Patna High Court
Suresh Chandra Bahari vs State Of Bihar on 19 August, 1985
Equivalent citations: 1986CRILJ1394
ORDER Abhiram Singh, J.
1. In this application under Section 482 of the Cr. P.C. hereinafter to be referred to as the Code), a prayer has been made for quashing that part of the order dt. 10th June, 1985, passed by 2nd Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 77 of 1985 by which the prayer of the opposite party for remitting the case record to the court of the Chief Judicial Magistrate for recording the evidence of the approver, Ramsagar Vishwakarma, has been allowed.
2. The petitioner is an accused along with others in a case for the alleged murder of his wife and two children. The C.B.I. was investigating the case and on conclusion of the investigation a chargesheet was submitted against the petitioner and others. The learned Chief Judicial Magistrate, Ranchi, tendered pardon to one accused named Ramsagar Vishwakarma under Section 306 of the Code on 9-1-1985. But, inadvertently the Chief Judicial Magistrate did not record the evidence of the aforesaid accomplice as required under Section 306(4)(a) of the Code. The case in question was also committed to the court of session for trial by the learned Chief Judicial Magistrate and the Sessions Trial is pending before the 2nd Additional Judicial Commissioner, Ranchi. On 21-5-1985, a petition was filed on behalf of the C.B.I. before the aforesaid 2nd Additional Judicial Commissioner, Ranchi, with a prayer therein for remitting the case record to the court of Chief Judicial Magistrate, for recording the evidence of the said approver. The petitioner filed a rejoinder before the learned court below and contested the application filed on behalf of the C.B.I. On hearing both the parties, learned court below allowed the prayer made on behalf of the C.B.I. for remitting the case record back to the court of Chief Judicial Magistrate for recording the evidence of the aforesaid approver. It is against this part of the impugned order that the petitioner has come up before this Court.
3. Mr. S. N. Tripathy, learned Counsel appearing on behalf of the petitioner, has submitted that according to the provisions laid down in Section 306 of the Code, the learned Chief Judicial Magistrate should have examined the approver before taking cognizance. If he failed to examine him before taking cognizance then he is not empowered to examine him subsequently. According to him, the provisions laid down in Sub-section (5) of Section 306 of the Code also support his contention. According to Sub-section (5) of Section 306 of the Code, the learned Chief Judicial Magistrate was to commit the case for trial before the court of session after the examination of the approver under Sub-section (4) of the Section 306 of the Code. The case has already been committed to trial and in this view of the matter also, the learned Chief Judicial Magistrate cannot be asked to examine the approver after the commitment of the case. He has further submitted that the view taken by the learned Additional Judicial Commissioner that the aforesaid irregularity committed on the part of the Chief Judicial Magistrate is curable under Section 460(g) of the Code is erroneous. It has been further submitted by him that the learned Additional Judicial Commissioner was not empowered in law to pass the impugned order which he has purported to exercise under Section 460(g) of the Code.
4. Mr. A. Sahay, learned Counsel for the State through C. B. I. has submitted that the order of the learned court below regarding remitting the record to the court of Chief Judicial Magistrate for taking the statement of the approver cannot be said to be without jurisdiction. He has further submitted that although it is true that the subordinate courts cannot exercise inherent power under Section 482 of the Code as has been provided in the Code for the High Court, it cannot be said that they cannot pass any order to undo any injustice he is not specifically prohibited to pass such order under the provisions of the Code. He has also submitted that the impugned order should not be set aside as the petitioner has not succeeded in showing that failure of justice has, in fact, been occasioned by passing of the said order. He very fairly conceded that the learned court below was not justified to say that he was empowered to pass the impugned order under the provisions laid down under Section 460(g) of the Code. In my opinion also, the impugned order passed by the learned Court below does not come under the purview of Section 460(g) of the Code. Section 460 of the Code refers to those cases in which any Magistrate is not empowered by law to do anything and the same has been done by him. In the instant case, the learned Chief Judicial Magistrate was quite empowered to take statement of the approver after tendering pardon but due to inadvertence he did not examine him. Mr. Sahay is quite justified in making his submission that the impugned order cannot be said to be illegal only on the ground that the learned court below has quoted wrong section.
