IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 534 of 1992
1. L.S.ASOKAN
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SRI.V.N.ACHUTHA KURUP
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.PADMANABHAN NAIR
The Hon'ble MR. Justice V.RAMKUMAR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated : 03/08/2005
O R D E R
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K.PADMANABHAN NAIR , V.RAMKUMAR,@@
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& M.N.KRISHNAN, JJ.@@
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———————-@@
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Crl.Appeal Nos. 534/92, 537/92, @@
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597/92, 686/92, 697/92, 9/1993, 22/93, 100/93@@
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114/93, 118/93, 119/93, 125/1993, 126/93 & 136/1993@@
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———————-@@
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Dated, this the 3rd day of August 2005@@
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ORDER@@
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Ramkumar, J.@@
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((HDR 0
Crl.Appeal Nos. 534, 537, 597, 686, 697/1992
Crl.Appeal Nos.9/93, 22/93, 100/93, 114/93
118/93, 119/93, 125/93, 126/93 & 136/93.
:#:
))
.HE 1
The interesting question which comes up for
consideration before us upon a reference by a Division
Bench is the following:-
“Whether the statement of an approver examined@@
i
before the appropriate Magistrate under clause
(a) of sub Sec. (4) of Sec.306 Cr.P.C., is
relevant and admissible under Sec. 33 of the
Evidence Act during the subsequent trial in which
he is not available for examination by reason of
his death in the meanwhile ?”
The referring Bench was of the opinion that in the light
of divergent views expressed by two Division Benches of
this Court in Kurian v. State – 1989 (1) KLT (SN) 37 -@@
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Case No.60 and State of Kerala v. Monu Surendran – 1990@@
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(1) KLT 53, regarding the right to cross-examine an@@
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approver, an authoritative pronouncement must come from a
larger Bench.
2. The appellants in this batch of appeals
were the accused in the same or different cases popularly
known as “the mark list cases” tried by the Special
Sessions Court, Thiruvananthapuram upon a committal. For
recording the conviction against the appellants, the
trial court had, inter alia, relied on the statement
recorded under Sec. 306(4)(a) Cr.P.C. of one Anandan
who was made an approver. The said Anandan died prior to
the trial of the cases before the Special Sessions Court.
The main argument on behalf of the appellants is that the
evidence given by the deceased approver under Sec. 306
(4)(a) Cr.P.C. should not have been relied on by the
trial court since the same was inadmissible under Sec.
33 of the Evidence Act because the appellants who were
the adverse party in the proceedings before the
Magistrate taking cognizance of the offences, did not
have the right and the opportunity to cross-examine the
approver within the meaning of the 2nd limb of the
proviso to Sec. 33 of the Evidence Act. There is no
dispute that some of the appellants had cross-examined
the approver during his examination under Sec. 306
(4)(a) Cr.P.C. pursuant to a remit from this Court at
the instance of the State (and not at the instance of the
accused) which contended that the committal of those
cases to the Sessions Court and subsequent making over of
the same to the Assistant Sessions Court for trial were
bad inter-alia for the failure to cross-examine the
approver by the accused. It is the contention of the
appellants that in those cases where the accused had
cross-examined the approver, it was not as of right
within the meaning of the second limb of the proviso to
Sec. 33 of the Evidence Act and that in those cases
where the accused had not cross-examined the approver
they had neither the right nor the opportunity to
cross-examine the approver within the meaning of the
above provision.
3. We heard Senior Advocate
Sri.M.K.Damodaran, Senior Advocate Sri.G. Janardhana
Kurup and Advocate Sri.Surendra Mohan representing all
the appellants and Advocate Sri. Sujith Mathew Jose, the
learned Public Prosecutor who represented the State.
4. The learned Public Prosecutor made the
following submissions before us opposing the appellants
on the above issue:-
The decision of the Division Bench reported in
1990 (1) KLT 53 – State of Kerala v. Monu Surendran was@@
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rendered in one of the cases arising from the very same
batch. It has correctly laid down the law that during
the examination of the approver as a witness under Sec.
