Dalveer Bhandari, J.
1. This revision petition has been filed under Section 397 of the Code of Criminal Procedure read with Article 21 of the Constitution of India, against the order of the learned Additional Chief Metropolitan Magistrate, Delhi dated 12th October, 1993. The trial Court dismissed the application filed by the petitioner and it has been observed that there is no force in the contention that the learned Additional Chief Metropolitan Magistrate has no jurisdiction to try the case. It is further observed that all offences are triable by the Court of Magistrate and thus the Court of Magistrate was competent to try the case. It is further mentioned in the order that the proceedings in this case had not become void at any stage and no fundamental rights of the petitioner were violated at any stage. It is also mentioned that the application has been filed only to delay the proceedings.
2. Brief facts necessary to decide this petition are recapitulated. The petitioner along with 10 others was charged under Sections 420/109/120B read with Section 420 and 477A of the IPC. Three FIRs were registered by the Central Bureau of Investigation on the basis of the complaints lodged by the United Commercial Bank, Dena Bank and Bank of Baroda. The allegations in the complaints are that by producing bogus Hundi, false motor transport receipts, false hypothecation statements and pledge orders containing inflated figures of stocks, the banks were cheated to a total sum of Rs. 1,31,09,538.64.
3. The charge sheet was filed on 23rd February, 1978 in the above matter. The case was tried by the Chief Metropolitan Magistrate (Delhi) and thereafter for some time by the Metropolitan Magistrate and thereafter by the learned Additional Chief Metropolitan Magistrate, Delhi. Learned counsel for the CBI submitted that all the 209 witnesses have been examined and the matter is ripe for final arguments. During the course of investigation, an application was moved by the Central Bureau of Investigation for granting pardon to one of the accused, namely, H. K. Jhala, the confession of that accused was recorded under Section 164 of the Code of Criminal Procedure by the learned Metropolitan Magistrate between 17th May, 1977 to 24th May, 1977.
4. H. K. Jhala, an accomplice made a confessional statement under Section 164 before Metropolitan Magistrate, Delhi from 17th May, 1977, to 24th May, 1977. He was tendered pardon under Section 306 of the Code of Criminal Procedure by the learned Chief Metropolitan Magistrate, Delhi on 22nd July, 1977. Admittedly before H. K. Jhala could be examined as a witness, he died on 4th April, 1979. After the death of H. K. Jhala, the case was tried by the Chief Metropolitan Magistrate, Delhi and 209 witnesses were examined by him. The statements of the accused persons were recorded by the Metropolitan Magistrate, Delhi under Section 313 of the Code of Criminal Procedure and thereafter the case was transferred to the learned Additional Chief Metropolitan Magistrate, Delhi who had been conducting the case thereafter.
5. The petitioner filed an application in the Court of Additional Chief Metropolitan Magistrate, Delhi on the ground that the Court of the Additional Chief Metropolitan Magistrate or the Metropolitan Magistrate has no jurisdiction to try this case because according to Section 306(4) and Sub-section (5) of the Code of Criminal Procedure, the case ought to have been transferred to the Court of Session and only the Court of Sessions has the jurisdiction to try this case, Section 306 of the Code of Criminal Procedure reads as under :-
'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 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.'
6. Mr. Nagarathana, the learned counsel appearing for the petitioner submitted that in the course of investigation of the case an application was moved by the CBI for granting pardon to one of the accused persons, namely, H. K. Jhala. The confessional statement was recorded under Section 164 of the Code of Criminal Procedure. On 22nd July, 1977, the learned Chief Metropolitan Magistrate granted pardon to the accused Jhala under Section 306(1) of the Code of Criminal Procedure and the accused accepted the same and became an approver. On 24th February, 1978, the learned Chief Metropolitan Magistrate, Delhi took cognizance of the case and issued process to the accused to appear before his Court on 6th April, 1978, and on 4th April, 1979, approver, Jhala died.
7. The learned Chief Metropolitan Magistrate, Delhi, framed charge against the accused on 12th March, 1982 and proceeded to try the case himself. The entire prosecution evidence was recorded by the Chief Metropolitan Magistrate. The case was again transferred from the court of Mr. Tiwari to the Court of Additional Chief Metropolitan Magistrate, Delhi on 15th January, 1991.