5. The main grievance of the petitioner is that there is no provision in the Code to pass an order of the nature of the impugned order. To meet this point, learned Counsel for the State has placed reliance on a decision of this Court in case Bajrang Ram Bhadani v. Bharat Ram Razak 1973 B B C J 453. In the case referred to above, the learned Single Judge of this Court took the view that "it is true that there is no provision saving the inherent powers of a court subordinate to the High Court in the Cr. P.C. That, however, does not mean that a criminal court on account of its very constitution and on account of the purpose for which it is constituted has no inherent powers at all. It is well established that court shall not permit a wrong done by it. In suitable circumstances therefore, it is open to a subordinate criminal court to undo a wrong.". According to the learned Counsel for the State, the impugned order passed by the learned court below is not against any provision laid down in the Code. There is no doubt that the aforesaid principle of law laid down by a Bench of this Court has got some bearing in the instant case, but, in my opinion there are other grounds also which support the contention raised by the learned Counsel for the State that the impugned order is not illegal and is not fit to be quashed.
6. A careful reading of Section 306 of the Code makes it quite clear that the Magistrate taking cognizance is empowered to examine an accomplice after the pardon is tendered to him. It also lays down that subsequently the accomplice shall be also examined before the trial Court. Hence, according to the provisions laid down under Section 306 of the Code, an accomplice is to be examined twice; once before the Magistrate taking cognizance and second time in the trial court. Sub-section (4) of Section 306 does not say specifically as to at what stage the accomplice is to be examined by the Magistrate taking cognizance. It only specifically lays down that the accomplice must be examined. No doubt Sub-section (5) of Section 306 of the Code says that when an accomplice has accepted a tender of pardon and has been examined under Sub-section (4) of Section 306 of the Code, the Magistrate taking cognizance of the offence without making any further enquiry in the case will commit it for the trial. But this provision does not indicate that the provision regarding the examination of the accomplice by the Magistrate is mandatory before-commitment of the case. The above provision only indicates that once a pardon has been tendered to the accomplice and he has been examined by the Magistrate under Sub-section (4) of Section 306 of the Code, the order regarding committing the case to the court of session for trial should not be delayed.
7. From the above discussion it is manifest that the provisions laid down in Section 306 of the Code do not exactly limit the time when the accomplice is to be examined. The provisions laid down in the aforesaid section of course, clearly speak that the accomplice is at the first instance to be examined by the Magistrate taking cognizance and subsequently he is to be examined by the trial court. Had the intention of the Legislature been that the accomplice must be examined before taking cognizance or before commitment of the case, then there was no necessity of adding one more section in the Code, that is, Section 307. According to the provisions laid down in Section 307 of the Code, the trial court can even tender a pardon after commitment of a case at any time before judgment is passed on the same condition to the accomplice. On a plain reading of the provisions laid down in Sections 306 and 307 of the Code, the intention of the Legislature becomes quite clear that even at the trial stage, the sessions court can himself tender pardon to the accomplice or direct the Chief Judicial Magistrate to pardon him. It has been specifically mentioned in Section 306 of the Code that the Chief Judicial Magistrate can tender pardon at any stage of the investigation or enquiry or trial. Hence, the power of tendering pardon by the Chief Judicial Magistrate has not been taken away even after the case is committed to the court of session for trial. In such circumstances if the learned court below, who is in seisin of the sessions trial, has remitted the record to the learned Chief Judicial Magistrate for examining the aforesaid accomplice, how can he be said to have passed an illegal order? I have already discussed above that no limit has been fixed under the provisions of the Code specifically as to the stage at which the accomplice is bound to be examined by the Chief Judicial Magistrate, after tendering of the Pardon. From the perusal of the relevant record, it appears that the learned Chief Judicial Magistrate tendered pardon to the aforesaid approver by his order dt. 9th Jan. 1985 and on the same date he also passed an order that the evidence of the approver will be recorded as a witness at the time of taking cognizance of the offence. Hence it appears that it was only an accidental error that the learned Chief Judicial Magistrate did not examine the approver before he committed the case to the Court of Session for trial.
8. The matter under consideration can be examined from other angles of the vision also. The petitioner in the present application has invoked the inherent jurisdiction of this Court under Section 482 of the Code. The inherent power of this Court under the aforesaid section is generally exercised to prevent the abuse of the process of any court or otherwise to secure the ends of justice. The words "to secure the ends of justice" used in the section have got wide meaning. Ends of justice can be not only when no innocent man is punished and at the same time no criminal escapes punishment. There, is no doubt that proceedings in any court are conducted according to the legal procedure, but it will not be proper to become so much technical even on flimsy grounds, so that the order of any court mainly based on technical ground may itself amount to the abuse of the process of the court. For the prevention of which this Court has been invested with the inherent power under the aforesaid section. It will be for the ends of justice that no legal evidence which is likely to be adduced before any court should be shut down. Hence, in my opinion, the law laid down in Section 482 of the Code also supports the impugned order.
9. In view of my above discussion, I am of the opinion that there is no merit in this application and the impugned order does not need any interference by this Court. In the result, this application is dismissed.