Judgment : Could a Chief Judicial Magistrate tender a pardon to an accused in the course of investigation of a case exclusively triable by the court of Special Judge and Enquiry Commissioner (for short, "the Special Court") constituted under Section 3 of the Prevention of Corruption Act, 1988 (for short, "the Act") and before the Special Judge took cognizance of the offence after repeal of the Criminal Law Amendment Act, 1952 (for short, "the Amendment Act")? Should the person accepting tender of a pardon made by the Chief Judicial Magistrate be examined as a witness in the Special Court before commencement of trial in that court? These questions arise for a decision in this revision. 2. Short facts of the case necessary for a decision of the questions raised are: A case was registered on 28.5.2002 for offences punishable under Sections 120B, 420, 468, and 471 of the Indian Penal Code (for short, "the IPC") read with Sections 13(2) and 13 (1) (d) of the Act. Case is that accused No.1, then a senior manager of Canara Bank, during the period between January, 1999 and August, 1999 entered into criminal conspiracy with other accused persons to make unlawful gain by abusing his official position and to cheat the bank and in pursuance of that conspiracy, accused No.1 sanctioned loans to the tune of Rs.92.21 lakhs on the strength of false invoices and false salary certificates submitted by accused Nos. 2 to 4. The further allegation is that cash receipts were submitted by one Jaimon Joseph. One of the conspirators. In the course of investigation and on request of the investigating officer, statement of the said Jaimon Joseph was recorded by learned Judicial First Class Magistrate, Kochi under Section 164 of the Code of Criminal Procedure, 1973 (for short, "the Code") on 19.2.2004. Jaimon Joseph is said to have made a voluntarily disclosure of the facts within his knowledge. Thereafter the investigating officer made a request to learned Chief Judicial Magistrate, Ernakulam to tender a pardon to the said Jaimon Joseph. Pursuant to that request leaned Chief Judicial Magistrate recorded Statement of the said Jaimon Joseph on 14.6.2004 when also Jaimon Joseph is said to have made a voluntary disclosure of the facts within his knowledge. Thereafter the investigating officer made a request to learned Chief Judicial Magistrate, Ernakulam to tender a pardon to the said Jaimon Joseph. Pursuant to that request leaned Chief Judicial Magistrate recorded Statement of the said Jaimon Joseph on 14.6.2004 when also Jaimon Joseph is said to have made a voluntary disclosure of the facts within his knowledge. On 30.6.2004 learned Chief Judicial Magistrate after consideration of the statements of the said Jaimon Joseph tendered a pardon to him on the satisfaction that said Jaimon Joseph has made a true and voluntary disclosure of all facts known to him. Jaimon Joseph accepted the tender of pardon. After tendering pardon, on the same day learned Chief Judicial Magistrate examined the said Jaimon Joseph (as a witness). (Though in the statement of the said Jaimon Joseph he is seen to have made a request for tendering a pardon as if pardon was tendered after his examination as a witness, it is seen from the endorsement of learned Chief Judicial Magistrate in the statement of said Jaimon Joseph (recorded on 30.6.2004) that statement was recorded after tendering of a pardon to the said Jaimon Joseph in view of his statement already recorded by learned Chief Judicial Magistrate on 14.6.2004). The investigating officer filed final report in the court of learned Special Judge on 1.7.2004 deleting the said Jaimon Joseph from array of accused and citing him as a prosecution witness. Learned Special Judge took cognizance of the offences by order dated 2.7.2004. Learned Special Judge framed charge against the accused and their plea of not guilty were recorded. Learned Prosecutor in charge of the case filed a petition (C.M.P.No.75 of 2009) before learned Special Judge on 27.1.2009 to examine the said Jaimon Joseph as its witness, first. That petition was allowed on 15.4.2009 and accordingly examination of the said Jaimon Joseph commenced before learned Special Judge as PW1 (hereinafter referred as "PW1") on 26.5.2009. His chief examination continued on 27.5.2009, 28.5.2009 and on 2.6.2009. On 2.6.2009 petitioner (accused No.5) filed C.M.P.No.478 of 2009 praying that pardon granted to PW1 may be revoked as he was not examined as a witness under Section 306(4) of the Code and hence trial is per se illegal. His chief examination continued on 27.5.2009, 28.5.2009 and on 2.6.2009. On 2.6.2009 petitioner (accused No.5) filed C.M.P.No.478 of 2009 praying that pardon granted to PW1 may be revoked as he was not examined as a witness under Section 306(4) of the Code and hence trial is per se illegal. Learned Special Judge heard both sides and as per order dated 4.6.2009 dismissed the petition holding that in a case triable by the Special Court examination of the approver as a witness under Section 306(4) of the Code is not required. (In the order it is stated that C.M.P.No.478 of 2009 was filed while the examination of PW1 was in progress). On 5.6.2009 PW1 was sworn again in the court of learned Special Judge and he was offered for cross examination. Counsel for petitioner (accused No.5) declined to cross examine. Learned Special Judge then directed petitioner (accused No.5) to cross examine PW1. He stated that his counsel will cross examine. Following that, counsel for accused Nos.8, 9, 13 and 18 cross examined PW1. The order dated 4.6.2009 is under challenge in this revision. 3. It is contended by learned counsel for petitioner that tender of pardon to PW1 is illegal in that learned Chief Judicial Magistrate had no power to tender a pardon in a case exclusively triable by the Special Court after repeal of the Amendment Act. Learned counsel contended that Section 30 of the Act repealed the Prevention of Corruption Act, 1947 and the Amendment Act and hence the Amendment Act ceased to exist in the Statute Book the day the Act (Prevention of Corruption Act, 1988) came into force. Therefore invoking Section 306(1) of the Code learned Chief Judicial magistrate could not tender a pardon to PW1. It is contended by learned counsel that at any rate Section 306(4) of the Code is not complied in that after PW1 accepted the tender of a pardon he was not examined as a witness in the Special Court (before commencement of trial). It is the further contention of learned counsel that since under Section 5(1) of the Act learned Special Judge could take cognizance of the offence without committal, the Special Judge should be deemed to be the "magistrate taking cognizance of the offence" for the purpose of Section 306(4)(a) of the Code. It is the further contention of learned counsel that since under Section 5(1) of the Act learned Special Judge could take cognizance of the offence without committal, the Special Judge should be deemed to be the "magistrate taking cognizance of the offence" for the purpose of Section 306(4)(a) of the Code. Learned standing counsel for respondent would urge that there is nothing illegal, irregular or improper in the procedure adopted by learned Chief Judicial Magistrate or learned Special Judge and at any rate no objection was raised by petitioner before PW1 was put in the box. Hence the objection must be treated as waived. The further argument is that at any rate, cognizance or trial cannot be said to be vitiated. 