8. It is submitted by the learned counsel appearing for the petitioner that if there is an approver on the date, the Chief Judicial Magistrate takes cognizance and he himself has granted pardon to that approver, he shall have no power to try that case. The Chief Judicial Magistrate, could commit the case for trial to the Court of Session after examining the approver as the witness. The examination of the approver as a witness takes place under Section 306(4)(a) of the Code of Criminal Procedure. The accused cannot be examined as a witness as long as he remains an accused. Only (a) if he has been granted pardon by the specific Magistrate under Section 306(1) of the Code of Criminal Procedure and (b) if the accused has accepted the pardon tendered by such a Magistrate, he can become an approver. Only if he has attained the status of the approver, he becomes qualified to appear as a prosecution witness under Section 306(4) of the Code of Criminal Procedure.
9. Learned counsel for the respondent submitted that this application is not bona fide. It has been filed after all the 209 witnesses have been examined and when the matter is ripe for final arguments. The purpose of this application is only to delay the trial and this application should be rejected.
10. It is submitted that H. K. Jhalla, accomplice made a confessional statement under Section 164 of the Code of Criminal Procedure, before the Metropolitan Magistrate, Delhi from 17-5-1977 to 24-5-1977. He was tendered pardon under Section 306, Code of Criminal Procedure by the learned Chief Metropolitan Magistrate Delhi on 27-5-1977. Before H. K. Jhalla could be examined as a witnesses, he died on 4-4-1979.
11. After Jhalla's death, the case was tried by the Chief Metropolitan Magistrate Delhi and 209 witnesses were examined by the learned Chief Metropolitan Magistrate Delhi.
12. The statement of the accused persons were recorded by the Metropolitan Magistrate Delhi under Section 313 Code of Criminal Procedure and thereafter the case was transferred to the ACMM Delhi who is conducting the case at present. The petitioner filed an application in the Court of ACMM Delhi, on the ground that the Court of ACMM and MM have no jurisdiction to try this case because according to Section 306(4) and (5) of the Code, the case should have been committed to the Court of Session.
13. The learned ACMM by order dated 12-10-93 decided the said application by holding that the case is not covered under Section 306 Code of Criminal Procedure as the approver in this case died and could not be examined before the Court of CMM Delhi as a witnesses and this Court is competent to try this case.
14. The main submission of the Learned counsel for the respondent has been that the approver H. K. Jhalla died in April, 1979 and thus he could not be examined under Section 306(4) Code of Criminal Procedure. Section 306(4) requires that every person accepting a tender of pardon shall be examined as a witness in the Court of the Magistrate who takes cognizance of an offence. The legislative mandate of Section 306(4) is that every person accepting a tender of pardon made under sub-section (1)(a) shall be examined as a witnesses in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. In other words, the examination of the approver as a witness is a condition precedent for accepting a tender of pardon and unless the approver is examined, there cannot be any tender of pardon. In this case, since the approver died before he could be examined, thereforee, Section 306 has no application whatsoever.
15. Learned counsel further submitted that since provisions of Section 306(4) are not attracted, consequently, the case could not be committed to the Court of Session.
16. Learned counsel submitted that only after examination of the approver that the case is committed for trial to the Court of session and if the offence is exclusively triable by that Court and if the Magistrate taking cognizance is CMM as required under Section 306(5) of the Code of Criminal Procedure. The provisions under Section 306(5) are also not attracted and the case could not be committed to the Court of Session.
