JUDGMENT: - Rule is made returnable forthwith, and is heard by consent. 2. This is a petition by accused No. 1 under Article 227 of Constitution of India read with section 482 of the Criminal Procedure Code. 3. The challenge is to the order passed by the Additional Chief Judicial Magistrate, Nagpur (hereinafter referred to as Magistrate for the sake of brevity) tendering pardon under section 306 of Criminal Procedure Code, to the accused No.2. Facts in brief: 4. The petitioner is facing the trial in the Court of the Additional Chief Judicial Magistrate, Nagpur in Regular Criminal Case No. 327 of 2002 for the offences under sections 420, 468, 471 read with section 34 and 201 of the Indian Penal Code. 5. As is narrated in the petition, the case of the prosecution as is spelt out in the petition reads as follows: "2. The sum and substance of the allegation against the petitioner are that the respondent No. 2 was student of Hislop College. He appeared in B. Sc. Part-I in Winter 1996 examination and is a student of B. Sc. Part III in Winter 97 Examination. His roll number was 118 and 8869 respectively. He was declared unsuccessful. It is alleged that he had not cleared the examinations, he was shown to have cleared Summer 1998 Examination of B. Sc. Final on Roll No. 13935. It is alleged that thereafter he had taken admission in B. A. Economics as Additional Subject. According to prosecution he had not passed the examination and with connivance with the present petitioner he prepared fraudulent mark sheets. On the basis of these allegations, the charge-sheet as mentioned was filed. After the investigation was completed, said case was split up and was numbered as Regular Criminal Case No. 327/2002 and it was pending before the 2nd Additional Chief Judicial Magistrate, Nagpur." (Quoted from page 2 and 3 of the Writ Petition Paper Book) 6. The prosecution has named 13 witnesses, out of which the oral evidence of five witnesses was completed, and of remaining witnesses was to commence. 7. On 29-08-2007, Respondent NO.2 filed an application praying for grant of pardon, and offering to state before the Court truth of the matter. 8. The prosecution has named 13 witnesses, out of which the oral evidence of five witnesses was completed, and of remaining witnesses was to commence. 7. On 29-08-2007, Respondent NO.2 filed an application praying for grant of pardon, and offering to state before the Court truth of the matter. 8. The learned Magistrate immediately recorded the statement of the accused, and passed the order granting pardon, which is impugned in this petition, copy whereof is at Annexure-B at page 23 of writ petition paper book. 9. The gist of challenge which can be grasped from the averments and in the grounds stated in the petition, is as follows: (a) Questions framed by Magistrate and the answers given by respondent NO.2 show that the statement is not inculpatory at all, nor the statement was recorded so as to seek the truth in the matter. (b) The statement of accused is recorded contrary to the provisions of section 306 of Criminal Procedure Code, which are mandatory in nature. (c) The statement was recorded in absence of the petitioner and without giving him any opportunity to cross-examination the aid witness which is the requirement under section 306 of the Criminal Procedure Code. (d) The application seeking pardon at Annexure:P-1 would reveal that the said application has been filed by the accused. (e) The application for tender of pardon ought to be filed by the prosecution. (i) The application for tender of pardon is not even in proper format and is not a legal application. (g) Filing of application belatedly that too after examining 5 witnesses by the prosecution is gravely prejudicial to the accused. (h) No sooner the said application was filed, the statement is recorded and on the same day the order is passed tendering pardon. (i) The said application claiming tender of pardon for or due to illegal, unethical compromise between the prosecution and the respondent No.2 to the disadvantage of the petitioner. (j) The order tendering pardon docs not satisfy the test that the trial Judge has exercised the discretion judiciously and properly. (k) The order is passed under section 307 of Criminal Procedure Code which does not refer to Magistrate, but it is the jurisdiction of Sessions Court. 