4. I shall consider the question whether in the light of repeal of the Amendment Act, a Chief Judicial Magistrate could, in the course of investigation tender a pardon to a person accused in a case which is triable exclusively by the Special Court and before the Special Court took cognizance of the offence. To understand the contentions in this regard it is necessary to refer to the relevant provisions of the Code and the corresponding provisions of the old Code. Section 306 of the code deals with the power to the Chief Judicial Magistrate/Metropolitan Magistrate and the magistrate taking cognizance of the offence to tender a pardon. Section 307 of the Code deals with the power of the Sessions Judge to tender a pardon after commitment of the case and before judgment is passed. Corresponding provisions in the old Code are Sections 337 and 338, respectively. The relevant provisions are extracted below:- Code of 1973 306. Section 307 of the Code deals with the power of the Sessions Judge to tender a pardon after commitment of the case and before judgment is passed. Corresponding provisions in the old Code are Sections 337 and 338, respectively. The relevant provisions are extracted below:- Code of 1973 306. Tender of pardon to accomplish.-(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 trail, 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 Session 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 whom 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 (1)- (a) shall be examined as a witness in the Court of 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 (1)- (a) shall be examined as a witness in the Court of 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 sub-section (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 Session 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." 307. Power to direct tender of pardon.- At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person. Old Code 337. Old Code 337. Tender of pardon to accomplice.-(1) In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to seven years, or any offence under any of the following sections of the Indian Penal Code, namely, Sections 161, 165, 165-A, 216-A, 369, 401, 435 and 477-A, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate, or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, 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: Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof. (1-A) Every Magistrate who tenders a pardon under sub-section (1) shall record his reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record. Provided that the accused shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost. (2) Every person accepting a tender under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trail, if any. Provided that the accused shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost. (2) Every person accepting a tender under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trail, if any. (2-A) In every case where a person has accepted a tender of pardon and has been examined under sub-section (2) the Magistrate before whom the proceeding are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High court, as the case may be. (2-B) In every case where the offence is punishable under section 161 or section 165 or section 165-A of the Indian Penal Code (Act XLV of 1860) or sub-section (2) of section 5 of the Prevention of Corruption Act, 1947 (II of 1947), and where a person has accepted a tender of pardon and has been examined under sub-section (2), then, notwithstanding anything contained in sub-section (2-A), a Magistrate shall, without making any further inquiry, send the case for trial to the Court of the Special Judge appointed under the criminal Law (Amendment) Act, 1952 (XLVI of 1952). (3) Such person, unless he is already on bail, shall be detained in custody until the termination of the trial. (4) [Repealed by S.86, Act XVlll of 1923]. 338. Power to direct tender of pardon.- At any time after commitment, but before judgment is passed, the Court to which the commitment is made may, with the view of obtaining on the trail the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender, or order the committing magistrate or the District Magistrate to tender, a pardon on the same condition to such person. Section 8 of the Amendment Act read as under: "8. Procedure and power of Special Judge:- (1) A Special Judge may take cognizance of offences without the accused being committed to him for trial and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898), for the trial of warrant cases by Magistrates. Procedure and power of Special Judge:- (1) A Special Judge may take cognizance of offences without the accused being committed to him for trial and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898), for the trial of warrant cases by Magistrates. (2) A Special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and every other person concerned whether as principal or abettor, in a commission thereof and any pardon so tendered shall, for the purpose of sections 339 and 339A of the Code of Criminal Procedure, 1898, be deemed to have been tendered under section 338 of that Code. (3) Save as provided in sub-section (1) or sub-section (2) the provisions of the Code of criminal procedure, 1898, shall, so far as they are not in-consistent with this Act, apply to the proceedings before a Special Judge and for the purposes of the said provisions the Court of Special Judge shall be deemed to be a court of Session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before Special Judge shall be deemed to be a public prosecutor. (3-A) In particular and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of sections 350 and 549 of the Code of Criminal Procedure, 1898, shall, so far as may be, apply to the proceedings before a Special Judge and for the purposes of the said provisions a Special Judge shall be deemed to be a Magistrate. (4) A Special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted." Corresponding Section 5 of the Act reads as under: "5. Procedure and power of Special Judge:- (1) A Special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by the Magistrates. Procedure and power of Special Judge:- (1) A Special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by the Magistrates. (2) A Special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of Sub-sections (1) to (5) of Section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered under section 307 of that Code. (3) Save as provided in sub-section (1) or sub-section (2) of the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge: and for the purposes of the said provisions, the Court of Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor. (4) In particular and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of sections 326 and 475 of the code of criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to the proceedings before a Special Judge and for the purposes of the said provisions, a Special Judge shall be deemed to be a Magistrate. (5) A Special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted. (6) A Special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ord.38 of 1944)." Section 30 of the Act is as under: "30. (6) A Special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ord.38 of 1944)." Section 30 of the Act is as under: "30. Repeal and saving.