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The Bar And The Bench Still To Imbibe The Jurisprudence Of Tendering Pardon To An Accomplice

Justice V Ramkumar
30 Jun 2022 2:24 PM GMT
The Bar And The Bench Still To Imbibe The Jurisprudence Of Tendering Pardon To An Accomplice
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I have had the advantage of reading the verdict dated 14-06-2022 rendered by a Division Bench of the High Court of Kerala in Suresh Raj v. National Investigation Agency (Crl.Appeal.No: 213/ 2020).

2. Having held in paragraph 37 of the above verdict that the order impugned therein, being an "interlocutory order" within the meaning of Section 21 (3) of the National Investigation Agency Act, 2008 ("NIA Act" for short), the appeal under Section 21 (1) was not maintainable, there was no necessity for the Bench to delve into the procedure for tendering pardon on the premise of bringing in clarity of procedure and it is doubtful whether the said objective has been achieved.

3. The Division Bench, in my view, is perfectly right in holding that the person chosen for tendering pardon as an approver need not necessarily be a person who is actually arrayed as an accused in the case and that it is sufficient if he was a person supposed to have been directly or indirectly concerned in or privy to the offence involved in the case. But, the Division Bench by placing reliance, inter alia, upon Harshad Mehta v. State of Maharashtra AIR 2001 SC 3774; Bangaru Laxman v. State AIR 2012 SC 873 and Mishra P. C. v. State (CBI) AIR 2014 SC 1921, has held that the NIA Special Court has the jurisdiction to tender pardon to an accomplice "even during the stage of investigation" also at the pre-cognizance stage. It is with regard to this proposition of law that I have my respectful disagreement. The following observations and findings by the Division Bench cannot be supported in law:-

"However, in the case of a Special Court, there is coalescence of the powers of both a Magistrate and a Special Judge, as held in Bangaru Laxman (supra). Therefore, uninfluenced by the stage of investigation, inquiry or trial, a Special Court can entertain an application for grant of pardon, since it has the powers under Sections 306 and 307 both. Therefore, it cannot be argued that an application preferred at the stage of investigation cannot be considered/ entertained by the Special Judge". (vide para 23).

"Being a Court of original criminal jurisdiction and having been specifically bestowed with the power to take cognizance, without a formal commitment of the case, a Special Court can exercise the powers to grant pardon, either under Section 306 or under Section 307, at any stage of the proceedings". (vide para 23).

"In the light of the above discussion, we repel the first limb of the appellant's argument that a Special Court lacks power under Section 306 of the Code to entertain an application for tender of pardon – preferred during the investigation stage - after filing the charge-sheet and taking cognizance".

(vide para 25 – (Probably, by the last portion of the above observation, the Bench was rejecting the appellant's argument that a request for tendering pardon received by the Special Judge during the course of investigation and kept pending, can be complied with by the Special Judge himself, after taking cognizance of the offence).

The Division Bench, I am afraid, has overlooked the basic jurisprudence governing the curial process of tendering pardon to an accomplice in a criminal trial. In my humble opinion, what has been lost sight of in the reported verdict, are the following elements:-

1. The competence or the jurisdiction of the Court tendering pardon to an accomplice under Section 306 Cr.P.C. has nothing to do with the competence or jurisdiction of the Court which has to eventually try the case as per the First Schedule to Cr.P.C.

2. Whatever may be the nomenclature of a criminal court constituted under any law other than the Cr.P.C., such a Court is also taken in among the class of criminal courts under Section 6 Cr.P.C. If an offence under such law is punishable with imprisonment for more than 7 years, then as per Part II of the First Schedule to Cr.P.C., such offence is to be tried by a Court of Session which will naturally include a Court deemed to be a Court of Session as well.

3. Section 306 Cr.P.C. dealing with the power of tendering pardon to an accomplice has application only if the offence is punishable with imprisonment which may extent to 7 years or more. (Vide Section 306 (2) Cr.P.C.). Under the corresponding Section 337 (1) of the 1898 Code also the requirement was 7 years, though prior to 1956 it was 10 years. (Vide para 8 of Kanta Prasad v. Delhi Admn. AIR 1958 SC 350).

