DECIDING AUTHORITY : SUPREME COURT
DATE OF JUDGMENT : 07/02/2000
BENCH: M.B.Shah, K.T.Thomas
FACTS : It is the say of the prosecution that Dr. Kewal
Krishan was a medical practitioner having roaring practice
in village Gummer. Accused Surinder Mohan was resident of
the same village and was posted as a compounder in civil
dispensary, Jawalamukhi. Besides his official duties he was
also engaged in private medical practice at his village and
was assisted by his wife. Because of the roaring practice
of Dr. Kewal Krishan, Surinder Mohan was having malice and
he wanted to do away with the life of Dr. Kewal Krishan.
It is also the case of the prosecution that Surinder Mohan
gave threats to Dr. Kewal Krishan to do away with his life
and for this letter was sent through his sisters son
Ravinder Kumar (PW14). It is further say of the prosecution
that on 24th March 1988 at 10 p.m. Sandeep Kumar (PW 29)
accused who later turned as an approver was going to attend
Jagrata at Biru Chaudharys residence at village Dehrian.
When he could reach near the government dispensary, Gummer,
he came across Surinder Mohan and Biru Ram and at that time
Surinder Mohan was having his scooter. Surinder Mohan asked
Sandeep Kumar as to where he was going; Sandeep Kumar
apprised him about his going to attend the Jagrata;
Accused Surinder Mohan told him that he had gone to attend
one Nirmala Devi who was seriously ill and unfortunately the
medicines which were required for her treatment were not
with him. He therefore requested Sandeep Kumar that he
should call Dr. Kewal Krishan as the required medicines
were available with him. For this purpose accused Surinder
Mohan repeatedly requested and stated that life of Nirmala
Devi was at peril and therefore he should help. As Sandeep
Kumar agreed, Surinder Mohan took him on his scooter and
alighted him near shop of Kedar Nath (PW16). Sandeep Kumar
thereafter called upon Dr. Kewal Krishan and requested him
to accompany for giving treatment to Nirmala Devi. Hardly,
Sandeep Kumar and Dr. Kewal Krishan could cover the
distance of 300 yards, Surinder Mohan met them along with
the accused Biru Ram. It is further alleged that when they
could cover distance of 100 yards further, other accused
Shashi Paul and Amar Singh also met them. Thereafter when
they reached near the government dispensary, Ghummer,
accused Surinder Mohan and Biru Ram pounced upon Dr. Kewal
Krishan. Surinder Mohan gagged the mouth of Dr. Kewal
Krishan with a piece of cloth and tried to push him towards
the nearby Nallah. Accused Amar Singh and Shashi Pal came
from behind and thereafter Dr. Kewal Krishan was dragged
about 10 steps downwards. At that stage, Biru Ram attacked
with knife (chhura) and on receiving the stab injury, Dr.
fell on the ground. Subsequently, accused Surinder Mohan
asked Sandeep Kumar as to who other person was in the room
of doctor. After stating that Vijay Kumar was in the room
and he was knowing everything, Sandeep Kumar cursed Surinder
Kumar as to why he was cheating and stated that he would
reveal the entire episode to his father. Surinder Mohan
assured him to pay Rs.5000/-, but he did not submit to his
wishes and went on shouting. Then Surinder Mohan attacked
Sandeep Kumar with a knife, but with great difficulty he ran
away from the spot. At that stage also, accused persons and
Biru Ram attacked upon him with knife which hit him on his
back. With great difficulty he reached his house and after
cleaning the blood from his person he silently went to his
room and did not disclose anything regarding the incident to
anybody. It is his further say that on the next morning
when he went to answer the call of nature near the Nallah,
he noticed the red colour of water and also the dead body of
Dr. Kewal Krishan in the bushes.
It is also the prosecution version that on the next
morning PW 11 Vipin Kumar made a report to the police that
the shop of Piare Chand and the residence of Dr. Kewal
Krishan where doctor and his room mate Vijay Kumar used to
sleep were lying open and no one was seen at their
respective cots and that the dead body of Vijay Kumar was
lying in the nearby pasture land. On receiving this
information FIR for offence punishable under Section 302 was
registered. On the same day, dead body of Dr. Kewal
Krishan was found. After investigation, Sandeep Kumar was
arrested on 26th March 1988, accused Biru Ram, Amar Singh,
Shashi Paul were arrested on 27th March 1988 while accused
Surinder Mohan was arrested on 28th March 1988. On 8th June
1988 Sandeep Kumar moved an application from the jail
expressing his intention to make a true disclosure of the
facts in relation to the murder of Dr. Kewal Krishan and
Vijay Kumar as he was burdened with guilt.
