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
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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