- (1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed. (2) Notwithstanding such repeal, but without prejudice to the application of section 6 of the General clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act." 5. Learned counsel for petitioner contends that it is by virtue of the provision in Section 306(2)(a) of the Code that Sub-section (1) of that Section dealing with the power of Chief Judicial Magistrate/Metropolitan Magistrate to tender a pardon is made applicable to offences triable exclusively by the Special Judge appointed under the Amendment Act and once the Amendment Act is repealed by Section 30 of the Act, the Amendment Act ceased to exist. Consequently the provision in Sub-section 2(a) of Section 306 of the Code relating to offences exclusively triable by the Special Court also ceases to exist and that divested the Chief Judicial Magistrate/Metropolitan Magistrate of his power to tender a pardon under Sub-section (1) of Section 306 of the Code to a person accused of such offences. Learned counsel contends that hence after repeal of the Amendment Act the power to tender a pardon in a case exclusively triable by the Special Court could be exercised only by the Special Judge. Learned counsel has placed reliance on the decisions in Gajraj Singh v. State [(1997) 1 SCC 650] and State of Punjab v. Bhagan Kaur [2008 (2) KLT 628]. In the decisions relied on by learned counsel the effect of repeal is stated. Learned counsel has placed reliance on the decisions in Gajraj Singh v. State [(1997) 1 SCC 650] and State of Punjab v. Bhagan Kaur [2008 (2) KLT 628]. In the decisions relied on by learned counsel the effect of repeal is stated. By virtue of Section 6 of the General Clauses Act, 1897 intention appears that the repeal shall not revive anything not in force or existing at the time of such repeal or affect anything done under the repealed Act or the previous operation of the repealed Act. Sub-section (2) of Section 30 of the Act only saves, without prejudice to Section 6 of the General Clauses Act, 1897 anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed in so far as it is not inconsistent with the provisions of the Act. 6. Going by Section 306(1) of the Code it appears to me that the Chief Judicial Magistrate or the Metropolitan Magistrate as the case may be at any stage of investigation, or inquiry into or trial of the offence could tender a pardon in the manner stated therein whether or not such Chief Judicial Magistrate or Metropolitan Magistrate is inquiring into or trying the offence while, in the case of Magistrate of First Class such power is conferred only on such of the magistrates inquiring into or trying the offence. Section 306(2) of the Code states that Section 306(1) of the Code applied to any offence exclusively triable by the court of Session or the court of Special Judge appointed under the Amendment Act. Sub-Section (5) of Section 306 of the Code states that the magistrate taking cognizance of the offence shall without making any further inquiry in the case commit the case for trial to the court of Session if the offence is triable exclusively by that court or, if the magistrate taking cognizance is the Chief Judicial Magistrate (the case is to be committed) to the court of Special Judge appointed under the Amendment Act if the offence is exclusively triable by that court. No doubt, by Section 30 of the Act the Amendment Act stands repealed and, Sub-Section (2) of Section 30 of the Act cannot have application since the saving clause is only in relation to "anything done or any action taken or purported to have been taken or purported to have been done or taken under or in pursuance of the Act so repealed." In this case, pardon was granted on 30.6.2004 much after repeal of the Amendment Act. Hence Section 30(2) of the Act has no application. 7. Still the question arises whether inspite of repeal of the Amendment Act the Chief Judicial Magistrate/Metropolitan Magistrate continues to have the power to tender a pardon to an accused in a case exclusively triable by a Special Court before the Special Judge took cognizance of the offence. Section 8(1) of the Amendment Act enabled the Special Judge to take cognizance of the offence without the accused being committed to him for trial. Sub-section (2) of Section 8 dealt with the power of the Special Judge to tender a pardon to "such person" who is supposed to have been directly or indirectly concerned with the offence with a view to obtaining the evidence of such person. Subsection (3) of Section 8 stated that for the purpose of tendering a pardon the Special Judge shall be deemed to be a court of Session trying the case without a jury or without the aid of assessors. The provisions contained in Section 5 of the Act are similar to those in Section 8 of the Amendment Act. Reading Sections 8(1) and (2) of the Amendment Act and Sections 5(1) and (2) of the Act it appears to me that the stage of the Special Judge exercising power to tender a pardon arises only after such Special Judge took cognizance of the offence Magistrate/Metropolitan Magistrate to tender a pardon "at any stage of the investigation, inquiry into or the trial" of any offence whether such Chief Judicial Magistrate/Metropolitan Magistrate is taking cognizance and inquiring into or trying the case or not. The power of Special Judge to tender a pardon could therefore be exercised only after he took cognizance of the offence. The power of Special Judge to tender a pardon could therefore be exercised only after he took cognizance of the offence. Section 306 (1) of the Code is wider in power so far as Chief Judicial Magistrate/Metropolitan Magistrate is concerned in that, he could at any stage of investigation or inquiry or trial tender a pardon while the power conferred on the Magistrate taking cognizance of the offence is limited to any stage of the inquiry or trial (alone). Section 8(2) of the Amendment Act or Section 5(2) of the Act does not say about tendering of a pardon "at any stage of investigation" of the offence. After the Special Judge took cognizance of the offence by virtue of Section 5(1) of the Act (corresponding to Section 8(1) of the Amendment Act), the power to tender a pardon vests only with the Special Judge. Support for this view can be had from Pascal Fernandes v. State of Maharashtra (AIR 1968 SC 594). It is observed in paragraph 8 that, "………It is obvious that the powers of the Special Judge commence only after he has taken cognizance of the case, and they are available to him throughout the trial………" (emphasis supplied) Again after referring to the provisions of Section 337(1) of the old Code (corresponding to Section 306(1) of the Code) and Section 8(2) of the Amendment Act (corresponding to Section 5(2) of the Act) it is observed in paragraph 11. "………These provisions between them establish two periods of time in relation to the tender of pardon in so far as offences mentioned in Ss. 6(1) and 7(1) and (3) of the Criminal Law Amendment Act are concerned. Before the case reaches the Special