JUDGMENT
S. Ravindra Bhat, J.
1. The Petitioner, in these proceedings under Section 482 Code of Criminal Procedure, seeks quashing of the order dated 19.9.2005 of the Special Judge and also quashing of the committal proceedings. A direction to the learned Chief Metropolitan Magistrate to comply with the provisions of Section 306(4)(a) Cr.P.C. and record the statement of the approver Jhanna Lal have also been sought.
2. A First Information Report (FIR) was lodged on 26.8.1981 under provisions of Antiquities and Art Treasure Act and Section 411 of the Indian Penal Code (IPC). Initially the Petitioner was not named in the FIR. The Central Bureau of Investigation (CBI) was given charge of the proceedings. After investigations it filed a charge sheet. The initial case and CBI case were amalgamated/ clubbed together on 28.8.1987 by the Magistrate who had exercised jurisdiction of the matter.
3. The allegations in the proceedings are that accused Shrikant Jain (A-1) in conspiracy with some others including Chadi Lal @ Ramesh, (A-2), Kanshi Nath (A-3), Jhanna Lal (A-4) and Dulal Chakraborty @ Dinesh (A-6) caused theft of the Antique Idol of Godess Durga, which had been installed in an old temple Takashakeshwar Mahadev at Allahabad. The Idol was allegedly sold to A-1 through Kanshi Nath. It was further alleged that the idol was broken into four pieces with the help of an artisan and transported along with 14 other antiquities. A-1 allegedly tried to board an international flight to the United States of America with the antiquities and suspecting that he would be caught and arrested, fled the place. His baggage was recovered and after investigations, the CBI lodged an FIR, alleging commission of offence under Section 380 IPC.
4. The CBI filed a charge sheet and complained against six persons including the Petitioner and the criminal Court took cognizance. One of the accused i.e. Jhanna Lal turned approver and was granted pardon by the then Chief Metropolitan Magistrate. The charge sheet in the complaint cases as mentioned earlier were amalgamated on 28.9.1987 subsequently against the accused. A-1s revision petition against the order framing charges was rejected on 1.9.1998 by the revisional Court.
5. On 7.9.1999 the Chief Metropolitan Magistrate heard counsel for the parties. The contention was raised on behalf of A-1 that the statement of the approver, PW-1 recorded on 17.12.1986 was by a Metropolitan Magistrate and that if the case had to be committed to Sessions, that witness had to necessarily be recalled and examined afresh under Section 306(4) Cr.P.C. In that order, dated 7.9.1999 the Chief Metropolitan Magistrate had noticed that pardon had been tendered and accepted on 10.2.1983. At that stage there were two cases. The cognizance was taken by separate orders on 1.3.1983. The Court also observed that some time later after summoning of the accused there was a confusion and that the case was again made over to the Court of the Metropolitan Magistrate by an identical order dated 8.1.1986. The fact that Jhanna Lal had turned approver by then as also of cognizance was overlooked while making over the case to the Metropolitan Magistrate on 8.1.1986. The Court further observed that confusion seems to have persisted further in the proceedings and both the prosecution and the defense counsel failed to keep these in mind while assisting the Court. Apparently noticing these aspects, the Metropolitan Magistrate, called approver and examined him, apparently for the purpose of compliance with Section 306(4) on 17.9.1986.
6. The Chief Metropolitan Magistrate, after it carefully examining the effect of the previous proceedings as well as the nature of the offences, concluded that the trial had to be made over to Sessions. He thereafter considered the effect of the previous proceedings and the statement of the approver recorded at the earlier stage and reasoned as follows:
But then the agreement of all sides that the cases deserved to be sent to the court of Sessions the Million dollar question which would arise is as to whether the proceedings before the Ld. MM including for purpose of recording statement of approver under Section 306(4) Cr.P.C are saved by the law or not to my mind the order dated 08.01.1986 will have to be construed so as to be taken as making over of cases for purpose of enquiry to the MM rather than for trial before him. Section 192 Cr.P.C. empowers this Court to make over any case in which cognizance had been taken for trial or enquiry to any MM. The proceedings for purpose of compliance under Section 306(4) Cr.P.C. cannot be anything but proceeding in the nature of enquiry within the meaning of the expression used in Section 192(1) Cr.P.C. Even otherwise fortunately we have a direct law on the subject. It has been held in the case of Fermavammal v. Arumuxtam 1978 L.W. (Cr.) 186 as has been mentioned as foot none NO. 5 on page 3388 in Sohanis case of Criminal Procedure 19th Edition Vol-4 that nor only the Magistrate who took cognizance of the offence but also the Magistate to whom the case is transferred for enquiry can examined the approver. To my mind this answers the query raised by ld. defense counsel. Ld. defense counsel has also urged that he has reserved his right to cross-examine the approver PW-1, assuming that the case would be tried by the Court of C.M.M. and he was not aware that the case would be committed to the sessions. I am afraid the language used by the ld. defense counsel on 15.03.1989 was that he was reserving the right to cross examine PW-1 in the trial which was to be in the proper forum, which was not his choice but has to be regulated as per the code of Criminal Procedure.
