Kerala High Court
State Of Kerala And Etc. vs Monu D. Surendran And Anr. Etc. on 30 November, 1989
Equivalent citations: 1991CRILJ27
JUDGMENT U.L. Bhat, J.
1. Since common questions of law arise for consideration in these vision petitions, they have been heard together and are being disposed of by this common order.
2. Criminal R.P. No. 399 of 1987 arises from one of the cases known as mark list cases. Investigation proceeded against four accused. Final report was laid on 29-12-1984 only against two of them; they being respondents in the revision petition, eliminating two of the accused. Chief Judicial Magistrate of the district tendered pardon to one of these two accused on 9-3-1984 and the latter accepted pardon. On the next day, namely, 10-3-1984 Chief Judicial Magistrate purported to record sworn statement of the approver. It was subsequently that the Final Report was laid against the two accused before the Chief Judicial Magistrate for various offences all of which are triable by First Class Magistrate. Though the case is not exclusively triable by Sessions Court, Chief Judicial Magistrate committed the case to Sessions Court under Section 306(5)(a) of the Code of Criminal Procedure, 1973 (for short 'the Code'). Learned Sessions Judge made over the case to the Assistant Sessions Judge for trial. The legality of the committal order is challenged by the State in this revision petition.
3. Criminal R.P. No. 182 of 1989 arises in a case relating to alleged murder of one Soman. Investigation proceeded against four accused. Chief Judicial Magistrate, Alleppey granted pardon to one of them, Prasannan who accepted the same. Final report was laid by the Investigator before Judicial First Class Magistrate, Ramankary and learned Magistrate on 20-2-1988 committed the case to the Sessions Court without examining the approver. The committal order was quashed by this Court in Cri. R.P. 327 of 1988 with direction to the Magistrate to abide by the terms of Sub-sections (4) and (5) of Section 306 of the Code. When the case came up again before the committal Magistrate, approver was present to enable the court to record his evidence. Defence counsel submitted that he has a right to cross-examine the approver. But the request was rejected by the court by order dated 24-2-1989. The legality of this order is challenged by the accused in this revision petition.
4. When Cr.R.P. 399 of 1987 came up for consideration before Sreedharan, J., it was argued that committal order was bad on account of non-examination of approver, that when the approver is examined in the committal court accused has right of cross-examination and that Sessions Judge should try the case and cannot make it over to Assistant Sessions Judge for trial. Correctness of the view taken in Kurian v. State (1989) 1 Ker LT (SN) 37 that accused has no right to cross-examine approver when examined in committal court was also canvassed. Learned Judge adjourned the case to be heard by a Division Bench. When Crl. R.P. 182 of 1989 came up for consideration before Sankaran Nair, J., it was argued that accused right to cross-examine approver in committal court and that the contrary view taken in In re : Chief Judicial Magistrate, Trivandrum 1988 Crl. LJ 812 (Kerala) requires reconsideration, particularly in the light of observations in Sanjay Gandhi v. Union of India AIR 1978 SC 514. Learned Judge adjourned the case to be heard by a Division Bench.
5. The following points arise for consideration in these cases : (a) whether the Magistrate taking cognizance of the offence is bound to record the evidence of the approver, (b) if the approver is examined whether accused has aright of cross-examination, and (c) whether the Sessions case can be made over to Additional Sessions Judges or Assistant Sessions Judges.
6. Chapter XVI of the Code deals with commencement of proceedings before Magistrate. If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, he shall issue summons or warrant as the case may be to the accused for his attendance as provided in Section 204 of the Code. Section 207 requires the Magistrate to furnish to the accused, free of cost, copies of the records referred to therein. Section 209 requires the Magistrate, where the offence is triable exclusively by the Court of Sessions, to commit the case to the Court of Sessions after complying with the provisions of Section 207 and Section 208 and after fulfilling the other requirements laid down in the section. Thus it can be seen that in a normal committal proceeding, question of recording evidence of any person does not arise. This, of course, would not apply to a case arising from a private complaint.
7. Section 306 dealing with tender of pardon to accomplice reads thus:
"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.
(2) This section applies 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, 1952 (46 of 1952);
(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.