Judge the provisions of S.337(1) of the Code of Criminal Procedure apply at the stage of investigation or inquiry………" 8. This position is further clear from Section 8(2) of the Amendment Act (corresponding to Section 5(2) of the Act) which stated that pardon tendered by the Special Judge under Section 8(1) of the Amendment Act (corresponding to Section 5(1) of the Act) shall be deemed to have been tendered under Section 338 of the old Code (corresponding to Section 307 of the Code) for the purpose of sections 339 and 339A of the old Code (corresponding to Sub-sections (1) to (5) of Section 308 of the Code). Section 338 of the old Code and Section 307 of the Code make it abundantly clear that power conferred on the Sessions Judge to tender a pardon is after the commitment of the case and before judgment is passed. The Sessions Judge, be it under Section 338 of the Old Code or under Section 307 of the Code has no power to tender a pardon to an accused involved in a case exclusively triable by such Sessions Judge at any time before commitment of the case to such Sessions Judge. In short, grant of a pardon even involving cases exclusively triable by the Session Judge in the course of investigation and inquiry and before its commitment is governed by Section 306 of the Code (corresponding to Section 338 of the old Code) to be exercised by the Chief Judicial Magistrate/Metropolitan Magistrate or the magistrate taking cognizance of the offence as the case may be. Not only that Section 5(2) of the Act does not deviate from the above position but it specifically states in Sub-section (3) that so far as it is not inconsistent with the provisions of the Act, the court of the Special Judge shall be deemed to be a court of Session (for the purpose of tender of a pardon). The provisions of the Code relating to tender of a pardon by the Chief Judicial Magistrate/Metropolitan Magistrate before the Special Judge took cognizance of the offence are not inconsistent with any of the provisions of the Act since under Section 5(2) of the Act, it is only after taking cognizance that Special Judge can tender a pardon. The Special Judge while tendering a pardon under Section 5(2) of the Act after taking cognizance of the offence does so, just as the Sessions Judge exercises power under Section 307 of the Code. Therefore, it is clear from the relevant provisions that before cognizance is taken by the Special Judge, the power to tender a pardon to a person accused of an offence exclusively triable by the Special Judge is with the Chief Judicial Magistrate/Metropolitan Magistrate under Section 306(1) of the Code. Therefore, it is clear from the relevant provisions that before cognizance is taken by the Special Judge, the power to tender a pardon to a person accused of an offence exclusively triable by the Special Judge is with the Chief Judicial Magistrate/Metropolitan Magistrate under Section 306(1) of the Code. Therefore in my view Section 5(2) of the Act (corresponding to Section 8(2) of the Amendment Act) did not relate to or affect the power of the Chief Judicial Magistrate/Metropolitan Magistrate to tender a pardon to a person involved in a case exclusively triable by the Special Judge at any stage of the investigation or inquiry and before the Special Judge took cognizance of the offence. 9. What then is the effect of repeal of the Amendment Act on that power of the Chief Judicial Magistrate/Metropolitan Magistrate to tender a pardon to a person involved in a case exclusively triable by the Special Court in the course of investigation and inquiry and before the Special Judge took cognizance of the offence? According to learned counsel for petitioner, on and from the day of repeal of the Amendment Act by Section 30 of the Act, Chief Judicial Magistrate/Metropolitan Magistrate ceased to have the power to tender a pardon to such persons. Argument certainly is attractive since the effect of repeal is that the statute repealed ceased to exist in the statute book. But, a closer consideration of provisions of Section 306 of the Code with reference to Section 337 of the old Code and the relevant provisions of the Act and Amendment Act is needed. The Amendment Act came into force in the year 1952. The Prevention of Corruption Act, 1947 (Act No.ll of 1947) (for short, "the old PC Act") came into force in the year 1947. As on those days Section 337 of the then old Code did not specifically refer to cases dealt with under the PC Act, 1947. Section 337 (1) of the old Code only referred to any offence triable exclusively by the High Court or Court of Session or any offence punishable with imprisonment which may extent upto ten years or offences punishable with imprisonment which may extent upto ten years or offences punishable under Sections 216A, 369, 401, 435 and 477A of the IPC. Section 337 (1) of the old Code only referred to any offence triable exclusively by the High Court or Court of Session or any offence punishable with imprisonment which may extent upto ten years or offences punishable with imprisonment which may extent upto ten years or offences punishable under Sections 216A, 369, 401, 435 and 477A of the IPC. In Kanta Prashad v. Delhi Administration (AIR 1958 SC 350) (of course, after the enactment of Amendment Act with Section 8 on record) question considered was whether the District Magistrate (as the provision then was) could tender a pardon in a case involving offences exclusively triable by the Special Court. Pardon was granted by the District Magistrate in that case on 1.12.1955 at a time when Section 337(1) of the old Code applied to offences exclusively triable by the High Court, court of Session or offences punishable with imprisonment upto ten years or the offences otherwise enumerated therein and referred to above. Offences attributed to the accused in that case and which were triable by the Special Court were punishable with imprisonment only upto seven years. (Section 337 (1) of the old Code was amended only in 1956 incorporating offences punishable upto seven years also within its scope) The offences triable by the Special Court since punishable only with imprisonment upto seven years did not come within the classification of offences punishable upto ten years as stated in Section 337(1) of the old Code. Supreme Court held that as per Section 8 and 9 of the Amendment Act the Special Judge while trying the case is equated to the position of a sessions Judge, Section 337(1) of the old Code permitted the District Magistrate to tender a pardon to a person involved in a case exclusively triable by court of Session and hence by virtue of Section 8 of the old Act the District Magistrate had the power to tender a pardon to such a person (deeming the offences triable by the Special Judge as offences triable by the Sessions Judge regarding which District Magistrate could exercise power under Section 337(1) of the old Code). That means, even though offences in respect of which the District Magistrate could then grant pardon should have been punishable with imprisonment upto ten years and offences alleged against accused in that case (and exclusively triable by the Special Judge) were punishable only with imprisonment upto seven years and there was nothing otherwise in Section 337(1) of the old Code to indicate that District Magistrate could tender a pardon (in the course of investigation or inquiry) in respect of an offence triable by the Special Judge, the Supreme Court held with reference to Section 8 of the Amendment Act and equating the court of Special Judge to the court of Session that the District Magistrate had the power to tender a pardon in respect of an offence exclusively triable by the court of Special Judge (in the course of investigation or inquiry into such offences and before the Special Judge took Cognizance) deeming such offences as triable exclusively by the Sessions Judge. 