4. Whichever may be the forum for trial of the case, if the request for tendering pardon to an accomplice is made during the stage of investigation, such a request can be complied with only by the Chief Judicial Magistrate (CJM) or a Metropolitan Magistrate (MM), as the case may be, in view of the mandate under Section 306 (1) Cr.P.C., unless the forum for trial of the case is itself specifically invested with such powers or with the powers of the CJM/ MM for the particular purpose.

5. The view that there is coalescence of the powers of both a Magistrate and a Special Judge under the P.C. Act, as held in Bangaru Laxman, is not correct. The Court of the Special Judge which as per Section 5 (3) of the P.C. Act, is deemed to be a Court of Session, is given the powers of a Magistrate under Section 5 (1) of the P.C. Act, only for trial by resort to warrant procedure and such trial can evidently take place only after taking cognizance of the offence by the Special Judge. Under Section 5 (4) of the P.C. Act, the Special Judge is deemed to be a Magistrate only for the purposes of Sections 326 and 475 Cr.P.C.

If under a particular statute, the forum for trial is also invested with the powers of a Magistrate, it has to be examined as to which of the powers of the Magistrate have been so invested. If it is for certain specified purposes alone, then the forum cannot be treated as one clothed with all the remaining powers of a Magistrate, since that would be "repugnant to the subject or context" within the meaning of Section 3 of the General Clauses Act, 1897 while importing the expression "Magistrate" under Clause (32) thereof.

In the case of the NIA Special Court, the powers of a Magistrate have been extended to the Special Court only for the trial by means of "summary procedure" of those offences which are punishable with imprisonment not exceeding 3 years, in view of first proviso to Section 16 (2) of the NIA Act which is akin to Section 260 (2) Cr.P.C. But, the question of tendering pardon to an accomplice can arise only in respect of offences which are punishable with imprisonment extending up to 7 years or more in view of Section 306 (2) Cr.P.C.

6. As per Sections 11 (1) and 22 (1) of the NIA Act, the Central Government or the State Government, as the case may be, has to designate a Court of Session to be a Special Court. This means that the Special Court is, for all intents and purposes, a Court of Session as observed by the Supreme Court in para 14 of Gangula Ashok v. State AIR 2000 SC 740 – K. T. Thomas – J, which reads as follows: -

"S.14 of the Act says that "for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act". So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Though the word "trial" is not defined either in the Code or in the Act it is clearly distinguishable from inquiry. The word "inquiry" is defined in S.2(g) of the Code as "every inquiry, other than trial, conducted under this Code by a Magistrate or Court". So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as Special Court is to ensure speed for such trial. "Special Court" is defined in the Act as "a Court of Session specified as a Special Court in S.14". (Vide S.2(1)(d))".

So, whatever procedure is applicable to a Court of Session, will mutatis mutandis apply to a Special Court as well, if the constitution of the Special Court is by means of a "specification" as aforesaid.

7. The further question is whether there would be any difference in the case of the NIA Special Court since that Court is given the power under Section 16 (1) of the NIA Act to take cognizance of an offence either on a "complaint" or on a "police report" without the accused being committed to it for trial ?

What is dispensed with both under the P.C. Act and under the N.I.A. Act is the "committal of the accused" and not the committal of the case. Under the P.C. Act, if pardon has been tendered to an accomplice by the CJM/MM during the stage of investigation, then under Section 306 (5) (a) (ii) Cr.P.C the case has to be committed to the Special Court.

