ORDER : This petition has been filed by the petitioner accused Nos.1, 2, 4 and 5 under Section 482 Cr.P.C. praying to quash the order dated 18.03.2019 passed by V Addl. District and Sessions Judge, Dharwad sitting at Hubballi in SC No.70/2018 for the offences punishable under Sections 143, 147, 148, 302, 120(B), 201 R/w. Section 149 of the IPC. 2. I have heard the learned Senior Counsel Sri. M. T. Nanaiah and learned counsel Sri. V. G. Patil for petitioners/accused and Smt. Seema Shiva Naik, HCGP for respondent No.1-State. Though notice is served to respondent No.2, there is no representation. 3. The genesis of the complaint are that, the son of the complainant Dr. Babu has opened a hospital in the name of Shushruta Nursing Home along with other partners at Vidyanagar, Hubballi. Four daughters of the complainant have got married. His son Dr. Babu was residing with his wife and two children in Jayanagar. The parents of the wife of said Dr.Babu, her brother and his wife were residing in a neighbouring house by the side of the house of Dr.Babu. They have opened a Mahindra Garage in the name of Rajrajeshwari and there were some financial transactions between Dr.Babu and his brother-in-law and subsequently difference arose between them. On 12.03.2018 at about 1.00 pm, when the complainant was in his native place, he called his son Dr.Babu over phone, but he did not take the call; continuously he dialed but there was no response from his son Dr.Babu and as such, complainant came to Hubballi along with his brother Jagadish Shankar Hundekar and made enquiry with the staff of hospital. They told that Dr. Babu came to the hospital at about 11.00 am and immediately he left the hospital and thereafter he has not returned to the hospital. As the complainant suffered with shock, he took treatment in Shivashakti hospital and thereafter at about 7.00 pm he came back to his native place. It is further alleged that on 13.03.2018 at about 9.00 am, once again he called his son Dr.Babu over the phone and his phone was switched off. Again he came to Hubballi along with his friend and made an enquiry and came to know that since yesterday he has not come to the hospital. It is further alleged that on 13.03.2018 at about 9.00 am, once again he called his son Dr.Babu over the phone and his phone was switched off. Again he came to Hubballi along with his friend and made an enquiry and came to know that since yesterday he has not come to the hospital. He made enquiries with the family members and he was under the impression that because of the financial transactions he might have gone from there. Even they kept the search on but they did not trace him. At about 6.00 pm, he found Dr.Babu’s car and his two mobiles near the house of Naveen and on enquiry he came to know that his son Dr.Babu has left his car and mobile in the said car. Suspecting that Naveen might have abducted his son Dr.Babu for financial transaction, he filed the complaint. Subsequently, he came to know that his son Dr.Babu has been murdered. On the basis of the complaint a case is registered and after investigation, charge sheet was laid against accused/petitioners. 4. That being the fact, accused No.3 filed an application under Sections 306 and 307 of Cr.P.C. asking the Court to grant pardon in his favour and he has also given statement under Section 164 Cr.P.C. before the Magistrate. The learned Magistrate vide order dated 18.03.2019, allowed the application and treated accused No.3 as accomplice by tendering him pardon subject to some conditions. Being aggrieved by the same, the accused/petitioners are before this Court. 5. It is the submission of the learned Senior Counsel that the impugned order is perverse and not sustainable in law. The application for pardoning and making him an approver is not signed by accused No.3. It is his further submission that, when the statement of the accused was recorded under Section 164 Cr.P.C, he was nervous and was not comfortable and as such, the said statement is not a voluntary statement as contemplated under the law. It is his further submission that the said act of accused No.3 is exculpatory in nature. If it is exculpatory in nature, then he cannot be an approver. In order to appreciate the application under Section 306 of Cr.P.C., the said accused must be involved in the said offence throughout. It is his further submission that the said act of accused No.3 is exculpatory in nature. If it is exculpatory in nature, then he cannot be an approver. In order to appreciate the application under Section 306 of Cr.P.C., the said accused must be involved in the said offence throughout. If he is not involved, he cannot be given pardon under Section 306 of Cr.P.C. It is his further contention that, while recording 164 statement, the accused must be comfortable and he has to be explained about the importance of the confession and it may also be used against him. It is his further contention that the Court below, without there being any material on record, has come to a wrong conclusion that accused No.3 has participated in the alleged incident throughout and he is privy to the happenings at the time of incident. But as could be seen from the charge sheet material, he has not done anything and even not committed any offence and has not participated. Under such circumstances, the said accused ought not to have been given the pardon. The Court has not taken all precautions in complying the provisions of Section 306 of Cr.P.C. before tendering the pardon to the accused. In order to substantiate his said contention, the learned Senior