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REPORTABLE                    IN THE SUPREME COURT OF  INDIA

          CRIMINAL APPELLATE JURISDICTION    CRIMINAL APPEAL NO. 966    OF 2013

(Arising out of SLP(Crl.)No. 6486  of 2011)

DILIP SUDHAKAR PENDSE & ANR.     ..  APPELLANT(S)

vs.

CENTRAL BUREAU OF INVESTIGATION  ..  RESPONDENT(S)

J U D G M E N T  Per GOKHALE, J.

Leave granted.

1. Heard Mr. P.R. Namjoshi, learned counsel appearing for  

the appellants and Mr. Rakesh K. Khanna, learned Additional  

Solicitor General appearing on behalf of the respondent.

2. The appellants seek to challenge the order passed by  

the Bombay High Court allowing the Criminal Writ Petition  

filed by the respondent-C.B.I. The C.B.I. had sought to  

challenge the order passed by the Special Judge, C.B.I.,  

Greater  Mumbai,  which  had  allowed  the  Miscellaneous  

Application filed by the appellants and set aside the order  

passed by the Additional Chief Metropolitan Magistrate.

3. The facts leading to this appeal are as under:

The appellants herein along with one Rajendraprasad K.  

Jhunjhunwala  and  others  are  being  prosecuted  for  the  

alleged offences punishable under  Sections 420, 468, 471  

and 477-A read with Section 120-B of I.P.C.  A charge-sheet  

has been filed by the C.B.I. against the appellants and the  

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said  Jhunjhunwala  and  others   in  the  Additional  Chief

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Metropolitan  Magistrate's  19th  Court,  Esplanade,  Mumbai,  

which has been numbered as CC No. 113/CPW/2006.  It so  

transpired that during the course of that proceeding the  

aforesaid Jhunjhunwala turned approver, and his statement  

was recorded by the Economic Offence wing of C.B.I. under  

Section  306(4)  of  the  Code  of  Criminal  Procedure  

('Cr.P.C.'  for  short)  for  grant  of  pardon.   The  C.B.I.  

moved  an  application  dated  7.8.2008  for  recording  his  

statement before the learned Additional Chief Metropolitan  

Magistrate,  and  the  learned  Magistrate  passed  order  on  

10.9.2008 granting him pardon.   The learned Magistrate has  

thereafter passed an order committing the proceeding to the  

Court of Sessions for trial.  The operative order of the  

learned Magistrate dated 10.11.2008 reads as follows:

1 “1.  The  case  is  committed  to  the  Hon'ble  Court  of  Sessions  for  trial  as  provided  under  Section  306(4) of the Cr.P.C.”

2 3      4. This  order  of  the  Learned  Magistrate  was  

challenged  by  the  appellants  by  filing  a  

Miscellaneous application in the Special Case No.783  

of 2008 before the Court of Special Judge, C.B.I.,  

Greater Mumbai.

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5     5. The Learned Sessions Judge allowed that application  

by the order dated 7.3.2009. As seen from paragraph 2 of  

that  order,   it  was  contended   before  the  learned  

Sessions Judge that the Additional Chief Metropolitan  

Magistrate cannot impose jurisdiction on the  

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8 superior  Court.   The  alleged  offences  against  the  

appellants are triable before a Metropolitan Magistrate,  

and the Sessions Court had no jurisdiction to try or  

entertain and decide the said offences.  This submission  

came to be accepted by the learned Sessions Judge. It is  

specifically stated in paragraph 8 of his order that  

admittedly the offences alleged against the appellants-

accused were not exclusively triable by the Court of  

Sessions,  and therefore the matter was required to be  

transferred  back  to  the  Court  of  Chief  Metropolitan  

Magistrate for disposal in accordance with law.  Learned  

Sessions  Judge,  therefore,  allowed  that  Miscellaneous  

application  and  directed  his  Registrar  to  send  the  

papers of the Special case No. 783 of 2008 to Chief  

Metropolitan  Magistrate  for  trial  in  accordance  with  

law.

9 10 6.  This  order  of  the  Court  of  Sessions  was  

challenged by the respondent in the High Court of  

Bombay by filing Crl.W.P. No. 1737 of 2009 and a  

Learned Single Judge of the High Court has allowed  

that writ petition by his order dated 7.7.2011. It  

was held that the order passed by the Additional  

Chief Metropolitan Magistrate was not an order of  

transfer, but was the order of committal  to the  

Court  of  Sessions.  The  Learned  Single  Judge  

therefore allowed the petition in terms of prayer  

'B' and 'C' whereby the matter would be now tried by  

the Court of Sessions.  

