Full Judgment Text
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PETITIONER:
STATE OF HIMACHAL PRADESH
Vs.
RESPONDENT:
SURINDER MOHAN AND OTHERS
DATE OF JUDGMENT: 07/02/2000
BENCH:
M.B.Shah, K.T.Thomas
JUDGMENT:
Shah, J.
Leave granted.
The respondents were tried for offences punishable
under Sections 302, 380, 457,120-B read with Section 34 IPC
by the Additional Sessions Judge (I), Kangara at Dharamshala
in Sessions case No. 8 of 1988 and were acquitted for the
said offences by order dated 8th May, 1990. The State
preferred Criminal Appeal No.460 of 1990 before the High
Court of Himachal Pradesh. The appeal was dismissed by
judgment and order dated 2.1.1998 solely on the ground that
the Chief Judicial Magistrate had failed to comply with the
mandatory directions contained in clause (a) of sub-section
(4) of Section 306 Cr.P.C. as no statement of approver was
recorded by the Chief Judicial Magistrate during the
committal proceedings, which vitiates the committal of the
accused persons to Court of Session and consequently the
trial by the Sessions Judge.
Before dealing with the question of law arising in
this appeal, we would state in nutshell the prosecution
version. It is the say of the prosecution that Dr. Kewal
Krishan was a medical practitioner having roaring practice
in village Gummer. Accused Surinder Mohan was resident of
the same village and was posted as a compounder in civil
dispensary, Jawalamukhi. Besides his official duties he was
also engaged in private medical practice at his village and
was assisted by his wife. Because of the roaring practice
of Dr. Kewal Krishan, Surinder Mohan was having malice and
he wanted to do away with the life of Dr. Kewal Krishan.
It is also the case of the prosecution that Surinder Mohan
gave threats to Dr. Kewal Krishan to do away with his life
and for this letter was sent through his sisters son
Ravinder Kumar (PW14). It is further say of the prosecution
that on 24th March 1988 at 10 p.m. Sandeep Kumar (PW 29)
accused who later turned as an approver was going to attend
Jagrata at Biru Chaudharys residence at village Dehrian.
When he could reach near the government dispensary, Gummer,
he came across Surinder Mohan and Biru Ram and at that time
Surinder Mohan was having his scooter. Surinder Mohan asked
Sandeep Kumar as to where he was going; Sandeep Kumar
apprised him about his going to attend the Jagrata;
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Accused Surinder Mohan told him that he had gone to attend
one Nirmala Devi who was seriously ill and unfortunately the
medicines which were required for her treatment were not
with him. He therefore requested Sandeep Kumar that he
should call Dr. Kewal Krishan as the required medicines
were available with him. For this purpose accused Surinder
Mohan repeatedly requested and stated that life of Nirmala
Devi was at peril and therefore he should help. As Sandeep
Kumar agreed, Surinder Mohan took him on his scooter and
alighted him near shop of Kedar Nath (PW16). Sandeep Kumar
thereafter called upon Dr. Kewal Krishan and requested him
to accompany for giving treatment to Nirmala Devi. Hardly,
Sandeep Kumar and Dr. Kewal Krishan could cover the
distance of 300 yards, Surinder Mohan met them along with
the accused Biru Ram. It is further alleged that when they
could cover distance of 100 yards further, other accused
Shashi Paul and Amar Singh also met them. Thereafter when
they reached near the government dispensary, Ghummer,
accused Surinder Mohan and Biru Ram pounced upon Dr. Kewal
Krishan. Surinder Mohan gagged the mouth of Dr. Kewal
Krishan with a piece of cloth and tried to push him towards
the nearby Nallah. Accused Amar Singh and Shashi Pal came
from behind and thereafter Dr. Kewal Krishan was dragged
about 10 steps downwards. At that stage, Biru Ram attacked
with knife (chhura) and on receiving the stab injury, Dr.
fell on the ground. Subsequently, accused Surinder Mohan
asked Sandeep Kumar as to who other person was in the room
of doctor. After stating that Vijay Kumar was in the room
and he was knowing everything, Sandeep Kumar cursed Surinder
Kumar as to why he was cheating and stated that he would
reveal the entire episode to his father. Surinder Mohan
assured him to pay Rs.5000/-, but he did not submit to his
wishes and went on shouting. Then Surinder Mohan attacked
Sandeep Kumar with a knife, but with great difficulty he ran
away from the spot. At that stage also, accused persons and
Biru Ram attacked upon him with knife which hit him on his
back. With great difficulty he reached his house and after
cleaning the blood from his person he silently went to his
room and did not disclose anything regarding the incident to
anybody. It is his further say that on the next morning
when he went to answer the call of nature near the Nallah,
he noticed the red colour of water and also the dead body of
Dr. Kewal Krishan in the bushes.