Counsel relied upon the decision in the case of Narayan Chetan Ram Choudhary and Another Vs. State of Maharashtra reported in (2000) 8 SCC 457 . It is his further submission that, the person to whom the pardon has been granted shall make a full and true disclosure of the whole of the circumstances within his knowledge and after satisfying the said conditions under Section 306 Cr.P.C., the Court has to admonish the pardon. But in the instant case on hand, the said procedure has not been followed. In order to substantiate his said contention, he relied upon the decision in the case of Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra reported in (2009) 2 SCC (Cri) 1150. It is his further contention that the Court has to proceed with great caution and can give the conditional pardon on assigning sufficient reasons. The degree of culpability in relation to the crime of the co-accused must also be taken into consideration. If it is not done, then it is the violation of the basic norms. It is his further contention that the Court has to proceed with great caution and can give the conditional pardon on assigning sufficient reasons. The degree of culpability in relation to the crime of the co-accused must also be taken into consideration. If it is not done, then it is the violation of the basic norms. In order to substantiate the said contention, he relied upon the decision in the case of Raman S. Vs. State of Karnataka reported in (1978) 2 Kant LJ. 249. He also relied upon the decision in the case of P.C.Mishra Vs. State (Central Bureau of Investigation and Another) reported in (2014) 14 SCC 629 and contended that the defect in recording the pardon is not curable under Section 460 of Cr.P.C. If there are any irregularities, it vitiates the entire proceedings. While passing the said order, the basis of exercising of the power is not to judge the extent of culpability to whom the pardon is tendered and by virtue of that there should not be any failure of justice by pardoning and allowing the offender to escape due to lack of evidence. In order to substantiate his contention, he relied upon the decision in the case of Bangaru Laxman Vs. State (Through CBI) and Another reported in (2012) 1 SCC 500 . It is his further contention that, granting the pardon to the accused goes to the root of the matter and even though the said application is in between the accused and the Court, but when the right of the petitioners is affecting, there will be violation of Article 21 of the constitution. The accused/petitioners are having right to free and fair trial as enshrined in Article 21 of the constitution. If it is abrogated, then the Court can interfere and set aside the impugned order. On these grounds, he prayed to allow the petition and to set aside the impugned order. 6. Per contra, learned HCGP vehemently argued that the application has been filed by the learned counsel under Section 306 of Cr.P.C. On instruction of accused No.3, the signature of accused No.3 was taken in the Court with permission and thereafter accused no.3 was remanded to judicial custody on 15.11.2018. The entire records would go to show that there was no force and the accused was very comfortable while recording 164 statement. The entire records would go to show that there was no force and the accused was very comfortable while recording 164 statement. He was there in the judicial custody when 164 statement was recorded. After one day, by giving full opportunity, 164 statement has been recorded. Accused No.3 has not raised any grievances that he has not been given a fair opportunity while recording 164 statement. It is her further submission that, even recording of 164 statement is also not necessary to give the pardon under Section 306 of Cr.P.C. The co-accused are not having any right to challenge the said act, as it is in between the accused and the Court. It may affect other accused only when after pardon the said accused has been examined as a witness before the Court. At this premature stage, challenging the said order itself is not maintainable in law. The statement of accused No.3 clearly goes to show that his statement is inculpatory. Even charge sheet material goes to show that he has participated in the said crime along with other accused persons. On these grounds she prayed to dismiss the petition. 7. I have carefully and cautiously gone through the submissions made by the parties and perused the records. 8. Before going to consider the contentions of the learned counsel for the petitioners, I feel it just and proper to quote Section 306 and 307 of Cr.P.C.: “306. Tender of pardon to accomplice. (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. (2) This section applies to- (a) any offence triable exclusively by the Court of 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 trial, 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.” 9. Section 306 Cr.P.C. gives power to the Magistrate to record the pardon and 307 Cr.P.C. gives power to the Sessions Judge to record the pardon. Section 306 Cr.P.C. gives power to the Magistrate to record the pardon and 307 Cr.P.C. gives power to the Sessions Judge to record the pardon. It is not in dispute that the Sessions Judge is also having power to record the pardon of the accused under Section 307 Cr.P.C. But while recording the Sessions Judge has to fulfill the condition laid down in Section 306 Cr.P.C.. As per Sections 306 and 307 Cr.P.C., the person in whose favour the pardon has been tendered shall make a full and true disclosure of the whole of the circumstances within his knowledge. If that condition is fulfilled, then it is going to satisfy the ingredients of the said Section and it can be held that the said recording of the pardon is valid. It is always for the prosecution to decide necessity of granting pardon. If it so desires, the Court has to agree for tendering pardon. Although the power to actually grant the pardon is vested with the Court, only the Court has to see that, as on the date of the pardon, proceedings were pending as against accused and if it is there, pardon is perfectly legal and he is competent to give evidence. 