ORDER
Arumugham, J.
1. But for the disturbing features in the legal parlance caused by the lower subordinate judiciary, there would not have been any occasion to admit this revision in exercising the revisional jurisdiction of the High Court. The challenge before me in this revision pertains to the order passed by the learned First Additional Sessions Judge – cum – Chief Judicial Magistrate, Coimbatore in Crl.M.P.No. 315 of 1996 and S.C.No. 83 of 1995 dated 2.4.1996 refusing to refer the matter to the High Court under Section 395(2) of the Code of Criminal Procedure or to remit the whole case to the file of the Judicial Magistrate No. III, Coimbatore to follow the procedure laid down under Section 306(4) of the Code of Criminal Procedure.
2. The matrix of the matter to be highlighted in brief is that in view of the previous enmity, the deceased – first accused, by name, Mahesh alias Maheswaran and Muralidharan, the petitioner herein are alleged to have entered into a criminal conspiracy along with one Mohankumar, who had been treated as an approver on 4.2.1994 to commit the murder of one Dhakshinamurthy and in furtherance of the same at about 12.00 midnight on 8/9.2.1994 the said deceased Dhakshinamurthy was taken from his house under some pretext or other to secluded place to the west of Ayyar Hospital, Udayampalayam road where the deceased – accused and the petitioner herein are said to have inflicted several cut injuries and stab wounds on the deceased Dhakshinamurthy with lethal weapons like koduval and button knife respectively, as a result of which the said Dhakshinamurthy succumbed to the injuries, subsequently in the hospital and hence, after the investigation made by the investigating agency by setting the law in motion, in a final report against the above accused for the commission of offences under Section 120B and 302 in Indian Penal Code was filed before the Court and the same was taken congnizance of by the learned Judicial Magistrate No. 3 Coimbatore in P.R.C.No. 4 of 1995 on 31.5.1995. It appears further that the case was committed to the Principal Sessions Court Coimbatore under the relevant procedural law as the case was found to be exclusively triable by a Court of Session and consequently, learned Principal Sessions Judge had made over the trial of the case to the Court below. It appears that after the commit, it was noticed that the other accused by name, Mahesh was not produced however, a report was received from the Superintendent of Central Prison, Coimbatore, stating that the said other accused had committed suicide in the prison itself by hanging and accordingly, the death of the other accused by name, Mahesh was recorded.
3. On perusing the entire materials placed before the trial court charges were framed against the accused/petitioner herein under Sections 120B and 302, I.P.C. and when questioned, the accused/petitioner pleaded not guilty.
4. In the meanwhile, the other accused, by name, Mohankumar had intended to turn as an approver and he was examined as P.W.1. P.W.4 learned Judicial Magistrate No. VII, Coimbatore, appears to have recorded the confession statement of P.W.1 on 9.3.1994, with the result the prosecution has filed a petition before the then Chief Judicial Magistrate, to take P.W.1 Mohankumar as an approver. After being satisfied that the confession statement recorded already by P.W.14 was voluntarily given by P.W.1 P.W.15 has given tender of pardon to P.W.1 and thus, after having been fulfilled every procedural mandate, the accused Mohankumar who was examined as P.W. 1 was taken as an approver. Thus, since one accused died after the commission of offence pending committal proceedings and another became an approver, the sole accused in this case happened to be one Muralidharan, who is the revision petitioner herein.
5. The case above referred to seems to have been listed for trial on 14.3.1996 and 15.3.1996. On 14.3.1996 itself thirteen witnesses on behalf of the prosecution were examined as P.Ws.1 to 13 and on 15.3.1996, remaining witnesses were examined as P.Ws.14 to 30. On 21.3.1996, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure and the case was posted to 26.3.1996, for the examination of defence witnesses. It was at this stage on 26.3.1996 a petition C.M.P.No. 291 of 1996 was filed by and on behalf of the accused for adjournment stating that the entire committal proceeding is vitiated as approver was not examined as a witness in the committal court and then, the matter was adjourned. However, it appears that on 2.4.1996, invoking the powers under Section 395(2) of the Code of Criminal Procedure, the present application C.M.P.No. 315 of 1996 was filed for the relief above mentioned being resisted by the other side, after hearing both sides, learned Sessions Judge, declined to accept the prayer of the petitioner and consequently, dismissed the same by passing the impugned order on 2.4.1996. It was this order, which is being challenged in this revision.
6. I have heard Mr. Calvin Jacob, learned counsel appearing for and on behalf of the revision petitioner who controverted the whole impugned order as it lacks every legal sanctity and propriety to be sustained. But an otherwise contention was projected by the learned Government Advocate, Mr. Kumaresan. While contending so, he had admitted the legal position enunicated and settled by now in this regard.