In Harshad Mehta (Supra – AIR 2001 SC 3774) the Special Court was a peculiar Special Court to be presided over by a sitting Judge of the High Court of Bombay. Even though the procedure for trial was "warrant procedure", the Special Court was deemed to be a Court of Session as per the Special statute. There was no power specifically given to the said Special Court to tender pardon to an accomplice. In para 13 of the verdict in Harshad Mehta, the Bench approved the argument of Senior Advocate Mr. Ram Jethmalani that from the scheme of Section 306 Cr.P.C. and the nature of power, "the power to grant pardon is not an inherent power of a criminal court and is a substantive power to be specifically conferred". The Bench, however, held that the Special Court in that case, being an original Court of criminal jurisdiction with powers to take cognizance without the accused being committed to it for trial, could tender pardon to an accomplice at any stage including the stage of investigation. In order to arrive at that conclusion the Bench observed that being an original Court of criminal jurisdiction, the Special Court had the power to directly take cognizance of the offence. The power of "remand" under Section 167 (2) Cr.P.C., the power to grant or refuse "bail" etc. were treated as the attributes of such an original court of criminal jurisdiction.

NOTE by the author: With due respect, Harshad Mehta has ignored the following vital aspects :–

The Special Court invested with the power to take cognizance without the accused being committed to it, can at best, be compared to that of a Judicial Magistrate of the first class ("JMFC" for short) having the jurisdiction under the First Schedule to Cr.P.C. to take cognizance of the offence either on a "complaint" or on a "police report", then frame a charge against the accused and on his pleading not guilty, to proceed to try the offence. But, if a request to tender pardon to an accomplice is made at the stage of investigation of an offence triable by a JMFC as per the First Schedule to Cr.P.C., then the said JMFC cannot tender pardon in such a case. Pardon can be tendered to the accomplice only by the CJM/ MM as enjoined by Section 306 (1) Cr.P.C. After examining the approver under Section 306 (4) (a) Cr.P.C. the case cannot be tried either by the JMFC or by the CJM/ MM, but can be tried only by the Court of Session in view of Section 306 (5) (a) (i) Cr.P.C. Under Section 337 (2A) of the 1898 Code also, such a case had to be committed to the Court of Session or the High Court.

(In Bawa Faqir Singh v. Emperor AIR 1938 PC 266, pardon was tendered to an accomplice by a Magistrate under Section 337 of the 1898 Code. After examining the approver as a witness under Section 337 (2) of the 1898 Code, the case had to be committed for trial to the Court of Session or to the High Court under Section 337 (2A) of the old Code. But, instead, the case was tried by a Special Magistrate. Lord Wright speaking for the Privy Council held that the trial was without jurisdiction. The conviction recorded and the sentence passed against the accused were set aside.)

If, on the contrary, the request for tendering pardon to an accomplice is made only during the stage of inquiry or trial by the JMFC, then that Court itself can tender pardon to an accomplice and examine the approver under Section 306 (4) (a) Cr.P.C., but the trial of the case can be conducted only by the CJM to whom the case will have to be made over under Section 306 (5) (b) Cr.P.C. Just as the Court of Session has no jurisdiction under Section 306 (1) Cr.P.C. to tender pardon to an accomplice during the stage of investigation and before taking cognizance of the offence, the Special Court also cannot tender pardon to an accomplice under Section 306 (1) Cr.P.C. during the stage of investigation. The CJM/ MM alone can tender pardon at that stage. The Special Court gets jurisdiction to tender pardon only after taking cognizance of the offence and that power is to be located only under Section 307 Cr.P.C. and not under Section 306 Cr.P.C.

8. Bangaru Laxman and Mishra P. C. (Supra) were both dealing with a Special Court under the P. C. Act and the view taken there to the effect that the said Special Court can tender pardon even during the course of investigation, is directly opposed to the statutory prescription under Section 306 (1) Cr.P.C. which is not a new provision. Even under the Code of 1898, the provision was similar. (Vide Section 337 (1) and its proviso under the 1898 Code as per which the District Magistrate, a Presidency Magistrate, a sub-divisional Magistrate or the Jurisdictional Magistrate with the sanction of the District Magistrate alone could tender pardon during the stage of investigation).

