Judgment 1. The petitioner is the accused in Sessions Case No. 41/2010, pending before the Additional Sessions Judge, Ambajogai. The respondent no.3 herein was also originally an accused in the said case. The respondent no.3, however, applied for tender of pardon to him, which was granted by the learned Additional Sessions Judge by an order dated 3-8-2013. The petitioner is aggrieved by the said order passed by the Additional Sessions Judge, granting pardon to the respondent no.3, and has therefore, approached this Court by filing the present Writ Petition. The petitioner prays that the order passed by the Additional Sessions Judge, Ambajogai, granting pardon be quashed and set aside. 2. Rule was issued and considering the nature of challenge, was by consent, made returnable forthwith. 3. I have heard Mr. S.S. Thombre, the learned Counsel for the petitioner. I have also heard Mr. A.A. Nimbalkar, the learned Counsel for the respondent no.3. I have also heard Mr. V.P. Kadam, the learned Additional Public Prosecutor for the respondent nos.1 and 2 herein. 4. It would be necessary to mention the facts leading to the prosecution of the petitioner and the respondent no.3, and the circumstances in which pardon came to be tendered to the respondent no. 3. The respondent no.3 - Shivaji, on 17-12-2009, lodged a report with the Parli Police Station, that, while he and three others, namely, Bhanudas, Manchak and Balu were walking on road on the previous night, at about 9.00 to 9.30 p.m., a truck came from Parli side and gave a dash to the respondent no.3 and the said three others who were with him. That, as it was dark, the respondent no.3 could not see the number of the truck. The three persons, who were with the respondent no.3, sustained serious injuries. The respondent no.3 sustained only a few minor injuries. As the respondent no.3 was under the influence of alcohol and was frightened, he slept in the adjoining field, and in the morning, went to a dispensary at Parli. The other three persons had died on the spot itself. On the basis of the report lodged by the respondent no.3, C.R. No. 202/2009 in respect of the offences punishable under Sections 279 of the IPC, and 304-A of the IPC came to be registered. The other three persons had died on the spot itself. On the basis of the report lodged by the respondent no.3, C.R. No. 202/2009 in respect of the offences punishable under Sections 279 of the IPC, and 304-A of the IPC came to be registered. On 21-12-2009, the respondent no.3 Shivaji, again came to the Police Station and stated that actually, the incident leading to the death of the said three persons was different, and that, not three, but four – the fourth being the petitioner Nagnath - were with him at the material time. The version which the respondent no.3 advanced before the Police on 21-12-2009, was to the effect that the petitioner Nagnath had actually killed the said three persons by giving them a dash by his jeep. The other details given by the respondent no.3 in his supplementary statement recorded on 21-12-2009 are not material in the context of the present petition. 5. In view of the supplementary statement of the respondent no. 3, an offence punishable under Section 302 of the IPC was added in the said case and the investigation commenced in that light. The petitioner came to be arrested. After completion of investigation, a charge sheet came to be filed against him on 10-4-2010. 6. In the meantime, one Shrirang Tidke, father of one of the deceased - Balu Tidke - had made an application to the Hon'ble Home Minister for the State of Maharashtra, alleging that the respondent no.3 was actually the culprit, and that, he had, in collusion with the petitioner Nagnath committed the murder of the said three persons. Based on this, the respondent no.3 was arrested. A supplementary charge sheet alleging commission of an offence punishable under Section 201 of the IPC, was filed against him on 20-12-2010. It appears that both the charge sheets were clubbed together and the case against the respondent no.3 merged with that against the petitioner Nagnath - i.e. Sessions Case No. 41/2010. 7. On 18-10-2011, the respondent no.3 Shivaji filed an application before the court, seeking tender of pardon. He submitted that, pardon be granted to him and he be made an approver, and be examined as a witness for the prosecution. The prosecution signified its 'no objection' to tender pardon to him. It is under these circumstances, the learned Additional Sessions Judge allowed the application by his order dated 3-8-2013. 8. Mr. He submitted that, pardon be granted to him and he be made an approver, and be examined as a witness for the prosecution. The prosecution signified its 'no objection' to tender pardon to him. It is under these circumstances, the learned Additional Sessions Judge allowed the application by his order dated 3-8-2013. 8. Mr. S.S. Thombre, the learned Counsel for the petitioner, submitted that the investigating agency is, in reality, interested in shielding the respondent no.3 from the very beginning. He submitted that, Shrirang Tidke - father of the one of the deceased - had levelled allegations primarily against the respondent no.3 and not against the petitioner. He drew my attention to the contents of the letter addressed by the said Shrirang Tidke to the Hon'ble Home Minister for the State of Maharashtra wherein the respondent no.3 is projected as the main offender. As per the contents of the said letter, indeed, it appears that the respondent no.3 was believed to be the main culprit by the said Shrirang Tidke, and the petitioner was, merely, alleged to have assisted the respondent no.3 Shivaji. Mr. Thombre submitted that it would be, therefore, a travesty of justice, if the person suspected to be the main accused is tendered pardon and the person who is alleged to have performed a secondary role is prosecuted on the basis of the tainted evidence of the main culprit. 