306(4)(a) in the court of the Magistrate taking
cognizance, the accused has a right to cross-examine the
approver. Sec. 273 Cr.P.C. states that “except as
otherwise expressly provided, all evidence taken in the
course of the trial or other proceeding shall be taken in
the presence of the accused, or, when his personal
attendance is dispensed with, in the presence of his
pleader”. Sec. 137 of the Evidence Act indicates that
examination of a witness not only includes
examination-in-chief but also cross-examination. There
is a subtle distinction between the examination of an
approver as a witness under Sec. 306(4)(a) and the
examination of a witness under Secs. 200 and 202 Cr.P.C.
While in the case of the former, the approver is examined
at the post-cognizance stage, in the case of the latter
the examination is at the pre-cognizance stage. When the
Chief Judicial Magistrate tenders pardon to an accomplice
during the stage of an investigation he is not taking
cognizance of an offence. But when the Magistrate taking
cognizance of the offence examines the approver under
Sec. 306(4)(a) the accused has a right to cross-examine
the approver unlike in the case of a witness examined in
an enquiry under Sec. 202 Cr.P.C. It is true that there
are observations in (Suresh Chandra Bahri v. State of@@
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Bihar – 1995 SCC (Crl) 60, Ranadhir Basu v. State of@@
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West Bengal (2000) 3 SCC 161 and State of Himachal@@
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Pradesh v. Surinder Mohan and Others – (2000) 2 SCC 396)@@
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to the effect that the accused have no right of
cross-examination of the approver examined under Sec.
306 (4) Cr.P.C. But every decision has to be understood
with reference to the facts situation obtained in such
case, as has been held in Padma Sundara Rao v. State of@@
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T.N. 2002 (3) SCC 533 and Haryana Financial Corporation@@
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v. Jagdamba Oil Mills 2002 (3) SCC 496. Hence those@@
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accused who had cross-examined the approver had the
opportunity to do so and the cross-examination was also
as of right making the evidence of the approver
admissible under Sec. 33 of the Evidence Act.
Opportunity to cross-examine does not mean actual
cross-examination but only providing a chance to
cross-examine and it is for the accused to avail of the
same. Hence, those accused persons who did not
cross-examine the approver, were not availing of the
opportunity to do so in spite of having been given a
right to cross-examine the approver and the evidence of
the approver, in the circumstances of the case, is
admissible under Sec. 33 of the Evidence Act in the case
of those accused persons as well.
5. We are afraid that we cannot agree with
the above submissions made on behalf of the State. It is
common ground that the statement of the approver examined
under Sec. 306(4)(a) Cr.P.C. would be relevant and
admissible under Sec. 33 of the Evidence Act only if the
accused persons not only had the “right” but also the
“opportunity” to cross-examine the approver at that stage
within the meaning of the second limb of the proviso to
Sec. 33 which has used the said expressions
conjunctively and not disjunctively. The argument of the
learned Public Prosecutor that the examination of
witnesses under Secs. 200 and 202 Cr.P.C. is at the
pre-cognizance stage stems from a misconception of the
law. There is indeed a popular misconception that a
Magistrate is supposed to take cognizance only when he
actually records the sworn statement of the complainant
and his witnesses if any, and issues process to the
accused. The correct legal position is that when a
Magistrate on receiving a complaint applies his mind and
decides to proceed under the various provisions such as
Secs. 200 or 202 of Chapter XV Cr.P.C., the Magistrate
must be held to have taken cognizance of the offence
mentioned in the complaint. If, however, the Magistrate,
instead of proceeding under Chapter XV Cr.P.C., decides
to forward the complaint to the police for investigation
under Sec. 156 (3) Cr.P.C. or issues a search warrant
for the purpose of investigation, he cannot be said to
have taken cognizance of any offence. (See R.R. Chari@@
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v. State of U.P. – AIR 1951 SC 207, Gopal Das Sindhi v.@@
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State of Assam and Anr. – AIR 1961 SC 986, Jamuna Singh@@
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v. Bhadai Shah AIR 1964 SC 1541 and D.Laxminarayana v.@@
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V.Narayana – AIR 1976 SC 1672. Thus, if a Magistrate,@@
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upon receiving a complaint, after applying his mind
decides to record the sworn statement of the complainant
he can be said to have taken cognizance of the offence.
