CRL RC/1112/2003 of STATE BY ASST.COMMISSIONER OF Vs SARAVANAN on 10 December 2003

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 10/12/2003

Coram

The Honourable Mr.Justice M. KARPAGAVINAYAGAM

CRL.R.C. No.1112 of 2003and Crl.Rc.Nos., 1113 and 1114 of 2003andCrl.M.P.Nos.6864, 6865 and 6866 of 2003

State byAssistant Commissioner of PoliceCrime Record Bureau, ChennaiInspector of Police,R8 Vadapalani Cr.No.1466/01 .. Petitioner in all thethree Crl.R.Cs.

-Vs-

Saravanan .. Respondent (A2) inCrl.R.C.No.1112/03Prakash .. Respondent (A1)/Vijay alias Vijayakumar .. Respondent (A3) inCrl.R.C.No.1114/03

Criminal Revision Cases against the common order dated 18.7.2003passed in Crl.M.P.Nos.1923/2003, 1928/2003 and 1930/2003 in P.R.C.No.22/2002on the file of the XVII Metropolitan Magistrate,Saidapet, Chennai-15.

!For Petitioner : Mr. I.Subramanian, Public Prosecutor.

^For Respondents : Mr. S. Vadivel

:C O M M O N O R D E R

The only point raised in these three revision cases filed by the Statechallenging the common order passed by the trial Court dated 18.7.2003 is thatthe impugned order granting permission to the accused to cross-examine theapprover even before the committal, is clearly wrong as the same is againstthe purpose of Section 306(4) Cr.P.C.

2. I have heard the Public Prosecutor as well as the counsel for therespondent.

3. This case relates to the offences under Section 67 of the Information Technology Act, Section 27 of the Arms Act, Sections 4 and 6 ofthe Indecent Representation of Women (Prohibition) Act 1986, Sections 5 and 6of the Immoral Traffic (Prevention) Act and Sections 120-B, 506 and 397 I.P.C.

4. Several bail applications have been filed by the respondents andthe same have been dismissed by this Court directing for expeditious committalby the committal Court and expeditious trial by the Sessions Court. At thatstage, the accused 1 to 3 filed separate applications before the committalCourt seeking that when an approver has been examined before the committalCourt, the accused must be given opportunity to cross-examine the approver.The said request was objected to by the prosecutor on the basis of thejudgment of the Supreme Court in RANADHIR BASU v. STATE OF W.B. (2000S.C.C.(Cri) 587). However, the said applications were allowed by thecommittal Court mainly on the reason that allowing the accused tocross-examine the approver before the Committal Court would enable thecommittal Court to finish the committal proceeding soon and commit to theSessions Court.

5. On a perusal of the impugned common order, it is noticed that thecommittal Court though would refer to the judgment of the Supreme Court in2000 S.C.C.(Cri) 587 (cited supra), where it has been held that the accusedcannot be given any permission to cross-examine the approver before thecommittal Court, chose to grant permission subject to some condition. Therelevant observation of the Apex Court is as follows:"From this observation it does not follow that the person who isgranted pardon must be examined in the presence of the accused and that theaccused has a right to appear and cross-examine him at that stage also. Aspointed out by this Court in that case the object is to provide an opportunityto the accused to show to the Court that the approver's evidence at the trialis untrustworthy in view of the contradictions or improvements made by himduring his evidence at the trial. Considering the object and purpose ofexamining the person accepting tender of pardon as a witness is thus limited.The proceeding which takes place before the Magistrate at that stage isneither an inquiry nor a trial. Therefore, the submission of the learnedcounsel that Sudipa should have been examined as a witness in open court andnot in the chamber and that while she was examined the Magistrate should havekept the accused present and afforded to them an opportunity to cross-examineSudipa cannot be accepted. The phrase "examination of a witness" does notnecessarily mean examination and crossexamination of that witness. What typeof examination of a witness is contemplated would depend upon the object andpurpose of that provision. Section 202 Cr.P.C. also contemplates examinationof witness yet it has been held, considering the object and purpose of thatprovision, that the accused has no locus standi at that stage."

6. On a reading of the above observation, it is clear that the ratiodecided by the Supreme Court is that the committal proceeding which takesplace before the committal Court at that stage is neither an enquiry nor a trial. Therefore, the contention that the accused must be given opportunityto cross-examine in the committal Court when the approver is examined cannotbe accepted. The phrase "examination of a witness" does not mean examinationand cross-examination of that witness. Therefore, it is clear that theaccused cannot claim as a right to cross-examination.

7. The tender of pardon and its acceptance by the person concerned isa matter entirely between the court concerned and the person to whom it ismade. The pardon proceeding which takes place before the Magistrate, asindicated in the Supreme Court judgment, is neither an enquiry nor a trial inwhich an opportunity must be given to the accused to show to the Court thatthe statement of the accused seeking pardon is not true. Only during thecourse of trial, the opportunity will be given to the accused to show to theCourt that the approver's evidence at the trial is untrustworthy in view ofthe contradictions or improvements made by him by allowing the accused tocross-examine.

8. It is true that the Supreme Court in STATE OF H.P. v. SURINDERMOHAN (2000 S.C.C.(Cri) 400) would make the following observation:"Before or after the case was committed to the Sessions Court, theaccused had not raised any objection that they were not permitted tocross-examine the approver, nor did they contend so when the approver wasexamined and cross-examined during the trial. Therefore, at the stage offinal arguments, the accused cannot raise the said contention. Further, aftercross-examining the approver in detail (trial), there is no question offailure of justice nor any prejudice being caused to the accused on account ofthat omission."

9. On the basis of this observation, it is argued by the counsel forthe respondents that the accused even at the initial stage, has got right toobjection in committing the case without permission to cross-examine anapprover.

10. On a perusal of the entire judgment, it is clear that the SupremeCourt has not decided the said question as a ratio to the effect that theaccused has got a right to cross-examine the approver at the committal stage.On the other hand, it is clearly held on interpreting Section 306 that "at thetime of investigation or inquiry into an offence, the accused cannot claim anyright under law to crossexamine the witness. The right to cross-examinationwould arise only at the time of trial."

11. In view of the above observation, the impugned common order isheld to be wrong. Consequently, the same is set aside. Thus, all the threeCriminal Revision Cases are allowed. Crl.M.P.Nos.6864, 6865 and 6866 of 2003are closed.

12. The committal Court shall forthwith commit the case to theSessions Court without any further delay taking into consideration the earlier direction given by this Court, to enable the Sessions Court to finish thetrial as expeditiously as possible.

Index : YesInternet:Yesmam

To

1) The XVII Metropolitan Magistrate, Saidapet, Chennai-15.

2) The Principal Sessions Judge, Chennai.

3) The Public Prosecutor, High Court, Madras.

4) The Assistant Commissioner of Police, Crime Record Bureau, Chennai.

5) The Inspector of Police, R8 Vadapalani Police Station, Chennai.