In view of the above the order framing charge will have to be ignored as the said proceedings were against the dictate of law in Section 306(5) Cr.P.C. The statement of approver has already been recorded under Section 306(4) Cr.P.C. with compliance with the said provisions being done, both cases are committed to the Court of Session under Section 306(5)(a)(i) Cr.P.C. The files shall be placed before Ld. District and Sessions Judge complete in all respect on respect on 20.09.1999. Accused to appear accordingly.
7. A-2 moved an application before the Special Judge, who was invested with jurisdiction over such matters that the orders dated 17.12.1986 did not comply with Section 306(4)(a) Cr.P.C. as it was allegedly without jurisdiction; that cognizance was taken by the Chief Metropolitan Magistrate and that only he had jurisdiction and duty to record the statement of the approver. Other grounds such as the absence of the accused that examination-in-chief of the approver was a nullity and the proper legal aid was not given, were also urged. This application was rejected on 19.9.2005. The Special Jude noticed that A-2, Chedi Lals petition under Section 482 read with Section 309 Cr.P.C. for quashing of proceedings on those grounds had been dismissed as withdrawn.
8. Learned Counsel urged that the CBI did not produce the approver for cross examination on behalf of the Petitioner for which he took objection to the order of the Magistrate on 15.3.1989 whereby it was recorded that there was no necessity to examine the approver again after an amalgamation of the complaint case with the CBI case and that the counsel for A-1 reserved the right to cross-examine PW-1 at the stage of trial. Counsel also urged that the illegality in the proceeding was noticed on 7.9.1999 when the Court committed the case to Sessions for trial. Then the Petitioner moved an application on 18.2.2000 pointing to the previous illegal procedure and requesting the State to supply copies as required under Section 207 and also applying for legal aid. The Court acceded to the request for grant of legal aid at Government expense and also furnished copies as mandated under Section 207. However, the application of the Petitioner for recording the statement of approver by the Chief Metropolitan Magistrate and for a claim that the case ought to be sent back to that Court was dismissed.
9. It was mainly urged that non-compliance with Section 306(4) vitiated the entire trial. Learned Counsel relied upon the judgments of the Supreme Court reported as A. Deivendran v. State of Tamil Nadu ; Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80; and submitted that improper tendering of pardon is an incurable irregularity that vitiated the trial. He, therefore, submitted that the entire proceedings ought to be quashed by this Court in exercise of jurisdiction under Section 482 Cr.P.C.
10. Learned Counsel for the CBI opposed the petition and contended that each of the grounds urged now was considered at some stage or the other by the Courts below and even this Court at the behest of other accused. It is, therefore, too late in the day to contend that the proceedings had to be quashed. Counsel relied upon the orders dated 10.2.1983, 19.9.2005 and 7.9.1999 in support of his submission and order dated 17.11.1986 to say that the opportunities mandated by law were provided. It was contended that the arguments made in support of these proceedings are unworthy of acceptance.
11. From the above narrative it is evident that initially two cases in relation to the same facts existed on the file; at some later stage they were clubbed together. The Court seized of it apparently overlooked some previous orders. However, the proceedings dated 10.2.1983 shows that the Jamna Lal turned approver and pardon was tendered and accepted. This was in Case RC No. 3/1981 under Section 120-B IPC read with Section 380, 411, 414 IPC and 25 read with 3(1) of the Antiquities Art Treasures Act, 1972. A police report was forwarded on 1.3.1989 against all the accused. Although initially on 28.9.1987 the Magistrate had directed recording statement of approver, on 15.3.1989 the Court noticing all the previous orders and also that the accused were the same, concluded that there was no necessity to examine approver PW-1 after amalgamation of the complaint case with the FIR case. In these circumstances on 10.10.1996 the Chief Metropolitan Magistrate had framed charges against accused persons. At the stage of evidence, the Court noticed that the case had to be committed, and accordingly made an order on 7.9.1999 committing the trial to sessions.
