State of Madhya Pradesh Vs. Dinesh and ors. - Court Judgment

Excerpt:
criminal - prosecution witness - statement of - sections 120 read with 34, 201, 202 and 302 of indian penal code, 1860(ipc) and sections 164, 306(4) and 308 of code of criminal procedure, 1973(cr pc) - respondents convicted under sections 120, 201, 201 and 302 of ipc - one of the respondent (approver) recorded his statement under section 306(4) of cr. pc on ground that he wanted to become prosecution witness - however, later on he filed application to pray that he did not want to give any confessional statement - however, said prayer was rejected by chief judicial magistrate - matter proceeded before session judge - during pendency of proceedings, matter transferred to fast track court - however, status of approver not confirmed by session judge - hence, present reference made by fast.....orders.l. kochar, j.1. this reference has been made by the learned iv addl. sessions judge (fast track court), mhow, under section 395 of the code of criminal procedure (hereinafter referred to as 'the code'), for decision on the following questions of law, arose before him when the file reached before the learned fast track court on transfer from the court of the then learned second additional sessions judge for further trial and disposal:--(1) arising out of omission to determine status of approver baboolal (witness or accused) by sessions court.(2) omission to decide application dated 11-6-99 of addl. govt. pleader to prosecute approver for giving false evidence.(3) contravention of section 308 (proviso), cr.pc.2. short resume of the facts necessary for determination of the questions.....

Judgment:
ORDER

S.L. Kochar, J.

1. This reference has been made by the learned IV Addl. Sessions Judge (Fast Track Court), Mhow, under Section 395 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), for decision on the following questions of law, arose before him when the file reached before the learned Fast Track Court on transfer from the Court of the then learned Second Additional Sessions Judge for further trial and disposal:--

(1) Arising out of omission to determine status of approver Baboolal (witness or accused) by Sessions Court.

(2) Omission to decide application dated 11-6-99 of Addl. Govt. Pleader to prosecute approver for giving false evidence.

(3) Contravention of Section 308 (Proviso), Cr.PC.

2. Short resume of the facts necessary for determination of the questions raised by the learned Fast Track Court (Trial Court) may be stated thus :--

(a) The police of Police Station, Badgonda, Tehsil Mhow, filed a charge-sheet for the offences under Sections 302, 201, 202 and 120/34 of the Indian Penal Code against nine accused persons before the Court of Addl. Chief Judicial Magistrate, Mhow on 26-5-99. On 30-3-99 statements of accused Baboolal were recorded under Section 164 of the Code by the learned Magistrate. Thereafter, his another statement was also recorded under Section 306(4) of the Code by the learned Judicial Magistrate First Class, Mhow, tendering him pardon for becoming a prosecution witness. The learned Addl. Chief Judicial Magistrate, Mhow also recorded the statement of accused Baboolal under Section 306(4) of the Code on 4-5-99.

(b) As per the charge-sheet, deceased Manorama was a woman of weak character and was mentally sick. Long back she was married, but just after a span of short period of her marriage, her husband had left her and she was residing with her parents. She was ill-treated by her parents and family members. It is further alleged that on 14-1-99 in the night after hatching conspiracy by the non-applicant/accused persons, they took her in an Ambassador Car on the pretext of visiting temple. The car was being driven by approver Baboolal. She was murdered by accused Dinesh by inflicting knife injuries on her neck and other parts of the body and the dead body was hidden near 'Russia Dhaba' on Agra-Bombay Road. When her dead body was seen by a Chowkidar, he reported the matter to Police, Badgonda. Thereafter, the police commenced investigation and filed the charge-sheet.