To understand and appreciate the mechanics of the old Code, a peep into the past may be necessary. Formerly, offences relating to corruption and bribery of public servants were dealt with under the IPC itself. (Vide Sections 161 to 165 A of IPC). These offences were tried by Magistrates only. While so, the Prevention of Corruption Act 1947 was enacted and it added one more offence, namely, "criminal misconduct" punishable under Section 5 (2) of the P. C. Act, 1947.All these offences were continued to be tried by Magistrates. The forum for trial of the above offences was for the first time changed from that of the Magistrate to a Special Court, as per the Criminal Law (Amendment) Act, 1952, which for the first time directed that the above offences were to be tried by a Special Court to be presided over by a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge. (Vide Section 6 (2) of the above Amendment Act). Section 8 (1) of the above Amendment Act which is pari materia with Section 5 (1) of the P. C. Act, 1988, stated that the Special Court may take cognizance of an offence without the accused being committed to it for trial. (It is pertinent to note that as per Section 193 of the 1898 Code, a Court of Session could take cognizance of an offence as a Court of original jurisdiction only if the accused (not the case as in Section 193 of the 1973 Code) was committed to it for trial. It was this requirement of Section 193 of the old Code that was dispensed with by Section 8 (1) of the Criminal Law (Amendment) Act, 1952 in the case of a Special Court trying corruption cases. Since Section 8 (3) of the Amendment Act of 1952 (as in the case of Section 5 (3) of the P. C. Act, 1988) provided that the Special Court shall be deemed to be a Court of Session, there had to be a mandatory Magisterial inquiry under Section 208 of the 1898 Code. A provision to dispense with the said inquiry and to send the case to the Court of the Special Judge for trial, was incorporated as sub-section (2B) in Section 337 of the 1898 Code with effect from 01-01-1956. The said sub-section (2B) reads as follows:-

"(2B) In every case where the offence is punishable under Section 161 or Section 165 or Section 165-A of the Indian Penal Code or sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947, and where a person has accepted a tender of pardon and has been examined under sub-section (2), then, notwithstanding anything contained in sub-section (2A), a Magistrate shall, without making any further inquiry, send the case for trial to the Court of the Special Judge appointed under the Criminal Law Amendment Act, 1952.

This sub-section (2B) corresponds to Section 306 (5) (a) (ii) of the 1973 Code.

Thus, with effect from 01-01-1956, in cases triable by the Special Court under the P. C. Act, 1947, it was the competent Magistrate who was tendering pardon to an accomplice during the stage of investigation and after examining the approver as a witness under Section 337 (2) of the 1898 Code (corresponding to Section 306 (4) (a) of the 1973 Code) the said Magistrate was committing the case to the Court of the Special Judge as provided under Section 337 (2B) of the 1898 Code (corresponding to Section 306 (5) (a) (ii) of the 1973 Code) without any further inquiry under Section 208 of the 1898 Code. It should not be forgotten that as early as from 25-07-1952 onwards the Special Judge was invested under Section 8 (1) of the Amendment Act of 1952 to take cognizance of the offence without the accused being committed to it. In spite of that, if the request for tendering pardon to an accomplice was made during the course of investigation, the Special Judge could not tender pardon to an accomplice since the Special Court was constituted only for trial of the case which means the Special Judge would come into the picture only after taking cognizance of the offence and framing charge against the accused. When such is the statutory scheme for tendering pardon to an accomplice in a case triable by a Special Court under the P. C. Act, both under the 1898 Code and under the 1973 Code, Bangaru Laxman and Mishra P. C. which have held that the Special Court under the P. C. Act can tender pardon even at the pre-trail stage, are, with due respect, clearly wrong. Section 306 (5) (a) (ii) of the 1973 Code is an exact replica of Section 337 (2B) of the 1898 Code. Harshad Mehta which was dealing with a totally different Special Court and under a different statute which did not expressly confer on the Special Court the power to tender pardon to an accomplice, should not have guided or influenced the Supreme Court in Bangaru Laxman and Mishra P. C. which were dealing with the Special Court under the P. C. Act for which specific provision has been made both under Section 337 (2B) of the 1898 Code and under Section 306 (5) (a) (ii) of the 1973 Code. The resultant position is that if there is a request to tender pardon to an accomplice prior to the Special Court directly takes cognizance of an offence under Section 5 (1) of the P. C. Act, 1988, then it is for the CJM/ MM to comply with such request as mandated by Section 306 (1) of the 1973 Code and after examining the approver under Section 306 (4) (a) of the 1973 Code the CJM/ MM has to commit the case to the Court of the Special Judge under Section 306 (5) (a) (ii) of the 1973 Code without conducting any further inquiry.

