Mandatory For Magistrate To Examine Accused Tendered Pardon Before Committing Case To Sessions Court- Kerala HC Observes

A Kerala High Court Bench of Justice Bechu Kurian Thomas has observed that an accused tendered pardon under Section 306(4)(a) Cr.P.C must be mandatorily examined before committing the case to the Sessions Court. 

"An accused who was tendered pardon under section 306(4)(a) Cr.P.C must be mandatorily examined before committing the case to the Sessions Court," the Court observed.

Counsel Vipin Narayan appeared for the respondents.

In this case, the suo motu revision petition was filed because of a group of eleven individuals who allegedly conspired and formed an unlawful assembly to attack the deceased person. The third individual among them expressed willingness to cooperate as an approver, seeking pardon under Section 306 of the Code. Surprisingly, the Magistrate Court removed the approver's name from the list of accused without having them testify as a witness.

The case was then sent to the Sessions Court for trial. During the trial, the defense highlighted this unusual action. Upon the prosecution's request, the Sessions Court in Palakkad referred this matter to the High Court for consideration.

The questions for consideration before the Court were:

1) Is it mandatory to examine an accused who was tendered pardon under section 306(4)(a) of the Code of Criminal Procedure, 1973? 

2) What is the effect of failure to examine an approver prior to the committal in a sessions case? 

The Court observed that, "once the Magistrate decides to grant pardon on the basis of the approver agreeing to depose the truth of the offences alleged, he must be examined both by the Magistrate, taking cognizance of the offence as well as in the subsequent trial." Reliance was placed on State (Delhi Administration) vs Jagit Singh, where it was observed that Section 306 of the CrPC casts an obligation on the prosecution to examine the approver both in the committing court as well as in the Trial Court. 

The Court also observed that as per Section 306(4), every person accepting a tender of pardon shall be examined as a witness in the Court of the Magistrate taking cognizance as well as in the subsequent trial. In furtherance, it was observed that, "The object of such an examination is to ascertain whether he has resiled from his former position and has broken the conditions of his pardon. On the above principles, it was authoritatively held that examination under section 306(4)(a) Cr.P.C is compulsory and the examination of questioning at the time of tendering a pardon is not a substitute for it."

Subsequently, the Court observed that in the present case, it was evident that the Magistrate had failed to examine the approver under section 306(4)(a) Cr.P.C before committing the case to the Court of Sessions.

In light of the same, the Court observed that, "The case was committed by the learned Magistrate without arraying the third accused, as he had already accepted him as an approver. Without examining the person accepting the tender of pardon as a witness, the Magistrate could not have committed the case to the Sessions Court, excluding that person from the array of accused. Such a process is without authority and is irregular. If the learned Magistrate intended to commit the case for trial to the Sessions Court, either all persons mentioned in the final report should have been arrayed as accused or if any person was offered pardon and he accepted it, then he could have been omitted from the list of accused only after his examination by the Magistrate. If any of the accused was accepted as an approver, then that person should have been examined before committing the case to the Sessions Court treating him as an approver."

Allowing the petition, and setting the orders of the Magistrate Court aside, the Court held that:

(i). An accused who was tendered pardon under Section 306(4)(a) CrPC must be mandatorily examined before committing the case to the Sessions Court.

(ii). When there is a failure to examine an approver by the Magistrate prior to committing the case to the Sessions Court, it is illegal to omit that approver from the array of accused.

(iii). There are no limitations in the exercise of the suo moto powers of revision of the High Court, and exfacie illegal orders can be interfered with when it comes to its notice.

Cause Title: Suo Motu v. State of Kerala & Ors.

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