In Re : Pichai and 2 others

Ratnavel Pandian, J.—This revision is on a reference made by the learned Additional District and Sessions Judge, Tiruchirapalli, for passing

suitable orders, since the Judicial II Class Magistrate, Lalgudi, has committed the accused to take the trial without examining the approver. The

facts of the case are briefly as follows:

In the case under reference there were originally three accused of whom one accused was tendered pardon by the Chief Judicial Magistrate,

Tiruchi and taken as an approver. The committing Magistrate has committed the case to the Court of Sessions without examining the approver and

this mistake was found out only at the conclusion of the trial and during the course of the argument. Hence, the reference is made by the learned

Judge for proper action.

I am terribly shocked to note a portion of the statement made in the letter of reference with regard to the stand taken by the learned Public

Prosecutor, who appeared in that case. That portion of the statement reads thus:

The Public Prosecutor in this case had argued that the defence counsel had not raised this objection in the course of his cross-examination of the

judicial Second Class Magistrate, Perambalur, who recorded the statement of the approver--Thiru Pichai under S. 164 of the Code of Criminal

Procedure. He had further argued that the non-examination of the approver by the committing Magistrate before committing the case has not

caused any prejudice.

Evidently the learned Public Prosecutor has made this above submission to proceed with the trial of the case even without the examination of the

approver which course would be violative of the provisions S. 306(4) Crl. P.C. There are plethora of decisions on this aspect that the committal of

a case without the examination of the approver is a clear violation of the mandatory provision of S. 306, Crl. P.C.

This Court in Ramaswamy, In re 1976 L.W. (Crl.) 36: 1976 M.L.J. Crl. 111, has pointed out as follows:

The action of the Sub Magistrate in committing the case to the Court of Session without examining the approver is a clear violation of the

mandatory provisions of S. 306 sub-S. (4) of the new Code and as such he has committed an illegality. Therefore, I quash the committal order and

direct the Magistrate to comply with the provisions of S. 306 by examining the approver and then pass an order of committal if called for.

(See also the decisions in State Vs. Bauri Bissoi and Others, and Inder Mohan and Others Vs. The State, .

Thus, it is clear from the above rulings that the omission of examining the approver in the committal proceedings by the committing Magistrate

vitiates the committal proceedings and there is no valid committal of the accused to take the trial in the Court of Sessions. Hence, the entire

proceedings before the trial Court has become ab initio void consequent upon the illegal committal. Hence, I quash the committal order and the

subsequent entire proceedings before the court and direct the Magistrate to comply with the provisions of S. 306, Crl. P.C, by examining the

approver and then pass order of committal if called for.

The revision is disposed of with the above directions.