Sunday, 4 December 2016

Whether accused can be permitted to cross examine approver at pre-committal stage?

The examination which is contemplated under Section 306(4)
of the Code, cannot be equated with the 'examination' of a witness under
Section 138 of the Evidence Act. If what is contended by the learned

counsel for the respondent is to be accepted, and the accused is given a
right to cross examine an approver at the pre-committal stage, the same
would not only be contrary to law, but would lead to hazardous
consequences, as a Magistrate would be required to deal with and decide
the admissibility of any question raised in the examination/cross
examination by the accused, in a case exclusively triable by the Court of
Sessions. Under Section 306 of Code of Criminal Procedure, what cannot
be lost sight of is, that when an approver is being examined by a
Magistrate, he is merely recording his statement, after grant of pardon and
as such, he merely acts as a post office by recording the statement under
Section 306(4) and thereafter, forwards it to the Court of Sessions, which
is the Court competent to try the case. Thus, the term ‘examination’ used
in Section 306(4) of the Code, cannot be construed to mean an examination,
contemplated under Section 138 of the Evidence Act. The accused will get
an opportunity to cross examine the approver, only after the case is
committed to the Court of Sessions, when the approver is examined as a
prosecution witness, after which the accused will have a right to cross
examine the approver and bring out the contradictions or improvements
made by him during his evidence at the trial.

14. In conclusion, we may note that under Section 306 of the
Cr.P.C, the Magistrate is only empowered to examine the approver, as at this
stage, the proceeding before the concerned Magistrate is neither an inquiry
nor a trial, and therefore the accused has no right to cross-examine the
approver. The Magistrate does not have the jurisdiction and discretion to
“appreciate the evidence” which will be adduced before the Sessions Court
and give any findings on the merits of the case. His duty is only to record
the examination under Section 306(4)(a) and forward it to the Court of
Sessions, whilst committing the case. The examination of the approver as
contemplated under Section 306(4)(a) cannot in any circumstance, be
equated with the examination contemplated under Section 138 of the
Evidence Act. Infact, the examination is more or less akin to an examination
contemplated under Section 200 of the Code of Criminal Procedure. Hence,
an accused has no right to cross examine an approver at the pre-committal
stage.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.237 OF 2015
The State of Maharashtra

 V
 Narendra G. Goel

CORAM : V. M. KANADE &
 REVATI MOHITE DERE, JJ.

PRONOUNCED ON : 18th APRIL, 2016
Citation:2016 CRLJ 4227 Bom

1. The short question which arises for consideration in this
petition is:-
'Whether an accused has a right to cross examine the approver,
who is examined under Section 306(4) of the Code of Criminal Procedure
by the Magistrate, at the pre-committal stage?'
2. At the outset, we may note, that by a separate order, we have
dismissed Criminal Writ Petition No.3919 of 2014, preferred by the
respondent no.1 herein, challenging (i) the order dated 10th January, 2006,
passed by the learned Additional Metropolitan Magistrate, 37th Court,
Esplanade, Mumbai in C.C.No.525/PW/2005, granting pardon to Pradeep
Parab and (ii) the order dated 22nd September, 2014, dismissing the

petitioner's application seeking compliance of the order dated 15th February,
2013, passed by the High Court in Writ Petition No.1309 of 2012.
3. Few facts as are germane for deciding the present petition are
as follows;
On 23rd August, 2003 Dr.Asha Goel, a Canadian National of
Indian origin was found murdered in a flat belonging to her brother –
Suresh Agarwal, at Malabar Hill, Mumbai. Pursuant thereto, at the behest
of Suresh Agarwal, the brother of the deceased, the Malabar Hill Police
Station, registered C.R.No.93 of 2003 against unknown persons, alleging
offences punishable under Sections 302, 397, 452 r/w 34 and 120B of the
Indian Penal Code. As there was no progress in the investigation, the case
was transferred to the DCB, CID, Unit – II, Mumbai. Thereafter, accused
came to be arrested and on completion of the investigation, charge-sheet
came to be filed. Before the case was committed to the Court of Sessions,
original accused no.1 i.e. respondent no.3 herein gave his confession,
which was recorded by the learned Metropolitan Magistrate on 26th and 27th
September, 2005. On 28th December, 2005, cognizance was taken and
process was issued against the accused persons, copies were supplied under