It is also the prosecution version that on the next
morning PW 11 Vipin Kumar made a report to the police that
the shop of Piare Chand and the residence of Dr. Kewal
Krishan where doctor and his room mate Vijay Kumar used to
sleep were lying open and no one was seen at their
respective cots and that the dead body of Vijay Kumar was
lying in the nearby pasture land. On receiving this
information FIR for offence punishable under Section 302 was
registered. On the same day, dead body of Dr. Kewal
Krishan was found. After investigation, Sandeep Kumar was
arrested on 26th March 1988, accused Biru Ram, Amar Singh,
Shashi Paul were arrested on 27th March 1988 while accused
Surinder Mohan was arrested on 28th March 1988. On 8th June
1988 Sandeep Kumar moved an application from the jail
expressing his intention to make a true disclosure of the
facts in relation to the murder of Dr. Kewal Krishan and
Vijay Kumar as he was burdened with guilt. After completing
the formalities and recording the statement, the Chief
Judicial Magistrate granted pardon to Sandeep Kumar. The
case was committed to the Court of Session on 4th August,
1988.
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P.W.33, Sh. J.M. Barowalia, Chief Judicial
Magistrate has deposed before the Court that on 9.6.1988 he
received application from Sandeep Kumar undertrial through
Superintendent Jail. On that application, notice was issued
to PP as well as SHO, Jawalamukhi and the date was fixed on
13.6.1988. Sandeep Kumar was produced before him and he was
explained by him that he was under no obligation to make any
statement and if he makes the statement, it can be used
against him. The matter was adjourned to 15.6.1988 and
thereafter on 15.6.88 in presence of APP, RS Sharma, his
statement was recorded after giving him further half-an-hour
to think what statement he wanted to make. Sandeep Kumar
was further given time of one hour and thereafter at 3.30
p.m. after recording his statement, he tendered pardon on
the condition of his making full and true disclosure of the
circumstances within his knowledge relating to the offence.
The statement of Sandeep Kumar is also produced on record at
Ext.PW/2.
It was the contention of the learned counsel for the
accused before the High Court that the statement of approver
Sandeep Kumar was recorded by the Chief Judicial Magistrate
on 15.6.1988 after granting him pardon on the condition that
he would make true disclosure of the incident. But, on that
date, challan was not filed before the CJM and other accused
were also not summoned to enable them to cross examine
Sandeep Kumar, and therefore, statement of the approver
cannot be treated as statement recorded by the committal
court under Section 306 (4) Cr.P.C. The High Court held
that the prosecution has to examine the approver before the
committal court as provided under sub-Section (4) of Section
306 Cr.P.C. which will be his examination-in-chief and the
accused person would have a right to cross- examine him.
Therefore, statement recorded by the Chief Judicial
Magistrate before filing of the challan in his court without
summoning the accused person was not statement recorded
under Section 306 (4) Cr.P.C. As the statement of approver
was not recorded accordingly by the Chief Judicial
Magistrate during the committal proceedings, it vitiates the
committal of the accused persons to the Court of Session and
consequently their trial by the Sessions Judge. The High
Court further observed that had the said defect been pointed
out during the course of trial, the Court would have
remanded the matter to the Chief Judicial Magistrate for
holding committal proceedings afresh by recording statement
of Sandeep Kumar as provided under section 306(4). This
course cannot be adopted since the offence was committed on
24th March, 1988 and the respondents were acquitted on 8th
May, 1990 and therefore retrial afresh will not be in the
interest of justice and fair play. In view the aforesaid
findings, the Court has not considered the other evidence
led by the prosecution. In this appeal, learned counsel for
the State submitted that:
(1) Section 306 (4) Cr.P.C. nowhere provides that (a)
approvers evidence cannot be recorded on the date or prior
to submission of the charge sheet;
(b) the accused is required to be summoned before
recording the statement of the approver; and
(c) that accused should be permitted to cross-examine
the approver.