If the request for tendering pardon is made to the Special Judge after the Special Judge directly takes cognizance of the offence, then it is not Section 306 of the 1973 Code which will apply but it is Section 307 Cr.P.C. which will govern the matter. In such a case, compliance with Section 306 (4) (a) Cr.P.C. is not possible since the Special Court itself is the forum for both taking cognizance of the offence and trying the case and there cannot be any other forum to try the case. This bifurcation of power has been succinctly dealt with in State through CBI, Chennai v. V. Arul Kumar (2016) 11 SCC 733 = AIR 2016 SC 2551 – A. K. Sikri – J. My only reservation to Arul Kumar's case is that it is observed therein that the two different routes will depend upon the forum before which the police files the charge-sheet. I would respectfully submit that in cases where the request to tender pardon is made during the stage of investigation, then the police are bound to file the charge-sheet before the Magistrate who tendered pardon. If on the contrary, the request to tender pardon is made after the Special Court has directly taken cognizance of the offence, then the police will have to file the charge-sheet before the Special Court itself.

When the procedure for tendering pardon to an accomplice in a case triable exclusively by a Court of Session at the pre-committal stage is also by recourse to Section 306 Cr.P.C., there is no reason why there can be a different procedure in the case of the NIA Special Court which, for all intents and purposes, is nothing but a Court of Session. In the absence of a specific statutory provision authorizing the Special Judge to tender pardon to an accomplice at the pre-trial stage, there cannot be a judicial conferment of such power to a Special Court, as has been done in Harshad Mehta.

9. The view in Harshad Mehta (Supra- AIR 2001 SC 3774) that powers like "remand", "bail" etc. are distinctive of a criminal court of original jurisdiction, may not strictly be correct. The power of "first remand" available to the "nearest Magistrate" under Article 22 (2) of the Constitution of India and Section 57 and 167 (1) Cr.P.C., is not distinctive of a criminal court of original jurisdiction. Take a situation where the accused in a case triable by a Special Court at New Delhi is arrested from Kanyakumari in Tamil Nadu. The law does not expect the arresting officer to take the arrestee to the Special Court at New Delhi for the "first remand". The arrestee will have to be taken to the "nearest Magistrate" at Kanyakumari for the "first remand". This is both a Constitutional as well as statutory mandate. Such a remand is loosely called a "transit remand" which as per the Supreme Court in Gautam Navalakha's case 2021 (7) SCALE 379 = 2021 KHC 6278 – K. M. Joseph – J, is "entrustment to police custody".

Similarly, the power to grant bail is also not an attribute of a Court having jurisdiction to try only. Where a case is exclusively triable by a Court of Session, bail can be granted by the Magistrate competent to commit the case for trial in view of Section 167 (2) Cr.P.C. That is the reason why in cases triable exclusively by a Court of Session (except those cases falling under Clauses (i) and (ii) of Section 437 (1) Cr.P.C.) bail can be granted by the Magistrate and not necessarily by the Court of Session.

(Detailed reasons have been given by this author showing why Harshad Mehta has laid down the law incorrectly. – Vide Article titled "Power of the NIA Special Court to tender pardon to an accomplice" published in 2022 (2) KHC Journal Page 63.)