It is not the requirement of law to actually record the
sworn statement or proceed to issue summons to the
accused to conclude that the Magistrate has taken
cognizance of the offence mentioned in the complaint.
Hence the examination of the complainant and his
witnesses under Sec.200 and the subsequent inquiry if
any, under Sec. 202 Cr.P.C. after postponing the issue
of process against the accused, are all steps taken in
the proceedings at the post-cognizance stage.
6. It is now well settled that during the
course of inquiry under Sec. 202 Cr.P.C. the accused
has no right to take part in the proceedings nor has the
Magistrate any jurisdiction to permit the accused to do
so and that it would not be open to the Magistrate to put
any question to those witnesses at the instance of the
person shown as the accused against whom process has not
been issued. (See the decision of a four-judge Bench of
the Supreme Court in Chandra Deo Singh v. Prokash@@
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Chandra Bose @ Chabi Bose – AIR 1963 SC 1430). The scope@@
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of inquiry under Sec. 202 Cr.P.C. is a very limited one
and that is to find out whether there are sufficient
ground for proceeding against the accused who has no
right to participate therein much less a right to
cross-examine any witness examined by the prosecution,
but he may remain present only with a view to be informed
of what is going on. (See Sashi Jena v. Khadal Swain -@@
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AIR 2004 SC 1492).@@
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7. Even though reliance was placed by the
counsel for the appellants on the decision reported in
2001 (2) KLT 767 – Gopalakrishnan v. State of Kerala to@@
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contend for the position that in a warrant case
instituted on a private complaint the accused has no
right to cross-examine the prosecution witnesses whose
evidence is recorded under Sec. 244 Cr.P.C., the said
provision is not similarly worded as Secs. 200, 202 or
306 (4)(a) Cr.P.C. and, therefore, no analogy can be
drawn therefrom.
8. Both under Sections 200 and 202 Cr.P.C.
what is contemplated is examination of witnesses.
Likewise, under Sec. 306(4)(a) also what is envisaged is
examination of the approver as a witness. It has already
been seen that during the course of examination of
witnesses under Sec. 200 and 202 Cr.P.C. the accused
has no right to cross-examine them. What is to be seen
now is as to whether the examination of the approver as a
witness under Sec. 306 (4)(a) Cr.P.C. is anyway
different from the examination of a witness under Sec.
202 Cr.P.C.
9. It may be relevant in this context to
examine the mechanics behind the tender of pardon to an
accomplice and his examination before the Magistrate.
While the Chief Judicial Magistrate or the Metropolitan
Magistrate as well as a Magistrate of First Class have
the power to tender pardon to an accomplice under Sec.
306(1) Cr.P.C. a close reading of the said provision
will indicate that in the case of a Chief Judicial
Magistrate or a Metropolitan Magistrate, the power to
tender pardon to an accomplice is available not only
during the stage of inquiry or trial but also during the
stage of investigation and such Chief Judicial Magistrate
or Metropolitan Magistrate, as the case may be, need not
be himself enquiring into or trying the offence. But in
the case of a Magistrate of First Class, the power to
tender pardon to an accomplice can be exercised only by
the Magistrate enquiring into or trying the offence and
the power is available to be exercised only at the stage
of such inquiry or trial and no such power is given at
the stage of investigation. (Vide A.Devendran v. State@@
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of T.N. 1997 (11) SCC 720). The above provision will@@
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further show that the person to whom the pardon is
tendered need not be an accused. It is enough if he is
directly or indirectly concerned in or privy to an
offence of the category falling under Sec. 306(2). That
is presumably why the title of the Section only mentions
the word “accomplice” and not “accused”. Sec. 306 (2)
indicates the category of offences to which tender of
pardon to an accomplice could be given under the said
provision. Sec. 306 (3) lays down the procedure for
tender of pardon. Every Magistrate who tenders a pardon
under sub Sec. (1) of Sec. 306 is bound to record -@@
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a) his reason for so doing@@
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b) whether the tender was or was not@@
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accepted by the person to whom it was
made.