9. As regards the factual aspects, Mr. Thombre submitted that the case was of accident itself, as initially reported by the respondent no.3 Shivaji who, later on, changed his version to falsely implicate the petitioner Nagnath, for ulterior motives. 10. Before proceeding further, some other contentions raised by the learned Counsel for the petitioner may be dealt in brief. It was submitted by Mr. Thombre that, when there were two accused in a case, it was not open for the court to grant pardon to one of them and prosecute the other on the basis of his evidence. He submitted that, there was no proposal from the investigating agency or the Prosecutor in-charge of the trial, to tender a pardon to the respondent no.3, but the respondent no.3 himself made an application for tender of pardon, which ought to have been rejected. 11. I am not impressed by this submission. He submitted that, there was no proposal from the investigating agency or the Prosecutor in-charge of the trial, to tender a pardon to the respondent no.3, but the respondent no.3 himself made an application for tender of pardon, which ought to have been rejected. 11. I am not impressed by this submission. It is true that, keeping in mind the purpose behind the tender of pardon, it is expected that the court shall be moved for that purpose by the prosecution. It is also possible that the court may suomotu tender pardon to one of the accused persons. However, the discretion conferred on the court, in that regard, under Sections 306 and 307 of the Code of Criminal Procedure, 1973 [For short, "the Code"] is wide and the exercise of this discretion does not depend on, who has approached the court for tender of pardon. It is true that, when out of the two accused, one comes forward and says that he be pardoned, the court has to be a little careful in deciding whether to grant pardon to him. The prime consideration in such cases would be whether the person seeking pardon appears to have committed a lesser offence and/or has played a lesser role in the incident. Thus, on the ground that the pardon was sought by the accused person himself and, therefore, it ought not to have been granted, the order granting pardon cannot be said to be illegal. Interestingly, a serious objection as to the maintainability of the present petition was taken by the respondent no.3. According to him, it would not be open for an accused person to challenge the grant of pardon to another. He submitted that the State had no objection to grant pardon to the respondent no.3 and, therefore, the petitioner, who was a co-accused, cannot question the decision of the Additional Sessions Judge in that regard. I do not find any merit in this contention either. When there are two accused, and one of them is being granted pardon, the other is naturally aggrieved. The evidence of the other accused would be used against him and, therefore, the accused, who is not granted pardon, would be entitled to challenge the decision of the court in that regard. When there are two accused, and one of them is being granted pardon, the other is naturally aggrieved. The evidence of the other accused would be used against him and, therefore, the accused, who is not granted pardon, would be entitled to challenge the decision of the court in that regard. Broadly, the challenge can be given on the ground that the person who has been tendered pardon, is the main culprit and it would not be proper to pardon him; and prosecute the other accused who has played a lesser role in the alleged offences, on the basis of his tainted evidence. In my opinion, there would be no bar for an accused to himself seek pardon by applying to the court and there would be no bar for the court to tender pardon on the basis of an application therefor, moved by an accused, if the other requirements of Sections 306 and 307 of the Code are fulfilled. If it appears to the court that the evidence of the particular accused is necessary for establishing the case of the prosecution, it would be open for the court to proceed to grant pardon to one of the accused and for that purpose, the court can be moved by that accused himself. It also appears to me that, the grant of pardon to one accused can be challenged by the co-accused, though such challenge would basically be only on the ground that the accused, who is being tendered pardon, is the real culprit or the main accused, or has, at any rate, played at least an equal role in the alleged offences. In such a case, if the court is satisfied that the main culprit is being pardoned and his evidence is being used against the other, then the court shall not be precluded from setting aside such an order granting pardon. 12. A number of other grounds on which the impugned order is challenged are taken in the petition. However, I am not impressed by these grounds. It is submitted that the supplementary statement of the respondent no.3 Shivaji is an afterthought. It is also submitted that there is no evidence against the petitioner. It is also submitted that, when there was no other evidence against the petitioner, pardon ought not to have been granted to the respondent no.3 because his version was not reliable. It is submitted that the supplementary statement of the respondent no.3 Shivaji is an afterthought. It is also submitted that there is no evidence against the petitioner. It is also submitted that, when there was no other evidence against the petitioner, pardon ought not to have been granted to the respondent no.3 because his version was not reliable. These grounds are not legally tenable. They relate to the value of the evidence of the respondent no.3 as and when it would be given, which cannot be judged in the present petition. Moreover, that, there was no evidence against the petitioner, was not a ground against the grant of pardon, but actually a ground to justify the grant of pardon. 