Section 207 of Code of Criminal Procedure and the matter was adjourned
for committal of the case under Section 209 of the Code of Criminal
Procedure. On 9th January, 2006 the prosecution preferred an application
under Section 306 of the Cr.PC for grant of tender of pardon to respondent
no.3 – Pradeep Parab. On 10th January, 2006, the learned Metropolitan
Magistrate, accepted the tender of pardon on the ground, that respondent
no.3 makes full and true disclosure of the whole of the circumstances
within his knowledge, relating to the offence and with regard to every
person concerned with the same. Thereafter, the case was committed to the
Court of Sessions, and numbered as Sessions Case No.100 of 2006.
When the case came up before the learned Sessions Judge, for
framing of charge, the Respondent No.1 preferred an application seeking
his discharge from the said case. The learned Sessions Judge rejected the
said application vide order dated 29th February, 2012. Aggrieved by the
said order rejecting his application for discharge, the respondent no.1
preferred Criminal Writ Petition No.1309 of 2012, in this Court. When
the said petition came up before the learned Single Judge of this Court, it
was contended by the learned counsel for respondent no.1 that the

provisions of Section 306(4)(a) were not complied with. It appears that the
Special Public Prosecutor appearing for the State sought time, to examine
the grievance made by the counsel for the respondent no.1, as to whether
there was compliance with the provisions of Section 306(4)(a) or not, and
accordingly the matter was adjourned by three weeks. Realising that the
respondent no.3 was not examined as a witness before the learned
Magistrate, as contemplated under Section 306(4)(a) of Code of Criminal
Procedure, the prosecution preferred an application before the learned
Sessions Judge, seeking to rectify the said defect. The learned Sessions
Judge was pleased to reject the said application, vide order 21st June, 2012,
pursuant to which, the said order was challenged by the State in this Court,
in Criminal Writ Petition No.2421 of 2012. Both, the Writ Petition
preferred by the State as well as the Writ Petition preferred by the
respondent no.1, came up before the learned Single Judge of this Court.
The learned Single Judge vide order dated 15th February, 2013 was pleased
to allow the petition preferred by the State and accordingly the matter was
remitted to the Court of the learned Magistrate, for complying with the
requirement of Section 306(4)(a) of Code of Criminal Procedure. In view
of the said order, the petition preferred by the respondent no.1 (Original

Accused No.4) did not survive and was disposed of accordingly.
After remitting the matter, the respondent no.3 was examined
by the learned Metropolitan Magistrate as contemplated under Section
306(4)(a) of the Cr.P.C. After the approver was examined, the respondent
no.1 herein, preferred an application seeking permission to cross examine
the approver. The said application was resisted by the prosecution,
essentially on the premise, that in pre-committal proceedings the accused
did not have the right to cross examine the approver.
The learned Metropolitan Magistrate, Esplanade, Mumbai,
after hearing the parties vide the impugned order dated 2nd December,
2014, granted permission to the respondent no.1, to cross examine the
approver, before committing the case to the Court of Sessions. The State of
Maharashtra being aggrieved by the said order, has challenged the same
by this petition.
4. Mr.Thakare, learned Special Public Prosecutor appearing on
behalf of the petitioner – State has assailed the order, on several counts.

He contended that the approver was examined by the Court on solemn
affirmation and as such, the same was not an examination conducted by
the prosecution. He submitted that the examination contemplated under
Section 306(4) of the Code is more or less akin to the examination of the
complainant and witnesses by a Magistrate, while processing the complaint
under Section 200 of the Cr.P.C., before issuance of process. He submitted
that a Sessions trial commences only after charge is framed under Section
228 of the Cr.P.C and hence the question of 'examination of witnesses'
arises only thereafter, and that too before the Court of Sessions. According
to him, there is no express provision in the Code, more particularly under
Section 306(4) of the Cr.P.C which permits the accused to cross examine
an approver, before committing the case to the Court of Sessions, inasmuch
as, the Magistrate is not empowered to appreciate the evidence, in a
Sessions triable case. He relied on several judgments, in support of his
submission.
5. Per Contra, Mr.Amit Jajoo, learned counsel appearing for the
respondent no.1, submitted that the right to examine an approver is
inherent under Section 306(4) of the Cr.P.C. He submitted that under

Section 138 of the Evidence Act, the term ‘examination’ includes
examination-in-chief, cross examination and re-examination and therefore
the term ‘examination’ used in Section 306(4) will have to be read as
'examination' as contemplated under Section 138 of the Evidence Act. He
relied on the judgment in the cases of CBI v/s Ashok Kumar Aggarwal
and Another1
, State of Kerala v/s Monu D. Surendran and Another2
 ;
Milind s/o Atmaram Pawar and Another v/s State of Maharashtra3
to
bring home his point. Learned Counsel appearing for the other respondent
– accused supported the submissions canvassed by Mr.Jajoo.
6. Heard learned counsel for the parties at length. Considering
the issue raised in this petition, it is not necessary to dwell in detail into
the facts of the present case. Suffice it to say, that the accused have been
charged with the offences punishable under Sections 302, 397, 452 r/w 32
and 120B of the Indian Penal Code and that the said offences are sessions
triable offences. Before we proceed to discuss, whether or not, an accused
has a right to cross examine an approver, at the pre-committal stage i.e.
before the case is committed to the Court of Sessions, it will be appropriate
1 (2013) STPL (Web) 950 SC
2 (1988) Cri.LJ 812 (Kerala)
3 (2003) Vol.105(3) Bom.LR.778

