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2023 Supreme(Ker) 614

BECHU KURIAN THOMAS
Suo Motu – Appellant
Versus
State of Kerala, Represented by the Circle Inspector of Police, Alathur Police Station, Palakkad – Respondent


Advocates:
Advocate Appeared:
For the Respondent: Sri. Vipin Narayan, Public Prosecutor.

Judgement Key Points

Based on the provided legal document, here are the key points regarding the mandatory examination of an approver under Section 306(4)(a) Cr.P.C. and the High Court's suo motu powers:

Mandatory Examination of an Approver * An accused who has been tendered a pardon under Section 306(4)(a) of the Code of Criminal Procedure must be mandatorily examined as a witness before the case is committed to the Sessions Court [judgement_subject]. * This examination is a statutory obligation imposed on the prosecution to ensure the approver has not resiled from their former position and has fulfilled the conditions of the pardon [15000536530011]. * The examination by the Magistrate is not a substitute for the formal examination required under the provision; it is compulsory [15000536530012]. * If a Magistrate fails to examine the approver prior to committing the case to the Sessions Court, it is illegal to omit that person from the array of accused [15000536530013]. * The proper procedure requires that if an accused accepts a pardon, they must be examined by the Magistrate taking cognizance of the offence before the case can be committed for trial [15000536530013].

Effect of Failure to Examine * Failure to examine the approver before committal vitiates the order of committal, rendering the process without authority and irregular [15000536530013]. * When such a failure occurs, the orders of committal are illegal and liable to be set aside [15000536530017]. * The case records must be transmitted to the committal court for fresh consideration of committal after complying with the provisions of Section 306(4)(a) Cr.P.C. [15000536530018].

High Court's Suo Motu Powers * There are no limitations on the exercise of the suo motu powers of revision by the High Court [judgement_subject]. * Even if an order of committal is considered an interlocutory order, the High Court can interfere with it under its suo motu powers to correct illegalities [15000536530014]. * Ex-facie illegal orders can be interfered with when they come to the notice of the High Court, regardless of procedural limitations [15000536530014]. * The High Court exercises plenary jurisdiction under suo motu powers coupled with powers under Section 482 Cr.P.C. to rectify illegalities in the broad interests of justice [15000536530014].

Statutory Provisions * Section 306 of the Cr.P.C. empowers a Magistrate to tender a pardon to an accomplice to obtain evidence, on the condition of full and true disclosure (!) . * Under Section 306(4)(a), every person accepting a tender of pardon shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial (!) . * The Magistrate must record reasons for tendering a pardon and furnish a copy to the accused upon application (!) .


ORDER :

Is it mandatory to examine an accused who was tendered pardon under section 306(4)(a) of the Code of Criminal Procedure, 1973? What is the effect of failure to examine an approver prior to the committal in a sessions case? These are the questions which require an answer in this suo motu revision petition. Incidentally, from the contentions advanced by one of the learned counsel, the question of whether the order of committal being an interlocutory order can be interfered with under the suo motu revisional power of the High Court also arises for consideration.

2. The aforementioned questions arise in five cases under S.C. No.426/2011, S.C. No.619/2011, S.C. No.67/2012, S.C. No.665/2012 and S.C. No.413/2016 on the files of the Sessions Court, Palakkad.

3. Prosecution alleged that pursuant to a criminal conspiracy hatched between accused 1 to 11, they formed themselves into an unlawful assembly and attacked one Tilakan on 26.07.2005, who succumbed to the injuries. Prosecution further alleged that the first accused and second accused had nurtured a business rivalry and conspired with and hired the other accused to execute their plan. The deceased died on 31.07.2005 while undergoin

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