The State vs Nanoo and others

Kulwant Singh Tiwana, J.—The facts leading to this order are that Nanoo, Ninha and Bashir alias Sagir were arrested in a ease u/s 302 read with section 34, Indian Penal Code During investigations Bashir alias Sagir turned an approver and he was duly granted pardon. The police, therefore, challaned only Nanoo and Ninha accused. The learned Magistrate, without recording the statement of the approver after the pardon had been granted to him, committed the case against Nanoo and Ninha accused to this Court.

Vide my order dated April 8, 1976, a charge u/s 302 read with Section 34, Indian Penal Code was framed against Nanoo accused and u/s 302 read with Section 109, Indian Penal Code against Ninha accused. Both the accused pleaded "not guilty" to the respective charges. The case was then fixed for trial on 17th and 18th August, 1976.

In the meantime the learned Public Prosecutor filed an application to the effect that there has been a violation of the mandatory provisions of Section 306 of the Code of Criminal Procedure, 1973 and thus the commitment is illegal.

Notice of this application was issued to the accused and their counsel. Today Nanoo and Ninha accused with their counsel have appeared.

Learned Public Prosecutor in support of his contention has cited (Ramasamy and others v. The State 1976 Cri.L.L.J.) where it was remarked:--

Section 209 of the present Code deals with commitment of cases to the Court of Session when the offence is triable exclusively by it. Section 306 is the corresponding provision to Section 337 of the old Code. Clauses (a) and (b) of the Sub-section (4) of section 306 of the present Code, correspond to sub-section (2) and (3) of section 337 of the Old Code, whereas sub-section (5) of the present section 306 corresponds, to Sections 2(a) and 2(b) of the Old Section 337. Under sub-section 4(a) the approver must be examined as a witness in the Court of the Magistrate taking congnizance of the offence and in the subsequent trial, if any. Sub-section (5) of Section 306 of the new Code reads that 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 congnizance of the offence shall, without making any further inquiry in the case, commit it for trial to any one of the Courts indicated in sub-section (5) clause (a). u/s 209 of the present Code, the examination of the witnesses to the actual commission of the offence alleged and also the examination of the other witnesses, as contemplated u/s 209-A of the old Code, have been completely dispensed with. What the present section says is that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by a Court of Session, he shall commit the case to the Court of Session. In other words, the preliminary inquiries by the Magistrate in cases exclusively triable by the Court of Session as contemplated under the old Code are now dispensed with. However, when there is an approver, he shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Therefore, 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 the 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 conjunction with section 209. Any violation of the mandatory provisions of Section 306, sub-section (4) and (5), by the Magistrate taking cognizance of the offence clearly amounts to an illegality which would vitiate the entire committal proceedings.

In that case the accused had been committed without examination of the approver as a witness. The Sessions Judge made a reference to the High Court (Madras High Court). The reference was accepted and the committal order was quashed.

Learned counsel for the accused did not dispute the above proposition of law before me.

Hence, the records of this case are submitted to the Hon''ble High Court for quashing the commitment order as well as all the proceedings taken in this Court after commitment and directing the committing Magistrate to comply with the provisions of Section 306 of the Code of Criminal Procedure, 1973 by examining the approver and then to pass an order of committal, if called for.

ORDER OF THE HIGH COURT (ORAL)

K.S. Tiwana, J.

This reference has been made by the learned Sessions Judge, Karnal, for quashing the commitment proceedings.

The fact giving rise to this reference are that during the course of investigation of a case of murder against Nanoo and Ninha accused, Bashir alias Sagir, one of their associated in crime, accepted pardon and turned an approver against them. Consequent to the completion of the investigation, a charge sheet against Nanoo and Ninha accused was laid before the Committing Magistrate, who without recording the statement of the approver, committing the case to the Court of Session for trial u/s 209 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). At the stage when the learned trial Judge commenced the trial, it was brought to his notice by the Public Prosecutor that the provisions of section 306 of the Code requiring the examination of the approver before the committing Magistrate were not complied with. As the mandatory provisions of law in the form of section 306 of the Code were contravened by the commuting Magistrate the learned Sessions Judge finding an illegality in the commitment proceedings has reported this matter for quashing of the commitment order.

I have gone through the order of reference and heard the counsel for the parties. Section 306 of the Code deals with the tender of pardon and the examination of the approve at different stages of the case. Sub-sections (4) and (5) of section are as under:--

(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 of 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 that Court or if the Magistrate taking congnizance is the Chief Judicial Magistrate ;

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

(b) in any other case, made over the case to the Chief Judicial Magistrate who shall try the case himself.

A study of these sub-sections makes it manifest that the intention of the legislature was that the approver should be examined before the Committing Magistrate. This seems to have been provided with an idea to give the accused an appropriate notice of one of their co-associates in the crime turning against them and providing evidence against them. Section 209 of the Code is a general section dealing with commitment of all the cases. No doubt, the new Code has done away with the enquiry by a Committing Magistrate and does not provide for the recording of the evidence at the committing stage and requires the Magistrate to commit the case to the Court of Session, as it is, on the basis of the report of the police, if it appears to him that the case is exclusively triable by the Court of Session. Section 306 of the Code is a special provision dealing with approvers and it provides in the mandatory form in sub-section (4) about the recording of the statement of the approver by the Committing Magistrate as a witness and subsection (5) gives the guidelines how a case in which an approver, who is no longer an accused is to be committed to the Court of Session for trial with his associates in crime, whose case for commitment is separately dealt with under a different Chapter of the Code u/s 209. According to section 306(5), the commitment of the approver is to be made after the recording of his statement. This special provision normally will have preference over the general provisions of the Code, that is, section 209 of the code. I get support in my view from a judgment of the Madras High Court reported in Ramasamy and others v. The State 1976 Cri.L.J. 770

For the foregoing reasons, the reference is accepted and the order of commitment is quashed and the case be sent to the committing Magistrate for proceeding in accordance with the directions given above and the provisions of section 306 of the Code.

The parties through their counsel are directed to appear before the Committing Magistrate on 10th of October, 1977.