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(2) In any case under Section 465 Cr.P.C., after trial
accused ought not to have been permitted to raise the
contention that there was such an omission in recording the
statement of approver.
The learned counsel next contended that the decision
in A.Devendran v.State of Tamil Nadu [(1997) 11 SCC 720]
nowhere lays down that while recording the evidence of the
approver, if some irregularity is committed it would vitiate
the trial. For the decision in Suresh Chandra Bahri v.
State of Bihar [(1995) Suppl 1 SCC 80] it is pointed out
that error of not recording the evidence of the approver was
rectified by the Sessions Court by remitting it before trial
to the Magistrate for recording the evidence of the approver
and hence, the Court has held that trial was not vitiated.
It is, therefore, submitted that some of the observations
made therein are obiter. As against this, learned counsel
for the respondents submitted that this Court has repeatedly
interpreted section 306(4) Cr.P.C. and held it to be
mandatory and therefore its non-compliance vitiates the
committal order as well as the trial. For this purpose, he
placed reliance on the decision of this Court in A.
Devendran vs. State of Tamil Nadu [(1997) 11 SCC 720].
For considering the rival contentions raised by
learned counsel for the parties, we would first refer to the
relevant part of Sections 306 and 307 which is as under: -
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 relating to the offence
and to every other person concerned, whether as principal or
abettor, in the commission thereof.
(2)
(3)
(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)
307. Power to direct tender of pardon.At any time
after commitment of a case but before judgment is passed,
the Court to which the commitment is made may, with a view
to obtaining at the trial the evidence of any person
supposed to have been directly or indirectly concerned in,
or privy to, any such offence, tender a pardon on the same
condition to such person.
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From the aforesaid Section 306 it can be stated that-
(1) the purpose of the Section is to obtain the
evidence of any person supposed to have been directly or
indirectly concerned in or privy to an offence during
investigation, inquiry or trial; (2) the Chief Judicial
Magistrate or Metropolitan Magistrate is empowered to tender
a pardon to such person at any stage of investigation or
inquiry into or the trial of the offence; (3) the
condition for tender of such pardon is that the person is to
make a full and true disclosure of the whole circumstances
within his knowledge relating to the offence; (4) a person
accepting pardon under sub-section (1) is to be examined
as a witness in the court of Magistrate taking cognizance of
the offence and in subsequent trial, if any. (5) Further,
if the case is committed for trial to the Court of Sessions,
Section 307 empowers the Sessions Court trying the case to
tender a pardon on the same conditions to such person before
the judgment is passed.
From the aforesaid ingredients, it is abundantly 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, question of cross-examination
by the accused does not arise. Similarly, under Section 200
Cr.P.C. when the Magistrate before taking cognizance of the
offence, that is, before issuing process holds the inquiry,
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 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
On the question of examination different views are
expressed by the High Courts. The High Court of Andhra
Pradesh in Uravakonda Vijayaraj Paul v. The State and
others {1986 Crl. L. J. 2104} had held that mere
recording of the statement of an approver does not amount to
examination as a witness unless the accused are given an
opportunity to cross-examine the approver and that the
provision of Section 306(4) of the Cr.P.C. is mandatory.
The Court relied upon the decision of Gujarat High Court in
Kalu Khoda v. State {AIR 1962 Guj. 283}, wherein the Court
interpreted Section 337 of the (Old) Cr.P.C. which is
analogous to Section 306(4) of Cr.P.C. As against this,
Kerala High Court in Chief Judicial Magistrate, Trivandrum
{1988 Crl.L.J. 812} has observed that examination under
Section 306(4) would be even before issuing process and at
that stage no inquiry is involved and accused will be no
where in picture, therefore, there is no question of accused
being permitted to cross-examine the approver at that stage
and he has no right to participate in that examination.
