An accused who was tendered pardon under section 306(4)(a) Cr.P.C must be mandatorily examined before committing the case to the Sessions Court.

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 undergoing treatment, and the accused hereby committed the offences alleged.

4. After the investigation, a final report was filed, and the case was considered as C.P. No.129 of 2007 on the files of the Judicial First Class Magistrate's Court, Alathur. While the case was pending for committal to the Sessions Court, the Crime Branch obtained permission for further investigation. During further investigation, third accused came forward to become an approver and therefore, the Crime Branch filed an application before the Chief Judicial Magistrate, Palakkad (for short ‘CJM’) to tender pardon to the said accused under section 306 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C'). The CJM allowed the said application and directed the investigating officer to examine the said approver as a witness, as mandated under section 306(4)(a) of Cr.P.C.

5. However, without taking note of the said requirement and the direction to examine the approver under section 306(4) (a) as a witness, the learned Magistrate on 12-07-2011 in C.P. No.129 of 2007, committed the case against A1, A2 and A10 to the Sessions Court. The third accused was deleted from the array of accused while the proceedings for committal against the remaining accused i.e. accused 4 to 9 and 11, were split up and refiled as C.P. No. 34 of 2011. After the committal, the case was numbered as S.C. No.426 of 2011 of the Sessions Court, Palakkad. In the meantime, the case against the remaining accused, except the third accused, were also committed to the Court of Sessions under different committal proceedings as C.P. No.65 of 2011, C.P. No.34 of 2011, C.P. No.5 of 2012 and C.P. No.1 of 2016. Those cases were renumbered by the Sessions Court, Palakkad, as S.C. No.619 of 2011, S.C. No.67 of 2012, S.C. No.665 of 2012 and S.C. No.413 of 2016.

6. When the cases came up for trial, the third accused, being an approver was cited as CW2 to be examined. The defence raised an objection pointing out that the non-examination of the approver before committing the case to the Sessions Court has vitiated the order of committal since the mandatory provision under section 306 of Cr.P.C had not been followed. Immediately, the prosecution filed a petition as Crl.M.P. No.1367 of 2015 seeking a reference of the matter to the High Court of Kerala under section 395 of Cr.P.C to quash the orders of committal in all the cases. Despite the objection of the accused, the Sessions Court allowed the application and referred the matter to the High Court, as mentioned above.

7. When the reference came up before this Court, it was noticed that the provisions of section 395 Cr.P.C may not strictly apply in the matter. Therefore, suo motu revisions were taken by this Court, and thus cases arise for consideration

8. I have heard Sri. K.V. Sabu, Smt