10. Heard Learned Advocate Shri Anil Mardikar for the petitioner, Learned Special Public Prosecutor Shri R. P. Joshi and learned Advocate Mr. Avinash Gupta for the respondent No.2. 11. (k) The order is passed under section 307 of Criminal Procedure Code which does not refer to Magistrate, but it is the jurisdiction of Sessions Court. 10. Heard Learned Advocate Shri Anil Mardikar for the petitioner, Learned Special Public Prosecutor Shri R. P. Joshi and learned Advocate Mr. Avinash Gupta for the respondent No.2. 11. Learned Advocate Shri Mardikar for the petitioner has placed reliance on the following Judgments. (1) AIR 1952 Himachal Pradesh 57, Ram Chand and others vs. The State. (2) 1969 MhLJ. (SC) 865 = AIR 1968 SC 594 , Lt. Commander Pascal Fernandes vs. State of Maharashtra and others. (3) 2008(3) MhLJ. 724 = 2008(2) Mh.LJ (Cri) 35 = 2008 ALL MR (Cri) 802, AlSalcha Beig s/o Abdul Gani Beig vs. State and ors. (4) 2002 Cri.LJ 2990, Konajeti Rajababu vs. State of A. P. and another. (5) AIR 1998 SC 2821 , A. Deivendran vs. State of Tamil Nadu. (6) Judgment in Criminal Application No. 1856107 decided on 8-10-2007 by High Court Nagpur Bench. (7) Criminal Writ Petition No. 109 of 2007 order passed on 4-92008 by High Court Bench at Nagpur. 12. Both the Advocates, supporting the order, have refuted the allegations and urged that :- (a) The order is perfectly within jurisdiction under section 306 of Criminal Procedure Code (b) There is no error of law or jurisdiction just because section 307 of Criminal Procedure Code, is referred to in the order. (c) Writing of section 307 of Criminal Procedure Code, seems to be a slip in writing as in other similar cases, Learned Magistrate has passed the order under section 306 of Criminal Procedure Code only, which is the empowering provision. (d) What has to be seen is the availability of jurisdiction and exercise according to said empowering and Jurisdictional provision and not bare mention of provision. (e) Remaining accused have no right to challenge tender of pardon. (f) Right of accused is limited to cross-examination of such witness, soon the said accused is examined as witness. (g) If the witness fails to obey and comply with the conditions of tender of pardon, the consequences are told to him and this situation does not prejudice the petitioner i.e. the remaining accused. (h) If the witness tells the truth then he does not breach the terms of tender of pardon, and the remaining accused can always crossexamine such witness to discredit his testimony. (h) If the witness tells the truth then he does not breach the terms of tender of pardon, and the remaining accused can always crossexamine such witness to discredit his testimony. (i) The accused has no right of challenge tender of pardon on grounds whatsoever. 13. Learned Special Public Prosecutor Shri R. P. Joshi placed reliance on the following Judgments. (1) AIR 1983 SC 537 . Municipal Corporation of the City of Ahmedabad vs. Ben Hiraben Manilal (2) 2007 ALL MR (Cri) 942. Santosh Bhimrao Rane Ys. State of Maharashtra and anr. (3) (2001)8 SCC 289 . Jasbir Singh vs. Vipin Kumar Jaggi and others. (4) (2000)3 SCC 161 . Ranadhir Basu and State of W B. (5) 2002 Cri.LJ 2375. Senthamaral vs. S Krishnaraj and others. (6) 1940 N. L. J 286 Horilal Mohanlal vs. Crown. (7) (1999) 5 SCC 30 . Ramprasad vs. State of Mah. with Vinit vs. State of Mall. and Gopal Maharaj vs. State of Mah and Raju s/o Hiraman Gahlot mid another vs. State of Mall. (8) (2000)2 SCC 396 . State of HP. vs. Surinder Mohan and others. (9) AIR 1936 Calcutta 356. Harihar Sinha and others vs. Emperor Opposite Party. 14. Learned Advocate Shri Avinash Gupta for Respondent No. 2 has placed reliance on the following Judgments. (1) 1969 Mh.LJ (SC) 865 = AIR 1968 SC 594 , Lt. Commander Pascal Fernandes ys. State of Maharashtra and others. (2) AIR 1973 SC 2210 State of U P. vs. Kailash Nath Agarwal and others. (3) 1975 CriLJ 670. Gagu vs. The State of Gujarat and another. (4) 1985 Mh.LJ 469. Maosi Nainsi Jain and others vs. State of Maharashtra. (5) 1985 Mh.LJ 474, Marttli VS. State of Maharashtra and another.