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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.