Holding

Non‑compliance with Section 306(4)(a) does not vitiate the trial as the accused have no right to cross‑examine an approver at the investigation/inquiry stage, and such procedural defect is not fatal unless it caused a failure of justice.

Summary

The State prosecuted Surinder Mohan and others for murder and related offences. An accomplice, Sandeep Kumar, was granted pardon by the Chief Judicial Magistrate and his statement was recorded before the case was committed to the Sessions Court, but the accused were not cross‑examined at that stage. During the trial the approver was examined and cross‑examined, and only at the final arguments the accused contended that Section 306(4)(a) of the Cr.P.C. required cross‑examination at the committal stage, alleging that the trial was vitiated. The High Court held the non‑compliance fatal and dismissed the appeal. The Supreme Court reversed, ruling that at the investigation or inquiry stage the accused have no right to cross‑examine an approver and that failure to do so does not vitiate the trial unless it causes a failure of justice, invoking Section 465 of the Cr.P.C.; the objection should have been raised earlier. Consequently, the appeal was allowed, the High Court judgment set aside and the matter remitted for fresh disposal.

Issues considered

Whether non‑compliance with Section 306(4)(a) Cr.P.C. by not allowing cross‑examination of an approver at the committal stage vitiates the trial.
Whether an accused has a right to cross‑examine an approver during investigation or inquiry.
Whether Section 465 Cr.P.C. bars reversal of a conviction for such procedural irregularity absent a failure of justice.
Whether an objection raised for the first time at the stage of final arguments is maintainable.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 155, s. 156, s. 157, s. 158, s. 159, s. 160, s. 161, s. 162, s. 163, s. 164, s. 165, s. 166, s. 167, s. 168, s. 169, s. 170, s. 171, s. 172, s. 173, s. 174, s. 175, s. 176, s. 200, s. 306(4)(a), s. 307, s. 465
Indian Penal Code, 1860s. 120B, s. 302, s. 34, s. 380, s. 457

Subjects

ApproverSection 306(4)(a)Cross‑examinationCommittal proceedingsProcedural defectSection 465Criminal trialFailure of justice

Judgment

STATE OF HlMACHAL PRADESH A
v.
SURINDER MOHAN AND ORS.

FEBRLARY 7, 2000

[K.T. THOMAS AND M. B. SHAH, JJ.j B

Crimi11al Procedure Code, 1973 .

Sectiol!S 154 to 176 and 2()(}--Cross-exami11ation--Right of-At the
time of i11vestigatio11 or i11quiry accused does not have a11y right to cross-ex
ami11e the wit11ess. c
Sectiol!S 306(4) (a) a11d 465- -Te11der of pardo11- -Cross-exami11atio11 of
Approver-Accused failed to raise plea to cross-exami11e the approver before
or after the committal of case to the Sessions Court-Did not object to
approver's exami11atio11 and cross-examination during the uial--But raised D
such plea at the stage of fi11al arguments-Contended further that 1w11-ex-
amination of approver by the accused amounted to no11--compliance of
provisions of Section 306(4)(a) which vitiated the committal order and the
triaHleld, such contention cannot be raised for the first time at the stage of
final arguments and hence, trial not vitiated-Provisions of Sectiun 465
attracted. E
Section 306(4)fa}-S.:upe of-Not couched i11 ma11dato1y frnn---lvon-
examination of accuud by the approver would not vitiated the uial.

Respondents were tried for offences punishable under Sections 302,
380, 457, 120-8 read with Section 34 of Indian Penal Code, 1860 by the F
Additional Sessions Judge.

According to the prosecution, one 'S' became an approver and his
statement was recorded by the Chief Judicial Magistrate after granting
him pardon on the condition that he would make true disclosure of the
offence. But at that stage the remaining accused were not asked to cross- G
examine him. Formal challan was submitted before the Magistrate and the
case was committed to the Sessions Court. During the trial approver was
examined and cross-examined. The witnesses for defence were examined.
Thereafter, when the final arguments were heard, a contention was raised
for the first time by the accused that the procedure prescribed under H
659
660 SUPREME COURT REPORTS f20COJ I S.C.R.
A Section 306(4)(a) of the Code of Criminal Procedure was complied with as
statement of the approver was not recorded by the Magistrate during the
committal proceedings and, therefore, the trial was vitiated. The Addition-
al Sessions Judge acquitted the <1ccused. The appellant went in appeal.
High Court dismissed the appeal on the ground of non-compliance of the
B provisions of Section 306(4)(a) of the Code. Hence this appeal.