10. As could be seen from the records, statement of accused No.3 under Section 164 Cr.P.C has also been recorded and thereafter the impugned order was passed. That clearly goes to show that the judge has not passed the impugned order mechanically. It is well established proposition of law that the technicalities should be kept to a bare minimum. Records indicate that the trial Court in the present case on hand has taken all precautions by complying the provisions of Section 306 Cr.P.C. before tendering the pardon to accused. No doubt the accused/petitioners have raised several contentions including the contention that the said statement of the accused is exculpatory. Records indicate that the trial Court in the present case on hand has taken all precautions by complying the provisions of Section 306 Cr.P.C. before tendering the pardon to accused. No doubt the accused/petitioners have raised several contentions including the contention that the said statement of the accused is exculpatory. But as could be seen from the records, column No.17 of the charge sheet discloses that accused No.1 called accused No.3 Nandeesh over phone to assist him and accused No.3 came near Abhiman Bar and the remaining accused were also there in a car; When the said car was proceeding through Shiraguppi, it was struck and the said vehicle was got removed with the help of another vehicle and thereafter they went to land of Shivanand Doddamani to see the place for burning the body and thereafter, they went to Sri. Vijayalaxmi Petrol Pump and got filled 8 liters of petrol and thereafter they laid the bed in the trench and after keeping the dead body, they kept the wood and after pouring the petrol with an intention to destroy the evidence, they lit the fire and thereafter they went away. Throughout all these incidents the accused No.3 Nandeesh was there along with him. It also discloses that, thereafter accused No.1 paid Rupees 5,000/-to accused No.2, who got down near old bus stand at Hubballi and he also paid Rs.5000/-to accused No.4 and he got down at Mahima Residence and there they stayed and on 13.03.2018, at about 11.00 am, went in a car to his service station and washed the said car. Where the approver did not say that he took any active part in assault on the deceased, but his statement clearly shows that he was a privy to or an abetter in the commission of the offence and the Magistrate was fully satisfied that he would make a full disclosure of the fact, it cannot be said that there is violation. This proposition of law is laid down by the Hon’ble Supreme Court in the case of Maghar Singh Vs. State of Punjab reported in AIR 1975 SCC 1320. Para 3 of the judgment reads as under: “3. This proposition of law is laid down by the Hon’ble Supreme Court in the case of Maghar Singh Vs. State of Punjab reported in AIR 1975 SCC 1320. Para 3 of the judgment reads as under: “3. The central evidence in this case consists of the testimony of the approver Baldev Singh, P.W.11, who has given a full narrative of the manner in which the deceased was hacked to death by Maghar Singh, with the aid of the approver and Smt. Surjit Kaur. The learned counsel appearing for the appellant raised two points before us. In the first place he submitted that the evidence of the approver Baldev Singh must be excluded from consideration because the provisions of Section 337 of the Code of Criminal Procedure were not complied with inasmuch as the statement given by the approver on the basis of which he was granted pardon was a purely self-exculpatory statement and did not fall within the four corners of Section 337 of the Code of Criminal Procedure. On a perusal of the statement of Baldev Singh we are unable to agree with this contention. It is true that Baldev Singh did not say that he took any active part in the assault on the deceased, but his statement clearly shows that he was a privy to or an abetter in the commission of the offence. The Magistrate who granted the pardon to the approver was fully satisfied that the approver was going to make a full and complete disclosure which he undoubtedly did. In these circumstances, we do not think that the provisions of Section 337 of the Code of Criminal Procedure have been violated in any way.” 11. Keeping in view the ratio laid down by the Hon’ble Supreme Court and the above said facts, it goes to show that accused No.3 was present when all other accused persons have above the said criminal act. It satisfies the condition under the said section. 12. All these materials clearly goes to show that the accused No.3 was privy to the alleged offence and he helped the accused in screening the offence by putting the petrol and burying the body. Under such circumstances, it cannot be held that the statement of the accused No.3 is exculpatory. It satisfies the condition under the said section. 