Sub Section (2) of Sec. 308 indicates that the statement
of the person accepting the tender pardon is to be
recorded by the Magistrate under Sec. 164 Cr.P.C. By
virtue of Sec. 306(1) tender of pardon to an accomplice
can only be on condition that he will make a full and
true disclosure of the entire circumstances within his
knowledge relating to the offence. Thus, when the
accomplice in his statement under Sec. 164 Cr.P.C.
accepts the tender of pardon made by the Magistrate, it
is subject to the condition that he will make a full and
true disclosure of the entire circumstances within his
knowledge.
10. The object of the provision for tendering
pardon to an accomplice is to get evidence in cases
involving grave offences alleged to have been committed
by several persons under circumstances making it
difficult to get any evidence otherwise. No clue or
trace of the offence might have been left behind by the
perpetrators of the crime. The dominant purpose of
pardon is that the culprits behind such heinous and grave
crimes do not go unpunished if a co-participant of the
crime comes forward offering to make a clean brest of his
own complicity as also the complicity of the other
offenders. Evidence is accordingly collected by
tendering pardon to a person supposed to have been
directly or indirectly concerned in or privy to the
offence. What is tendered is a conditional pardon. The
condition is that he will make a full and true disclosure
of the entire circumstances within his knowledge
concerning the offence and concerning every other person
involved in the commission of the offence. The
conditional pardon so tendered is thus a contract between
the accomplice and the State and the consideration for
the same qua the accomplice is the exoneration from
liability and the consideration qua the State is the
agreement to make a full and true disclosure. (See In@@
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re. Chief Judicial Magistrate, Trviandrum – 1988@@
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Crl.L.J. 812 and Narayan Chethanram Chaudhary v. State@@
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of Maharashtra – 2000 (8) SCC 457). Once pardon is@@
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granted to an accused he ceases to be an accused person
and becomes a witness for the prosecution (See State@@
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(Delhi Administration) v. Jagjit Singh – AIR 1989 SC@@
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598. When the approver resiles from the agreement and@@
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breaks the conditional pardon, the contract is broken and
the State becomes entitled to prosecute him by recourse
to Sec. 308 Cr.P.C. (Vide para 6 of 1988 Crl.L.J. 812@@
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(Supra)). It is to ensure that the approver who has@@
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accepted the conditional pardon, makes a full and true
disclosure of the entire facts within his knowledge, that
he is examined as a witness before the Magistrate taking
cognizance of the offence under Sec. 306(4)(a) of
Cr.P.C. The said provision further mandates that the
approver shall be examined in the subsequent trial also.
11. What now falls to be considered is as to
whether there is any difference in the nature of enquiry
under Sec. 202 Cr.P.C. and Sec. 306(4) Cr.P.C. and
whether the accused persons have a right to cross-examine
the approver during his examination as a witness before
the Magistrate taking cognizance under Sec. 306 (4)(a)
Cr.P.C. If the said examination of the approver is akin
to the examination of witnesses under Sec. 200 and 202
Cr.P.C., then, as has already been seen, the accused have
no right to cross-examine the approver at that stage.