In the present case, the High Court has relied upon
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the decision in Sanjay Gandhi v. Union of India {AIR 1978
SC 514}. In the said case a contention was raised that
accused wishes to cross-examine the witnesses for the
prosecution and to argue that no prima facie case has been
admittedly made out for commitment. It was submitted that
to cross-examine the approver, the accused was required to
pursue, scan and scrutinise the papers produced by the
police and, therefore, committal proceedings be stayed. In
that context the Court in the opening part of the judgment
observed: -
No party to a criminal trial has a vested right in
slow motion justice since the soul of social justice in this
area of law is prompt trial followed by verdict of innocence
or sentence. Since a fair trial is not a limping hearing,
we view with grave concern any judicial insoucience which
lengthens litigation to limits of exasperation
The Court further held that the scope of committal
proceedings is limited to merely ascertaining whether the
case, as disclosed in the police report involves an offence
triable exclusively by the Court of Session. The Court
thereafter observed: -
We have heard counsel on both sides and 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. In A. Devendrans case (Supra) this
Court considered the question as to whether non-compliance
of Sec. 306(4)(a) of the Code on account of non-
examination of an approver as a witness after granting him
pardon would vitiate the entire proceeding. In that case,
it was contended that the object and purpose engrafted in
clause (a) of Sub-section (4) of Section 306 is to provide a
safeguard to the accused who can cross-examine even at the
preliminary stage on knowing the evidence of the approver
against him and can impeach the said testimony when the
approver is examined in court during trial. This Court,
dealing with the said contention, held that a combined
reading of sub-section (4) of Section 306 and Section 307
would make it clear that in a case exclusively triable by
the Sessions Court if pardon is tendered to an accused and
he is taken as an approver before commitment then compliance
of sub-section (4) of Section 306 is mandatory. The
corollary is that non-compliance of such mandatory
requirements would vitiate the proceedings. But the
provisions of sub- section (4) of Section 306 are not
attracted to a case falling under the purview of Section 307
of the Code. The Court thereafter considered the provision
of Section 465 Cr.P.C. and observed that the said provision
cannot be attracted in a situation where a court having no
jurisdiction under the Code does something or passes an
order in contravention of the mandatory provisions of the
Code. The said provision cannot be applied to a patent
defect of jurisdiction. In that case, Chief Judicial
Magistrate had tendered pardon to the accused after the case
was committed to the Sessions Court and, therefore, the
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Court held that it was a case of total lack of jurisdiction.
But, after excluding the evidence of approver the court
appreciated the other evidence which was produced on record
for finding out whether the accused was guilty of the
offence charged. Further, the court did not hold that the
trial of the accused was illegal. In the said case, the
Court did not consider the effect of irregularities
committed by the Magistrate taking cognizance of the offence
in not asking the accused to cross-examine the approver.
That was a case where after the case was committed to the
Sessions court, the Chief Judicial Magistrate granted pardon
to one of the accused. In that set of circumstances, the
Court held that there was total lack of jurisdiction with
the Chief Judicial Magistrate which is not curable. The
court excluded the evidence of the approver on the ground
that pardon could not have been tendered by the Chief
Judicial Magistrate after committal of the proceedings to
the Court of Sessions. It is apparent that as per Section
307 Cr.P.C. the Court of Session before whom the trial is
pending alone would have jurisdiction to grant pardon to the
accused of that case and hence if the Chief Judicial
Magistrate tenders pardon his action is not curable within
the ambit of clause (g) of Section 460 of the Cr.P.C.
In Suresh Chandra Bahris case (supra) this Court
considered the provisions of sub-section (4) of Section 306
and observed that the object and purpose of enacting the
provision is obviously intended to provide a safeguard to
the accused inasmuch 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 evidence of the approver
before the committing court itself at the very threshold so
that he may take steps to show that the approvers evidence
at the trial was untrustworthy, in case there are any
contradictions or improvements made by him during his
evidence at the trial. Learned Judges pointed out the
utility of examination of the approver at two stages. While
holding that the provision is mandatory, the Court said that
since the defect was rectified in that case the
non-compliance of it cannot be held to have vitiated the
proceedings. Their Lordships did not consider the situation
as in the case where the approver was examined and the case
went to the trial court where the approver was
cross-examined without raising any demur regarding the
omission to cross-examine him at the pre-committal stage.