13. The real issue is whether the grant of pardon to the respondent no.3 is unfair inasmuch as, ‘is it that the respondent no.3 Shivaji is the main culprit ?’ The thrust of Mr. Thombre, in the course of oral arguments was on this aspect of the matter. 14. I have carefully examined the matter from this angle. I have also gone through the case diary. 15. It is true that, Shrirang Tidke - father of one of the deceased - had made more serious allegations against the respondent no.3 than against the petitioner. However, that by itself would be insufficient to show that the complicity of the respondent no.3 in the alleged incident is more. After all, the allegations levelled by the said Shrirang Tidke against the respondent no.3 are based on suspicion and he has no knowledge of the facts - i.e. :- as to what had actually happened. A perusal of the case diary indicates that the investigating agency never thought the case of the respondent no.3 to be on par with that of the petitioner. The investigating agency had fixed the petitioner for the actual commission of the offences and the respondent no.3 was charged merely for causing disappearance of evidence. 16. This is not a case where out of two accused, one who has played a greater role, or an equal role, is being selected and granted pardon at the cost of the other accused. The contention of Mr. Thombre that, actually the respondent no.3 is the main accused, cannot be accepted as at this stage, this is to be judged on the basis of the investigation that has been carried out. The contention of Mr. Thombre that, actually the respondent no.3 is the main accused, cannot be accepted as at this stage, this is to be judged on the basis of the investigation that has been carried out. The investigation reveals that the act of giving dash to the said three persons and causing their deaths is attributed to the petitioner. He is alleged to have dashed them by his own jeep which has been recovered in the course of investigation. It was the respondent no.3 who went to the Police and chose to state what had happened on the fateful day by making a statement on 21-12-2009. It is nobody's case that it is only after he was suspected of being involved in the offence that he introduced the new version. It is not the case of even the petitioner that, the murders of the said three persons were actually committed by the respondent no.3 and his case is only that, it was indeed a case of an accident, but the respondent no.3 is falsely levelling an allegation against the petitioner. Whether this is so, would be clear only after evidence is recorded in the course of trial. 17. On the basis of material in the charge sheet and the entries made in the case diary, though the complicity of the petitioner appears to the extent of suppressing the information about the commission of the offences in question, it does not appear that he had committed the offences in question, or had conspired with the petitioner to commit the said murders. The degree of complicity of the accused persons at this stage must be judged from the facts of the case as revealed from the material in the charge sheet and the entries in the case diary. 18. It does appear that, there are some errors in the order passed by the learned Additional Sessions Judge. It appears that the pardon was granted, purportedly, under the provisions of Section 306 of the Code. However, Section 306 of the Code applies to tender of pardon by a Magistrate. The tender of pardon, after the case is committed to the Court of Sessions, is governed by Section 307 of the Code, which aspect was missed by the learned Additional Sessions Judge, and also by the Public Prosecutor in-charge of the trial. However, Section 306 of the Code applies to tender of pardon by a Magistrate. The tender of pardon, after the case is committed to the Court of Sessions, is governed by Section 307 of the Code, which aspect was missed by the learned Additional Sessions Judge, and also by the Public Prosecutor in-charge of the trial. However, this error, by itself, would not be sufficient to treat the order granting pardon as bad. If the requirements of law with respect to the grant of pardon have been complied with, or can be complied with, there seems to be no reason to interfere with the grant of pardon in exercise of the writ jurisdiction of this Court. 19. On the material in the charge sheet and the facts of the case revealed from the case diary, it does not appear that the respondent no.3 is the main accused and that, by granting pardon to the main accused, an accused who has played a lesser role is being prosecuted - which could perhaps be the only ground on which interference with the order granting pardon to the respondent no.3 would be justified. As aforesaid, whether the facts reflected from the Police report and accompanying documents are false and whether the investigation has deliberately been done to protect the respondent no.3, cannot be ascertained in the present petition. 20. The impugned order, therefore, cannot be said to be needing any interference in exercise of the writ jurisdiction which is of an extraordinary nature. 21. The petition is dismissed. Rule is discharged. 22. At this stage, on the oral prayer of the learned Counsel for the petitioner, it is directed that for a period of two weeks from today, the trial court shall not proceed further with the trial, notwithstanding the dismissal of the petition.