(3) Every Magistrate who tenders a 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 by 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 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 triable exclusively by that 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 (46 of 1952), if the offence is triable exclusively by that Court;
(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself."
8. The above provision enables Chief Judicial Magistrate or Metropolitan Magistrate at any stage of the investigation or inquiry or trial or Magistrate of the First Class inquiring into or trying the offence, at any stage of the inquiry or trial, to tender pardon in terms of Sub-section (1). According to Sub-section (2), the above provision applies to offences triable exclusively by court of Session or by the court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 as also any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. The offence involved in the case relating to Crl. R.P. No. 182 of 1989 is triable exclusively by Court of Session while one of the offences involved in the case relating to Crl. R.P. No. 399 of 1987 is punishable with rigorous imprisonment for ten years. Thus provisions of Section 306 are attracted to both the cases on hand by virtue of Sub-section (2).
9. Sub-section (3) requires every Magistrate who tenders pardon under Sub-section (1) to record his reasons for so doing and to record whether tender was or was not accepted by the person to whom it was made. Subsection (4) requires that every person accepting a tender of pardon shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in a subsequent trial, if any, and unless he is already on bail, be detained in custody till the termination of trial. Sub-section (5) deals with procedure to be adopted thereafter. In a case governed by the above provision, Magistrate taking cognizance has to commit the case for trial in cases covered by Clause (a) and to make over the case to the Chief Judicial Magistrate in cases covered by Clause (b) without making any further inquiry. Sub-clause (i) of Clause (a) requires committal 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. The cases on hand are quired to be committed to the Court of Session by virtue of Section 306(5)(a)(i).
10. Section 306 dealing with tender of pardon to accomplice prescribes various stages. In the first stage Magistrate concerned has to apply his mind to the question whether it is a fit case for tendering pardon. Where he so decides he must record his reasons for so doing. He must actually tender pardon to the accomplice and record whether tender was or was not accepted. This is the procedure laid down in Sub-section (3). A close analysis of the provisions of Section 306 would indicate that the function of a Magistrate tendering pardon is over when he tenders pardon and records the reasons for so doing and further records whether tender was or was not accepted. Thereafter there is nothing further for him to do.
11. The further requirements are laid down in Sub-sections (4) and (5). Sub-section (4) requires that every approver shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial and Sub-section (5) requires the cases to be committed for trial to the Court of Session, or to be made over to the Chief Judicial Magistrate for trial as the case may be. The procedures contemplated under Sub-sections (4) and (5) are required to be gone through not by the Magistrate who tenders pardon but by the Magistrate taking cognizance of the offence. This may involve dichotomy of functions if the Magistrate who tenders pardon is not the Magistrate taking cognizance. There may be cases where both functions are discharged by the Court of same Magistrate. Even then the two stages of the procedure are relevant and have to be gone through, namely, the procedure of tendering pardon as also the acceptance of the pardon and recording of the same and the stage of examining the approver as a witness in the case of Magistrate taking cognizance of the offence and passing the order of committal.
12. There can be no doubt that examination of a witness by the Magistrate taking cognizance of the offence is a statutory requirement. That is precisely what is laid down in Sardar Iqbal Singh v. State (Delhi Admn.) AIR 1977 SC 2437: (1977) 4 SCC 536): (1978 Cri LJ 192), Sanjay Gandhi v. Union of India, AIR 1978 SC 514 and State (Delhi Admn.) v. Jagjit Singh AIR 1989 SC 598 : (1989 Cri LJ 986). What is the effect of non-examination of approver before the Magistrate in a case where Sessions trial is already over and the case has ended in conviction is not a matter which we need consider in these proceedings.