After considering the provisions of Section 306, the Court
held that
if the defect of not examining the approver at the
committal stage by the committing Magistrate is rectified
later, no prejudice can be said to be caused to an accused
person and, therefore, the trial cannot be said to be
vitiated on that account.
The Court held that when the case was committed to the
Sessions Court, the defect that approver was not examined as
witness in the Court of Magistrate taking cognizance of an
offence was noticed by the Sessions Court, therefore, matter
was remanded to the court of Chief Judicial Magistrate with
a direction to record the statement of the approver. After
recording the statement, the case was committed for trial to
the Sessions Court. Hence, it was held that as the defect
was rectified, the argument that the trial was vitiated
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could not be accepted.
In the present appeal, there is no question of total
lack of jurisdiction with the Magistrate and it is not the
case that approver is not examined by the trial court before
granting pardon. Approver Sandeep Kumar was arrested on
26.3.1988. While in custody, he submitted an application
through Superintendent of Jail to CJM, Dharamshala on
8.6.1988 expressing his intention to make a true disclosure
of the facts regarding the incident. The application was
taken up by CJM on 9.6.1988 and noticed was issued to
prosecution for 13.6.1988. On that day, accused was
produced before the CJM. It was explained to the approver
that his statement could be used against him also and with a
view to give time to accused before becoming approver, the
case was adjourned to 15.6.1988 and on that day he was
examined and pardon was granted to him. But at that stage
the remaining accused were not asked to cross-examine him.
Formal challan was submitted before the Magistrate by the
Investigating Officer on 22.6.1988. After complying with
the objections, the case was committed to the Court of
Session on 4.8.1988. During the trial, the approver was
examined as PW29 on 5.4.1989 and on the same day he was
cross-examined by the counsel for the accused. Witnesses
for the defence were examined and completed on 15.11.1989.
Between 15.11.1989 and 8.5.1990, learned Sessions Judge,
Dharamshala heard arguments, visited the spot with a view to
appreciate the evidence on record and thereafter the learned
Sessions Judge passed his judgment and order. It was during
the arguments in the Sessions Court that the contention was
raised for the first time that procedure prescribed under
Section 306(4)(a) Cr.P.C. was not complied with and,
therefore, trial was vitiated. Till then none of the
accused raised such an objection and they never felt the
need to raise it. Acceptance of this objection would only
promote technical plea which would adversely affect
dispensation of justice. In such circumstances, we are of
the view that provisions of Section 465 Cr.P.C. would come
into operation. The said provision inter alia provides that
no order passed by a Court of competent jurisdiction shall
be reversed on account of any error, omission or
irregularity in order, judgment or other proceedings before
or during trial or in any inquiry or other proceedings under
the Code, unless in the opinion of the Court, a failure of
justice has in fact been occasioned thereby. Section 465(2)
Cr.P.C. further provides that in determining whether any
error, omission or irregularity in any proceeding under the
Code has occasioned a failure of justice, the Court shall
have regard to the fact whether the objection could and
should have been raised at an earlier stage in the
proceedings. We again point out that before or after the
case was committed to the Sessions Court, accused have not
raised any objection that they were not permitted to
cross-examine the approver, nor did they contend so when the
approver was examined and cross-examined during the trial.
Therefore, at the stage of final arguments, accused cannot
raise the said contention. Further after cross-examining
the approver in detail, there is no question of failure of
justice nor any prejudice being caused to the accused on
account of that omission.
The learned counsel for the accused submitted that
Section 306(4)(a) is couched in mandatory term by using the
word shall which indicates that if there is breach of the
said mandatory provision further trial would be vitiated.
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In our view, this submission is without any substance. We
have pointed out earlier that by not examining the approver,
the trial would not get vitiated. Such evidence may have to
be scrutinised with greater circumspection. If in such
scrutiny the evidence is found reliable the Court cannot be
inhibited from using the evidence.
In the result, the appeal is allowed and the impugned
judgment of the High Court is set aside. The appeal filed
in the High Court is remitted to the High Court for disposal
afresh in accordance with law.