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)) .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 ?"
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.
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.
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)