Kerala High Court
L.S.Asokan vs State on 3 August, 2005
Author: V. Ramkumar
Bench: K.Padmanabhan Nair, V.Ramkumar, M.N.Krishnan
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
.PL 56 .TM 2 .SP 2 .BM 2 K.PADMANABHAN NAIR , V.RAMKUMAR,@@ j & M.N.KRISHNAN, JJ.@@ j
----------------------@@ j Crl.Appeal Nos. 534/92, 537/92, @@ j 597/92, 686/92, 697/92, 9/1993, 22/93, 100/93@@ j 114/93, 118/93, 119/93, 125/1993, 126/93 & 136/1993@@ j
----------------------@@ j Dated, this the 3rd day of August 2005@@ j ORDER@@ jEEEEE Ramkumar, J.@@ EEEEEEEEEEEE ((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 -@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Case No.60 and State of Kerala v. Monu Surendran - 1990@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA (1) KLT 53, regarding the right to cross-examine an@@ AAAAAAAAAAAAA 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@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 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@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Bihar - 1995 SCC (Crl) 60, Ranadhir Basu v. State of@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA West Bengal (2000) 3 SCC 161 and State of Himachal@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Pradesh v. Surinder Mohan and Others - (2000) 2 SCC 396)@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 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@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA T.N. 2002 (3) SCC 533 and Haryana Financial Corporation@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA v. Jagdamba Oil Mills 2002 (3) SCC 496. Hence those@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 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@@ AAAAAAAAAAAAAAAAAA v. State of U.P. - AIR 1951 SC 207, Gopal Das Sindhi v.@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA State of Assam and Anr. - AIR 1961 SC 986, Jamuna Singh@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA v. Bhadai Shah AIR 1964 SC 1541 and D.Laxminarayana v.@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA V.Narayana - AIR 1976 SC 1672. Thus, if a Magistrate,@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 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@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Chandra Bose @ Chabi Bose - AIR 1963 SC 1430). The scope@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 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 -@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA AIR 2004 SC 1492).@@ AAAAAAAAAAAAAAAAAA
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@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 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@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAA of T.N. 1997 (11) SCC 720). The above provision will@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 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 -@@ CCCCCC
a) his reason for so doing@@ i i
b) whether the tender was or was not@@ i i 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@@ AAAAAAA re. Chief Judicial Magistrate, Trviandrum - 1988@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Crl.L.J. 812 and Narayan Chethanram Chaudhary v. State@@ AAAAAAAAAAAAA AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA of Maharashtra - 2000 (8) SCC 457). Once pardon is@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA granted to an accused he ceases to be an accused person and becomes a witness for the prosecution (See State@@ AAAAAAAAAAA (Delhi Administration) v. Jagjit Singh - AIR 1989 SC@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
598. When the approver resiles from the agreement and@@ AAAA 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@@ AAAAAAAAAAAAAAAAAAA (Supra)). It is to ensure that the approver who has@@ AAAAAAAA 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.@@ AAAAAAAAAAAAAAAAAAAAAAAAAA The said decision was relied on and followed by a Division Bench of this Court in Kurian v. State - 1989@@ AAAAAAAAAAAAAAAAAAAAAAAAA (1) KLT S.N. Case No.60. However, in a subsequent@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Division Bench in State of Kerala v. Monu Surendran 1990@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA (1) KLT 53, the very same learned Judge (U.L.Bhat, J.)@@ AAAAAAAAAAA who rendered the decision for the Bench in Kurian v.@@ AAAAAAAAA State, speaking for the Bench in Monu Surendran's case@@ AAAAA AAAAAAAAAAAAAAAAA observed that in the light of the decisions in Sanjay@@ AAAAAA Gandhi v. Union of India - AIR 1978 SC 514 and State@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA (Delhi Administration) v. Jaggit Singh - AIR 1989 SC@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 598, the accused have a right to cross-examine the@@ AAAA 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@@ AAAAAAAAAAAAAAAAAA later Division Bench also held that the decisions of the Single Judge in In re. Chief Judl.Magistrate, Trivandrum@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA and that of the Division Bench in Kurian V. State were@@ AAAAAAAAAAAAAAAAA per incuriam and directed the Chief Judl.Magistrate ,@@ AAAAAAAAAAAAAAAAAAAAAAA Trivandrum (who had committed some of the cases to the@@ AAAAAAAAAA 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@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA two Judges Bench of the Supreme Court observed as follows:
" We have heard counsel on both sides and@@ i 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@@ AAA AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA (11) SCC 720, the Chief Judicial Magistrate granted@@ AAAAAAAAAAAAAA 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.@@ AAA AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Jaggit Singh - AIR 1989 SC 598 = 1989 Suppl. (2) SCC 770@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 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@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Bihar (1995 Suppl. (1) SCC 80) a reading of paragraph 31@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 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@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA v. State of Maharashtra - 2000 (8) SCC 457 the@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 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@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA (2000) 3 SCC 161 the question pointedly arose as to@@ AAAAAAAAAAAAAAAAAAA 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@@ i 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.@@ AAAAAAAAAAAAAAAAAAAAAAA State of Bihar. In that case this Court after@@ AAAAAAAAAAAAAAAA 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@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC evidence of an approver before the@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC committing court itself at the very@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC threshold...."@@ CCCCCCCCCCCCCC (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"@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC does not necessarily mean examination and@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC cross-examination of that witness. What type of@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC examination of a witness is contemplated would@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC depend upon the object and purpose of that@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC provision. Section 202 Cr.P.C. also@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC contemplates examination of witness yet it has@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC been held, considering the object and purpose of@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC that provision, that the accused has no locus@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC standi at that stage".@@ CCCCCCCCCCCCCCCCCCCCCC (Emphasis supplied)
18. In State of Himachal Pradesh v. Surinder@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Mohan and others ((2000) 2 SCC 396) the approver was@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 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.@@ AAA re: Chief Judicial Magistrate, Trivandrum - 1988@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Crl.L.J. 812 and what is important to observe is that@@ AAAAAAAAAAAAA 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.@@ AAAAAAAAAAAAAAA
19. Going by the observations in Ranadhir@@ AAAAAAAA Basu and Surindra Mohan particularly Ranadhir Basu, the@@ AAAAAAAAAAAAAAAAAAAAAAA AAAAAAAAAAAAAAA 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@@ AAAAAAAAAAAAAAA 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@@ AAAAAAAAAAAAAAA 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@@ AAAAAAAAAAA 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