Allowing the appeal, this Court

·HELD : 1.1. At the time of investigation or inquiry for the offence
triable by Ses~ions Court accused persons have no right to cross-examine
C the approver and non-examination of the approver at that stage would not
vitiate the trial. The right to cross-examination would arise only at the time
of trial. Under Section 200 of the Code of Criminal Procedure also when
the Magistrate before issuing process holds the inquiry, accused has no
right to be heard, and therefore, the question of cross-examination does
not arise. Further, when the person to whom pardon is granted, is ex-
D amined but is not offered for cross-examination then there is no question
of any prejudice caused to the accused. [667 -F-G]

Chief Judicial Magistrate, Trivandrnm, (1988) Cr.LJ. 812, approved.

A. Devendran v. State of Tamil Nadu, [1997] 11 SCC 720 and Suresh
E Chandra Bahri v. State of Bihar, [1995] Suppl. I SCC 80, distinguished.
Uravakonda Vijayaraj Paul v. The State & Ors., [1986] Crl.LJ. 2104,
overruled.

Kalu Khoda v. State, AIR (1%2) Guj. 283 and Sa11jay Ciwtdili \. l'11ior1
F of India, AIR (1978) SC 514, referred to.
1.2. In the instant case during the final arguments in the Sessions
Court a contention was raised for the first time that procedure prescribed
under Section 306(4)(a) of the Code of Criminal Procedure WJs not
complied with as the statement of the approver was not recorded by the
G Magistrate during the committal proceedings which vitiated the trial.
Acceptance of this objection would only promote technical plea which
would adversely affect dispensation of justice. In such circumstances,
provisions of Section 465 of the Code are attracted which provides that the
finding or sentence passed by the Court cannot be reversed by reason of
H error in order, judgment or other proceedings before or during the trial
STATE v SllRINDER MOHA.N [SHAH,J.] 661

of in any inquiry or other proceedings under the Code, unless in the A
opinion of the Court such failure of justice has in fact been occasioned
thereby. When such failure of justice has been occasioned the Court shall
have regard to the fact whether the objection could have been raised at an
earlier stage in the proceedings. [671-E-H]

1.3. Before or after the case was committed to the Sessions Court, B
accused did not raise 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 raised the said contention. Further
after cross-examining the approver in detail, there is no question of failure C
of justice nor any prejudice being caused to the accused on account of such
omission. 1672-BI

1.4. It is not correct to state that Section 306(4)(a) of the Code of
Criminal Procedure is couched in mandatory term by using the word
'shall" which indicates that if there is breach of the said mandatory D
provision further trial would be vitiated. By not examining the approver,
the trial would not get vitiated. [672-C-D]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
111 of 2GOO.
E
From the Judgment and Order dated 2.l,98 of the Himachal Pradesh
High Court in Cr!. A. No. 460 of 1990.

Anil Soni and M&. Meenahhi Arora for the Appellant.

R.D. Upadhyay, Girdhar G. Lpadhayay, Syed Ali Ahmed, Syed F
Tanweer Ahmeed and K.L. Gautam for the Respondents.

The Judgment of the Court wa& delivered by

SHAH, J. Leave granted.
G
The respondents were tried for offences punishable under Sections
302, 380, 457, 120-H read with Section 34 IPC by the Additional Sessions
Judge (I), Kangra at Dharamshala in Sessions Case No. 8 of 1988 and wcre
acquitted for the said offences by order dated 8th May, 1990. The State
preferred Criminal Appeal No. 460 uf 1990 before the High Court of H
662 'iUPREME CO CRT REPORTS [2COO] l S.C.R.

A Hirnachal Pradesh. The appeal was dismissed by judgment and order dated
2.1.1998 solely on the ground that the Chid Judicial Magistrate had failed
to comply with the mandatory directions contained in clause (a) of sub-
section ( 4) of Section 306 Cr.P .C. as no statement of approver was
recorded by the Chit:f Judicial Magistrak during the committal proceed-
B ings, which vitiates the committal of the accused persons to Court of
Session and consequ~ntly the trial by the Sessions Judge.