7. In the context of the above rival circumstances and contention, I have to add my preference by saying with great constraint that it was very unfortunate on the part of the lower subordinate judiciary to pass the impugned order in such a hasty and arbitrary manner quite unmindful of the legal ratio and settled principles of law by the hierarchy of the higher courts as well as the statuary mandate. With great respect, I may observe that this is also one of the glaring illustrations of the indifference that is being perpetrated and followed by the lower subordinate judiciary in not following the settled principles of law by the hierarchy of the high legal forums of the country.
8. Section 306 of the Code of Criminal Procedure has become relevant to be extracted as under:
(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 applied to:
(a) any offence triable exclusively by the court of session or by the court of a Special Judge appointed under the Criminal. Law Amendment Act, 1962.
(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.
(c) Every Magistrate who tenders pardon under Sub-section (1) shall record
(a) his reasons for so doing;
(b) whether the tender was or was not accepted by the person to whom it was made, and shall on application made my the accused, furnish him with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made under Sub-section (1)
(a) shall be examined as a witness in the court of the Magistrate taking congnizance 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 triable exclusively by the Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;
(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952, if the offence is triable exclusively by the Court;
(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.
A casual reading of Sub-section (4) of Section 306 of the Code would clearly reveal that the person accepting a tender of pardon would be examined as a witness first in the Magistrate’s Court and subsequently, in the trial Court also, and this, on two occasions he should be examined, since it has been mandated by the statute and the failure to examine such an approver as a witness before the committal Court renders the committal proceedings and its order illegal for its non-performance of the judicial function inbuilt in the section itself by the procedural law. In the light of this mandate, and certainly not an obligation where a person is made as an approver the principal task before the Court must be to see whether his evidence is corroborated by that of other witnesses and consequently, the approver must be examined first or at the earlier convenient time in the court of trial. However, the evidence of the approver examined later must be relied on, if no prejudice is caused to the accused. No doubt, an approver in the eye of the law is a competent witness. But the appreciation of his evidence has necessarily to satisfy a double test and the evidence first made is to be relied on and when it is made reliable, the first test stands passed and then, it has to be seen that his evidence must receive adequate and ample corroboration. In dealing with such test, the question as to the weight or credence to be attached to the evidence of an accomplice to be decided under the provisions of Sections 114 and 133 of the Indian Evidence Act as well as the Illustration B to Section 114 of the Indian Evidence Act. It is therefore, under the circumstances, in order to satisfy the two tests above referred to before taking congnizance of an offence, certain procedures which are mandatory in nature, provided by the statute under Sub-clause (4) of Section 306 of the Code, have to be complied with by the Magistrate before passing the committal order and after the accused is committed to the Courts of Sessions the trial as per the procedure has to begin and commence. The Court must be pot on every caution and conscious on the approver’s evidence both before the trial court as well as the Magistrate’s Court in order to prove the creditability of his testimony. The double test provided by the statute for an approver has become necessary as mandated by the statute itself and as such, it is a legislative command and for the said reasoning, the said important procedure cannot be divested or controverted for the reasoning of extraneous circumstances whatsoever they may be. The procedural law is laid down by the statute for the purpose of implementing the law in a more efficient and efficacious way in dispensing with justice delivery system. The utter disregard of the legislative command would necessarily render the entire proceedings void ab-initio. For the very reasoning that the approver is basically a particeps criminis, his performance in a Court is subjected to the rigor of the double test adopted by the Court of law; one before the committal order is passed and another at the state of trial where corroboration and the reliability of the approver is to be identified. It was also settled by now that after the examination of the approver by the committing Magistrate for the offence under Section 120-B, Indian Penal Code, no more examination of other witnesses by the committal Magistrate is necessary.
9. Ratnavel Pandian, J. as he then was, in Pichai in re, 1988 L.W. (Crl.) 91 has had an occasion to consider exactly the identical question involving Section 306 of the Code of Criminal Procedure in the following words:
The committal of a case without the examination of the approver is a clear violation of the mandatory provision of Section 306 of the Code of Criminal Procedure. The omission to examine the approver in the comittal proceedings by the committing Magistrate vitiates the committal of the accused to take the trial Court of Sessions. Hence, the entire proceedings before the trial court has became ab initio void. Consequentl upon the illegal committal. Hence, committal order and the subsequent entire proceedings before the court have to be quashed and the Magistrate directed to comply with the provisions of Section 306 of the Code of Criminal Procedure by examining the approver and then pass order of committal if called for.
10. While above observations were made by the learned single Judge, the observations made by this Court in Ramaswamy in re, 1976 L.W. (Crl.) 36 : 1976 M.L.J. (Crl.) 111, were quoted, which runs as follows:
The action of the Sub-Magistrate in committing the case to the Court of Session without examining the approver is a clear violation of the mandatory provisions of Section 306, Sub-section (4) of the new Code and as such he has committed an illegality. Therefore, I quash the committal order and direct the Magistrate to comply with the provisions of Section 306 by examining the approver and then pass an order of committal if called for.