12. The question is whether in the above conspectus of circumstances, the grievance made out that the case should have been sent back to the Chief Metropolitan Magistrate for recording of the approvers evidence against has any merit.
13. Section 306 to the extent it is relevant here for the purposes this case reads as follows:
306. Tender of pardon to accomplish (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.
(2) This section applies to-
(a) any offence friable exclusively by the Court of Sessions or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952).
(b) any offence purnishable with imprisonment which may extend to seven years or with a more severe sentence.
(3) Every Magtistrate who tenders a pardon under Sub-section (1) shall record
(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 friable exclusively by that Court or if the Magistrate takingt cognizance is the Chief Judicial Magistrate;
(ii) to a Special Judge appointed under the Criminal Law Amendment Act 1952 (46 of 1952), if the offence is friable exclusively by that Court ;
(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.
14. In Deivendrans case one of the questions which arose for consideration was whether the Chief Judicial Magistrate could have validly and legally tendered pardon after the case was committed for trial to sessions. The Court held, in view of Section 307 that
once a proceeding is committed to a Court of Sessions then only the said court can exercise power to tender pardon to the accused. Section 307 of the Code of Criminal Procedure 1899. If the two provisions are examined in juxtaposition it would be cleared that while under Section 338 of the old Code after commitment is made the Court to which the commitment was made could tender pardon to an accused or could order the committing Magistrate or District Magistrate to tender pardon, but under Section 307 of the Code of 1973 the Code to whom the commitment is made, no longer retains the power to order the committing Magistrate or the District Magistrate to tender pardon.
Similar observations were made by the Supreme Court in the decision reported as Suresh Chandra Bahri.
14. Apparently this is in line with previous judgments by other High Courts including the Full Bench of the Gujarat High Court in Kalukhera v. State and the judgment of the Andhra Praesh High Court in U. Vijayraj Paul v. State 1986 Crl.L.J. 2104.
15. Before discussion of the above contentions it would be useful also to notice Section 460 of the Cr.P.C. It lists out the irregularities which do not vitiate proceedings; the effect of Clause (9), inter alia, is that if a Magistrate is not empowered by law to tender pardon under Section 306, erroneously and in good faith does it, such orders cannot be set aside merely on the ground of lack of power. The effect of this provision too was considered in Deivendrans case.
16. While the legal position outlined in cases cited on behalf of the Petitioner and the propositions enunciated in those, cannot be disputed, I am of the opinion that the attendant facts in this case does not call for their application. Undisputedly the pardon was tendered and accepted in 1983. Although the proceedings in one case were conducted in a brief interlude, in ignorance of the previous proceedings, eventually, the Court which had cognizance over both of them clubbed them. The effect of all these orders were analyzed in detail on 7.9.1999 by the Chief Metropolitan Magistrate. He also reasoned that the case was friable by Sessions and made the necessary orders in that regard. The original record reveals that in the subsequent proceedings, legal assistance claimed by the Petitioner was also granted at the State expense to him and other provisions were complied with. This case is one where the pardon was recorded and accepted before committal took place on 7.9.1999. By that time pardon had already been tendered. In such circumstances there is no question of interdiction of provisions of the Code. On the other hand, it was recorded during the course of enquiry by the Court, under the Code in 1983 when the Chief Metropolitan Magistrate was validly exercising jurisdiction. In fact Section 306(1) empowers a Chief Judicial Magistrate to record and accept such pardons. In this case that is precisely what happened. Therefore, I find no infirmity with the approach of the Courts or any incurable illegality.
17. It has been held repeatedly that the High Court should use its power under Section 482, and interdict proceedings only when proven illegality is disclosed. In this case repeated attempts were made by different accused to raise the same plea about irregularity in the proceedings. The orders of the trial Court were carried in revision; when the matter was before the Chief Metropolitan Magistrate and thereafter later before the Sessions Court; even other proceedings were filed under Section 482 Cr.P.C. which met with no success. Having regard to the circumstance that the charge sheet was filed long ago and repeated attempts have been made to thwart and prolong the trial, even while declining to exercise jurisdiction under Section 482, I am of the opinion that the Court should endeavor to complete the proceedings as early as possible.
18. The Petition is accordingly dismissed. Although this was a fit case where costs ought to have been awarded, yet since the Petitioner is a recipient of legal aid, I deem it appropriate not to make any order in this regard.