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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 Section 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 Section 306(4)(a) Cr.P.C. should not have been relied on by the Trial Court since the same was inadmissible under Section 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 Section 33 of the Evidence Act. There is no dispute that some of the appellants had cross-examined the approver during his examination under Section 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 Section 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.

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 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 Section 244 Cr.P.C., the said provision is not similarly worded as Sections 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 Section 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 Section 200 and 202 Cr.P.C. the accused has no right to cross-examine them. What is to be seer now is as to whether the examination of the approver as a witness under Section 306(4)(a) Cr.P.C. is anyway different from the examination of a witness under Section 202, Cr.P.C.

11. What now falls to be considered is as to whether there is any difference in the nature of enquiry under Section 202 Cr.P.C. and Section 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 Section 306(4)(a) Cr.P.C. If the said examination of the approver is akin to the examination of witnesses under Sections 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 1990 (1) KLT 762 : 1988 Crl.L.J. 812 (Supra) referred to above. The said decision was relied on and followed by a Division Bench of this Court in Kurian v. State, 1989 (1). KLT SN 37 Case No. 60. However, in a subsequent Division Bench in State of Kerala v. Monu Surendran, 1990 (1) KLT 53, the very same learned Judge (U.L. Bhat, J.) who rendered the decision for the Bench in Kurian v. State, speaking for the Bench in Monu Surendran's case observed that in the light of the decisions in Sanjay Gandhi v. Union of India, and State (Delhi Administration) v. Jaggit Singh, , the accused have a right to cross-examine the approver examined under Section 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 later Division Bench also held that the decisions of the Single Judge in In Re Chief Judicial Magistrate, Trivandrum and that of the Division Bench in Kurian v. State were per incuriam and directed the Chief Judicial Magistrate, Trivandrum (who had committed some of the cases to the 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 Judicial Magistrate and some of the appellants had cross-examined the approver also.

Director of re-examination. The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter".

An accused in a criminal case can be said to have a statutory right or cross-examination of a witness examined by the prosecutor only if the same is conferred on him under the provisions of the Code of Criminal Procedure.

There is no provision in Section 306 of the Code of Criminal Procedure which confers an absolute right of cross examination on the accused in a proceedings under Section 306(4) of the Code of Criminal procedure before the committal Magistrate. So, when a person whose tender of pardon is to be accepted is examined under Section 306(4) Cr.P.C., he is not examined as a witness examined during trial of that case. The accused have no statutory right to cross-examine the approver at that stage as held in Ranadhir Basu's case (supra). So, the statement made by an approver at the time of enquiry under Section 306(4) is not admissible under Section 33 of the Indian Evidence Act.