12. All these materials clearly goes to show that the accused No.3 was privy to the alleged offence and he helped the accused in screening the offence by putting the petrol and burying the body. Under such circumstances, it cannot be held that the statement of the accused No.3 is exculpatory. As per Section 306 Cr.P.C. the crucial aspect which the Court has to see is that, to whom the pardon has been granted, is an accused and whether he is having any say in the matter or not. Even as could be seen from Section 306 Cr.P.C, nowhere it speaks that, before passing any pardoning order, the co-accused must be heard. The right of the co-accused comes into play only when the evidence of the said accomplice was recorded before the Court as a witness. Till then, co-accused persons are not having any right. The only question which has to be answered is whether the pardon is voluntary or not has to be decided. If it is said to be voluntary, then the pardon can be given. If the procedure adopted by the Court while giving the pardon is not a judicial trial and if the said pardon is not in accordance with Section 306 Cr.P.C., the same can be urged only at the time of final hearing. The pardon is granted to the accused to meet out the situation. Where a serious offence is alleged to have been committed by several persons and there were no witnesses to prove the case of the prosecution, then with the aid of the evidence of anyone of the accused persons, who had been granted pardon, can be used to prevent failure of justice. Only because there were no witnesses, the accused cannot be allowed to escape from a lack of evidence. This proposition of law has been also laid down by the Hon’ble Apex Court in the case of Bangaru Laxman quoted supra. At para No.43 of the said judgment, it has been observed as under: 43. Any other conclusion would be detrimental to the administration of justice, inasmuch as, the power to grant pardon is contemplated in situations where serious offence is alleged to have been committed by several persons and with the aid of the evidence of the person, who had been granted pardon, the offence committed may be proved. Any other conclusion would be detrimental to the administration of justice, inasmuch as, the power to grant pardon is contemplated in situations where serious offence is alleged to have been committed by several persons and with the aid of the evidence of the person, who had been granted pardon, the offence committed may be proved. The basis of exercise of this power is not to judge the extent of culpability of the persons to whom the pardon is tendered. The main purpose is to prevent failure of justice by allowing the offender to escape from a lack of evidence.” 13. The Court has to see the substantial justice while giving the pardon. This Court can exercise the power under Section 482 Cr.P.C. only when the Court below has exercised the judicial discretion arbitrarily or perversely. Substantial justice should not be defeated on mere technicalities. This proposition of law has been laid down by the Hon’ble Apex Court in the Central Bureau of Investigation quoted supra. At para No.41 an 42 of the said judgment, it has been observed as under: “41. Indisputably, respondent no.1 has agitated the issue regarding the application filed by respondent no.2 seeking pardon and had lost before the High Court as well as before this Court as the Special Leave Petition stood dismissed. However, these facts had not properly been placed by the appellant before the High Court. While passing the impugned judgment and considering the fact that the material required to be considered had not even been placed before the court while disposing of the application for grant of pardon and the manner in which the application had been dealt with as the respondent no.2 and the present appellant had been playing hide and seek with the court and in spite of the fact that the court had asked the appellant to disclose the criminal cases pending against the respondent no.2, no information was furnished to the court, we are of the considered opinion that in the facts and circumstances of the case, substantial justice should not be defeated on mere technicalities. 42. In view of the above, we do not find any cogent reason to interfere with the impugned judgment and order. The appeal lacks merit and is accordingly dismissed. Interim order passed earlier stands vacated. 42. In view of the above, we do not find any cogent reason to interfere with the impugned judgment and order. The appeal lacks merit and is accordingly dismissed. Interim order passed earlier stands vacated. Before parting with the case, we would clarify that no observation made by us in this judgment, on factual issues should be taken as final by the court concerned. The court shall proceed in accordance with law.” 14. One more contention is that, the application not signed by the accused No.3. But order sheet dated 25.09.2018 discloses that, when accused No.3 was produced before the Court, his signature was taken and the advocate filed the said application on his authority. In that light, the said contention is not acceptable. 15. Looking from any angle, I am of the considered opinion that the Court below has exercised its discretion in a right manner and there is no perversity or illegality in passing the said order. No doubt there are some mistakes in the observations, but the court has to see substantial justice as stated in the decisions quoted supra. 16. In that light, on a careful perusal of the judgment of the trial Court, I do not find any illegality or irregularity in the order of the trial Court. Hence I am of the considered opinion that the petitioners have not made out any good grounds to allow the petition.