Before deaiing with the question of law arising in this appeal, we
would state in nutshell the prosecution version. It is the say of the prosecu-
tion that Dr. Kc;wal Krishan was a medical practitioner having roaring
C practice in village Gummer. Accused Surinder Mohan was resident of the
same village ar d was posted as a compounder in civil dispensary,
Jawalamukhi. BL sides 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 Jf Dr. Kewal Krishan, Surinder Mohan was having malice
D and he wanted to do away with the life of Dr. Kewal Krishan. It is also the
case of the prosecution that Surindcr Mohan gave threats to Dr. Kewal
Krishan to do away with his life and for this kttcr was si;:nt through his
sister's son Ravindcr 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
E Chaudhary's residcnc.: at village Dchrian. When he could reach near the
goveramem Ji;p..:n,ary, Ciumme1, h~ CaJ11c across Surindcr Mohan and
Biru Ram and at lhal time Surincler Mohan was having his scooter.
Surinder Mohan asked Sandeep Kumar as to where he was going; Sandecp
Kumar apprised him about his going to attend the 'Jagrata'; Accused
F Surindcr Mohan told him that he had gone to attend one Nirmala Devi
who was seriousiy 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 pt:ril and
G therefore he should hdp. As Sandeep Kumar agreed, Surinder Mohan took
him on his scooter and alighted him near shop of Kedar Nath (PW16).
Sandeep Kumar then:aftcr 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,
H Surinder Mohan met them along wifa the accused Biru Ram. It is further
)
--~t

STATE v. SURINDERMOHAN [SHAH,J.j 663

allt:ged that when they could cover distance of 100 yards further, other A
accused Shashi Pal and Amar Singh also met them. Thereafter when they
reached near the government dispensary, Ghumrner, accused Surinder
Mohan and Biru Ram pounci:d upon Dr. Kewal Krishan. Surinder Mohan
gagged the mouth of Dr. Kewal Krishan with a pieci: of cloth and tried to
push him towards the nearby Nallah. Accused Amar Singh and Shashi Pal
came from behind and thi:reafter Dr. Ki:wal Krishan was draggt:d about 10
B
stt:ps 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 othi::r pt:rson
was in the room of doctor. After stating that Vijay Kumar was in the room
and he was knowing everything, Sandi:ep Kumar cursed Surindi:r Mohan c
as to why he was cheating and stated that ht: would reveal the entire
episode to his fathi:r. Surinder Mohan assured him to pay Rs. 5,COO, but
ht: 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 D
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, ht: noticed the n:d colour
of water and also the dead body of Dr. Kewal Krishan in the bushes. E

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 F
respective cots and that the dead body of Vijay Kumar was lying in the
nearby pasture land. On receiving this information FIR for offence punish-
able under Section 302 was registered. On the same day, dead body of Dr.
Kewal Krishan was found. After investigation, Sandeep Kumar was ar-
rested on 26th March 1988, accused Biru Ram, Amar Singh, Shashi Pal
were arrested on 27th March 1988 while accused Surinder Mohan was G
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 burdi:ned with guilt. After completing the formalities and
recording the statement, the Chief Judicial Magistrate granted pardon to H
664 SUPREME COl:RT RHORTS (2000] l S.C.R.
A Sandeep Kumar. The case was committed to the Court of Session on 4th
August, 1988.

P.W. 33, Sh. J.M. Barowalia, Chief Judicial Magistrate has deposed
bdore the Court that on 9.6.1988 he received application from Sandeep
B Kumar undertrial through Superintendent Jail. On that application, notice
was issued to PP a~; well as SHO, Jawalamukhi and tht: date was fixed on
13.6. 1988. Sandeep Kamar was produced bdore him and he was explained
by him that he was under no obligation to make any statemt:nt and if he
make~ the stak'llent. it can be used against him. The matter was adjourned
to 15.6.1988 and thereafter on 15.6.88 in presence of APP, RS Sharma, his
C statement was recordt:d after giving him further half-an-hour to think what
statement he wanted to make. Sandeep Kumar was further given time of
one hour and thereafter at 3.30 p.m. after recording his statement, he
tendered pardon on the condition of his making full and true: disclosure: of
the circumstances within his knowledge relating to the offence. The state-
D ment of Sandet:p Kumar is also produced on record al Ext. PW,'2.