(c) Accused Baboolal submitted an application on 28-5-99 before the Committal Court to the effect that he did not want to make any confessional statement. This prayer was turned down by the learned Addl. Chief Judicial Magistrate vide order dated 31-5-99. On the same day, the case was also committed to the Court of Session. Baboolal was sent to judicial custody and the learned Addl. Chief Judicial Magistrate left the matter for determination regarding status of Baboolal (as witness or accused) to the Sessions Court. The learned Second Addl. Sessions Judge, after hearing both the parties, framed the charges against all the accused persons including approver Baboolal without recording his statements under Section 306(4)(a) of the Code. The accused persons including Baboolal denied the charges. During the course of argument on charge, it was submitted before the Trial Court by the defence Counsel that the whole case is based on approver's statement. Therefore, it is crystal clear that the learned Second Addl. Sessions Judge, was having knowledge of the fact that Baboolal was tendered pardon under Section 306 of the Code by the Addl. Chief Judicial Magistrate, but at the same time, neither the Addl. Govt. Pleader nor the defence Counsel pointed out before the Trial Court about the question of determination of status of Baboolal. In view of the order passed by the learned Addl. Chief Judicial Magistrate rejecting his application dated 28-5-99 he had restricted his statement recorded under Section 164 of the Code as well as under Section 306(4)(a). The learned Second Addl. Sessions Judge, granted bail to the approver Baboolal before framing of charge vide order dated 2-7-99.

(d) Learned Trial Court proceeded with the trial and examined as many as 19 witnesses and fixed the case for examination of the accused persons under Section 313 of the Code on 28-2-2002. Thereafter, the case was transferred to the Court of Fourth Addl. Sessions Judge (Fast Track Court) for further proceedings.

(e) The learned Fast Track Court, recorded the statements of the accused persons under Section 313 of the Code and final arguments were heard on 18-4-2002. The Trial Court fixed the case for judgment on 30-4-2002. On 30-4-2002, Baboolal was absent and therefore, the Trial Court ordered for issuance of warrant of arrest against Baboolal. But, since he appeared, the same day, the order for issuance of warrant was recalled and the case was fixed on 10-5-2002. On 10-5-2002, the learned Fast Track Court made the reference as mentioned above under Section 395(2) of the Code to this Court.

3. For deciding the above mentioned three questions, it would be apt to reproduce Sections 306 and 308 of the Code :--

'306. Tender of pardon to accomplice.-- 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 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.

308. Trial of person not complying with conditions of pardon.-- (1) Where, in regard to a person who has accepted a tender of pardon made under Section 306 or Section 307, the Public Prosecutor certifies that in his opinion such person 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 of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence :

Provided that such person shall not be tried jointly with any of the other accused :

Provided further that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing contained in Section 195 or Section 340 shall apply to that offence.

(2) Any statement made by such person accepting the tender of pardon and recorded by a Magistrate under Section 164 or by a Court under Sub-section (4) of Section 306 may be given in evidence against him at such trial.

(3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon which such tender was made, in which case it shall be for the prosecution to prove that the condition has not been complied with.

(4) At such trial the Court shall--

(a) if it is a Court of Session, before the charge is read out and explained to the accused.

(b) if it is the Court of a Magistrate before the evidence of the witnesses for the prosecution is taken, ask the accused whether he pleads that he has complied with the condition on which the tender of pardon was made.

(5) If the accused does so plead, the Court shall record the plea and proceed with the trial and it shall, before passing judgment in the case, find whether or not the accused has complied with the conditions of the pardon, and, if it finds that he has so complied, it shall notwithstanding anything contained in this Code, pass judgment of acquittal.'

4. Section 306 of the Code is dealing with the provisions of tendering pardon to accomplice. In the present case in hand, this section is applicable because, the offence under Section 302, Indian Penal Code is exclusively triable by the Court of Sessions and, therefore, the learned Judicial Magistrate First Class rightly recorded the statement of the accused/accomplice Baboolal under Section 306(4) of the Code tendering him pardon for becoming a witness. Prior to this, his statement during the course of investigation was also recorded under Section 164 of the Code on 30-3-99. The Addl. Chief Judicial Magistrate has also recorded his statement under Section 306(4) of the Code on 4-5- 99. As per provision under Section 306(4) of the Code, the statement of a person accepting tender of pardon shall be recorded as a witness in the Court of the Magistrate taking cognizance of the offence and this has been complied with by the learned Magistrate by examining him as a witness. Thereafter, again as per provision under Section 306(4)(a) of the Code, Baboolal must have been examined in the trial.

