Ramkumar, J.

The interesting question which comes up for consideration before us upon a reference by a Division Bench is the following:-

“Whether the statement of an approver examined before the appropriate Magistrate under clause (a) of sub Sec.(4) of Sec.306 Cr.P.C., is relevant and admissible under Sec.33 of the Evidence Act during the subsequent trial in which he is not available for examination by reason of his death in the meanwhile?”

The referring Bench was of the opinion that in the light of divergent views expressed by two Division Benches of this Court in Kurian v. State – 1989 (1) KLT (SN) 37 – Case No.60 and State of Kerala v. Monu Surendran – 1990 (1) KLT 53, regarding the right to cross-examine an approver, an authoritative pronouncement must come from a larger Bench.

2. The appellants in this batch of appeals were the accused in the same or different cases popularly known as “the mark list cases” tried by the Special Sessions Court, Thiruvananthapuram upon a committal. For recording the conviction against the appellants, the trial court had, inter alia, relied on the statement recorded under Sec.306(4)(a) Cr.P.C. of one Anandan who was made an approver. The said Anandan died prior to the trial of the cases before the Special Sessions Court. The main argument on behalf of the appellants is that the evidence given by the deceased approver under Sec.306 (4)(a) Cr.P.C. should not have been relied on by the trial court since the same was inadmissible under Sec.33 of the Evidence Act because the appellants who were the adverse party in the proceedings before the Magistrate taking cognizance of the offences, did not have the right and the opportunity to cross-examine the approver within the meaning of the 2nd limb of the proviso to Sec. 33 of the Evidence Act. There is no dispute that some of the appellants had cross-examined the approver during his examination under Sec.306 (4)(a) Cr.P.C. pursuant to a remit from this Court at the instance of the State (and not at the instance of the accused) which contended that the committal of those cases to the Sessions Court and subsequent making over of the same to the Assistant Sessions Court for trial were bad inter-alia for the failure to cross-examine the approver by the accused. It is the contention of the appellants that in those cases where the accused had cross-examined the approver, it was not as of right within the meaning of the second limb of the proviso to Sec.33 of the Evidence Act and that in those cases where the accused had not cross-examined the approver they had neither the right nor the opportunity to cross-examine the approver within the meaning of the above provision.

3. We heard Senior Advocate Sri. M.K. Damodaran, Senior Advocate Sri G. Janardhana Kurup and Advocate Sri Surendra Mohan representing all the appellants and Advocate Sri. Sujith Mathew Jose, the learned Public Prosecutor who represented the State.

4. The learned Public Prosecutor made the following submissions before us opposing the appellants on the above issue:-

The decision of the Division Bench reported in 1990 (1) KLT 53 – State of Kerala v. Monu Surendran was rendered in one of the cases arising from the very same batch. It has correctly laid down the law that during the examination of the approver as a witness under Sec.306(4)(a) in the court of the Magistrate taking cognizance, the accused has a right to cross-examine the approver. Sec.273 Cr.P.C. states that “except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader”. Sec.137 of the Evidence Act indicates that examination of a witness not only includes examination-in-chief but also cross-examination. There is a subtle distinction between the examination of an approver as a witness under Sec.306(4)(a) and the examination of a witness under Secs.200 and 202