STATE OF MYSORE Vs. H GUNDAPPA

JUDGEMENT

(1.) This is a reference made by the learned Sessions Judge, Chikmagalur under S.438 Cr.P.C. in Sessions Case No.18 of 1970.

(2.) A charge sheet was filed against accused 1 to 5, who are respondents before this Court, by the Circle Inspector of Police, Koppa Circle in the Court of the Judicial Magistrate First Class, Narasimharajapur alleging that they had committed offences under Ss.302, 323, 120B(i), 201 read with Ss.34 and 203 IPC. In the course of the enquiry, the Assistant Public Prosecutor made an application before the learned Magistrate on 26-10-1970 under S.337 CrPC. praying that pardon may be tendered to accused-3 (respondent-3) and he may be allowed to give evidence on behalf of the prosecution. The said application was allowed by the learned Magistrate by his order dated 12-11-1970 and permission was granted to treat accused-3 as an approver on 20-11-1970 and he has been examined on behalf of the prosecution as PW.1. Then charges were framed against all the five accused including the approver (accused-3) under Ss.302, 120B, 201, 203 read with S.34 IPC. by the learned Magistrate, and he recorded the plea of all the accused including the approver (accused-3). Thereafter the learned Magistrate, by his order dated 19th December 1970 committed all the five accused including approver (accused-3) to stand their trial before the Court of Sessions, Chikmagalur.

(3.) Before the trial started in the Court of Sessions, Chikmagalur, the learned Public Prosecutor filed an application, pointing out the illegality committed by the learned Magistrate in committing the approver (accused-3) for trial and prayed that the Sessions Court should act under S.438 CrPC. and recommend to the High Court that the order of committal of the approver (accused-3) to the Court of Sessions should be quashed. The learned Sessions Judge, thereafter by his order dt.22nd Feb. 1971 made this reference under S. 438 CrPC. recommending that the order committing the approver (accused-3) made by the learned Magistrate should be quashed.