That was the view taken by a learned Single Judge of this
Court in 1988 Crl.L.J. 812 (Supra) referred to above.@@
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The said decision was relied on and followed by a
Division Bench of this Court in Kurian v. State – 1989@@
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(1) KLT S.N. Case No.60. However, in a subsequent@@
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Division Bench in State of Kerala v. Monu Surendran 1990@@
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(1) KLT 53, the very same learned Judge (U.L.Bhat, J.)@@
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who rendered the decision for the Bench in Kurian v.@@
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State, speaking for the Bench in Monu Surendran’s case@@
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observed that in the light of the decisions in Sanjay@@
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Gandhi v. Union of India – AIR 1978 SC 514 and State@@
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(Delhi Administration) v. Jaggit Singh – AIR 1989 SC@@
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598, the accused have a right to cross-examine the@@
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approver examined under Sec. 306 (4)(a) and that the
above decisions of the Apex Court were not brought to the
notice of the Division Bench in Kurian v. State. The@@
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later Division Bench also held that the decisions of the
Single Judge in In re. Chief Judl.Magistrate, Trivandrum@@
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and that of the Division Bench in Kurian V. State were@@
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per incuriam and directed the Chief Judl.Magistrate ,@@
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Trivandrum (who had committed some of the cases to the@@
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Sessions Court without examining the approver) to examine
the approver giving an opportunity to the accused to
cross-examine the approver and then to deal with the
matter in accordance with law. It was pursuant to the
above direction that the approver was examined by the
Chief Judl.Magistrate and some of the appellants had
cross-examined the approver also.
12. In Sanjay Gandhi v. Union of India – a@@
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two Judges Bench of the Supreme Court observed as
follows:
” We have heard counsel on both sides and@@
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proceed to elucidate certain clear propositions
under the new Code bearing upon the committal of
cases where the offence is triable exclusively by
the Court of Session. The Committing Magistrate
in such cases has no power to discharge the
accused. Nor has he power to take oral evidence
save where a specific provision like S.306
enjoins. From this it follows that the argument
that the accused has to cross-examine is out of
bounds for the Magistrate save in the case of
approvers. No examination-in-chief, no
cross-examination”.
The above observation was made in the backdrop of a
grievance raised by the accused therein that he did not
get sufficient time before the committal court to inspect
the voluminous police records running into about 20000
pages and the thrust of the argument was that the accused
has a right of cross-examination of the prosecution
witnesses before the committal court. Eventhough some
breathing time was granted to the accused by the Apex
Court, the opportunity to cross-examine the witnesses was
not granted.
13. In Devendran v. State of T.N. – 1997@@
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(11) SCC 720, the Chief Judicial Magistrate granted@@
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pardon to one of the accused after the committal of the
case to the Court of Sessions which court alone could
grant pardon to the accused in view of Sec. 307 Cr.P.C.
This was held to be an irregularity not curable under
Sec. 465 Cr.P.C. While evaluating the evidence, the
Supreme Court eschewed the evidence of the approver from
consideration. Hence, on facts, the said decision has no
application to the present cases.
14. In State (Delhi Administration) v.@@
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Jaggit Singh – AIR 1989 SC 598 = 1989 Suppl. (2) SCC 770@@
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what has been held is that examination of the approver
both in the committal court as well as the trial court is
mandatory. Both sides do not dispute the above
proposition. The only dispute is as to whether the
expression “examination” would include cross-examination.
15. In Suresh Chandra Bahri v. State of@@
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Bihar (1995 Suppl. (1) SCC 80) a reading of paragraph 31@@
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thereof will show that the defect of non-examination of
the approver before the Chief Judl.Magistrate was
rectified by a remand from the Sessions Court to the
Chief Judicial Magistrate who thereafter complied with
the requirement under Sec. 306(4) Cr.P.C. It was,
therefore, held that the subsequent trial was not
vitiated for the alleged non-compliance of Sec.
306(4)(a) Cr.P.C. the compliance of which was held to be
mandatory.
16. In Narayan Chetanram Cahdhary & Another@@
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v. State of Maharashtra – 2000 (8) SCC 457 the@@
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application for pardon was filed under Sec. 307 Cr.P.C.
after the committal and before trial. Hence there was no
obligation on the trial court or a right in favour of the
accused in insist on compliance with the requirement
under Section 306 (4).