10. Now as the provisions of Section 306(1) of the Code say, in my view the Chief Judicial Magistrate/Metropolitan Magistrate could exercise the same power even if it is assumed that the words "by the court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 46 of 1956)" occurring in Section 306(2) (a) of the Code are treated as non-existent. My reasoning is thus: Going by Section 5 of the Act and as I have stated above in the matter of trial of cases before the Special Judge and tendering of a pardon after the Special Judge took cognizance of the offence, the court of Special Judge is equated to the position of a court of Session and therefore in that deemed position, Sub-sections (1) and (2) (a) of the Code relating to offences exclusively triable by a court of Sessions should apply, as held in Kanta Prashad's case referred supra in the matter of offences exclusively triable by the court of Special Judge also (so far as those cases are not expressly excluded from the application of Section 306(1) of the Code). So far as the case on hand is concerned, offences under the IPC attributed to the accused are punishable with imprisonment upto seven years, those offences are tribale by the Special Judge in view of section 4(3) of the Act and that comes within the purview of section 306(2)(b) of the Code. So far as the case on hand is concerned, offences under the IPC attributed to the accused are punishable with imprisonment upto seven years, those offences are tribale by the Special Judge in view of section 4(3) of the Act and that comes within the purview of section 306(2)(b) of the Code. 11. Yet another reason is that power of the Special Judge to tender a pardon is only after cognizance is taken under Section 5(1) of the act which did not require a committal of the accused to the Special Court. The Special Judge, in the light of the decision in Pascal Fernandes's case referred supra and Section 5(2) of the Act could tender a pardon only after cognizance is taken by such Special Judge. The question of Special Judge tendering a pardon before cognizance is taken did not arise. Then, which authority is to tender a pardon in a case triable exclusively by the Special Judge during the course of investigation and inquiry and before the Special Judge took cognizance of the offence Assuming that by repeal of the Amendment Act, Section 306(1) were not to apply to offences triable exclusively by the Special Judge, it would appear that the question of tendering a pardon to a person accused of such an offence at any time before the Special Judge took cognizance of the offence would not arise. I am unable to think that the Legislature intended to create a vacuum in the matter of tendering of a pardon before the Special Judge took cognizance of the offence. If intention of the Legislature were to divest the Chief Judicial Magistrate/Metropolitan Magistrate of their power to tender a pardon in cases involving offences exclusively triable by the court of Special Judge before such Special Judge took cognizance of such offence and invest the Special Judge with that power also, necessarily Section 5(2) of the Act would have been couched in such a way that the power to tender a pardon at the stage of investigation and inquiry was also given to the Special Judge. Instead, Section 8(2) of the Amendment Act as interpreted in Pascal Fernandes's case (referred supra) as conferring power on the Special Judge to tender a pardon only after taking cognizance of the offence is reproduced verbatim in Section 5(2) of the Act. Instead, Section 8(2) of the Amendment Act as interpreted in Pascal Fernandes's case (referred supra) as conferring power on the Special Judge to tender a pardon only after taking cognizance of the offence is reproduced verbatim in Section 5(2) of the Act. In Domat's Civil Law, Cushing's Edition, vol.1 at page 88 it is stated, "…….It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it……." So far as power to tender a pardon before taking cognizance is not conferred on the Special Judge expressly or by necessary implication and on the other hand, equating power of the Special Judge under Section 5(2) of the Act to that of the Sessions Judge under Section 307 of the Code it is shown that power of the Special Judge to tender a pardon is only after he took cognizance of the offence it is only reasonable to think that the Legislature did not intent to divest the Chief Judicial Magistrate/Metropolitan Magistrate of his power under Section 306(1) of the Code to tender a pardon before the Special Judge took cognizance of the offence. 12. The theory of implied repeal also would not, in my view apply. Courts lean against holding in favour of implied repeal. Implied repeal of an earlier Act would arise only when co-existence of two sets of provisions is destructive of the object with which the later enactment was made. Provisions of Section 306(1) of the Code and Section 5(2) of the Act do not contradict each other in the matter of power of the Chief Judicial Magistrate/Metropolitan Magistrate to tender a pardon before Special Judge took cognizance of the offence. 13. Section 22 of the Act states that subject to the modifications stated therein, the Code shall apply to any proceeding in relation to an offence punishable under the Act. Section 22 of the Act is as under: "22. 13. Section 22 of the Act states that subject to the modifications stated therein, the Code shall apply to any proceeding in relation to an offence punishable under the Act. Section 22 of the Act is as under: "22. The Code of Criminal Procedure, 1973 to apply subject to certain modifications.-The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall in their application to any proceeding in relation to an offence punishable under this Act have effect as if, - Xxxxxxxxxxxxx" [(a) to (c) omitted] The provision, it is argued by learned standing counsel for respondent makes all the provisions of the Code (including Section 306) applicable to proceeding in relation to offences punishable under the Act. Learned counsel for petitioner per contra, contended that the modified provisions referred to in the Section alone would apply and that does not take in Section 306 of the Code. 14. The short title to Section 22 of the Act quoted above gives the indication that the provisions of the Code are to apply, subject to the modifications stated therein, to proceedings in relation to an offence punishable under the Act. No doubt titles, long or short, are not enacted by the Legislature and hence cannot govern the Section. The well known canons on statutory interpretation informs me that titles could be used to understand the section as it summarise the effect of the section. In Re: Bernard Boaler [(1915) 1 KB 