In Pusha In re, 1988 L.W. (Crl.) 164, another learned Single Judge of this Court has observed the following:
There can be no doubt that the committal of the accused concerned to take the trial without examining the approver by the Magistrate is not pro-per and the committal is liable to be quashed.
Thus, it has been clearly pointed out that it is mandatory for the Magistrate taking congnizance of the offence, to examine the person accepting the tender of pardon made under Section 306(1) of the Code viz., the approver as a witness and the examination of the approver is a condition precedent for the committal and Section 306 of the Code should be read in conjunction with Section 201 of the Code and any violation of the mandatory provisions of Section 306(4) and (5) of the Code by the Magistrate taking cognizance of the offence clearly amounts to an illegality which would vitiate the entire committal proceedings.
11. The Supreme Court in S.C. Bahri v. State of Bihar, , has held as under:
Section 133 of the Evidence Act deals with the testimony of an accomplice. It contemplates that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The first part envisages that an accomplice in other words a guilty companion in crime shall be a competent witness while the second part states that conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. But, if one reads Section 133 with illustration (b) of Section 114 it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the legislature because quite contrary to what is contained in Section 133, illustration (b) to Section 114 lays down that an accomplice is unworthy of credit, unless he is corroborated in material particulars. A combined reading of the two provisions that in Section 133 and illustration (b) of Section 114 go to show that is was considered necessary to place the law of accomplice evidence on a better footing by stating in unambiguous terms that according to Section 133 a conviction is not illegal or in other words not unlawful, merely because it is founded on the uncorroborated testimony of an accomplice while accepting that an accomplice is a competent witness. But, at the same time the legislature intended to invite attention to illustration (b) of Section 114 with a view to emphasise that the rule contained therein as well as in Section 133 are parts of one and the same subject and neither can be ignored in the exercise of judicial discretion except in cases of very exceptional nature. However, the difficulty in understanding the combined effect of the aforementioned two provisions arises largely due to their placement at two different places of the same Act. It may be noticed that illustration (b) attached to Section 114 is placed in Chap. VII of Evidence Act while Section 133 is inserted in Chap. IX of the Act. The better course was to insert the illustration (b) to Section 114 as an explanation or in any case as proviso to Section 133 of the Act instead of their insertion at two different places and that too in different chapters of Evidence Act. In any case since an approver is guilty companion in crime and, therefore, illustration (b) to Section 114 provides a rule of caution to which the courts should have regard. It is now well settled that except in circumstances of special nature it is the duty of the Court to raise the presumption in Section 114 illustration (b) and the Legislature requires that the Court should make the natural presumption in that section.
Though a conviction can be based on uncorroborated evidence of an accomplice but as a rule of prudence it is unsafe to place reliance on the uncorroborated testimony of an approver as required by illustration (b) of Section 114.
12. The charges framed and tried in the instant case are conspicuously under Section 120B and 302 of I.P.C. and if that is so, it has become imperate to note that the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence and in a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a fact situation criminal conspiracy alleged is with regard to commission of a serious crime of the nature as provided under Section 120B, the proof of any overt act by the accused or by any one of them may not always be required as strictly necessary. But, however for the proof of the conspiracy schemed out by the accused themselves where no evidence is available except the evidence of the approver who speaks about either the overt act or the completion of the same, the evidence of the approver is necessarily subjected to the provisions of Section 133 and illustration (b) to Section 114 of the Evidence Act. Therefore, if the matter is viewed in this angle, besides the legal mandate, the evidence of the approver projected by the prosecution in a fall proof manner is a must and that is perhaps, the reason why the legislature inserted the very rigor of getting the approver examined twice as indicated in Sub-clause (4) of Section 306 of the Code of Criminal Procedure.
13. If the above legal aspects are imported to the facts of the instant case, it is noticed that though the learned trial Judge has appraised all the legal positions, he has ignored and overlooked the same into to on the basis of certain extraneous circumstances. The very approach adopted by the learned trial Judge in considering the non-examination of the approver before the committal Court or before the committal order was passed was highly erroneous and cannot at all be sustained for all the reasonings given above. It is not as if the legal ratio enunicated in the above case-laws was not brought to the notice of the learned trial Judge. For the purpose of appreciating the legality or otherwise of the impugned order, it has become relevant for me to quote the following which is found from paragraph 12 till the end of the order.
The prosecution was closed on 16.3.1996 itself. The accused was questioned under Section 313 of Crl.P.C. On 21.3.1996 and the case Was posted for defence on 26.3.1996. It was only at that stage, the petitioner/accused filed the petition for adjournment on the ground that the committal proceedings is vitiated because of the non-examination of the approver as a witness in the committal court. To my mind the petitioner/accused waited till the end and finding that the evidence was not turned out in his favour, he has filed this petition at a belated stage.