17. Mr. Lal, learned counsel appearing for the CBI also submitted that there is no illegality in transferring the case to the Court from Shri I. C. Tiwari, Metropolitan Magistrate Delhi. This case was transferred to the Court of Shri I. C. Tiwari. No objection was taken by the accused before that Court. Mr. Lal also submitted that powers of the Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate are the same according to Section 16 of the Code of Criminal Procedure. In this case, the High Court may appoint any Metropolitan Magistrate/ACMM and it has been provided that the said Magistrate shall have all or any of the powers of the CMM under the Code or under any other law for the time being in force, as the High Court may direct. Mr. Lal further submitted that it cannot be said that proceedings in this case had become void at any stage or that any fundamental right under the Constitution has been violated. Thus, learned counsel has placed reliance on Bipin Behari Sarkar v. State of West Bengal, : 1959CriLJ102 . In this case, their Lordships of the Supreme Court have held that 'It is clear, thereforee, that a mere tender of pardon does not attract the provisions of Section 339 equivalent to Section 338(1) of the new Code of Criminal Procedure. There must be an acceptance of it and the person who has accepted the pardon must be examined as a witness. The Supreme Court further held that consequently, no question arises about the applicability of Section 339 to the proceedings before the Magistrate holding an enquiry before commitment or to the trial of the appellant because the provisions of Section 339 can only come into operation if there is in existence an effective pardon under Section 337 of the Code.'
18. Mr. Lal further submitted that H. K. Jhalla could not be examined as a witness in this case either before the committing Court or before the Sessions Court as he expired before he could be so examined. After the death of Jhalla, there was no question of adopting the procedure envisaged under Section 306(4) of the Cr.P.C. Learned counsel also relied on State (Delhi Admn.) v. Jagjit Singh, : 1989CriLJ986 . In this case, their Lordships of the Supreme Court have held that the appellant who had been granted pardon has to be examined by the prosecution in the trial Court, no matter he has resoled from his earlier statement and tried to conceal what was within his knowledge with regard to the offence in question. Thus, it is abundantly clear that a person accepting the pardon must be examined as a witness in the case of committing Magistrate as well as Sessions Court, if the case is exclusively triable by that Court. In the instant case, admittedly all offences are triable by the Magistrate First Class and all the proceedings taken from beginning to end, as mentioned above, was strictly according to law. Learned counsel also referred to the first schedule and according to that all offences were triable by First Class Magistrate. Learned counsel also submitted that the intention of the Legislature in enacting Section 306, Code of Criminal Procedure was that a person who has been tendered the pardon must be examined in the Court as a witness so that he may disclose the entire version of the case as to how the offences were committed or abetment of offences had taken place.
19. All the authorities cited by the Learned counsel for the petitioner have no application because in the instant case, the approver H. K. Jhalla died before he could make any statement as envisaged under Section 306(4). thereforee, the authorities submitted by learned counsel have no application in the facts and circumstances of this case.
20. Learned counsel for the respondent submitted that 209 prosecution witnesses have been examined and the case has taken 20 years and the petitioner has been adopting all tactics to delay the disposal of the entire case. The application being totally mala fide, deserves to be dismissed with special costs.
21. I have carefully perused the pleadings in this case and considered the rival contention of the parties and have gone through the number of Judgments cited at the bar. There is no denial of this fact that this application has been moved by the petitioner at a very belated stage after all the prosecution witnesses numbering about 209 have been examined. In case the petitioner had any grievance, he ought to have moved the Court at the earliest stage. The sole purpose of moving that application at this stage is to delay the trial further.
22. The bare reading of Section 306(4) Code of Criminal Procedure clearly shows the intention of the Legislature that every person accepting a tender of pardon made 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 trial and unless a person is examined as a witness, there cannot be any exceptions of tender of pardon. In this case, the approver H. K. Jhalla died in the year 1979 before he could be examined by the Magistrate or by the Court of Session. Once there is no examination of the witness by any Court as envisaged by Section 306, the tender of pardon is not complete and consequently. Section 306 of the Code of Criminal Procedure cannot be attracted. Their Lordships of the Supreme Court in Bipin Behari Sarkar : 1959CriLJ102 (supra) while interpreting this section have clearly mentioned that a mere tender of pardon does not attract the provisions of Section 338 equivalent to 338(1) of new Code. There must be an acceptance of it. This view has been reiterated in the subsequent judgments. In the instant case, before H. K. Jhalla, approver could be examined, he died. The tender of pardon is never complete unless the concerned witness has been examined. This is the legislative mandate and has to be followed. In the instant case, the petition itself cannot be termed as bona fide because the same has been filed after 209 witnesses have been examined and after a lapse of more than a decade.
23. This petition is devoid of any merit and is accordingly dismissed.
24. Petition dismissed.