21] it is decided that, "……..still, as was said by a very sound and careful judge, 'the title of an Act of Parliament is no part of the law, but it may tend to show the object of the Legislature." Those were the words of Wrightman J. in Johnson v. Upham, and Chitty J. observed in East and West India Docks v. Share, Sarill and Albion Co. that "the title of an Act may be referred to for the purpose of ascertaining generally the scope of the Act. Surely, if such a reference is ever permitted, it must be permissible in a case like this." Maxwell on the interpretation of Statutes, 5th ed. that "the title of an Act may be referred to for the purpose of ascertaining generally the scope of the Act. Surely, if such a reference is ever permitted, it must be permissible in a case like this." Maxwell on the interpretation of Statutes, 5th ed. P.67, summarises the authorities thus: "it is now settled law that the title of a statute……may be referred to for the purpose of ascertaining its general scope." I agree that the Court should give less importance to the title than to the enacting part, and less to the short title than to the full title, for the short title being a label, accuracy may be sacrificed to brevity; but I do not understand on what principle of construction I am not to look at the words of the Act itself, to help me to understand its scope in order to interpret the words Parliament has used by the circumstances in respect of which they were legislating….." (emphasis supplied) Dealing with interpretation of Section 13 of Debtors Act, 1869 it is stated in Fisher v. Raven [(1963) 2 All.E.R. 389] thus: "……Section 13 of this Act is included in Part 2 which is headed "Punishment of Fraudulent Debtors." The long title of the Act and the heading of part 2 support the view that the Act was intended to deal only with those who owe money, debtors in the ordinary sense of the word,……." (emphasis supplied). In that case heading of the section and the long title of the Act were profitably made use of to understand the Section in accordance with the intention of the Legislature. Sir Rupert Cross says in "Statutory interpretation (1976)"; "Headings are not voted on or passed by Parliament but this does not appear to have prevented them form being treated in much the same way as the long title and preamble. Indeed in one of the cases in which great stress was placed on this lack of parliamentary imprimature, it was conceded that reference may be made to headings as aids in resolving an ambiguity……." The short title to Section 22 of the Act can therefore be used to understand intention of the Legislature in enacting the Section itself, ie., the provisions of the Code with the modifications stated therein should apply to proceedings in relation to offences punishable under the Act. That means, Section 306 of the Code which empowers the Chief Judicial Magistrate/Metropolitan Magistrate to tender a pardon (before cognizance is taken by the Special Judge) is applicable to offences triable exclusively by the Special Judge as well. 15. Section 4 (2) of the Code is also relevant in this regard. The provision is as under: "4. Trial of offences under the Indian Penal Code and other laws.- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." (emphasis supplied) I stated that there is no inconsistency in the provisions of Section 306 of the Code and Section 5(2) of the Act to the extent it concerned power of the Chief Judicial Magistrate/Metropolitan Magistrate to tender a pardon at the stage of investigation and inquiry and before the Special Judge took cognizance of the offence. Hence by virtue of Section 4 of the Code also, even after repeal of the Amendment Act the Chief Judicial Magistrate/Metropolitan Magistrate continues to have power to tender a pardon before the Special Judge took cognizance of the offence. 16. In view of what I have stated above, I hold that notwithstanding repeal of the Criminal Law Amendment Act, 1952 (46 of 1952) the Chief Judicial Magistrate/Metropolitan Magistrate has the power to tender a pardon to a person accused, at the stage of investigation or inquiry of a case triable exclusively by the court of Special Judge constituted under the Prevention of Corruption Act, 1988 (49 of 1988) and before the Special Judge took cognizance of the offence. 17. Coming back to the facts of this case, final report was submitted before learned Special Judge on 1.7.2004 and learned Special Judge took cognizance of the offences on 2.7.2004 while learned Chief Judicial Magistrate recorded the statement of PW1 on 14.6.2004 and tendered a pardon to him on 30.6.2004. Learned Chief Judicial Magistrate therefore, has acted with jurisdiction in tendering a pardon to PW1. 18. Learned Chief Judicial Magistrate therefore, has acted with jurisdiction in tendering a pardon to PW1. 18. The next question is whether, consequent to PW1 accepting tender of a pardon on 30.6.2004 he should have been examined "as a witness" in the court of learned Special Judge before the trial of the accused commenced. It is not disputed that PW1 was not examined as a witness in the court of learned Special Judge as contemplated under Section 306(4)(a) of the Code. According to the learned counsel, examination of the person who has accepted tender of a pardon as a witness by the magistrate taking cognizance is mandatory and since Section 5(1) of the Act dispensed with committal for the Special Judge to take cognizance, the Special Judge should be deemed to be the "magistrate taking cognizance" as understood in Section 306(4)(a) of the Code. It is also argued by the learned counsel that non-examination of PW1 as a witness under Section 306(4)(a) of the Code is not a curable irregularity and that at any rate, petitioner cannot be said to have waived his objection as the 'illegality' was pointed out at the earliest point, at the time of examination of PW1 as a witness at the trial. To support his contention that examination of the person who has accepted tender of a pardon as a witness by the "magistrate taking cognizance" is mandatory, learned counsel has relied on the decisions in State (Delhi Admn.) v. Jagjit Singh (AIR 1989 SC 598), State of Kerala v. Monu D. Surendran (1991 Crl.L.J.27), State of Himachal Pradesh v. Surinder Mohan (AIR 2000 SC 1862), Ranadhir Basu v. State of W.B. [(2000) 3 SCC 161] and Narayan Chetanram Chaudhary v. State of Maharashtra [(2000) 8 SCC 457]. Learned standing counsel for respondent contends that examination of the person accepting tender of a pardon is required to be done only by the 'magistrate taking cognizance', the Special Judge is not a 'magistrate' but is equated to the position of a Session Judge while taking cognizance and conducting trial of the case and that no provision of the Code or the Act requires the Special Judge to examine the person accepting tender of a pardon as a witness. Before the Special Judge only one examination is contemplated and that is at the trial. Before the Special Judge only one examination is contemplated and that is at the trial. Learned standing counsel has placed reliance on the decisions in State of Andhra Pradesh v. Cheemalapati Ganeswara Rao and another (AIR 1963 SC 1850) and Sardar Iqbal Singh v. State (Delhi Admn.) and others (AIR 1977 SC 2437) and the decisions in State of Himachal Pradesh v. Surinder Mohan, Ranadhir Basu v. State of W.B. and Narayan Chetanram Chaudhary v. State of Maharashtra (all referred supra). 