14. The purposes of examining the approver as a witness in the committal court is to afford an opportunity to the accused by cross-examining the approver by testing the credibility of the approver. It is noteworthy to mention that during the cross examination of the prosecution witness that the non-examination of the approver as a witnesses in the committal court had caused injustice to the approver. Above all the criminal court had not inherent power to quash the evidence already recorded by the Court. It is too late in the day for the petitioner/accused to complain of the violation of Sub-section (4) and (5) of Section 306 of Crl.P.C. I find that the petitioner accused had filed this petition at a belated stage with a view to drag on the proceedings finding out the evidence had not turned out in his favour.
15. Though in the decisions Pichai, Ire, 1988 L.W. (Crl.) 91 and Suresh Chandra Bahri v. State of Bihar, , it was held that the non-observance of Section 306(4) of Crl.P.C. is a clear violation of the mandatory provision. The principle laid down in the said decisions cannot be made applicable to the case in view of the circumstances pointed out above, the one and the only reason innovated by the learned Judge is deliberately overlooking the legal gamut that has been provided under Section 306(4) of the Code and held by their Lordships of the Supreme Court on this score in the above cited case law, is that it was the accused who pointed out the non-examination of the approver by the prosecution, that too, at the fag end of the trial. To say so, with great respect and constraint, I am not able to digest the above observation for a single moment for the reasoning that the said observation lacks very basic fabric of the criminal jurisprudence and it is the duty of the prosecution to prove its case and the complicity of the accused beyond the realm of doubt by establishing the guilt of the accused on adducing legal evidence. It is also well settled by now that the Court of law are not bound to carry on duty by mere conjectures and surmises, nor by any sentimentality or any imaginary mysticism but bound to proceed on the legal and legal evidence alone which amounts to proof provided and contemplated by the law. Thus, it is made very clear that the burden of examination of the approver as provided under Section 306(4) of the Code of Criminal Procedure imperatively lies upon the prosecution. If the prosecution fails to do so, then it must fall to the ground. It is always not safe to presume that is the duty of prosecution. An indispensable duty is cast upon the court, viz., the committal Court to record the evidence of the approver before passing the committal order. It is mandated that the Court should commit the proceedings, if it finds that the proceedings are triable by a Court of Session exclusively. If the matter is viewed in this angle, it must be imperative and incumbent duty cast upon the committing Magistrate to examine the approver before passing the committal order. The learned trial Judge viz., the Sessions Judge ought to have taken note of the said defect while farming the charge in the instant case, which was inadvertently or advertently omitted. Having failed in its legal duty to be dispensed with in its proper prospective, throwing the blame upon the accused by stating that he had not pointed out, nor even suggested at earlier stage, cannot at all be countenanced by any Court of law for any moment as there is no limitation of time provided to raise the objection. It is therefore, under such circumstances, clear that the trial court before framing the charges or even at the time of trial ought to have noted the basic defect inherent in the committal order and rectified the same before the trial under Section 397 of the Code of Criminal Procedure. In view of Section 397 of the Code, the revisional power to be exercised and vested with the High Court is also made available to the Court of Session. Therefore when the abovesaid defect was brought to the notice of the learned Judge, she ought to have taken action to rectify the serious error committed by the committal court. But it is noticed that it has not been done at all. This error on the part of the learned Sessions Judge, even on being pointed out by the accused, amounts to serious prejudice and thereby renders the committal order ab initio void. If the learned trial Judge had not intended to do so for the reasoning that she recorded the evidence of prosecution witness, she ought to have referred the matter under Section 395 of the Code of Criminal Procedure to this Court for proper guidance. However, she appears to have overlooked the same. Perhaps, on the basis of over enthusiasm and the error committed by the Court itself cannot be justified.
16. Having thus looked into the gamut of the impugned order on the admitted facts and rival contentions, I am fully constrained to hold that the impugned order passed by the learned trial Judge has no basis to stand, but, it has become vitiated and the committal order passed by the learned Judicial Magistrate No. 3, Coimbatore is ab initio void and consequently, the whole trial proceedings have become vitiated.
17. In the result, the revision succeed and accordingly, it is allowed. The impugned order passed by the learned Additional Sessions Judge – cum – Chief Judicial Magistrate, Coimbatore in Crl. M.P.No. 315 of 1996 in S.C. No. 83 of 1995 dated 2.4.1996 is hereby set aside. Consequently, the whole proceedings are set aside. It is directed that the entire case be remitted to the learned Judicial Magistrate, No. 3, Coimbatore, who is the committing Magistrate, to examine the approver, P.W.1 and then proceed in accordance with law and dispose of the matter by giving top priority.