The State Of Maharashtra vs Narendra Chanshamdas Goel And Ors
2016 Latest Caselaw 1590 Bom

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nsc.
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                              
                     CRIMINAL APPELLATE JURISDICTION




                                                      
                               WRIT PETITION NO.237 OF 2015



       The State of Maharashtra




                                                     
       (DCB, CID, Unit - II, Mumbai
       C.R.No.06/2004)
       Through Prashant Pandharinath Raje
       Senior Inspector of Police,




                                             
       DCB CID Unit II.                                    ...Petitioner


            Versus
                                 
                                
       1.     Narendra G. Goel
              R/a 221/222, Kshitig Apartment
              47, Napean Sea Road,
              Mumbai - 400 036.
         


       2.     Pawankumar Satyanarayan Goenka
      



              R/a, 2-A/19, Premnagar, S.V.Road,
              Borivali (W),
              Mumbai.





       3.     Pradeep Prabhakar Parab
              R/a Durga Nivas, Sahkar Society,
              Room No.2, Kokan Nagar,
              Bhandup,





              Mumbai - 400 078.                            ...Respondents



       Mr.Raja B. Thakare, Special Public Prosecutor, for the Petitioner - State.




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    Mr.Amit Jajoo a/w Mr.Mukesh Vats and Mr.Victor Basu i/b PKA
    Advocates, for the Respondent No.1.




                                                                             
    Ms.Naima Shaikh i/b Khan Abdul Waheb, for the Respondent No.2.




                                                     
           CORAM                       : V. M. KANADE &
                                         REVATI MOHITE DERE, JJ.

RESERVED ON : 22nd FEBRUARY, 2016.

PRONOUNCED ON : 18th APRIL, 2016

JUDGMENT ( Per Revati Mohite Dere, J.) :- :

1. The short question which arises for consideration in this

petition is:-

'Whether an accused has a right to cross examine the approver,

who is examined under Section 306(4) of the Code of Criminal Procedure

by the Magistrate, at the pre-committal stage?'

2. At the outset, we may note, that by a separate order, we have

dismissed Criminal Writ Petition No.3919 of 2014, preferred by the

respondent no.1 herein, challenging (i) the order dated 10th January, 2006,

passed by the learned Additional Metropolitan Magistrate, 37 th Court,

Esplanade, Mumbai in C.C.No.525/PW/2005, granting pardon to Pradeep

Parab and (ii) the order dated 22nd September, 2014, dismissing the

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petitioner's application seeking compliance of the order dated 15 th February,

2013, passed by the High Court in Writ Petition No.1309 of 2012.

3. Few facts as are germane for deciding the present petition are

as follows;

On 23rd August, 2003 Dr.Asha Goel, a Canadian National of

Indian origin was found murdered in a flat belonging to her brother -

Suresh Agarwal, at Malabar Hill, Mumbai. Pursuant thereto, at the behest

of Suresh Agarwal, the brother of the deceased, the Malabar Hill Police

Station, registered C.R.No.93 of 2003 against unknown persons, alleging

offences punishable under Sections 302, 397, 452 r/w 34 and 120B of the

Indian Penal Code. As there was no progress in the investigation, the case

was transferred to the DCB, CID, Unit - II, Mumbai. Thereafter, accused

came to be arrested and on completion of the investigation, charge-sheet

came to be filed. Before the case was committed to the Court of Sessions,

original accused no.1 i.e. respondent no.3 herein gave his confession,

which was recorded by the learned Metropolitan Magistrate on 26 th and 27th

September, 2005. On 28th December, 2005, cognizance was taken and

process was issued against the accused persons, copies were supplied under

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Section 207 of Code of Criminal Procedure and the matter was adjourned

for committal of the case under Section 209 of the Code of Criminal

Procedure. On 9th January, 2006 the prosecution preferred an application

under Section 306 of the Cr.PC for grant of tender of pardon to respondent

no.3 - Pradeep Parab. On 10th January, 2006, the learned Metropolitan

Magistrate, accepted the tender of pardon on the ground, that respondent

no.3 makes full and true disclosure of the whole of the circumstances

within his knowledge, relating to the offence and with regard to every

person concerned with the same. Thereafter, the case was committed to the

Court of Sessions, and numbered as Sessions Case No.100 of 2006.