It was the conti::ntion of the learned counsel for thto accused bt:fore
the High Court that the statemt:nt of approver Sandeep Kumar was
recorded by the Chief Judicial Magistrate on 15.6.1988 after granting him
pardon on the condition that he would make true disclosun: of tht:. incidt:nt.
E But, on that datt:, challan was not filed bdore the CJ M and other accused
were also not summoned to enable thtm to cross examine Sandet:p Kumar,
and therefore, stakmcnt of the approver cannot be treated as :;tat..:ment
rernrJcJ by th~ commott'<l cnmt under S1-c~iun 306( 4) C:• f'.C. T!i;,; H1r.;h
Court hdd thal thl prnscculion ha5 tu n.~.mine the approver bdnre th.:
F committal court as provided under wb-Scction (4) of Section 306 lr. P.C.
which will be his examination-in-chief and the accused person would have
a right to cross-examim: him. Therefore, statement recorded by the Chief
Judicial Magistrate before firing cf the challan in his court without sum-
moning the accused person was not statement recorded under Section
306(4) Cr.P.C. As the statemt:nt of approver was not recorded accordingly
G by the Chief Judicial Magistrate during the committal proceedings, it
vitiates the committal of the accused persons to the Court of Session and
consequently their trial by the Sessions Judge. The High Court further
observed that had the said defect been pointed out during the course of
trial, the Court would have remanded t!it: matter to the Chid Judicial
H ~agistrate for holding committal proceedings afresh by recording st,ate-
STAT!.<. v. SLRINDER MOHAN [SHAH, J.j 665

ment of Sandeep Kumar as providta under Section 306(4). This course A
cannot be adopted since the offence was committed on 24th March, 1988
and the respondtnts were acquitted on 8th May, 1990 and therefore retrial
--.. afresh will not be in the interest of justice and fair play. ln view the
aforesaid findings, Lhe Court has not considered the other evidence led by
the prosecution.
B
In this appeal, learned counsd for the State submitted that :

(1) Section 306 (4) Cr.P.C. nowhere provides that

(a) approver's evidence cannot be recorded on the date or prior
to submission of the charge sheet; c
(b) the accused is required to be summoned before recording the
statement of the approver; and

(c) that accused should be permitted to cross-examine the ap-
prowr. D

(2) ln any case under Section 465 Cr. P.C., after trial accused ought
not to have been permitted to raise the contention that then: was
such an omission in recording the statement of approver.

The lc::arned counsel next contended that the decision in A.
E
Devendran V. State of Tamil Nadu, [1997] ll sec 720 nowhere lays down
that while recording the evidence of the approver, if some irregularity is
committed it would vitiate the trial. For the decision in Suresh Chandra
Bahri v. State of Bi/Jar, (1995) Suppl. 1 SCC 80 it is pointed out that error
of not recording the evidence of the approver was rectified by the Sessions F
Court by remitting it before trial to the Magistratt: for recording the
evidence of the approver and hence, the Court has held that trial was not
vitiated. It is, therefore, submitted that some of the observations made
therein an: obiter.

As against this, learned counsel for the respondents submitted that G
this Court has repeatedly interpreted Section 306(4) Cr.P.C. and held it to
be mandatory and therefore its non-compliance vitiates the committal
order as well as the trial. For this purpose, he placed reliance on the
decision of this Court in A. Deve11dra11 v. State of Tamil Nadu, [1997) 11
sec no. H
l

666 SVPREME COURT REPORTS [2000] 1 S.C.R.
A For considering the rival contention~ raised by learned counsel for
the parties, we would first refer to the relevant part of Sections 306 and
307 which is a5 under :-

"306. Te11der of pardon tu accomplice.- (!) With a view to
=
obtaining the evidence of any person supposed to have been
B direct!y or indirectly concerned in or privy to an offence to which
this 5ection 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
c 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 relating to the offence and to every other
person concerned, whether as principal or abettor, in the commis-
sion thereof.

D (2) ........ .

(3) ........

(4) Every person accepting a tender of pardon made under
sub-section (1) -
E
(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
F until the termination of the trial.

(5) ..........

307. Power to direct tender of pardon.- At any time after commit-
ment of a case but before judgment is passed, the Court to which
G
the commitment is mad1~ may, with a view to obtaining at the trial
the evidence of any person supposed to have been directly or
indirectly concerned in, or privy to, any such offence, tender a
pardon on the same condition to such person."

