K.S.Tiwana, J. - (1.) MEHAR Singh, resident of Bhiani Jassa and Beant Singh, resident of Fatehgarh, respondents, were committed by the learned Judicial Magistrate, 1st Class, Barnala, vide his orders dated 25th of October, 1977 under section 302/34, Indian Penal Code, for the murder of Gurmel Singh of village Fatehgarh to the Court of the Additional Sessions Judge, Barnala Mithu Singh, co -accused, accepted pardon and turned as approver against them. The learned Judicial Magistrate had committed the case for trial without examining Mithu Singh approver as a witness in the case The State of Punjab has approached this Court under Section 482, Criminal Procedure Code, 1973 for quashing the commitment order on the ground of illegality that is, the non -examination of the approver as a witness before commitment as required by Section 306(4) of the Code of Criminal Procedure. Sub -sections (4) and (5) of Section 306 read as under: - - (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, 1982, if offence is triable exclusively by that Court. (b) in any case, made over the case to the Chief Judicial Magistrate who shall try the case himself.
(2.) A case based on similar circumstances reported in The State v. Nanoo and others, (1978) 80 P.L.R. 17, came up before me wherein I had examined these relevant provisions and the non examination of the approver before the commitment of the case for trial by the Committing Magistrate After studying provisions of Section 209 and sub -sections (4) and (5) of Section 306 of the Code, it was held in that case as under: - - A study of these sub -sections makes it manifest that the intention of the Legislature was that the approver should be examined before the Committing Magistrate This seems to have been provided with an idea to give the accused an appropriate notice of one of their co -associates in the crime turning against them and providing evidence against them. S. 209 of the Code is a general section dealing with commitment of all the cases. No doubt, the new Code has done away with the enquiry by a Committing Magistrate and does not provide for the recording of the evidence at the committing stage and requires the Magistrate to commit the case to the Court of Session, as it is, on the basis of the report of the police, if it appears to him that the case is exclusively triable by the Court of Session. Section 306 of the Code is a special provision dealing with approvers and it provides in the mandatory form in sub -section (4) about the recording of the Statement of the approver by the Committing Magistrate as a witness and sub -section (5) gives the guidelines how a case in which an approver, who is no longer an accused is to be committed to the Court of Session for trial with his associates in crime, whose case for commitment is separately dealt with under a different Chapter of the Code under Section 209. According to Section 306(5), the commitment of the approver is to be made after the recording of his statement. This special provision normally will have preference over the general provisions of the Code, that is section 209 of the Code I get support in my view from a judgment of the Madras High Court, reported in Ramasamy and others v. The State : 1976 Cri. L.J. 770. In view of the observations quoted above, made by me in Nanoo's case (supra), the impugned order suffers from an inherent illegality, which cannot be rectified except by quashing the said order, by recourse to Section 482 of the Code of Criminal Procedure. Such illegal orders by which the mandatory provisions of law are violated by the judicial officers, have to be quashed to secure the ends of justice. The order in question is, therefore, quashed.
(3.) I am told by the counsel for the respondents that the accused in the case are on bail. The parties through their counsel are directed to put in appearance before the Committing Magistrate, on 28th of November, 1978. The learned Magistrate shall record the statement of the approver as witness in the case and then commit it for trial to the Court of Session.;