JUDGEMENT : We have heard counsel on both sides and proceed to
elucidate certain clear propositions under the new Code
bearing upon the committal of cases where the offence is
triable exclusively by the Court of Session. The Committing
Magistrate in such cases has no power to discharge the
accused. Nor has he power to take oral evidence save where
a specific provision like S.306 enjoins. From this it
follows that the argument that the accused has to
cross-examine is out of bounds for the Magistrate, save in
the case of approvers. No examination-in-chief, no
cross-examination. In A. Devendrans case (Supra) this
Court considered the question as to whether non-compliance
of Sec. 306(4)(a) of the Code on account of non-
examination of an approver as a witness after granting him
pardon would vitiate the entire proceeding. In that case,
it was contended that the object and purpose engrafted in
clause (a) of Sub-section (4) of Section 306 is to provide a
safeguard to the accused who can cross-examine even at the
preliminary stage on knowing the evidence of the approver
against him and can impeach the said testimony when the
approver is examined in court during trial. This Court,
dealing with the said contention, held that a combined
reading of sub-section (4) of Section 306 and Section 307
would make it clear that in a case exclusively triable by
the Sessions Court if pardon is tendered to an accused and
he is taken as an approver before commitment then compliance
of sub-section (4) of Section 306 is mandatory. The
corollary is that non-compliance of such mandatory
requirements would vitiate the proceedings. But the
provisions of sub- section (4) of Section 306 are not
attracted to a case falling under the purview of Section 307
of the Code.
The Court thereafter considered the provision
of Section 465 Cr.P.C. and observed that the said provision
cannot be attracted in a situation where a court having no
jurisdiction under the Code does something or passes an
order in contravention of the mandatory provisions of the
Code. The said provision cannot be applied to a patent
defect of jurisdiction. In that case, Chief Judicial
Magistrate had tendered pardon to the accused after the case
was committed to the Sessions Court and, therefore, the
Court held that it was a case of total lack of jurisdiction.
But, after excluding the evidence of approver the court
appreciated the other evidence which was produced on record
for finding out whether the accused was guilty of the
offence charged. Further, the court did not hold that the
trial of the accused was illegal. In the said case, the
Court did not consider the effect of irregularities
committed by the Magistrate taking cognizance of the offence
in not asking the accused to cross-examine the approver.
That was a case where after the case was committed to the
Sessions court, the Chief Judicial Magistrate granted pardon
to one of the accused. In that set of circumstances, the
Court held that there was total lack of jurisdiction with
the Chief Judicial Magistrate which is not curable. The
court excluded the evidence of the approver on the ground
that pardon could not have been tendered by the Chief
Judicial Magistrate after committal of the proceedings to
the Court of Sessions. It is apparent that as per Section
307 Cr.P.C. the Court of Session before whom the trial is
pending alone would have jurisdiction to grant pardon to the
accused of that case and hence if the Chief Judicial
Magistrate tenders pardon his action is not curable within
the ambit of clause (g) of Section 460 of the Cr.P.C.
In the present appeal, there is no question of total
lack of jurisdiction with the Magistrate and it is not the
case that approver is not examined by the trial court before
granting pardon. Approver Sandeep Kumar was arrested on
26.3.1988. While in custody, he submitted an application
through Superintendent of Jail to CJM, Dharamshala on
8.6.1988 expressing his intention to make a true disclosure
of the facts regarding the incident. The application was
taken up by CJM on 9.6.1988 and noticed was issued to
prosecution for 13.6.1988. On that day, accused was
produced before the CJM. It was explained to the approver
that his statement could be used against him also and with a
view to give time to accused before becoming approver, the
case was adjourned to 15.6.1988 and on that day he was
examined and pardon was granted to him. But at that stage
the remaining accused were not asked to cross-examine him.
Formal challan was submitted before the Magistrate by the
Investigating Officer on 22.6.1988. After complying with
the objections, the case was committed to the Court of
Session on 4.8.1988. During the trial, the approver was
examined as PW29 on 5.4.1989 and on the same day he was
cross-examined by the counsel for the accused. Witnesses
for the defence were examined and completed on 15.11.1989.
Between 15.11.1989 and 8.5.1990, learned Sessions Judge,
Dharamshala heard arguments, visited the spot with a view to
appreciate the evidence on record and thereafter the learned
Sessions Judge passed his judgment and order. It was during
the arguments in the Sessions Court that the contention was
raised for the first time that procedure prescribed under
Section 306(4)(a) Cr.P.C. was not complied with and,
therefore, trial was vitiated. Till then none of the
accused raised such an objection and they never felt the
need to raise it. Acceptance of this objection would only
promote technical plea which would adversely affect
dispensation of justice. In such circumstances, we are of
the view that provisions of Section 465 Cr.P.C. would come
into operation. The said provision inter alia provides that
no order passed by a Court of competent jurisdiction shall
be reversed on account of any error, omission or
irregularity in order, judgment or other proceedings before
or during trial or in any inquiry or other proceedings under
the Code, unless in the opinion of the Court, a failure of
justice has in fact been occasioned thereby. Section 465(2)
Cr.P.C. further provides that in determining whether any
error, omission or irregularity in any proceeding under the
Code has occasioned a failure of justice, the Court shall
have regard to the fact whether the objection could and
should have been raised at an earlier stage in the
proceedings.
We again point out that before or after the
case was committed to the Sessions Court, accused have not
raised any objection that they were not permitted to
cross-examine the approver, nor did they contend so when the
approver was examined and cross-examined during the trial.
Therefore, at the stage of final arguments, accused cannot
raise the said contention. Further after cross-examining
the approver in detail, there is no question of failure of
justice nor any prejudice being caused to the accused on
account of that omission.
HELD : Appeal Allowed .
By Tejasv Anand , IVth Year , AMITY LAW SCHOOL,DELHI
A COMPREHENSIVE WEBSITE FOR ALL LEGAL DEVELOPMENTS