17. In Ranadhir Basu v. State of West Bengal@@
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(2000) 3 SCC 161 the question pointedly arose as to@@
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whether the accused have a right of cross-examination of
the approver during his examination under Sec. 306
(4)(a) of Cr.P.C. This is what the apex court held in
paragraph 7:
“It was contended by Mr.Muralidhar, learned@@
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counsel appearing for the appellant that Sudipa
was not “examined as a witness” as contemplated
by Section 306(4) Cr.P.C. He submitted that
Sudipa was examined by the Magistrate in his
chamber and not in the open court and at that
time the accused were not kept present. Her
evidence was subjected to cross-examination. In
support of his submission he relied upon the
decision of this Court in Suresh Chandra Bahri v.@@
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State of Bihar. In that case this Court after@@
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pointing out the object and purpose of enacting
Section 306(4) Cr.P.C. had ruled that since the
provision had been made for the benefit of the
accused it must be regarded as mandatory. It had
observed therein that :(SCC p.101,para 30).
“The object and purpose in@@
ii
enacting this mandatory provision is
obviously intended to provide a safeguard
to the accused in as much as the approver
has to make a statement disclosing his
evidence at the preliminary stage before
the committal order is made and the
accused not only becomes aware of the
evidence against him but he is also
afforded an opportunity to meet with the@@
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evidence of an approver before the@@
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committing court itself at the very@@
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threshold….”@@
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(emphasis supplied)
From this observation it does not follow that the@@
i
person who is granted pardon must be examined in
the presence of the accused and that the accused
has a right to appear and cross-examine him at
that stage also. As pointed out by this Court in
that case the object is to provide an opportunity
to the accused to show to the Court that the
approver’s evidence at the trial is untrustworthy
in view of the contradictions or improvements
made by him during his evidence at the trial.
Considering the object and purpose of examining
the person accepting tender of pardon as a
witness is thus limited. The proceedings which
takes place before the Magistrate at that stage
is neither an inquiry nor a trial. Therefore,
the submission of the learned counsel that Sudipa
should have been examined as a witness in open
court and not in the chamber and that while she
was examined the Magistrate should have kept the
accused present and afforded to them an
opportunity to cross-examine Sudipa cannot be
accepted. The phrase “examination of a witness”@@
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does not necessarily mean examination and@@
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cross-examination of that witness. What type of@@
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examination of a witness is contemplated would@@
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depend upon the object and purpose of that@@
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provision. Section 202 Cr.P.C. also@@
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contemplates examination of witness yet it has@@
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been held, considering the object and purpose of@@
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that provision, that the accused has no locus@@
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standi at that stage”.@@
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(Emphasis supplied)
18. In State of Himachal Pradesh v. Surinder@@
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Mohan and others ((2000) 2 SCC 396) the approver was@@
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examined under Sec. 306 (4) (a) Cr.P.C. before the
Chief Judl.Magistrate and he was subsequently examined
and cross-examined during trial before the Court of
Session. At the stage of arguments before the Sessions
Court, it was contended for the first time that failure
to give an opportunity for the accused to cross-examine
the approver before committal court would vitiate the
trial. The said contention was repelled by the Supreme
Court holding that the said contention was raised
belatedly and that even if the accused had the right to
cross-examine the approver when examined under Sec.
306(4)(a) Cr.P.C, the defect would stand cured under Sec.
465 Cr.P.C. Dealing with the contention of the accused
regarding the alleged right of cross-examination, this is
what the apex court held in para 11 :
“From the aforesaid ingredients, it is abundantly@@
i
clear that at the stage of investigation, inquiry
or trial of the offence, the person to whom
pardon is to be granted, is to be examined for
collecting the evidence of a person who is
directly or indirectly concerned in or privy to
an offence. At the time of investigation or
inquiry into an offence, the accused cannot claim
any right under law to cross-examine the witness.
The right to cross-examination would arise only
at the time of trial. During the course of
investigation by the police, the question of
cross-examination by the accused does not arise.
Similarly, under Sec. 200 Cr.P.C. when the
Magistrate before taking cognizance of the
offence, that is, before issuing process holds
the inquiry, the accused has no right to be
heard, and, therefore, the question of
cross-examination does not arise. Further, the
person to whom pardon is granted, is examined but
is not offered for cross-examination and
thereafter during trial if he is examined and
cross-examined then there is no question of any
prejudice caused to the accused. In such cases,
at the most the accused may lose the chance to
cross-examine the approver twice, that is to say,
once before committal and the other at the time
of trial”.
