2000 Supreme(SC) 300

2000(1) Supreme 466
SUPREME COURT OF INDIA
(From Himachal Pradesh High Court)
K.T. Thomas & M.B. Shah, JJ.
State of Himachal Pradesh -Appellant
versus
Surinder Mohan & Ors. -Respondents
Criminal Appeal No. 131 of 2000
(Arising out of SLP (Crl.) No. 1586 of 1999)
Decided on 7-2-2000
Counsel for the Parties :
For the Appellant : Anil Soni, Ms. Meenakshi Arora, Advocates.
For the Respondents : R.D. Upadhyay, Girdhar G. Upadhyay, Syed Ali Ahmed, Syed Tanweer Ahmed, K.L. Gautam, Advocates.

IMPORTANT POINT
Non-examination of approver as a witness by committal Court granting pardon would not vitiate trial. Such evidence may have to be scrutinised with greater circumspection. If in such scrutiny the evidence is found reliable the Court cannot be inhibited from using the evidence.

Headnote:Code of Criminal Procedure, 1973-Section 306(4) r/w Section 365-Approver -Tender of pardon to-Procedure for-Committal Court tendering pardon before filing charge sheet-Accused not given opportunity to cross examine approver-Neither before nor after committal of case to Session Court objection as to non-compliance of Section 306(a) raised-Approver was cross-examined during trial-Objection raised during argument that approver was not examined as witness by committal Court-Objection technical -Section 465 attracted-Trial not vitiated for not examining approver as witness by committal Court.

       Held : At the stage of investigation, inquiry or trial of the offence, the person to whom pardon 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-examination would arise only at the time of tria. During the course of investigation by the Police, question of cross-examination by the accused does not arise. Similarly, under Section 200 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-examination does not arise. Further, the person to whom pardon is granted, is examined but is not offered for cross-examination and 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 accused 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. (Para 11)

       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. By not examining the approver, the trial would not get vitiated. Such evidence may have to be scrutinised with greater circumspection. If in such scrutiny the evidence is found reliable the Court cannot be inhibited from using the evidence. (Paras 17 & 18)