H From the aforesaid Section 306 it can be stated that-
--·

STATE v. SURI~DER MOHAN '.SHAH, J.] 667

(1) the purpose of the Section is to obtain the evidence of any A
person supposed to have been din:ctly or indirectly con-
cerned in or privy to an offonce 'during investigation, inquiry
or trial';

(2) the Chief Judicial Magistrate or Metropolitan Magistrate is
empowered to tender a pardon to such person 'at any stage B
of investigation or inquiry into or the trial of the offence';

(3) the condition for tender of such pardon is that the person is
to make a full and true disclosure of the whole circumstances
within his knowledge relating to the offence; c
(4) a person accepting pardon under sub-section ( 1) is to be
'examined' as a witness in the court of Magistrate taking
cognizance of the offenct: and in subsequent trial, if any.

(5) Further, if the case is committed for trial to the Court of D
Sessions, Section 307 empowers the Sessions Court trying the
case to tender a pardon on the same conditions to such
person before the judgmi::nt is passed.

From the aforesaid· ingredients, it is abundantly clear that at the stage
of investigation, inquiry or trial of the offence, the person to whom pardon E
is to be granted, is to be examined for collecting the evidence of a person
who is directly or indirectly concerned in or privy to an offence. At the
time of investigation or inquiry into an offence, the accused cannot claim
any right under law to cross-examine the witness. The right to cross-
exarnination would arise only at the timt: of trial. During the course of
F
investigation by the Police, question of cross-examination by the accused
does not arise. Similarly, under Section 2CO Cr.P.C. when the Magistrate
before taking cognizance of the offence, that is, before issuing process
holds the inquiry, accused has no right to be heard and, therefore, the
question of cross-<-xamination does not arise. Further, the person to whom
pardon is granted, is examined but is not offered for cross-examination and G
thereafter during trial if he is examined and cross-examined then there is
no question of any prejudice caused to the accused. In such cases, at the
most accust:d may lose the chance to cross-examine the approver twice,
that is to say, once before committal and the other at the time of trial.

On the question of examination different views are expressed by the H
668 SUPREME COURT REPORTS [2000] 1 S.C.R.
A High Courts. The High Court of Andhra Pradesh in Uravako11da Vijayaraj
Paul v. The State a11d Others, (1986) CrL L.J. 2104 had held that mere
recording of the statement of an approver does not amount to examination
as a witness unless the accused are given an opportunity to cross-examine
tht: approver and that the provision of Section 306(4) of the Cr.P.C. is
mandatory. The Court relied upon the decision of Gujarat High Court in
B Kalu Khoda v. State, AIR (1962) Guj. 283, wherein the Court interpreted
Section 337 of the (Old) Cr.P.C. which is analogous to Section 306(4) of
Cr.P.C. As against this, Kerala High Court in Chief Judicial lvfagistrate,
Trivandmm (1988) Crl.L.J. 812 has observed that examination under Sec-
tion 306(4) would be even before issuing process and at that stage no
C inquiry is involved and accused wiII be nowhere in picture, therefore, there
is no question of accused being permitted to cross-examine the approver
at that stage and ht: has no right to participate in that examination.

In the present case, the Hi1¥i Court has relied upon the dt:cision in
Sanjay Ga11dhi v. Unio11 of India,. AIR (1978) SC 514. [n the said case a
D contention was raised that accused wishes to cross-examine the Y.itncsses
for the prosecution and to argue that no prim a f acie case has been admit-
tedly made out for commitment. It was submitted that to cross-examine the
approvt:r, tht: accused was required tu pursue, scan and scrutinise the
papt:rs produced by the police and, tht:refore, committal proceedings be
stayed. In that context the Court in the opt:ning part of the judgment
E observed :-

"~o party to a criminal trial has a vested right in slow motion
justice since the soul of social justice in this area of law is prompt
trial followed by verdict of innocence or sentence. Since a fair trial
is not a limping hearing, we view with grave concern any judicial
F insuucience which lengthens litigation to limits of exasperation..... "

The Court further held that the scope of committal proceedings is
limited to merely ascertaining whether the case, as disclosed in the police
report, involves an offence triable exclusively by the Court of Session. The
G Court thereafter observed :-

''We have heard counsel on both sides and proceed to elucidate
certain clear propositions under tl:te new Code bearing upon the
committal of cases where the offonce is triable exclusivdy by the
Court of Session. The Committing Magistrate in such cases has no
H power tu discharge the accused. Nor has he pow..:r tu take oral
£

STATE v. SURlNDhR MUHA.."1 ;sHAH,J.j 669

evidt:nce save where a specific provision like;; S.306 enjoins. From A
this it follows that the argumt:nt that the accused has to cross-ex-
amine is out of bounds for the Magistrate, save in !ht: case of
approvers. l'<o examination-in-chief, no cross-examination."