5. Baboolal was committed to the Court of Sessions as approver alongwith other co-accused persons and his prayer for not becoming a prosecution witness was turned down by the Addl. Chief Judicial Magistrate. The application dated 28-5-99 was dismissed by the learned Addl. Chief Judicial Magistrate. In this application, Baboolal had prayed for not becoming approver and he did not want to make any confessional statement. The Addl. Chief Judicial Magistrate passed the committal order on 31-5-99 and in Para 3 mentioned specifically that co-accused Baboolal s/o Basantilal was tendering pardon on the condition that he will give statement as a witness before the Sessions Court. The learned Magistrate, while rejecting his application, also observed that the status of Baboolal as a witness or as an accused could be decided by the Sessions Court. The learned Addl. Chief Judicial Magistrate as per provision under Section 306(4)(b) remanded the co-accused (approver) Baboolal to judicial custody. According to this provision, the person accepting the tender of pardon shall unless he is already on bail, be detained in custody until termination of trial. So, the learned Addl. Judicial Chief Judicial Magistrate has rightly detained him in custody while committing the case to the Court of Session.

6. Now, after receiving the case on committal by the learned Addl. Sessions Judge at the first instance before framing of charge he should have decided the status of co-accused Baboolal who was granted pardon by the learned Addl. Chief Judicial Magistrate as per provision under Section 306 of the Code and recorded his statement. But, the learned the then Second Additional Sessions Judge, failed to decide this question and framed the charge against Baboolal alongwith other accused persons for the offence punishable under Sections 302, 202 and 120B of the Indian Penal Code. The order-sheets of the Sessions Trial are clearly revealing the fact that he had not at all looked into the matter in view of the provisions of Section 306 of the Code regarding tenor of pardon to accomplice. Even if accused Baboolal filed an application for not becoming prosecution witness, once pardon was granted to him by the learned Committal Court and the case was committed to the Court of Sessions, he must have been examined again under Section 306(4)(a) of the Code, The language of the provision of this section is clearly showing its mandatory nature.

7. The learned Public Prosecutor also failed to point out this provision to the Court and also failed to examine Baboolal as witness before the Trial Court. As per provision under Section 306(4)(a) the prosecution should have examined Baboolal before the Trial Court and only thereafter, if he had not supported his earlier version or wilfully concealed anything essential or by giving false evidence, he could have given certificate as per provision under Section 308 of the Code and only thereafter, he could have prayed before the Court for his prosecution ,for the offence of giving false evidence and for that purpose as per provision under Section 308 (Proviso), he could be tried for the offence of giving false evidence only after the sanction granted by the High Court.

8. The Addl. Government Pleader filed an application dated 11-6-99 before the Second Addl. Sessions Judge, Mhow stating that Baboolal is not adhering to his original statement [recorded under Sections 164 and 306(4) of the Code] and prayed for his trial including for the offence of giving false evidence. On this application the then learned Second Addl. Sessions Judge did not pass any order and he proceeded with the trial against all the accused persons including Baboolal. He permitted the prosecution to examine as many as 19 witnesses and thereafter, the trial was transferred to the learned Fast Track Court, Mhow. The application filed by the Public Prosecutor dated 11-6-99 remained undecided. The learned Second Addl. Sessions Judge, must have decided the status of accused Baboolal after examining him as a witness before him and only thereafter, must have passed suitable order whether he should have been tried as an accused along with other accused persons or separately for the offence alleged alongwith the offence of giving false evidence.

9. The trial of Baboolal alongwith other co-accused persons is wholly illegal and without jurisdiction. The le.arned Second Addl. Sessions Judge, should have also not granted him bail because, he was not on bail and the provisions under Section 306(4)(b) put mandatory restriction on it. After deciding the status of Baboolal (as a witness or as an accused) if the Trial Court was of the opinion that he was not adhering with the conditions of tender of pardon and giving false evidence only thereafter, the provision under Section 308, le., trial of a person not complying with the provisions of pardoning would apply. In the instant case, the learned Second. Addl. Sessions Judge has not decided the question whether Baboolal has complied with the condition of pardon or not.

