STATE OF PUNJAB Vs. MEHAR SINGH AND OTHERS

JUDGEMENT

(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: - -

(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: - -

(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.