When the case came up before the learned Sessions Judge, for

framing of charge, the Respondent No.1 preferred an application seeking

his discharge from the said case. The learned Sessions Judge rejected the

said application vide order dated 29th February, 2012. Aggrieved by the

said order rejecting his application for discharge, the respondent no.1

preferred Criminal Writ Petition No.1309 of 2012, in this Court. When

the said petition came up before the learned Single Judge of this Court, it

was contended by the learned counsel for respondent no.1 that the

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provisions of Section 306(4)(a) were not complied with. It appears that the

Special Public Prosecutor appearing for the State sought time, to examine

the grievance made by the counsel for the respondent no.1, as to whether

there was compliance with the provisions of Section 306(4)(a) or not, and

accordingly the matter was adjourned by three weeks. Realising that the

respondent no.3 was not examined as a witness before the learned

Magistrate, as contemplated under Section 306(4)(a) of Code of Criminal

Procedure, the prosecution preferred an application before the learned

Sessions Judge, seeking to rectify the said defect. The learned Sessions

Judge was pleased to reject the said application, vide order 21 st June, 2012,

pursuant to which, the said order was challenged by the State in this Court,

in Criminal Writ Petition No.2421 of 2012. Both, the Writ Petition

preferred by the State as well as the Writ Petition preferred by the

respondent no.1, came up before the learned Single Judge of this Court.

The learned Single Judge vide order dated 15th February, 2013 was pleased

to allow the petition preferred by the State and accordingly the matter was

remitted to the Court of the learned Magistrate, for complying with the

requirement of Section 306(4)(a) of Code of Criminal Procedure. In view

of the said order, the petition preferred by the respondent no.1 (Original

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Accused No.4) did not survive and was disposed of accordingly.

After remitting the matter, the respondent no.3 was examined

by the learned Metropolitan Magistrate as contemplated under Section

306(4)(a) of the Cr.P.C. After the approver was examined, the respondent

no.1 herein, preferred an application seeking permission to cross examine

the approver. The said application was resisted by the prosecution,

essentially on the premise, that in pre-committal proceedings the accused

did not have the right to cross examine the approver.

The learned Metropolitan Magistrate, Esplanade, Mumbai,

after hearing the parties vide the impugned order dated 2nd December,

2014, granted permission to the respondent no.1, to cross examine the

approver, before committing the case to the Court of Sessions. The State of

Maharashtra being aggrieved by the said order, has challenged the same

by this petition.

4. Mr.Thakare, learned Special Public Prosecutor appearing on

behalf of the petitioner - State has assailed the order, on several counts.

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He contended that the approver was examined by the Court on solemn

affirmation and as such, the same was not an examination conducted by

the prosecution. He submitted that the examination contemplated under

Section 306(4) of the Code is more or less akin to the examination of the

complainant and witnesses by a Magistrate, while processing the complaint

under Section 200 of the Cr.P.C., before issuance of process. He submitted

that a Sessions trial commences only after charge is framed under Section

228 of the Cr.P.C and hence the question of 'examination of witnesses'

arises only thereafter, and that too before the Court of Sessions. According

to him, there is no express provision in the Code, more particularly under

Section 306(4) of the Cr.P.C which permits the accused to cross examine

an approver, before committing the case to the Court of Sessions, inasmuch

as, the Magistrate is not empowered to appreciate the evidence, in a

Sessions triable case. He relied on several judgments, in support of his

submission.

5. Per Contra, Mr.Amit Jajoo, learned counsel appearing for the

respondent no.1, submitted that the right to examine an approver is

inherent under Section 306(4) of the Cr.P.C. He submitted that under

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Section 138 of the Evidence Act, the term 'examination' includes

examination-in-chief, cross examination and re-examination and therefore

the term 'examination' used in Section 306(4) will have to be read as

'examination' as contemplated under Section 138 of the Evidence Act. He

relied on the judgment in the cases of CBI v/s Ashok Kumar Aggarwal

and Another1, State of Kerala v/s Monu D. Surendran and Another2 ;

Milind s/o Atmaram Pawar and Another v/s State of Maharashtra 3 to

bring home his point. Learned Counsel appearing for the other respondent

- accused supported the submissions canvassed by Mr.Jajoo.

6. Heard learned counsel for the parties at length. Considering

the issue raised in this petition, it is not necessary to dwell in detail into

the facts of the present case. Suffice it to say, that the accused have been

charged with the offences punishable under Sections 302, 397, 452 r/w 32

and 120B of the Indian Penal Code and that the said offences are sessions

triable offences. Before we proceed to discuss, whether or not, an accused

has a right to cross examine an approver, at the pre-committal stage i.e.

before the case is committed to the Court of Sessions, it will be appropriate 1 (2013) STPL (Web) 950 SC 2 (1988) Cri.LJ 812 (Kerala) 3 (2003) Vol.105(3) Bom.LR.778

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to reproduce Section 306 of the Code of Criminal Procedure :-

Section 306 - Tender of pardon to accomplice

(1). With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a

Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any, stage of the inquiry or

trial, may tender a pardon to such person on condition of his making

a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person

concerned, whether as principal or abettor, in the commission thereof.