It is pertinent to note that in paragraph 12 of the above
decision the apex court has adverted to the decision of
the learned Single Judge of this Court reported in In.@@
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re: Chief Judicial Magistrate, Trivandrum – 1988@@
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Crl.L.J. 812 and what is important to observe is that@@
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the apex court has not disapproved the said decision
which was held to be one rendered per incuriam by the
Division Bench of this Court in Monu Surendran.@@
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19. Going by the observations in Ranadhir@@
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Basu and Surindra Mohan particularly Ranadhir Basu, the@@
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apex court had pointedly considered the question as to
whether the expression “examination” in Sec. 306(4)(a)
would include cross-examination and held that at that
stage the accused has no right to appear and
cross-examine the approver and the legal position was
treated akin to an inquiry under Sec. 202 Cr.P.C. In
the case of a witness examined during an inquiry under
Sec. 202 Cr.P.C., the question pointedly arose before
the Supreme Court as to whether his statement recorded by
the magistrate and favourable to the prosecution would be
admissible under Sec. 33 of the Evidence Act if such
witness had turned hostile to the prosecution during the
subsequent trial. After holding that the accused had no
right and opportunity to cross-examine a prosecution
witness examined during the course of inquiry under Sec.
202 Cr.P.C. the apex court held as follows in Paragraph
10.
“Thus, we have no difficulty in holding that as@@
i
during the course of inquiry under Sec. 202 of
the Code an accused has no right much less
opportunity to cross-examine a prosecution
witness, statement of such a witness recorded
during the course of the inquiry is not
admissible in evidence under Sec. 33 of the Act
and, consequently, the same cannot form the basis
of conviction of an accused”.
20. In the light of the decisions of the apex
court adverted to above, we are of the considered view
that Monu Surendran has not been correctly decided and@@
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with due respect we overrule the same and hold that In@@
AA
re. Chief Judicial Magistrate (Supra) and Kurian v.@@
AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
State of Kerala were correctly decided. There is no@@
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dispute that those appellants/accused who had
cross-examined the approver during his examination under
Section 306(4)(a) Cr.P.C. was pursuant to the direction
given to the Chief Judicial Magistrate in Monu@@
AAAA
Surendran’s case wherein it was the State which sought@@
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for the direction to examine the approver giving
opportunity to the accused to cross-examine him. Thus,
cross-examination was virtually thrust upon the
appellants/accused without their asking for it. In such
situation, the cross-examination conducted by them cannot
be said to be as of right.
21. We accordingly answer this reference as
follows:-
Since the appellants/accused had no right to@@
i
cross-examine the approver while he was examined
before the Chief Judicial Magistrate under
Section 306(4)(a) Cr.P.C., even if any of them
had an opportunity to cross-examine the approver
at that stage, the statement of the approver
examined under Sec. 306 (4)(a) Cr.P.C. is not
relevant or admissible under Sec. 33 of the
Evidence Act during the subsequent trial in which
the approver was not available for examination by
reason of his death in the meanwhile.
.PA
22. We, however, make it clear that we have
not examined the admissibility under Sec. 32(3) of the
Evidence Act of the aforesaid statement of the approver.
That is a matter to be considered by the appropriate
Bench which finally hears these appeals. The Registry
shall take steps to post the appeals before the
appropriate Court as per the roster for disposal of the
same on merits.
.JN
V.RAMKUMAR,
(JUDGE)
K.PADMANABHAN NAIR,
(JUDGE)
M.N.KRISHNAN
(JUDGE)
.JY
(Continued…)
.JY
.PA
.JN
& V. RAMKUMAR, J.
&
M.N.KRISHNAN, J.
ORDER
Crl.Appeal Nos.
534/92, 537/92,
597/92, 686/92, 697/92,
9/1993, 22/93, 100/93
114/93, 118/93, 119/93,@@
j
125/1993, 126/93 &
136/1993
DATED:
.JY
.JY