighting the provisions of section 306(2)(b); he submitted that since the remaining offences with which the accused are now charged do not entail punishment of more than seven years, the tender of pardon to the original accused No. 1 Freddy Dias is absurd and has to be held as an invalid tender of pardon. He submitted that his evidence which has been recorded so far has to be excluded and cannot be treated as evidence of an approver. 14. Ms. W. Coutinho, the learned Additional Public Prosecutor, on the other hand relied upon 1989 Cri.L.J. 986 (State [Delhi Administration] v. Jagjit Singh)2 and submitted that once a tender of pardon has been granted to the accused, it cannot be revoked unless on certain considerations which are given under section 308 of Code of Criminal Procedure, 1973 are fulfilled and certificate to that effect is given by the Public Prosecutor. 15. I have gone through the judgment of the Apex Court cited by the learned Additional Public Prosecutor Ms. Coutinho. In that case, tender of pardon was granted to one Jagjit Singh, who resiled from the same after accepting the pardon. 15. I have gone through the judgment of the Apex Court cited by the learned Additional Public Prosecutor Ms. Coutinho. In that case, tender of pardon was granted to one Jagjit Singh, who resiled from the same after accepting the pardon. It was the contention of the said accused Jagjit Singh that granting of pardon was in the nature of a contract between the State, granting the pardon on the one hand and the person, accepting the pardon on the other hand and that, as the State had the power to revoke the pardon at any time, the approver has also got the reciprocal right to cast away the pardon granted to him. This argument of the approver was dispelled by the Supreme Court as not tenable. The Supreme Court stated thus :--- "The power to grant pardon carries with it the right to impose a condition limiting the operation of such a pardon. Hence a pardoning power can attach any condition, precedent or subsequent so long as it is not illegal, immoral or impossible of performance. Section 306 clearly enjoins that the approver who was granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other concerned whether as principal or abettor, in the commission thereof. It is because of this mandate, the State cannot withdraw the pardon from the approver nor the approver can cast away the pardon granted to him till he is examined as a witness by the prosecution both in the committing Court as well in the trial Court." Ms. Coutinho, therefore, argued that the pardon granted to the approver cannot be revoked and the status of the approver remains unchanged even now. 16. I have heard Mr. Sardessai, appearing for the applicant/accused No. 6 and Ms. Coutinho, appearing for the State at length. I have also carefully gone through the decision of the Supreme Court in The State v. Hiralal Girdharilal Kothari and others (supra) on which Mr. Sardessai is heavily relying, so also the judgment in State (Delhi Admn.) v. Jagit Singh (supra), on which Ms. Coutinho the learned Additional Public Prosecutor is relying. In my opinion, in the authority on which the learned Additional Public Prosecutor is relying, different considerations were involved. Sardessai is heavily relying, so also the judgment in State (Delhi Admn.) v. Jagit Singh (supra), on which Ms. Coutinho the learned Additional Public Prosecutor is relying. In my opinion, in the authority on which the learned Additional Public Prosecutor is relying, different considerations were involved. Firstly, in the said case the accused were charged for offences under various sections including sections 302 and 307 of the Indian Penal Code, which are grave offences entailing heavy punishment. This is not the situation in the present case. Similarly in that case (1989 Cri.L.J. 986) the question as to whether subsequent quashing of the charges, which entailed heavy punishment, affected the status of the approver to whom initial pardon was validly granted was not for consideration. However, precisely the same point was for consideration before the Supreme Court in The State v. Hiralal Girdharilal Kothari and others (supra), which it cited by Advocate Mr. Sardessai. 17. In the said case (supra) it was held by the Supreme Court that the offences for tendering pardon had to be only of those categories which are mentioned in section 337 of Criminal Procedure Code (old), the provisions of which are pari materia with the provisions of section 306 of the new Criminal Procedure Code and the categories are specifically mentioned in sub-clause (2)(b) of section 306 which state that the offence should be punishable with imprisonment which may extend to seven years or with a more severe sentence. Admittedly the accused are now charged with the offences which do not entail punishment upto seven years and, therefore, the grant of pardon to the accused No. 1 Freddy Dias indeed appears to be very much absurd. 18. Even considering the intention of the legislature in enacting this provision, the argument of Mr. Sardessai appears to be very logical. The object of the provisions is to allow pardon to be tendered in cases where grave offences are alleged to have been committed by several persons so that with the aid of the evidence of the person pardoned, the offence could be brought home to the rest. The gravity is to be determined with the sentence to be awarded. Thus the jurisdiction to tender to an accused is to be restricted to such offences. 19. The gravity is to be determined with the sentence to be awarded. Thus the jurisdiction to tender to an accused is to be restricted to such offences. 19. Thus, in view of the above discussion it will have to be held that original accused No. 1 Freddy Dias cannot be examined as an approver now, in view of the subsequent development of there being no charges framed against the accused which are falling within the scope of section 306(2)(b) of the Criminal Procedure Code, 1973. In view of section 30 of the Indian Evidence Act, he is at liberty to give confession if he desires to do so. That will be subject to all the rigours and restrictions contained in law and the same will have to be considered by the Court strictly in accordance with the provisions of law, especially section 30 of the Evidence Act, and it goes without saying that the evidence of the respondent No. 2 recorded so far, since it was in the status of approver, has to be completely ignored. 20. The respondent No. 2 expresses apprehension that he will be blackmailed since everything has been extracted from him and he has stated everything in his Examination-in-chief is unfounded because once his status as an approver has gone, his evidence will necessarily have to be excluded from the records. 21. In view of the above discussion, the Criminal Miscellaneous Application made by the applicant/original accused No. 6 will have to be allowed. Hence, the following order: The Criminal Miscellaneous Application is allowed in terms of prayer Clause (a). Prayer Clause (a) :---This Honourable Court be pleased to call for the records and proceedings before the Honourable Chief Judicial Magistrate in Criminal Case No. 397/S/90/A and after perusing the order dated 3-3-2000, quash and set aside the same and to allow the petitioner's application dated 11-2-2000. Criminal miscellaneous appeal allowed. -----