    (2)     This section applies to--
   



    (a)     any offence triable exclusively by the Court of Session or by the

Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952).

(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

(3). Every Magistrate who tenders a pardon under Sub-Section (1) shall

record --

a. his reasons for so doing;

b. whether the tender was or was not accepted by the person to whom it

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was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.

(4). Every person accepting a tender of pardon made under Sub-Section (1)--

(a). shall be examined as a witness in the Court of the Magistrate taking

cognizance of the offence and in the subsequent trial, if any;

(b). shall, unless he is already on bail, be detained in custody until the termination of the trial.

5. Where a person has accepted a tender of pardon made under Sub-

Section (1) and has been examined under Sub-Section (4), the Magistrate taking cognizance of the offence shall, without making any

further inquiry in the case;

a. commit it for trial--

i. to the Court of Session if the offence is triable exclusively by that

Court or if the Magistrate taking cognizance is the Chief Judicial

Magistrate;

ii. to a Court of Special Judge appointed under the Criminal Law Amendment Act 1952 (46 of 1952), if the offence is triable

exclusively by that Court;

b. in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.

                                                      (emphasis supplied)





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7. In the present case, we are essentially concerned with sub-

section (4)(a) of Section 306 of the Code of Criminal Procedure, which

deals with examination of the approver, as a witness. Can the term

'examination' used in Section 306(4)(a), be interpreted to mean

'examination' as contemplated under Section 138 of the Evidence Act, so as

to give an accused the right to cross-examine the approver, at the pre

committal stage? The answer is an emphatic 'No' and we are in our

conclusion supported by the Judgment of the Apex Court in this regard.

8. In 'Ranadhir Basu v/s State of West Bengal' 4 the Apex Court

has held, that the proceeding before the Magistrate is neither an

investigation nor a trial and hence an accused does not have a right to

cross examine the approver. Para 7 of the said Judgment, reads thus:-

"It was contended by Mr. Muralidhar, learned counsel appearing for

the appellant that Sudipa was not "examined as a witness" as contemplated by Section 306(4) Cr.P.C. He submitted that Sudipa was examined by the Magistrate in his chamber and not in the open Court and at that time the accused were not kept present. Her evidence was

subjected to cross-examination. In support of his submission he relied upon the decision of this Court in Suresh Chandra Bahri v. State of Bihar. In that case this Court after pointing out the object and purpose 4 (2000) 3 SCC 161

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of enacting Section 306(4) Cr.P.C. had held that since the provision had been made for the benefit of the accused it must be regarded as

mandatory. It had observed therein that :(SCC p. 101, para.30).

"The object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused in as much as the approver has to make a

statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against

him but he is also afforded an opportunity to meet with the evidence of an approver before the committing

Court itself at the very threshold....".

From this observation it does not follow that the person who is granted pardon must be examined in the presence of the accused and that the accused has a right to appear and cross-examine him at that

stage also. As pointed out by this Court in that case the object is to

provide an opportunity to the accused to show to the Court that the approver's evidence at the trial is untrustworthy in view of the contradictions or improvements made by him during his evidence at

the trial. Considering the object and purpose of examining the person accepting tender of pardon as a witness is thus limited. The proceedings which takes place before the Magistrate at that stage is

neither an inquiry nor a trial. Therefore, the submission of the learned counsel that Sudipa should have been examined as a witness in open Court and not in the chamber and that while she was examined the Magistrate should have kept the accused present and afforded to them

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an opportunity to cross-examine Sudipa cannot be accepted. The phrase "examination of a witness" does not necessarily mean

examination and cross-examination of that witness. What type of

examination of a witness is contemplated would depend upon the object and purpose of that provision. Section 202 Cr.P.C. also contemplates examination of witness yet it has been held, considering

the object and purpose of that provision, that the accused has no locus standi at that stage ......".

9. The Madras High Court in the case of 'State by: Assistant

Commissioner of Police, Crime Record Bureau, Inspector of Police v/s

Saravanan, Prakash and Vijay alias Vijayakumar5' faced with a similar

issue, i.e. whether or not an accused can be permitted to cross-examine an

approver, at the pre-committal stage? placing reliance on Ranadhir Basu

v/s State of West Bengal (supra) held in Para 6 as under:

" 6. On a reading of the above observation, it is clear that the ratio decided by the Supreme Court is that the committal

proceeding which takes place before the committal court at that stage is neither an enquiry nor a trial. Therefore, the contention that the accused must be given opportunity to

cross-examine in the committal court when the approver is examined cannot be accepted. The phrase "examination of witness" does not mean examination and cross-examination

5 2004(1) ALT(Cri) 507

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of that witness. Therefore, it is clear that the accused cannot claim as a right to cross-examination."

