State of Orissa vs Kartika Naik and Others <BR> Bijaya Malik Vs State of Orissa

P.K. Mohanti, J.—Six accused persons were committed to the Court of. Sessions to stand their trial u/s 395, Indian Penal Code. After trial, the learned Additional Sessions Judge convicted the accused Bigyan Malik u/s 395, Indian Penal Code and sentenced him to R. I. for seven years and acquitted the other accused persons. The Criminal Appeal has been preferred by the convict Bigyan Malik against his conviction and sentence and the Government Appeal has been preferred by the State against the order of acquittal.

The prosecution case was that on the night of 22-1-1974 the accused persons committed dacoity in the house of one Ananta Baisakh of village Badakorakora under Govindpur Police Station and removed cash and jewellery worth Rs. 5000/-.

One of the culprits named Harihar Dash was tendered a pardon under the provisions of Section 337. Code of Criminal Procedure (old) and he accepted such pardon on 16-2-1974. The learned S.D.J.M. took cognizance of the offence on 10-2-1975 and committed the accused persons to the Court of Session on 25-2-1975. The approver was not examined as a witness by the committing Magistrate but he was examined at the trial as p. w. 4.

The question raised is whether the commitment and the trial are vitiated due to non-examination of the approver at the committal stage. The learned Addl. Standing Counsel appearing for the State of Orissa and Mr. S.C. Sahu appearing for the convict Bigyan Malik conceded that the commitment and the trial were vitiated due to non-examination of the approver and that the entire case may be remitted to the committing Magistrate for proceeding with the committal proceeding. In my opinion, the concessions is well founded.

Sub-section (4) and (5) of Section 306 of the new Code of Criminal Procedure provides as follows:

(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) Where a person has accepted a tender of pardon made under Sub-section (1) and has been examined under Sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,

(a) commit it for trial-

(i) to the Court of Session if the offence is triable exclusively by the Court or it the Magistrate taking cognizance is the Chief Judicial Magistrate;

(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952. (46 of 1952), if the offence is triable exclusively by that Court;

(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case him-self.

On a plain reading of the aforesaid provisions it is obvious that the Magistrate cannot pass a committal order unless the person who has accepted a tender or pardon has been examined as a witness under Sub-section (4), These provisions have been enacted in the interests of justice. The purpose behind the enactment is to ensure that all the evidence obtained from the approver is placed before the Court so that justice may be done as between the State and the persons placed on trial. It is not an ordeal through which an approver has to pass. An approver is given a pradon on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. If he wilfully conceals anything essential or gives false evidence, he incurs forfeiture of the pardon tendered to him. The obligation to make a full and true disclosure rests on the approver at every stage at which he can be lawfully required to give evidence. If at any stage he wilfully conceals a material particulars or gives false evidence he incurs forfeiture of the pardon. The provisions of Sub-section (4) of Section 306 are mandatory and a violation would render the commitment and the subsequent trial illegal. Where, therefore, the approver is not examined at the committal stage, the trial and the commitment are liable to be quashed.

In the case of Kalu Khoda and Others Vs. The State, , a Fun Bench of the Gujarat High Court held that once a person has been tendered pardon u/s 337 of the Code of Criminal Procedure "the failure to examine him before the committing Magistrate would not only be in breach of the express provisions of Sub-section (2) of Section 337 but would also be inconsistent with and in violation of the duty to make a full disclosure at all stages. The breach of Sub-section (2) of Section 337, therefore, is of a mandatory rather than a mere directory provision and such a breach would render the proceedings and the order illegal."

Their Lordships also observed that if the approver is examined at the committal stage, the accused not only knows what the evidence is against him but gets an opportunity to rely upon the deposition of the approver before the committing Court for the purpose of proving the approvers evidence at the trial untrustworthy, if there are contradictions or improvements. If the approver is not examined at the committal stage the accused in the trial would lose this benefit and it cannot be gainsaid that he would be prejudiced if he were to lose the opportunity of showing the approver''s evidence unreliable. It would be deprivation of an important and in some cases a vital right which would cause him prejudice resulting in failure of justice.

It was further held that the breach of Section 337(2) was not merely an irregularity curable u/s 537, Code of Criminal Procedure.

The principles laid down by the Gujarat High Court have been followed In the under-mentioned cases:

(1) The Public Prosecutor v. K. S. Rajanna 1966 (1) AWR 390.

(2) P. Apparao and Ors. v. State 33 (1967) C.L.T. 188.

(3) State Vs. Bauri Bissoi and Others, .

(4)State of Orissa v. Bidika Mangada 38 (1972) C.L.T. 1108.

(5) Inder Mohan and Others Vs. The State, .

(6) In In re: Ramasamy and Others, , the Madras High Court also held as follows:

it is mandatory that the Magistrate taking cognisance of the offence shall examine the person accepting a tender of pardon made under Sub-section (1). viz, the approver, as a witness. In other words, the examination of the approver is a condition precedent for the committal. Therefore, Section 306 should be read in conjuction with Section 209. Any violation of the mandatory provisions of Section 306, Sub-sections (4) and (5), by the Magistrate taking cognizance of the offence, clearly amounts to an illegality which would vitiate the entire committal proceedings.

In the light of the principles enunciated above, the order of commitment and the subsequent trial of the accused persons in the present case are illegal and liable to be quashed. Both the appeals are therefore, allowed, the conviction and the sentence of accused Bigyan Malik and the acquittal of the other accused persons being quashed. The case is remanded to the learned Sub-divisional Judicial Magistrate, Cuttack with a direction to comply with the provisions of Section 306, Code of Criminal Procedure by examining the approver and then to pass an order of commitment, if called for. This being a very old case top priority should be given to it and it should be disposed of most expeditiously,

Appeals allowed.