Mandatory examination of approver before the court taking cognizance of the offence under sec 306(4) (a) CrPC

 

 Mandatory examination of the approver before the court taking cognizance of the offence under Section 306 (4) (a) Cr.P.C. and thereafter during trial

 When the tender of pardon has been accepted by the approver and the Magistrate has recorded the same under Section 306 (3) Cr.P.C., the approver undergoes a transformation in his status. He is discharged of his position as an accused. (I.e. he ceases to be an accused) and becomes a prosecution witness (Vide State (Delhi Admn.) v. Jagjit Singh (1989) suppl. (2) SCC 770 = AIR 1989 SC 598: Para 21 of State of Maharashtra v. Abu Salem Abdul Kayyum Ansari - (2010) 10 SCC 179). If the tender of pardon has been accepted by the approver, then he should be examined as a witness both in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any, in view of Section 306 (4) (a) of Cr.P.C. It is pertinent to bear in mind that the mandatory examination of the approver under Section 306 (4)(a) Cr.P.C. at the pre-commitment stage, is insisted only if the Court tendering pardon to an accomplice under Section 306 (1) Cr.P.C. is a Magistrate and not a Sessions Judge or a Special Judge under the P.C. Act exercising the power to tender pardon to the accomplice under Section 307 Cr.P.C. A Sessions Judge tenders pardon to an accomplice only at the post-committal stage under Section 307 Cr.P.C. Likewise, a Special Judge under the P. C. Act, 1988 tenders pardon to an accomplice only at the post-cognizance or post-committal stage under Section 5 (2) of the P. C. Act, 1988 and such pardon is deemed to have been tendered under Section 307 Cr.P.C. by virtue of Section 5 (2) of the P. C. Act, 1988.

I l l u s t r a t I o n s

i) If the case is triable by JMFC and is pending investigation, then pardon to an approver can be tendered only by a CJM/MM. But the CJM/MM can delegate the function of recording the confession of the approver under Section 164 Cr.P.C. to the JMFC. The CJM/MM can, thereafter when requisitioned by the Police, consider the statement recorded by the JMFC and enter a finding in terms of Section 306 (3) Cr.P.C. This power of the CJM/MM to tender pardon can be exercised by him even when the case which is triable by the JMFC is pending inquiry or trial before the JMFC. After recording the finding under Section 306 (3) Cr.P.C. the CJM/MM need not forward to the JMFC the entire records including the finding under Section 306 (3) Cr.P.C. The examination of the approver as a witness under Section 306 (4) (a) Cr.P.C. can be conducted by the CJM taking cognizance of the offence. (Vide State of Kerala v. Monu Surendran 1991 Cri.L.J. 27).

 

ii) Similarly, the CJM/MM can exercise the power of tendering pardon in a case triable by the Special Judge under the PC Act either pending investigation or at a stage before the Special Judge takes cognizance of the offence. (Vide Commander Pascal Fernandas, Lt. v. State of Maharashtra AIR 1968 SC AIR 1968 SC 594 = 1968 Cri.L.J. 550 – 3 Judge - M. Hidayatullaj – J ). This is because, as per Section 3 (1) of the P. C. Act, 1988 the Special Judge is appointed only to try the specified offences. Once the Special Judge takes cognizance of the offences, the case is exclusively at his disposal and the trial can start only thereafter. (Vide paras 35 and 43 of Hardeep Singh v. State of Punjab (2014) 3 SCC 92 = AIR 2014 SC 1400– 5 Judges – Dr. B. S. Chauhan – J ). If at the stage of investigation of the case, the Special Judge is moved for tendering pardon to an accomplice, the correct course for the Special Judge would be to forward the request to the CJM/ MM as was done in Mishra P. C.  AIR 2014 SC 1921 – K. S. Radhakrishnan – J – Noted by State through CBI, Chennai v. V. Arul Kumar (2016) 11 SCC 733 = AIR 2016 SC 2551. But the CJM/MM cannot tender pardon to an accomplice during the stage of trial before the Special Judge. If the CJM were to tender pardon to an accomplice after the committal of the case for trial to the Court of Session, it would be wholly illegal and will not be curable under Section 460 (g) Cr.P.C. (Vide para 9 of A. Devendran v. State of T. N. AIR 1998 SC 2821 – G. B. Pattanaik – J ) The same principle should be applicable to a Court of Special Judge under the P. C. Act as well. After tendering pardon to the accomplice during the stage of investigation of an offence triable by the Special Judge, the scheme of Section 306 contemplates a committal of the case to the Special Court. (Vide Section 306 (5) (a) (ii) Cr.P.C.). Therefore, the CJM/MM, after tendering pardon, to the accomplice should send the case to the Magistrate who is competent to commit the case to the Special Judge, who as per Section 5 (3) of the P.C. Act, 1988, is deemed to be a Court of Session. It is this committal Magistrate who has to examine the accomplice as a witness under Section 306 (4) (a) Cr.P.C. Thereafter, the said Magistrate shall commit the case to the Special Court for trial under Section 306 (5) (a) (ii) Cr.P.C.. If the request for tendering pardon to an accomplice is for the first time received by the Special Judge after the stage of taking cognizance, the Special Judge himself has to tender pardon to the accomplice under Section 5 (2) of the P.C. Act, 1988 and such pardon will be deemed to be one tendered under Section 307 Cr.P.C. dispensing with the examination of the accomplice as a witness under Section 306 (4) (a). This is analogous to a case where a Court of Session tenders pardon to an accomplice after the committal of the case.

 

iii) If the CJM/MM is the trial Court and the case is at the stage of investigation, then the tendering of pardon under Section 306 (1) Cr.P.C., recording of finding under Section 306 (3) Cr.P.C. and the examination of the approver under Section 306 (4) (a) Cr.P.C. etc. will have to be conducted by the CJM/MM who has to thereafter commit the case for trial to the Sessions Court by invoking the power under Section 306 (5) (a) (i) read with Section 323 Cr.P.C. In such a case the offence involved need not be one exclusively triable by the Sessions Court. Of course, here also the function of recording the confession of the approver under Section 164 Cr.P.C. at the earlier stage can be delegated to the JMFC. The rest of the functions including the recording of the finding under Section 306 (3) Cr.P.C. will have to be done by the CJM/MM.

 

iv) If the case is triable exclusively by a Court of Session, pardon to an accomplice at the stage of investigation can be tendered only by the CJM/ MM. Thereafter, the case can be forwarded to the JMFC who is entitled to take cognizance of the offence and commit the case to the Court of Section. The approver has to be examined as a witness before the said JMFC under Section 306 (4) (a) Cr.P.C. prior to the committing of the case to the Court of Session under Section 306 (5) (a) (i) read with Sections 193 and 209 Cr.P.C., as was done in Kurien v. State 1989 (1) KLT SN 60 Page 37 – U. L. Bhat – J ).

v) Where the case is triable by the JMFC and the tender of pardon is to be administered while inquiring into or trying the case, then the tender of pardon under Section 306 (1) Cr.P.C. by recording the finding under Section 306 (3) Cr.P.C. and the examination of the approver under Section 306 (4) (a) Cr.P.C. etc. can be made by the JMFC himself. But the initial recording of confession under Section 164 Cr.P.C. at the behest of the Police will have to be done by another Magistrate. After tendering pardon to the accomplice and examining him under Section 306 (4) (a) Cr.P.C. the JMFC will have to make over the case to the CJM for trial under Section 306 (5) (b) Cr.P.C.