19. Before referring to the decisions cited above, it is necessary to go into the scheme of Section 306 of the Code. As per Section 306(1) of the Code the following persons could tender a pardon: 1. The Chief Judicial Magistrate/Metropolitan Magistrate whether he is inquiring or trying the case or not, at any stage of the investigation or inquiry into, or the trial of the offence. 2. The Magistrate of the First Class inquiring into or trying the offence at any stage of the inquiry or trial. That means, the Chief Judicial Magistrate/Metropolitan Magistrate may tender a pardon even when he himself is not inquiring into or trying the offence but such inquiry or trial is to be done by any other magistrate or court. Under Section 306 (4)(a) of the Code the person accepting tender of a pardon under Sub-section (1) shall be examined "as a witness in the court of the magistrate taking cognizance of the offence and in the subsequent trail." (emphasis supplied) Reading Sub-sections (1) and (4)(a) of Section 306 of the Code together, when a Chief Judicial Magistrate/Metropolitan Magistrate not himself inquiring or trying the offence tenders a pardon, the person accepting tender of pardon is to be examined as a witness not by that Chief Judicial Magistrate/Metropolitan Magistrate (as he is not taking cognizance of the offence) but by the "magistrate taking cognizance". To be more precise, Sub-section (4)(a) and for that purpose any other provision of the Code does not require the Chief Judicial Magistrate/Metropolitan Magistrate who is tendering a pardon but not himself inquiring or trying the offence to examine the person who has accepted tender of a pardon as a witness before commencement of trial. To be more precise, Sub-section (4)(a) and for that purpose any other provision of the Code does not require the Chief Judicial Magistrate/Metropolitan Magistrate who is tendering a pardon but not himself inquiring or trying the offence to examine the person who has accepted tender of a pardon as a witness before commencement of trial. The Special Judge taking cognizance of the offence by virtue of Section 5(1) of the Act without a committal cannot be deemed to be the "magistrate taking cognizance of the offence" as understood in Sub-section (4)(a) of Section 306 of the Code. For, for the purpose of tendering a pardon under Section 5(2) of the Act and for the purpose of trial of the case the court of Special Judge is deemed to be a court of Session. It is only for certain limited purposes that the Special Judge is deemed to be a magistrate (see Section 5(4) and Section 6 of the Act). Even when the Special Judge tenders a pardon after taking cognizance by virtue of the power under Section 5(2) of the Act, there is no necessity for the Special Judge to follow any of the provisions of Section 306 of the Code as the Special Judge tendering a pardon under Section 5(2) of the Act is equated to the position of a Session Judge tendering a pardon under Section 307 of the Code. Neither the Code nor the Act contemplates examination of the person accepting tender of a pardon twice in the court of the Special Judge. Sardar Iqbal Singh v. state (Delhi Admn.) and others referred supra lends support to that view. In that case one Martin Joseph Fernandez was arrested and produced before the Chief Judicial Magistrate in the course of investigation of a case triable exclusively by the court of Special Judge. The Chief Judicial Magistrate tendered a pardon to him invoking Section 337(1) of the old Code (corresponding to Section 306(1) of the Code) and the tender of pardon was accepted. Charge sheet was submitted in the court of Special Judge on 28.11.1973. Accused moved a petition in the court of special Judge on 2.12.1975 to quash the proceeding on the ground that Martin Joseph Fernandez, the approver was not examined as a witness by the Chief Judicial Magistrate as required under Section 337 (2) of the old Code (corresponding to Section 306(4)(a) of the Code). Accused moved a petition in the court of special Judge on 2.12.1975 to quash the proceeding on the ground that Martin Joseph Fernandez, the approver was not examined as a witness by the Chief Judicial Magistrate as required under Section 337 (2) of the old Code (corresponding to Section 306(4)(a) of the Code). The Special Judge dismissed the petition and that order was confirmed by the High Court. It was argued before the Supreme Court for the accused that as the Chief Judicial Magistrate tendered a pardon the provision for the Special Judge taking cognizance without committal ceased to exist and hence the Special Judge could not have taken cognizance without committal of the accused. The Supreme Court repelled the contention and held in paragraph 6 (Six) that, "We are unable to accept the contention. It is clear from the scheme of S.337 that what is required is that a person who accepts a tender of pardon must be examined as a witness at the different stages of the proceeding. Where, however, a Special Judge takes cognizance of the case, the occasion for examining the approver as a witness arises only once. It is true that in such a case there would be no previous evidence of the approver against which his evidence at the trial court be tested, which would have been available to the accused had the proceeding been initiated in the court of a Magistrate who under Sub-sec(2-B) of S.337 of the Code is required to send the case for trial to the Special Judge after examining the approver. But we do not find anything in Sub-sec.(2-B) of S.337 to suggest that it affects in any way the jurisdiction of the Special Judge to take cognizance of an offence without the accused being committed to him for trial. Sub-section (2-B) was inserted in S.337 in 1955 by Amendment Act 26 of 1955. If by enacting Sub-sec. (2-B) in 1955 the legislature sought to curb the power given to the Special Judge by S.8(1) of the Criminal Law Amendment Act, 1952, there is no reason why the legislature should not have expressed its intention clearly. Also, the fact that the approver's evidence cannot be tested against any previous statement does not seem to us to make any material difference to the detriment of the accused transgressing Article 14 of the Constitution. Also, the fact that the approver's evidence cannot be tested against any previous statement does not seem to us to make any material difference to the detriment of the accused transgressing Article 14 of the Constitution. The Special Judge in any case will have to apply the well established tests for the appreciation of the accomplice's evidence. This Court, in Maganlal Chhaganalal (P) Ltd.v. Municipal Corporation of Greater Bombay, (AIR 1974 SC 2009) held that the mere availability of two procedures would not justify the quashing of a provision as being violative of Article 14 and that "what is necessary to attract the inhibition of the Article is that there must be substantial and qualitative differences between the two procedures so that one is really and substantially more drastic and prejudicial than the other……." In our opinion there is no such qualitative difference in the two procedures whether a witness is examined