13. The more important question arising for consideration is whether the accused has a right of cross-examining the approver when he is examined before the Magistrate taking cognizance of the offence. Our attention is invited to a decision of a learned single Judge of this court in In re : Chief Judicial Magistrate 1988 Cri LJ 812 followed by a Division Bench of this court in Kurian v. State (1989) 1 Ker LT (SN) 37. The former case came up for consideration on a reference by the Chief Judicial Magistrate, Trivandrum. Learned Judge held that evidence of approver is required to be recorded by the Magistrate before committal, but the accused has no right of cross-examination. Learned Judge took the view that recording evidence of the approver is unconnected with the committal and is not an integral part of it, that Sections 209 and 306 are independent provisions unconnected with each other and examination under Section 306(4) is not part of committal under Section 209. Recording of evidence of the approver is not to treat it as evidence to consider the guilt or innocence of the accused but only to ascertain whether he has resiled from his position and has broken the conditions of pardon, that "such examination will be even before process is issued to the accused. At that stage no enquiry even is involved and further the accused will be nowhere in the picture. There is no question of the accused being permitted to cross-examine the approver at that stage." We notice that none of the decisions referred to earlier was brought to the notice of learned Judge. The case in the latter decision came up for consideration before this court by way of appeal and Referred Trial arising from conviction in a murder case, that is, after the trial ended before Sessions Court. We find that the Division Bench to which one of us (Bhat, J.) was a party followed the earlier decision after referring to the decision in Sardar Iqbal Singh's case, AIR 1977 SC 2437: (1978 Cri LJ 192). According to learned counsel for the revision petitioners, both these decisions require reconsideration as they did not consider the effect of all the relevant provisions of law and decisions of Supreme Court.
14. The primary reasoning in the two decisions of this Court is that Section 306 could be invoked at the stage of investigation also and if it is so done, the question of accused being present when the evidence is recorded will not arise and consequently there can be no right of cross-examination. We have noticed the various sub-sections of Section 306 and indicated that there are two stages contemplated under Section 306, the first stage relating to tendering and acceptance of pardon and recording of the same and the second stage of examination of approver as a witness and passing committal order or such other appropriate order. The former stage is to be dealt with by the Chief Judicial Magistrate or the Metropolitan Magistrate or by the Magistrate of First Class inquiring into or trying the offence while the latter stage is to be gone through by the Magistrate taking cognizance of the offence. A Magistrate can take cognizance of the offence only in accordance with the provisions of the Code. Magistrate taking cognizance of the offence is ordinarily required, at the outset, to issue process by virtue of Section 204 of the Code Thereafter he is required to ensure that copies of relevant records are supplied to the accused. In a summons cases Magistrate has to conduct enquiry in accordance with the provisions of Chapter XXII and in a warrant case, adopt the procedure contained in Chapter XIX and in a case exclusively triable by Court of Session, follow the procedure contained in Section 209 of the Code. One of the cases before us relates to an offence exclusively triable by Court of Sessions and the other relates to a case triable by First Class Magistrate. Even in the latter case the Magistrate taking cognizance is required by virtue of Section 306 (5)(a)(i) to commit the case to the Court of Session. The Magistrate taking cognizance of the offence has to issue process and supply copies of all relevant records to the accused. Thereafter, necessarily, he has to pass an order of committal under Section 209 of the Code. In a case exclusively triable by the Court of Session, ordinarily, the Magistrate need not look beyond Section 209 in order to pass an order of committal. However, in a case which is required to be committed under Section 306(5)(a), he has to look into Section 209 as well as Section 306 for the purpose of passing an order of committal. Though in committal proceedings on police report, the Magistrate is not to record any evidence, he is required to record evidence of approver in cases covered by Section 306 of the Code. The Magistrate taking cognizance of the offence is the Magistrate issuing process. Evidence of approver cannot be recorded by the Magistrate before taking cognizance. Taking cognizance has to be immediately followed by issue of process if the accused is not present. The Magistrate naturally awaits appearance of the accused. Therefore, the view taken in the two decisions referred to above that Section 306 could be invoked at any stage of the investigation does not appear to be fully in consonance with the statutory provisions. The view is fully correct in regard to the earlier stage contemplated by Sub-sections (1) and (3) of Section 306 of the Code but is not correct in regard to the second stage contemplated by Sub-sections (4) and (5) of Section 306 of the Code. First stage can rise during investigation, inquiry or trial. The second stage, namely, recording of evidence of the approver and passing an order of committal, can arise only after Magistrate takes cognizance. Magistrate can discharge his functions under Sub-sections (4) or (5) of Section 306 only after he issues process and the process is served. The view taken in In re: Chief Judicial Magistrate, 1988 Cri LJ 812 (Kerala) that all the requirements of Section 306 can be gone through at the stage of investigation is not correct.