10. Reliance placed by the learned counsel for the Respondents on

State of Kerala V. Monu Sunrendran (supra) is completely misplaced as

the same was overruled by the Full Bench of the Kerala High Court in

'L.S.Asokan V/s State of Kerala' 6. The relevant para is as follows:

"20. In the light of the decisions of the Apex Court adverted to

above, we are of the considered view that Monu Surendran has not been correctly decided and with due respect we

overrule the same and hold that In re Chief Judicial Magistrate (Supra) and Kurian v. State of Kerala were correctly decided. There is no dispute that those

appellants/accused who had cross-examined the approver

during his examination under Section 306(4)(a) Cr.P.C. was pursuant to the direction given to the Chief Judicial Magistrate in Monu Surendran's case wherein it was the

State which sought for the direction to examine the approver giving opportunity to the accused to cross- examine him. Thus, cross-examination was virtually thrust upon the appellants/ accused without their asking for it. In

such situation, the cross-examination conducted by them cannot be said to be as of right."

6 2005(3) ILR (Ker) 567





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11. Reliance placed by the learned counsel for the respondent on

Sitaram Sao alias Mungeri v/s State of Jharkhand, reported in (2007) 12

SCC 630 is also completely misplaced. The issue involved in this case,

was whether the evidence given by the accomplice is admissible, without

any corroboration to the same, and if the procedure adopted by the CJM

was illegal. Reliance placed on para 34 of the said Judgment, is out of

context and has no bearing to the issue before us.

12.

The Judgments relied upon by the learned counsel for the

respondent are clearly distinguishable and as such have no application to the

facts of the present case. We may note here, that in none of the Judgments

relied upon by the learned counsel for the respondent, the Courts were

required to deal with the specific question raised before us; i.e. 'whether the

accused has a right to cross examine the approver at the pre-committal

stage".

13. The examination which is contemplated under Section 306(4)

of the Code, cannot be equated with the 'examination' of a witness under

Section 138 of the Evidence Act. If what is contended by the learned

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counsel for the respondent is to be accepted, and the accused is given a

right to cross examine an approver at the pre-committal stage, the same

would not only be contrary to law, but would lead to hazardous

consequences, as a Magistrate would be required to deal with and decide

the admissibility of any question raised in the examination/cross

examination by the accused, in a case exclusively triable by the Court of

Sessions. Under Section 306 of Code of Criminal Procedure, what cannot

be lost sight of is, that when an approver is being examined by a

Magistrate, he is merely recording his statement, after grant of pardon and

as such, he merely acts as a post office by recording the statement under

Section 306(4) and thereafter, forwards it to the Court of Sessions, which

is the Court competent to try the case. Thus, the term 'examination' used

in Section 306(4) of the Code, cannot be construed to mean an examination,

contemplated under Section 138 of the Evidence Act. The accused will get

an opportunity to cross examine the approver, only after the case is

committed to the Court of Sessions, when the approver is examined as a

prosecution witness, after which the accused will have a right to cross

examine the approver and bring out the contradictions or improvements

made by him during his evidence at the trial.

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14. In conclusion, we may note that under Section 306 of the

Cr.P.C, the Magistrate is only empowered to examine the approver, as at this

stage, the proceeding before the concerned Magistrate is neither an inquiry

nor a trial, and therefore the accused has no right to cross-examine the

approver. The Magistrate does not have the jurisdiction and discretion to

"appreciate the evidence" which will be adduced before the Sessions Court

and give any findings on the merits of the case. His duty is only to record

the examination under Section 306(4)(a) and forward it to the Court of

Sessions, whilst committing the case. The examination of the approver as

contemplated under Section 306(4)(a) cannot in any circumstance, be

equated with the examination contemplated under Section 138 of the

Evidence Act. Infact, the examination is more or less akin to an examination

contemplated under Section 200 of the Code of Criminal Procedure. Hence,

an accused has no right to cross examine an approver at the pre-committal

stage.

15. In view of the aforesaid, the Petition is allowed and the

impugned order dated 2nd December, 2014, permitting the respondent-

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accused to cross examine the approver, being contrary to law, is quashed

and set aside.

16. All concerned to act on the authenticated copy of this order.

    REVATI MOHITE DERE, J.                                  V. M. KANADE, J.