(6) 1985 Cri.LJ 1818, Maosi Nainsi Jain and others vs. State of Maharashtra. (7) 1985 Cri.LJ 1822, Kanuru Yandi Charigaiah and others vs. State of A.P. (8) AIR 1989 SC 598 , State (Delhi Admn.) vs. Jagjit Singh. (9) AIR 1998 SC 2821 , A. Deivendran vs. State of Tamil Nadu. (10) (2000)3 SCC 161 , Ranadhir Basu vs. State of W.B. (11) (2000) 2 SCC 496, State of H P. vs. Surinder Mohan and others. (12) (2000)8 SCC 457 , Narayan Chetanram Chaudhary and another vs. State of Maharashtra. (13) (2001)8 SCC 289 , Jasbir Singh vs. Vipin Kumar Jaggi and others. (10) (2000)3 SCC 161 , Ranadhir Basu vs. State of W.B. (11) (2000) 2 SCC 496, State of H P. vs. Surinder Mohan and others. (12) (2000)8 SCC 457 , Narayan Chetanram Chaudhary and another vs. State of Maharashtra. (13) (2001)8 SCC 289 , Jasbir Singh vs. Vipin Kumar Jaggi and others. (14) ( 2005(3) MhLJ 778 , V.K. Jain and others vs. Pratap V. Padode and another. (IS) 2008(3) MhLJ 724 = 2008(2) MhLJ (Cri) 35 = 2008 ALL MR (Cri) 802, Al-Saleha Beig s/o Abdul Gani Beig vs. State and ors. (16) 2002 Cri.LJ 2990, Konajeti Rajababu vs. State of A. P. and another. 15. Considered the submissions, and perused the citations. Reasons: 16. On perusal of record what is seen is as follows: (a) The application for tender of pardon Annexure-P-l was filed on 29-8-2007. (b) The accused has offered to reveal truth of the matter and prayed to be an approver. (c) Learned Magistrate has examined the accused on the same date. (d) In the questions by the Court, he has answered question No.7 stating that he does not disclose the truth, and evidence which he may lead would be used against him. 17. The Magistrate has then passed the impugned order. Reading of impugned order reveals that he has read the application and statement of the accused and incorporated certain reasons in his order which read as follows: "The facts told by this accused No.1 would be necessary to corroborate other evidence and hence, granting of pardon seems to be expedient. Accordingly, pardon is tendered to the accused No. 1 Manojkumar Yadavrao Ambilkar in view of the provisions of section 307 of the Civil Procedure Code. The name of the accused No. 1 Manoj Ambilkar be deleted from the array of the accused and he is made approver, his name be added to the list of prosecution witnesses .. (Quoted from page 24 of Criminal Writ Petition paper book) 18. Though there is a long list of citations relied upon by the respective parties, the law is settled and consistent. .. 19. It shall suffice to advert to what has been observed by the Hon'ble Supreme Court in 1969 MhLJ (SC) 865 = AIR 1968 SC 594 , Lt. Commander Pascal Fernandes vs. State of Maharashtra and others. Though there is a long list of citations relied upon by the respective parties, the law is settled and consistent. .. 19. It shall suffice to advert to what has been observed by the Hon'ble Supreme Court in 1969 MhLJ (SC) 865 = AIR 1968 SC 594 , Lt. Commander Pascal Fernandes vs. State of Maharashtra and others. It shall be useful to refer to relevant dictum contained' in para 14 and 15 is quoted for ready reference. "14.Before the Special Judge acts to tender pardon, he must of course, know the nature of the evidence the person seeking conditional pardon is likely to give, the nature of his complicity and the degree of his culpability in relation to the offence and in relation to the co-accused. " "15. """"." ..... "." .. " .. " To determine whether the accused's testimony as an approver is likely to advance the interest of justice, the Special Judge must have material before him to show what the nature of that testimony will be " . 