THE POWER OF THE JURISDICTIONAL COURT

If the first remand under Section 167 (2) Cr.P.C. has been made by the Magistrate nearest to the place of arrest and having no jurisdiction to try or commit the case, then further orders such as "second remand" (remand extension), "granting bail", "taking cognizance of the offence" etc. can be passed only by the jurisdictional Court which may be the Court of the Magistrate or the Special Judge. This is implicit in sub-section (2) of Section 167 Cr.P.C. itself. Once the case reaches the jurisdictional Court (i.e. the Court which, by virtue of Chapter XIII Cr.P.C. or any special law, is the Court competent to try or commit the case), such Court can proceed TO TRY the case only after taking cognizance of the offence. In other words, no Court can TRY A CASE without taking cognizance of the offence which process is a condition requisite for INITIATION OF PROCEEDINGS under Chapter XIV Cr.P.C. (starting with Section 190 and ending with Section 199) as indicated by the heading of that Chapter itself. The next stage is COMMENCEMENT OF PROCEEDINGS under Chapter XVI Cr.P.C. starting with Section 204. It is only after issuing process and securing the presence of the accused, can the Court including that of a Magistrate, Sessions Judge or Special Judge can proceed TO TRY an offender by framing the charge against him and taking his plea. Steps like ordering "detention" or "further detention" under Section 167 (2) Cr.P.C. of the accused who is produced before Court, "admitting him to bail", "taking cognizance of the offence" either on a police report or a complaint etc. are done and can only be done by the Court having jurisdiction to try or commit the case for trial. Once this mechanics under the statutory scheme laid down by the Cr.P.C. is understood everything else will automatically fall in place. In a summons case, instead of framing the charge, it is the stating of the substance of accusation under Section 251 Cr.P.C. which marks the first step towards TRIAL. The actual trial will start only when the accused pleads "not guilty" to the accusation and "claims to be tried".

10. The practice followed in the States of Kerala and Tamil Nadu, is also consistent with the statutory scheme. In the State of Tamil Nadu, in Metropolitan areas, pardon to an accomplice during the stage of investigation, is tendered by a Metropolitan Magistrate irrespective of the jurisdiction of the Court to try the case. In non-metropolitan areas, pardon to an accomplice during the stage of investigation is tendered by the Chief Judicial Magistrate concerned, irrespective of the jurisdiction of the Court to try the case. In the State of Kerala also pardon to an accomplice during the stage of an investigation, is tendered by the Chief Judicial Magistrate concerned, irrespective of the jurisdiction of the Court to try the case. This practice which is perfectly in accord with the statutory scheme and V. Arul Kumar (Supra – AIR 2016 SC 2551) is being followed notwithstanding Harshad Mehta, Bangaru Laxman and Mishra P. C. (Supra).

11. Harshad Mehta which was not rendered under the P. C. Act was followed without any justification in Bangaru Laxman and Mishra P. C. both of which were in respect of Special Courts under P. C. Act. In contradistinction, State of T. N. v. V. Arul Kumar (Supra – AIR 2016 SC 2551) was rendered under the P. C. Act itself and in my opinion, it correctly lays down the law.

12. The observation in para 24 of Suresh Raj that the bifurcation of the power to grant pardon is based on the availability of records/ materials, also cannot be supported. Take the case of the Special Court under the P.C. Act. If the request to tender pardon to an accomplice is made at the fag end of investigation and at a time when the investigating officer is intending to submit the charge-sheet before the Special Judge within a couple of days. That request to tender pardon has to be complied with by the CJM in a non-metropolitan area. But all the records right from the FIR will be before the Special Judge. The CJM will have to call for (rather request for) the records from the Court of the Special Judge. Same will be the position in the case of an offence triable by a JMFC when the request to tender pardon is made at the fag end of investigation but before filing the charge-sheet. The CJM alone can comply with the request to tender pardon at that stage and he will have to call for the records which have been sent to the JMFC till then.