10. The Supreme Court in the case of State v. Jagjit Singh (AIR 1989 SC 598) has held that--

'Sub-section (4) of Section 306 casts an obligation on the prosecution to examine the approver both in the Committing Court as well as in the Trial Court. So the accused who has been granted pardon has to be examined by the prosecution in the Trial Court no matter that he has resiled from his earlier statement in Committal Court and trued to conceal what was within his knowledge with regard to the offence in question.'

10-A. In the case in hand, before the Committal Court, the accused Baboolal gave his statement under Section 164 of the Code as well as under Section 306(4)(a) thereof and in both the statements, he disclosed the fact about the offence. He has filed an application before the Committal Court stating that he did not want to become prosecution witness. That application was dismissed by the Committal Court and rightly so because, thereafter, there is no provision for his examination before the Committal Court. The learned Committal Court left this matter to the Trial Court, but the Trial Court failed to look into it. The learned Public Prosecutor as well as the defence Counsel have also not pointed out this glaring defect in the trial and allowed the trial to proceed for three years and during this period, all the prosecution witnesses were examined.

11. The learned Addl. Govt. Pleader had also filed an application on 11-6-99 for trial of Baboolal as an accused including for the offence of giving false statement. This application was not decided and the same was also premature. The facts of this case are very alarming and pointing out towards the clear and gross negligence as also the lack of knowledge on the part of the learned Trial Court who was from time to time made aware of the fact that accused Baboolal was given pardon by the Committal Court. Even in the Committal Order Para 3, this fact was mentioned, but the learned Trial Court failed to look into the provisions of Section 306(4)(a) of the Code. It also failed to notice the rejection order of the application of Baboolal by the Committal Court whereby that Court left the issue to the Trial Court to decide the status of Baboolal. In view of this Court, negligence and jack of knowledge was not only on the part of the then learned Second Addl. Sessions Judge but was also on the part of the Addl. Government Pleader.

12. The learned defence Counsel also is liable for this negligence. He was also duty bound to place and point out the factual and legal position and ought to have filed appropriate application praying for deciding the status of Baboolal by the Trial Court, but, none has taken pains and cared about it and allowed the trial to proceed causing immense loss of public exchequer and Court's precious lime.

13. In the light of the foregoing legal and factual discussion, the reference made by the learned Fast Track Court, Mhow is answered as under:--

(1) Omission to determine status of approver Baboolal as witness or accused by the Sessions Court would vitiate the whole trial and now the Trial Court is directed to first decide this question after examining Baboolal as witness as per provision under Section 306(4)(a) of the Code.

(2) The application filed by the Addl. Government Pleader dated 11-6-99 was premature. Therefore, omission to decide this application is not causing any effect on the trial because, the whole trial was illegal.

(3) The question of contravention of Section 308 of the Code would arise only after deciding the fact whether Baboolal is adhering to his statement given under Section 164 as well as Section 306(4)(a) of the Code before the Committal Court or not. So only after his examination before the Trial Court in the light of his statement, the Addl. Government Pleader would be free to take decision and if Baboolal is not complying with the condition of pardon, the question of invoking the provision under Section 308 of the Code would come into play.

14. It is pertinent to mention here that when a reference is made to the High Court under Section 395 of the Code, the High Court has power to impose costs of such reference while disposing of the reference. In the present case the reference has been made by the Fast Track Court because of negligence and lapses on the part of the then Second Additional Sessions Judge. This Court also finds the then Addl. Govt. Pleader as well as the defence Counsel equally responsible for not discharging their onerous duty to point out the legal position and allowed examination of 19 prosecution witnesses.

15. In this case, the learned Second Additional Sessions Judge has also committed illegality while granting bail to Baboolal which ought not to have been granted under the provisions under Section 306(4)(b) of the Code. Therefore, his bail granted on 2-7-99 before framing of charge is hereby cancelled and he is directed to be taken into custody immediately.

16. As regard imposition of costs as per provision under Section 396(2) of the Code, this Court finds major fault on the part of the Trial Court. Therefore, no cost is imposed.

17. The reference is answered as indicated above. Since the entire trial is vitiated, the Trial Court is directed to act in accordance with the directions contained in this order as per provision under Sections 306 and 308 of the Code.