1987 (4) TMI 496 - HC - Indian Laws

Summary

Issues Involved:
1. Examination of the approver under Section 306(4) after tendering pardon.
2. Competence of the Chief Judicial Magistrate to examine the approver and commit the case.
3. Necessity of making over the case to another court for examining the approver.
4. Right of the accused to cross-examine the approver during the examination under Section 306(4).

Detailed Analysis:

Issue 1: Examination of the approver under Section 306(4) after tendering pardon.
The court clarified that the examination of the approver under Section 306(4) of the Code of Criminal Procedure is mandatory. The purpose of this examination is to ascertain whether the approver has resiled from his former position and broken the conditions of his pardon. This examination is distinct from any questioning done at the time of tendering pardon, which is for the Magistrate's satisfaction and not a substitute for the mandatory examination under Section 306(4). The court emphasized that such examination is essential irrespective of whether the offences are exclusively triable by the Court of Session or not.

Issue 2: Competence of the Chief Judicial Magistrate to examine the approver and commit the case.
The court held that recording the confession does not disqualify the Chief Judicial Magistrate from examining the approver under Section 306(4) and committing the case under Section 306(5). The act of recording the confession is a judicial act that does not involve the exercise of discretion beyond ascertaining the voluntary nature of the confession and giving requisite warnings. The court concluded that the Chief Judicial Magistrate who recorded the confession can still handle the case for the purpose of committal.

Issue 3: Necessity of making over the case to another court for examining the approver.
The court found no necessity for the Chief Judicial Magistrate to make over the case to another court for examining the approver under Section 306(4). The Chief Judicial Magistrate can examine the approver himself and then commit the case under Section 306(5). The court noted that making over the case to another Magistrate on grounds of 'desirability' or 'embarrassment' is not necessary and would only complicate the process.

Issue 4: Right of the accused to cross-examine the approver during the examination under Section 306(4).
The court clarified that the examination of the approver under Section 306(4) before the Magistrate taking cognizance is not to be treated as evidence to consider the guilt or innocence of the accused. This examination occurs before the process is issued to the accused, and thus, the accused has no right to participate in or cross-examine the approver at that stage. The right to cross-examine the approver arises only during the subsequent trial when the examination is for evidence in the case.

Conclusion:
The court answered the reference by stating:
1. The approver must be examined again under Section 306(4) before committal, despite any prior examination at the time of tendering pardon.
2. Recording the confession does not debar the Chief Judicial Magistrate from examining the approver under Section 306(4) or from committing the case.
3. There is no need for the Chief Judicial Magistrate to make over the case to another Magistrate for examining the approver.
4. During the examination of the approver under Section 306(4), the accused does not have the right to cross-examine the approver.