IMPORTANT POINT
Non-compliance with the mandatory provisions of Section 306(4)(a) of the Code, which requires the examination of the approver as a witness before making committal, renders the committal order and subsequent trial illegal.

ORDER :

The State is the petitioner in this revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code).

2. The petitioner seeks to set aside the order of the Judicial Magistrate of the First Class for the trial of forest offences, Nedumangad dated 07.12.2016 in C.P.No.36 of 2016. By that order, the learned Magistrate committed the case to the Court of Sessions, Thiruvananthapuram, where it was taken on file as S.C.No.122 of 2017. Pointing out that, the learned Magistrate did not comply with the provisions of Section 306(4)(a) of the Code, that order is sought to be set aside.

3. Respondents No.1 to 3 are the accused. The offences alleged against them are punishable under Sections 120B, 364 and 302 read with Section 34 of the Indian Penal Code, 1860 (IPC). The facts of the case, in brief, are that respondent Nos.1 and 3 took forcibly the deceased between 2.00 p.m. and 3.00 p.m. on 27.09.2015 from his house and took him in the autorikshaw driven by the 2nd accused. Inside the autorikshaw, he was stabbed by the 1st accused at his chest using a knife and thrown out of the autorikshaw. Respondent No.1 later boarded a pick up van driven by the 4th accused in the case and escaped. The deceased succumbed to the injuries.

4. During the course of investigation, the investigating officer filed an application before the Chief Judicial Magistrate, Thiruvananthapuram under Section 306 of the Code for grant of pardon to the 4th accused. As per the order dated 06.05.2016, the learned Chief Judicial Magistrate granted pardon to the 4th accused on the condition that he should make full and true disclosure of all of the facts and circumstances within his knowledge relating to the offence and of every other person concerning the offence. It was thereafter that the investigating officer filed the final report making the 4th accused an approval and enlisting him as the 5th witness in the final report. The Jurisdictional Magistrate on appearance of respondents No.1 to 3 committed as per the impugned order the case to the Court of Sessions. The grievance of the petitioner is that the committal Magistrate did not in compliance to the provisions of Section 306 (4)(a) of the Code record the evidence of approver–witness No.5.

5. Heard the learned Additional Public Prosecutor and the learned counsel for the respondents.

6. The learned Additional Public Prosecutor by placing reliance on Suresh Chandra Bahri v. State of Bihar [1995 Supp.(1) SCC 80] and a Full Bench decision of this Court in Ashokan v. State of Kerala [2005 (3) KLT 770] submitted that the impugned order committing S.C.No.122 of 2017 to the Court of Sessions is illegal for, the committal Magistrate did not comply with the provisions of Section 306(4)(a) of the Code.

7. The learned counsel for the respondents, on the other hand, would submit that for the reason of such infractions of procedure in the process of granting pardon and committal, the petitioner, at this belated stage, cannot seek to set aside the impugned order. It is pointed out that the trial was commenced before the Sessions Court and seven witnesses were examined. Only thereafter the defect was noticed and therefore the State cannot be allowed to cure the defect in the procedure which is not concomitant to the right of the respondents to have a speedy trial guaranteed under Article 21 of the Constitution of India.

8. It is true that the petitioner approached this Court to revise and set aside the impugned order only after the trial of the case progressed to a considerable extent. However, the defect pointed out being the one touching the very root of the matter, the petitioner cannot be found at fault and its doors are shut out only on the ground of delay. It is a mandatory requirement of Section 306(4)(a) of the Code that once an accomplice is granted pardon and transformed him from the status of an accused to a witness, the court committing the case to examine him as a witnes