15. The Magistrate is required to record evidence of the approver. Section 306 Clause (1) does not indicate the procedure to be adopted for recording evidence or lay down the rules governing the recording of evidence. Necessarily approver has to be examined in accordance with the provisions of Evidence Act and Code of Criminal Procedure. Section 273 of the Code of Criminal Procedure 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". Section 137 of the Evidence Act states that examination of a witness by the party who calls him shall be called his examination-in-chief and examination of a witness by the adverse party shall be called cross-examination. It has been suggested at the Bar that evidence to be recorded cannot be in the nature of chief-examination because it is the function of court to examine him and the prosecutor has nothing to do with it. Our attention is invited in this connection to the decision in State (Delhi Admn.) v. Jagjit Singh, AIR 1989 SC 598 : (1989 Cri LJ 986) where Ray, J. speaking for the Bench observed (Paras 11 and 12):
"......So long as the prosecution does not certify that he has failed to do so he continues to be a witness and the prosecution is under obligation to examine him as a witness both in the Committing Court as well as in the trial court. .....
We have already held herein before that Sub-section (4) of Section 306 casts an obligation on the prosecution to examine the approver both in the Committing Court as well as in the trial court."
It is, therefore, clear that it is the prosecution which has to examine him in court. In other words, prosecutor has to conduct chief-examination. That being so, right of accused to cross-examine the witness must be recognised. The purpose of recording evidence before the Magistrate who takes cognizance is not merely to see whether he is resiling from the condition of his pardon but also to ensure fairness to the accused. This view is strengthened by the observations of the Supreme Court in Sanjay Gandhi v. Union of India (AIR 1978 SC 514). The Court clarified as follows : "The Committing Magistrate .......has no power to discharge the accused. Nor has he power to take oral evidence save where a specified provision like Section 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."
16. The above aspects were not placed before learned Judges of this Court who decided the two cases referred to earlier. The observations in the two decisions of this Court are per Incuriam. On a consideration of the relevant provisions of law and the decisions of the Supreme Court, we hold that approver has to be examined as a witness before the Magistrate taking cognizance of the offence (that is, in committal proceedings) and accused must be given opportunity of cross-examination.
17. It is argued that once the Magistrate commits the case to the Sessions Court, Sessions Judge must try the case and cannot make over the case to Additional Sessions Judge or Assistant Sessions Judge. Additional Sessions Judges and Assistant Sessions Judges are appointed by High Court to exercise jurisdiction in a Court of Session (Section 9(3) of Code of Criminal Procedure). Section 10(2) of the Code authorizes the Sessions Judge to make rules to the distribution of business among such Assistant Sessions Judges. Powers of Sessions Judge and Additional Sessions Judge in the matter of imposition of sentence are identical (see Section 28(2) of the Code). An Assistant Sessions Judge may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years. Any Sessions case relating to an offence for which the sentence is within the limit of sentence impossable by Assistant Sessions Judge can be made over to Assistant Sessions Judge. Commitment referred to in Section 306 (5)(a)(i) is to be made in accordance with Section 209, though additionally the special requirement of Section 306(4) is also to be followed. The case is to be committed to Court of Session and if so committed, it is for Sessions Judge to try it or make it over for trial to Additional/ Assistant Sessions Judge in accordance with law and the rota or arrangement prescribed. There is nothing in Section 306 which suggests that the Sessions Judge himself should try the case or and that he cannot make over a case for trial to Additional or Assistant Sessions case in appropriate cases.
18. We quash the committal order impugned in Crl R.P. 399 of 1987 and remit the case to Chief Judicial Magistrate, Trivandrum for disposal according to law. We set aside the order impugned in Cri. R.P. 182 of 1989 and direct the Magistrate to record evidence of the approver giving an opportunity of cross-examination to the accused and to deal with the matter in accordance with law. The Criminal Revision Petitions are allowed.