to reproduce Section 306 of the Code of Criminal Procedure :-
Section 306 – Tender of pardon to accomplice
(1). With a view to obtaining the evidence of any person supposed to have
been directly or indirectly concerned in or privy to an offence to
which this section applies, the Chief Judicial Magistrate or a
Metropolitan Magistrate at any stage of the investigation or inquiry
into, or the trial of, the offence, and the Magistrate of the first class
inquiring into or trying the offence, at any, stage of the inquiry or
trial, may tender a pardon to such person on condition of his making
a full and true disclosure of the whole of the circumstances within his
knowledge relative to the offence and to every other person
concerned, whether as principal or abettor, in the commission
thereof.
(2) This section applies to—
(a) any offence triable exclusively by the Court of Session or by the
Court of a Special Judge appointed under the Criminal Law
Amendment Act, 1952 (46 of 1952).
(b) any offence punishable with imprisonment which may extend to
seven years or with a more severe sentence.
(3). Every Magistrate who tenders a pardon under Sub-Section (1) shall
record —
a. his reasons for so doing;
b. whether the tender was or was not accepted by the person to whom it

was made, and shall, on application made by the accused, furnish him
with a copy of such record free of cost.
(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 SubSection
(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 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 himself.
(emphasis supplied)

7. In the present case, we are essentially concerned with subsection
(4)(a) of Section 306 of the Code of Criminal Procedure, which
deals with examination of the approver, as a witness. Can the term
'examination' used in Section 306(4)(a), be interpreted to mean
'examination' as contemplated under Section 138 of the Evidence Act, so as
to give an accused the right to cross-examine the approver, at the pre
committal stage? The answer is an emphatic 'No' and we are in our
conclusion supported by the Judgment of the Apex Court in this regard.
8. In 'Ranadhir Basu v/s State of West Bengal'4
 the Apex Court
has held, that the proceeding before the Magistrate is neither an
investigation nor a trial and hence an accused does not have a right to
cross examine the approver. Para 7 of the said Judgment, reads thus:-
"It was contended by Mr. Muralidhar, learned counsel appearing for
the appellant that Sudipa was not "examined as a witness" as
contemplated by Section 306(4) Cr.P.C. He submitted that Sudipa was
examined by the Magistrate in his chamber and not in the open Court
and at that time the accused were not kept present. Her evidence was
subjected to cross-examination. In support of his submission he relied
upon the decision of this Court in Suresh Chandra Bahri v. State of
Bihar. In that case this Court after pointing out the object and purpose
4 (2000) 3 SCC 161

of enacting Section 306(4) Cr.P.C. had held that since the provision
had been made for the benefit of the accused it must be regarded as
mandatory. It had observed therein that :(SCC p. 101, para.30).
“The object and purpose in enacting this mandatory
provision is obviously intended to provide a safeguard
to the accused in as much 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....".
From this observation it does not follow that the person who is
granted pardon must be examined in the presence of the accused and
that the accused has a right to appear and cross-examine him at that
stage also. As pointed out by this Court in that case the object is to
provide an opportunity to the accused to show to the Court that the
approver's evidence at the trial is untrustworthy in view of the
contradictions or improvements made by him during his evidence at
the trial. Considering the object and purpose of examining the person
accepting tender of pardon as a witness is thus limited. The
proceedings which takes place before the Magistrate at that stage is
neither an inquiry nor a trial. Therefore, the submission of the learned
counsel that Sudipa should have been examined as a witness in open
Court and not in the chamber and that while she was examined the
Magistrate should have kept the accused present and afforded to them

an opportunity to cross-examine Sudipa cannot be accepted. The
phrase "examination of a witness" does not necessarily mean
examination and cross-examination of that witness. What type of
examination of a witness is contemplated would depend upon the
object and purpose of that provision. Section 202 Cr.P.C. also
contemplates examination of witness yet it has been held, considering
the object and purpose of that provision, that the accused has no locus
standi at that stage …...".
9. The Madras High Court in the case of ‘State by: Assistant
Commissioner of Police, Crime Record Bureau, Inspector of Police v/s
Saravanan, Prakash and Vijay alias Vijayakumar5
’ faced with a similar
issue, i.e. whether or not an accused can be permitted to cross-examine an
approver, at the pre-committal stage? placing reliance on Ranadhir Basu
v/s State of West Bengal (supra) held in Para 6 as under:
“ 6. On a reading of the above observation, it is clear that the
ratio decided by the Supreme Court is that the committal
proceeding which takes place before the committal court at
that stage is neither an enquiry nor a trial. Therefore, the
contention that the accused must be given opportunity to
cross-examine in the committal court when the approver is
examined cannot be accepted. The phrase “examination of
witness” does not mean examination and cross-examination
5 2004(1) ALT(Cri) 507