20. From the very Judgment the special reliance is placed by learned Advocate Mr. Mardikar on what is observed by the Hon'ble Supreme Court in para 15. "15"""""."""""""""""""""". Ordinarily it is for the prosecution to ask that a particular accused, out of several, may be tendered pardon. But even where the accused directly applies to the Special Judges he must first refer the request to the prosecuting agency. It is not for the Special Judge to enter the ring as a veritable director of prosecution. The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency, and must, therefore, be exercised only when the prosecution joins in the request. The State may not desire that any accused be tendered pardon because it does not need approver's testimony It may also not like the tender of pardon to the particular accused because he may be the brain behind the crime or the worst offender. The proper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner. If the prosecution thinks that the tender of pardon will be in the interest of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will indubitably agree to the tendering of pardon. If the prosecution thinks that the tender of pardon will be in the interest of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will indubitably agree to the tendering of pardon. The Special Judge, (or the Magistrate) must not take on himself the task of terming the propriety of tendering pardon in the circumstances of the case. The learned Special Judge did not bear these considerations in mind and took on himself something from which he should have kept aloof All that he should have done was to have asked the proposal. " 21. Yet, Hon'ble Supreme Court in same judgment accepted the statement of the Public Prosecutor and observed that this practice should be avoided, yet further held as follows: "15"". """"""" Since the prosecution in this case also wants that the tender of pardon be made it is obvious that the appeal must fail. It will accordingly be dismissed. " 22. The view expressed by the Han 'ble Supreme Court in case of Commander Lt. Pascal Fernandes has remained consistent all throughout. Atleast, any variation is not relied upon by petitioner. 23. On facts of the present case, it is also seen that the prosecution was supposed to consider on facts whether the approver was necessary. 24. In present case, the pardon has been tendered after examination of five witnesses. The Magistrate has recorded his finding which is quoted in foregoing para No. 17, which sufficiently discloses the application of mind by the Magistrate. 25. It shall suffice to refer two more reported Judgments of Hon'ble Supreme Court on the point of right the remaining accused have and their scope. These Judgments are :- (1) AIR 2000 SC 906, Randhir Basu vs. State of West Bengal. (2) AIR 2000 SC 3322 Narayan and others vs. State of Maharashtra. 26. The rights of the accused are extremely limited. The accused has a right of cross-examination after the witness has been granted pardon and nothing more. This Court also already noted the limitations on the rights of the accused in one of the connected cases. 27. Foregoing discussion shall reveal that most of the points raised in support of the petition have no significance once the order is seen to have been passed within four corners of law laid down by Hon'ble Supreme Court. This Court also already noted the limitations on the rights of the accused in one of the connected cases. 27. Foregoing discussion shall reveal that most of the points raised in support of the petition have no significance once the order is seen to have been passed within four corners of law laid down by Hon'ble Supreme Court. The deviation that has occurred too does not vitiate exercise of jurisdiction to tender pardon under section 306 or 307. 28. Now setting aside the order on the ground of failure of prosecution to join the application would mean falling in the ritual of an empty formality as it is abundantly clear that the prosecution had no opportunity to do so, and had a chance been given the prosecution wanted and even now wants approver's evidence. 29. This stance of State is very well recognized by Hon 'ble Supreme Court in the Judgment in case of Lt. Commander Pascal Fernandes. Relevant portion of said Judgment is quoted above in para No. 21. 30. No purpose of justice would be served by discussing each of the citations relied upon by both sides, and the points raised in the petitioner threadbare in the light of well settled legal position. 31. Rule is discharged. Order accordingly.