In Re : Pushpa and another

P.K. Sethuraman, J.—This is a reference by the learned Principal Sessions Judge, South Arcot at Cuddalore with record to the committal of

the case by the learned Judicial Second Class Magistrate, Tindivanam in C.R.C. 7 of 1984 on his file (Crime No. 41 of 1984 of Valliamedupatti

Police station), committing the accused, Pushpa and Kannapiran, to take the trial before the learned Sessions Judge, South Arcot at Cuddalore,

for offences under Ss.302 and 201, I.P.C. without examining the approver concerned in the case.

According to the reference by the learned Sessions Judge, accused 1, Pushpa, is the wife of deceased Manickam Chettiar, accused 2,

Karmapiran is die paramour of accused 1, and approver Krishnan is their henchman. As the deceased, Manickam Chettiar, used to deprecate the

conduct of his wife, Pushpa, the first accused and Kannapiran, the second accused, about 45 days earlier, to 6th April, 1984, and the approver

joined together with the common intention of committing the murder of Manickam Chettiar and in furtherance of such common intention they, hit

the said Manickam Chettiar with a big stone on his head while he was sleeping at Elamangalam village during night and throttled his neck as a result

of which Manickam Chettiar died instantaneously on the spot. Further, in order to cause disappearance of the evidence of such murder, accused 1

and 2, and the approver, removed the body of the deceased from the place of occurrence buried the same in the lake at Vizhukkam with the

intention io screen themselves from legal punishment and thereby they committed the offences under S.302 read with S.34 and under S.201, I.P.C.

The case was charge-sheeted before the Judicial Second Class Magistrate, Tindivanam and it was taken on file as P.R.C. 7 of 1984. The

learned Magistrate has furnished documents to the accused and on 27th November, 1984, the accused were committed to take their trial. The

approver Krishnan had been cited as a prosecution witness, but he was not examined by the learned Judicial Second Class Magistrate, as required

under S.306(4)(a), Crl. P.C. Under such circumstances, the learned Sessions Judge has made this reference to this Court to quash the committal

and to direct the committing Magistrate to take back the case on file to examine the approver and to commit the case to the Court of Session.

Accordingly, this revision has been taken on file.

Having regard to the facts and circumstances of the case, there could be no doubt that the committal of the accused concerned to take the trial

without examining the approver by the learned Magistrate is not proper and the committal is liable to be quashed. In this connection, it is to be

pointed out that in the decision reported in In re, Ramasamy1, rendered by Ratnavel Pandian, J. it has been pointed out that whether the case is to

be committed or made over, it is mandatory that the Magistrate taking cognizance of the offence shall examine the person accepting a tender of

pardon made under S.306, sub-S.(1), namely, the approver, as a witness, and the examination of the approver is a condition precedent for the

committal and S.306, should be read in conjunction with S.209, and any violation of the mandatory provision of S.306, sub-Ss.(4) and (5) by the

Magistrate taking cognizance of the offence clearly amounts to an illegality which would vitiate the entire committal proceeding.

In the circumstances, the committal of the accused concerned to take the trial without examining the approver by the learned Magistrate is

quashed and the case is remitted back to the Judicial Second Class Magistrate, Tindivanam with a direction to examine the concerned approver

and to commit the accused to take the trial before the Sessions Court.

Before concluding, it is to be pointed out that under S.397, Crl. P.C., the powers of revision to be exercised by the High Court or Sessions

Judge with regard to the calling for and examining the records of any proceeding before any inferior criminal court for the purpose of satisfying itself

or himself as to the correctness legality in propriety of any finding, sentence, or order and as to the regularity of any proceeding, are the same.

Under such circumstances, I feel that reference of this nature by the Sessions Judges exercising powers vested in them under S.397, Crl. P.C., are

unnecessary. The sessions Judges would as well exercise such power in similar situations so as to avoid delay in the disposal of cases which are

being committed without examination of the approvers.