13. With regard to the question as to whether the co-accused in the case have a right to cross-examine the approver when the latter is examined as a witness under Section 306 (4) (a) Cr.P.C., I have already expressed my views in my article published in 2022 (2) KHC Journal Page 63. An important observation made by the Supreme Court speaking through Justice Faizan Uddin in paragraph 30 of the verdict in Suresh Chandra Bahri v. State of Bihar AIR 1994 SC 2420 is very relevant in this regard. The said observation reads as follows :-

"Thus breach of the provisions contained in clause (a) of sub-sec (4) of S.306 is of a mandatory nature and not merely directory and, therefore, non compliance of the same would render committal order illegal, The object and purpose in enacting this mandatory 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 an approver before the committing Court itself at the very threshold so that he may take steps to show that the approver's evidence at the trial was untrustworthy in case there are any contradictions or improvements made by him during his evidence at the trial. It is for this reason that the examination of the approver at two stages has been provided for and if the said mandatory provision is not complied with the accused would be deprived of the said, benefit. This may cause serious prejudice to' him resulting in failure of justice as he will lose the opportunity of showing the approver's evidence as unreliable."

(Emphasis supplied by the author)

The reason for not allowing the co-accused to cross-examine the approver when the latter is examined under Section 306 (4) (a) Cr.P.C. is that the exercise of power is at the stage of investigation or inquiry at the pre-process stage when the co-accused have no right to participate in the proceedings before Court. The inquiry under Sections 200/ 202 Cr.P.C. during which the accused have no right of participation, is the justification for not allowing the accused to cross-examine the approver during his examination under 306 (4) (a) Cr.P.C. But, pardon can be tendered to an accomplice at any stage of the proceedings including trial. If pardon is tendered in a given case after the appearance of the accused in response to the process issued to them, on what ground can they be denied the right to cross-examine the approver ?

In my opinion, the question whether the co-accused in the case have a right to cross-examine the approver when the latter is examined as a witness under Section 306 (4) (a) Cr.P.C, will depend upon the stage at which the approver is so examined. If it is in the presence of the co-accused who are in Court in compliance of process issued to them, they ought to be given an opportunity to cross-examine the approver if they so deem fit.

In State of Kerala v. Monu Surendran 1990 (1) KLT 53 = 1991 Cri.L.J. 27 – Justice U. L. Bhatt, speaking for the Division Bench had treated his own earlier view in Kurian v. State 1989 (1) KLT SN 60 Page 37 as per incurium to hold that the co-accused have a right of cross-examination of the approver.

Is it not similar to a warrant trial in a private complaint covered by Sections 244 and 246 Cr.P.C. where the accused appearing on process have got the right to cross-examine the prosecution witnesses both before and after the framing of charge ?

The observation by Justice V. R. Krishna Iyer in Sanjay Gandhi v. Union of India AIR 1978 SC 514 that under the 1973 Code the committal Magistrate has no power to take oral evidence, except under Section 306 Cr.P.C and the right of the accused to cross-examine the witnesses was also repelled except in the case of approvers. In Sitaram v. State of Jharkhand AIR 2008 SC 391, Justice Arijit Pasayat had approved the committal of a case by the CJM to the Court of Session after allowing the co-accused to cross-examine the approver during his examination under Section 306 (4) (a) Cr.P.C.

I leave it there because whether they are permitted or not, they have definitely the right to cross-examine the approver during the subsequent trial of the case.

14. I am conscious of the fact that Harshad Mehta which has no application to a Special Court under the P. C. Act for which specific provision has been incorporated in the Cr.P.C. itself, was followed without any justification in Bangaru Laxman and Mishra P. C. and, therefore, it is quite natural that the learned Judges of the Division Bench in Suresh Raj might have felt themselves bound by the above verdicts. But, Arul Kumar would have put the Bench on the right track. No doubt, the ultimate remedy lies in the Apex Court itself constituting a larger Bench and resolving the conflict of views so that all concerned, particularly officers of the subordinate judiciary at the cutting edge, will not be groping in the dark with regard to the forum for tendering pardon to an accomplice and the forum for eventual trial of the case in compliance with Section 306 (5) Cr.P.C..

The author is a former Judge, High Court of Kerala


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