Examination of the approver in the Sessions Court.

This is an appeal against the conviction of the appellant by the Additional Sessions Judge of Coimbatore in S.C. No. 61 of 1957. In S.C. No. 220 of 1956, eight accused were tried for the murder of one Kolandaiappa Goundan. The appellant herein was one of the persons implicated in that case ; he gave a confessional statement, Exhibit P-2. This induced the prosecution to tender pardon to him and take him as an approver. But, in the committal Court, when he was put in the witness-box, he retracted from the confessional statement, Exhibit P-2, and turned hostile to the prosecution. Thereafter, he was not examined in the Sessions Court as a witness. The trial of the accuseed went on with the other witnesses, and finally resulted in the acquittal of the accused by this Court.

After the disposal of S.C. No. 220 of 1956 on 4th February, 1957, the Public Prosecutor, Coimbatore, gave a certificate under section 339, Criminal Procedure Code, Exhibit P-30, dated 10th March, 1957. It says that this accused who accepted the conditions of pardon tendered to him by the learned District Magistrate, Coimbatore, did not comply with the conditions and that this was a deliberate and wilful conduct on his part. It further states that he had concealed all essential particulars and it was therefore requested that the accused might be committed to the Sessions. Therefore, this accused, after the usual preliminary enquiry, was committed to Sessions ; and in the Sessions, he has been convicted by the Sessions Judge.

The point of law that is raised before me by Mr. G. Gopalaswami appearing for the appellant is this. Under section 337 (2), Criminal Procedure Code, every person accepting a tender under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Under section 339 (1), where a pardon has been tendered under section 337 or section 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered, or, for any other offence......provided that such person shall not be tried jointly with any of the other accused and that he shall be entitled to plead at such trial that he has complied with the conditions on which such tender was made, in which case it will be for the prosecution to prove that such conditions have not been complied with. The contention of Mr. Gopalaswami is that, though the witness might have turned hostile in the committing Magistrate’s Court, still, if he is put in the Sessions Court, he is likely to revert to truth and speak the truth in the Sessions Court. The second contention is that under clause (2) of section 337, there is an obligation to examine him not only in the Court of the Magistrate but also in the subsequent trial, if any. It is only after complying with the conditions of clause (2), that is, when there is a trial and after the accused is examined in the trial, that the certificate should issue and he should be tried for not complying with the conditions of the pardon. In Queen-Empress v. Ramaswaml1, a Bench of this Court has held that it is not necessary to examine the approver in the Sessions Court, and that, if the approver had shown an inclination to retract from the confessional statement even in the committal Court, that is, sufficient circumstance, and without his further being examined in the Sessions Court, he could be prosecuted under section 339. But this section has been amended in 1923. Before the amendment, section 337 (2) provided that the person accepting a tender of pardon should be examined as a witness in the ‘case’. The present amendment is that the witness should be examined in the committal Court and in the trial, if any. The decision in Qu