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15     7. Being aggrieved by this judgment and order the  

present Special Leave Petition (now converted into  

criminal Appeal) has been filed.

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17     8. Learned counsel for the appellants Mr. Namjoshi  

has raised the issue of hierarchy of Courts.  His  

principal  submission  has  been  that  since  the  

offences were triable by a Court of Magistrate, the  

prosecution thereof could not have been transferred  

to the Court of Sessions.  Admittedly, the offences  

were not at all exclusively triable by the Court of  

Sessions. Section 306 of Cr.P.C. is relevant for our  

purpose.  It reads as follows:-

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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.

1           2. This section applies to:- 2 3 (a) any offence triable exclusively by the  

Court  of  Session  or  by  the  Court  of  a  Special judge appointed under the Criminal

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Law Amendment Act, 1952 (46 of 1952)

-5- 1 2 (b)  any  offence  punishable  with  

imprisonment which may extend to seven  years or with a more severe sentence.

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5 3. Every Magistrate who tenders a pardon under  sub-section (1) shall record:- 6 7 (a)  his reasons for so doing; 8 9 (b)  Whether  the  tender  was  or  was  not  

accepted by the person to whom it was  made,

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12 4. Every person accepting a tender of pardon  made under sub-section(1):- 13 14 (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;

15 16 (b) shall, unless he is already on bail,  

be  detained  in  custody  until  the  termination of the trial.

17 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;

1 (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;

2 3 (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;

4 5     (b) In any other case, make over the case  

to the Chief Judicial Magistrate who shall  try the case himself.”

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1     9. Sub-section (5) thus lays down as to whom the  

case is to be committed for trial;

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1 (i) If the case is  exclusively triable by the Court  

of  Sessions,  or  if  the  Magistrate  taking  

cognizance is Chief Judicial Magistrate in which  

cases it is provided that those cases will be  

committed for trial to the Court of Session,

2 (ii)  If  the  offence  is  exclusively  triable  by  a  

Special Judge appointed under the Criminal Law  

Amendment Act, 1952, then to that Court and

3 (iii)  In  any  other  case  to  the  Chief  Judicial  

Magistrate.

10.  In  the  present  case,  the  offences  were  not  

exclusively  triable  by  the  Court  of  Sessions,  and  the  

Magistrate  taking  cognizance  was  not  the  Chief  Judicial  

Magistrate.  It was also not an offence triable by the  

Special Judge under the Criminal Law Amendment Act, 1952.  

That being so, it was a case falling in category of 'any  

other case' under sub-sectio (5)(b) and therefore had to be  

made over to the Chief Judicial Magistrate for trial.

11. It is, therefore, submitted that the High Court was  

in error in committing the case to the Court of Sessions.  

It was further submitted that even if the Court of Sessions  

framed the charges, the matter will again have to go back  

to the Chief Judicial Magistrate for the trial. That being

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so, the order of the High Court suffered a patent error of  

law.

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12. Mr. Rakesh K. Khanna, learned Additional Solicitor  

General appearing for the respondent, on the other hand,  

contended that under sub-section 5(a)(i)  two options were  

available.   He  submitted  that  the  matter  has  to  be  

committed  to  the  Court  of  Sessions  undisputedly  if  the  

offence  was  triable  exclusively  by  that  Court.   He,  

however,  maintained  that  even  if  the  matter  was  not  

exclusively  triable  by  the  Court  of  Sessions,  it  could  

still be committed to that Court,  if the cognizance is  

taken by the Chief Metropolitan Magistrate. In the facts of  

the present case, the charges which are levelled against  

the appellants are all triable by the Magistrate's Court,  

and there is no dispute about that, the cognizance is taken  

by the Additional Chief Magistrate and not by the Chief  

Metropolitan Magistrate. That being so, it is not possible  

to accept this submission of Mr. Khanna.

13. In the circumstances, we allow this appeal, and set  

aside the order passed by the High Court.  The proceeding  

will now stand restored to the file of Chief Metropolitan  

Magistrate who shall proceed with the trial.

14.  Mr.  Namjoshi  submits  that  the  appellants  are  

aggrieved  by  the  pardon  granted  to  the  aforesaid

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Jhunjhunwala, and they intend to apply for cancellation of  

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that order.  It would be for them to apply before the  

Magistrate and it is for the Magistrate concerned to take  

appropriate decision on such application.

15. The appeal is allowed accordingly.

              ...................J.      (H.L.GOKHALE)

....................J.      (MADAN B. LOKUR)

New Delhi,      July 16, 2013.