of that witness. Therefore, it is clear that the accused cannot
claim as a right to cross-examination.”
10. Reliance placed by the learned counsel for the Respondents on
State of Kerala V. Monu Sunrendran (supra) is completely misplaced as
the same was overruled by the Full Bench of the Kerala High Court in
‘L.S.Asokan V/s State of Kerala’ 6
. The relevant para is as follows:
“20. In the light of the decisions of the Apex Court adverted to
above, we are of the considered view that Monu Surendran
has not been correctly decided and with due respect we
overrule the same and hold that In re Chief Judicial
Magistrate (Supra) and Kurian v. State of Kerala were
correctly decided. There is no dispute that those
appellants/accused who had cross-examined the approver
during his examination under Section 306(4)(a) Cr.P.C. was
pursuant to the direction given to the Chief Judicial
Magistrate in Monu Surendran's case wherein it was the
State which sought for the direction to examine the
approver giving opportunity to the accused to crossexamine
him. Thus, cross-examination was virtually thrust
upon the appellants/ accused without their asking for it. In
such situation, the cross-examination conducted by them
cannot be said to be as of right.”
6 2005(3) ILR (Ker) 567

11. Reliance placed by the learned counsel for the respondent on
Sitaram Sao alias Mungeri v/s State of Jharkhand, reported in (2007) 12
SCC 630 is also completely misplaced. The issue involved in this case,
was whether the evidence given by the accomplice is admissible, without
any corroboration to the same, and if the procedure adopted by the CJM
was illegal. Reliance placed on para 34 of the said Judgment, is out of
context and has no bearing to the issue before us.
12. The Judgments relied upon by the learned counsel for the
respondent are clearly distinguishable and as such have no application to the
facts of the present case. We may note here, that in none of the Judgments
relied upon by the learned counsel for the respondent, the Courts were
required to deal with the specific question raised before us; i.e. 'whether the
accused has a right to cross examine the approver at the pre-committal
stage”.
13. The examination which is contemplated under Section 306(4)
of the Code, cannot be equated with the 'examination' of a witness under
Section 138 of the Evidence Act. If what is contended by the learned

counsel for the respondent is to be accepted, and the accused is given a
right to cross examine an approver at the pre-committal stage, the same
would not only be contrary to law, but would lead to hazardous
consequences, as a Magistrate would be required to deal with and decide
the admissibility of any question raised in the examination/cross
examination by the accused, in a case exclusively triable by the Court of
Sessions. Under Section 306 of Code of Criminal Procedure, what cannot
be lost sight of is, that when an approver is being examined by a
Magistrate, he is merely recording his statement, after grant of pardon and
as such, he merely acts as a post office by recording the statement under
Section 306(4) and thereafter, forwards it to the Court of Sessions, which
is the Court competent to try the case. Thus, the term ‘examination’ used
in Section 306(4) of the Code, cannot be construed to mean an examination,
contemplated under Section 138 of the Evidence Act. The accused will get
an opportunity to cross examine the approver, only after the case is
committed to the Court of Sessions, when the approver is examined as a
prosecution witness, after which the accused will have a right to cross
examine the approver and bring out the contradictions or improvements
made by him during his evidence at the trial.

14. In conclusion, we may note that under Section 306 of the
Cr.P.C, the Magistrate is only empowered to examine the approver, as at this
stage, the proceeding before the concerned Magistrate is neither an inquiry
nor a trial, and therefore the accused has no right to cross-examine the
approver. The Magistrate does not have the jurisdiction and discretion to
“appreciate the evidence” which will be adduced before the Sessions Court
and give any findings on the merits of the case. His duty is only to record
the examination under Section 306(4)(a) and forward it to the Court of
Sessions, whilst committing the case. The examination of the approver as
contemplated under Section 306(4)(a) cannot in any circumstance, be
equated with the examination contemplated under Section 138 of the
Evidence Act. Infact, the examination is more or less akin to an examination
contemplated under Section 200 of the Code of Criminal Procedure. Hence,
an accused has no right to cross examine an approver at the pre-committal
stage.
15. In view of the aforesaid, the Petition is allowed and the
impugned order dated 2nd December, 2014, permitting the respondent-

accused to cross examine the approver, being contrary to law, is quashed
and set aside.
16. All concerned to act on the authenticated copy of this order.
REVATI MOHITE DERE, J. V. M. KANADE, J.

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