In A. Deve11dra11 's case (Supra) this Court considered the qut:stion
B
as to whether non-compliance of Sec. 306(4)(a) of the Code on account of
non-examination of an approver as a witm:ss 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 providt: a safeguard to the accused who can cross-examine even
at the preliminary stage on knowing the evidence of the approver against c
him and can impeach the said tt:stimony when the approver is examined in
court during trial. This Court, dealing with the said contention, ht:ld that
a combined reading of sub-section (4) of Section 306 would make it clear
that in a case exclusivdy 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 D
is that non-compliance of such mandatory requirements would vitiate tht:
proceedings. But the provisions of sub-section (4) of Section 306 an: not
attracted to a case falling under the purview of St:ction 307 of the Code.
The Court thert:after considered the provision of Section 465 Cr.P.C. and
observt:d that the said provision cannot be attracted in a situation where a
court having no jurisdiction under the Code does something or passes an E
order in contravc;;ntion 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 cast: of total lack of jurisdiction. But, after excluding the
evidence of approv1;;r the court appreciated the other evidence which was
F
produced on n:cord 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 ilkgal. 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 G
a case whc;;re 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 Chit:f 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 proceed- H
l_

670 SUPREME COURT REPORTS (2000) 1 S.C.R.
. A ings 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.

B In Suresh Chandra Bahri's case (supra) this Court considered the
provisions of sub-section (4) of Section 306 and observed that the object
and purpose of enacting the provision is obviously intt:nded to provide a
safeguard to the accused inasmuch as the approver has to make a statement
disclosing his evidence at the preliminary stage before the committal order
C is made and the accused not only becomes aware of the tvidence against
him, but he is also afforded an opportunity to meet with the evidence of
the approver before the committing court itself at the very threshold so
that he may take steps to show that the approver's evidence at the trial was
untrustworthy, in case there are any contradictions or improvements made
D by him during his evidence at the trial. Learned Judges pointed out the
utility of examination of the approver at two stages. While holding that the
provision is mandatory, the Court said that since the defect was rectified
in that case the non-compliance of it cannot be hdd to have vitiated the
proceedings. Their Lordships did not consider the situation as in the case
where the approver was examined and the case went to the trial court
E where the approver was cross-examined without raising any demur regard-
ing the omission to cross-examine him at the pre-committal stage. After
considering the provisions of Section 306, the Court held that-

' ....if the defect of not examining the approver at the committal
F stage by the committing Magistrate is rectified later, no prejudice
can be said to be caused to an accused person and, therefore, the
trial cannot be said to be vitiated on that account".

The Court held that when the case was committed to the Sessions
Court, the defect that approver was not examined as witness in the Court
.. -

G of Magistrate taking cognizance of an offence was noticed by the Sessions
Court. therefore, matter was rtmanded to the court of Chief Judicial
Magistrate with a direction to record the statement of the approver. After
recording tht: statement, the case was committed for trial to the Sessions
Court. Hence, it was held that as the dtfect was rectified, the argument
H that the trial was vitiated could not be accepttd.
STATE v. SURINDER MOHAN (SHAH, J] 671

In the present appeal, there is no question of total lack of jurisdiction A
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, Dhararnshala on 8.6.1988 express-
ing 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 notice was
B
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 c
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 D
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 appn:ciatt: the evidence on record and thereafter the learned Sessions
Judge pa5sed his judgment and order. It was during the arguments in the
Sessions Court that the contention was raised for the first time that E
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.
F
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 G
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 H
672 SUPREME COVRT REPORTS (2000] 1 S.C.R.
A 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.
B 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.

The foamed counsel for the accused submitted that Section 306(4)(a)
C is couched in mandatory term by using the word "shall' which indicates that
if there is breach of the said mandatory provision further trial would be
vitiated. In our view, this submission is without any substance. We have
pointed out earlier that by not 1:xamining the approver, the trial would not
get vitiated. Such evidence may havt: to be scruitinised with greater cir-
cumspection. If in such scrutiny the evidence is found reliable the Court
D cannot be inhibited from using the evidence.
In the result, the appt:al is allowed and the impugned judgment of
the High Court is set aside. The itppeal filed in the High Court is remitted
to the High Court for disposal afresh in accordance with law.

E N.J. Appeal allowed.

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