once or twice does not in our opinion make any such substantial difference viz. that one of them could be described as more drastic than the other. The appeal is accordingly dismissed" (emphasis supplied) Facts of that case would show that Martin Joseph Fernandez to whom pardon was tendered by the Chief Judicial Magistrate was not examined as a witness either by the Chief Judicial magistrate or the Special Judge. Still the Supreme Court held (to quote again) that, "Where, however, a Special Judge takes cognizance of the case the occasion for examining the approver as a witness arises only once" That, the decision was rendered with reference to the relevant provisions of the old Code makes no difference as Section 306(4)(2)(a) of the Code makes no deviation from the corresponding provision of the old code, viz., Section 337(2) referred to and considered in that case. 20. The decisions relied on by learned counsel for petitioner concerned examination of approver as a witness by the magistrate taking cognizance of the offence and before committal of the accused to the court of Session for trial. 20. The decisions relied on by learned counsel for petitioner concerned examination of approver as a witness by the magistrate taking cognizance of the offence and before committal of the accused to the court of Session for trial. The provisions of the Code of Criminal Procedure, 1973 or the Prevention of Corruption Act, 1988 does not require the Special Judge to examine as a witness the approver who has accepted a pardon tendered by the Chief Judicial Magistrate/Metropolitan Magistrate in the course of investigation of or inquiry into a case triable exclusively by such Special Judge and before such Special Judge took cognizance of the offence. Section 306(4)(a) of the Code contemplates examination of the approver who has accepted a tender of pardon as a witness only by the Magistrate taking cognizance of the offence. 21. In this case learned Chief Judicial Magistrate. Ernakulam though was not taking cognizance of the offence has examined PW1 as a witness on 30.6.2004 immediately after tendering a pardon to him and the latter accepted it. The statement of PW1 recorded on 30.6.2004 is as under: (Q) Have you got anything to say than mentioned in your statement on 14.6.2004? (A) Nothing more to be stated than said that day. (Q) Do you know that this statement will be used against you? (A) Yes, I am desirous of disclosing the true in the court. Hence I pray that I may be made an approver. I am prepared to state these facts in any court I am summoned". True, entire facts which PW1 had told learned Judicial Magistrate of First Class, Kochi on 19.2.2004 and learned Chief Judicial Magistrate, Ernakulam on 14.6.2004 are not repeated by PW1 before learned chief Judicial Magistrate on 30.6.2004. But that cannot affect the validity of tender of pardon and its acceptance. 22. In this case final report was submitted in the court of learned Special Judge on 1.7.2004 showing PW1 (he was accused No.5 in the case before tendering a pardon) as a witness. Learned Prosecutor filed C.M.P.No. 75 of 2009 on 27.1.2009 to examine PW1 as first witness for prosecution. No objection was then raised by petitioner or other accused on the ground of any non-compliance of Section 306(4)(a) of the Code. C.M.P.No.75 of 2009 was allowed on 15.4.2009. Learned Prosecutor filed C.M.P.No. 75 of 2009 on 27.1.2009 to examine PW1 as first witness for prosecution. No objection was then raised by petitioner or other accused on the ground of any non-compliance of Section 306(4)(a) of the Code. C.M.P.No.75 of 2009 was allowed on 15.4.2009. Examination in chief of the witness (PW1) was conducted on the forenoon and afternoon sessions on 26.5.2009, 27.5.2009 and 28.5.2009. It is when in the course of chief examination on 2.6.2009 learned Prosecutor wanted to exhibit in evidence statement of PW1 recorded by learned Judicial First Class Magistrate, Kochi (under Section 164 of the Code) on 19.2.2004 that objection was raised on behalf of the petitioner against marking that statement in evidence on the ground that the said statement is neither a confession statement nor the statement of a witness. The statement was marked as Ext.P104 directing that its admissibility will be decided at the final hearing. Chief examination continued and then PW1 stated that he had given statement twice in another court also at Ernakulam (referring to the court of learned Chief Judicial Magistrate). Then counsel for accused objected, not on the ground of failure to examine PW1 as a witness under Section 306 (4)(a) of the Code but on the ground that they had not been given copy of the statement. To that, learned Prosecutor replied that only counsel for accused No.10 had complained about non-supply of the said document and that the document was supplied. Directing that copy be given to all counsel who demands it, further examination was adjourned to 3.6.2009. In the meantime on 2.6.2009 petitioner filed C.M.P.No.478 of 2009 challenging validity of tender of a pardon to PW1. On 3.6.2009 chief examination continued without any protest and it was completed. Counsel for accused No.4 started cross examination of the witness. Some of the other accused also cross examined PW1. C.M.P.No. 478 of 2009 was dismissed on 4.6.2009. The objection now raised by the petitioner was not raised when learned Prosecutor filed C.M.P.No. 75 of 2009 on 27.1.2009 to examine PW1 as the first witness for prosecution or when PW1 was examined in the court of learned Special Judge on 26.5.2009, 27.5.2009 and on 28.5.2009. The objection was raised by filing C.M.P.No. 478 of 2009 only on 2.6.209. The objection now raised by the petitioner was not raised when learned Prosecutor filed C.M.P.No. 75 of 2009 on 27.1.2009 to examine PW1 as the first witness for prosecution or when PW1 was examined in the court of learned Special Judge on 26.5.2009, 27.5.2009 and on 28.5.2009. The objection was raised by filing C.M.P.No. 478 of 2009 only on 2.6.209. For the purpose of cross examination of PW1, accused have statement of PW1 recorded by the investigating officer in the course of investigation, statement recorded by learned Judicial First Class Magistrate, Kochi on 19.2.2004, statement recorded by learned Chief Judicial Magistrate on 14.6.2004 and the statement of PW1 (as a witness) recorded by the learned Chief Judicial Magistrate on 30.6.2004 after tendering a pardon. In State of himachal Pradesh v. Surinder Mohan and others (reffered supra) the Chief Judicial magistrate recorded the statement of the approver, tendered a pardon to him and committed the case for trial to the court of Session. The approver was examined as witness at the trial. He was cross examined on behalf of the accused. At the final hearing it was pointed out that the Chief judicial Magistrate had committed the case for trial without examining the approver as a witness as required under Section 306(4)(a) of the Code. The Supreme Court held. "…..Acceptance of this objection would only promote technical plea which would adversely affect dispensation of justice……" (emphasis supplied). There is no illegality, irregularity or impropriety affecting tender of pardon, its acceptance or subsequent examination of the witness (PW1) at the trial. Revision petition is dismissed.