INDER MOHAN Vs. STATE

JUDGEMENT

(1.) The petitioners along with 33 other persons are undergoing trial in the Court of Addl. Sessions Judge, Delhi for offences under sections 120-B, 420, 465 466, 467, 468 471 and 511 Indian Penal Code Petitioners 2 to 5 along with 34 others have been commitled to the Court of Sessions by the Additional Chief Judicial Magistrate, Delhi by his order dated 12th September, 1968.. The first petitioner herein Inder Mohan was absconding at that time and was apprehended later and therefore he was committed to the Court of Session by the learned Magistrate by a separte order dated 3rd March, 1971. The trial of the accused already committed by the order dated 12th September, 1968 was proceeding and a number of witnesses had already been examined. After petitioner No. 1 Indar Mohan, was committed, the learned Additional Sessions Judge started a denovo trial of all the accused including the first petitioner and so far 106 prosecution witnesses had been examined. At this stage, the present petition has been filed under sections 215, 435, 439 and 561-A Cr. P. C. for quashing the commitment of the petitioners.

(2.) The maintainability of the present application has been challenged by the learned counsel for the State on the ground that it is barred by limitation. According to the learned counsel, the present application is really one under section 435 Cr. P. C. and that the application ought to have been filed within 90 days from the date of the order of the Magistrate committing the first petitioner to trial namely, 3rd March, 1971, and that the petition having been filed on 6th December, 1971 is barred by limitation under Article 131 of the Limitation Act. But the present petition purports to have been filed not only under section 435 and 439 Cr. P. C. but also under section 561-A Cr. P. C. and Article 227 of the Constitution. The petitioners have challenged the jurisdiction of the trial Court to proceed with the trial of the accused on two grounds, namely,-

(3.) Tejwant Singh was one of the accused against whom the case had been registered. His statement was recorded on 29th October, 1963 under section 164 Criminal Procedure Code. Pardon was granted to him on 24th November, 1964 under section 337 (1) Criminal Procedure Code and he was taken as an approver in the case and cited as a witness. He was. however, not examined in the committal Court either curing the enquiry against pelitioner's 2 to5aad 33 other persons or during the enquiry against petitioner No 1. The question for consiceration is what is the effect of the non-examination of the approver in the committal Court at any stage ? Sub-section (2) of section 337 Criminal Procedure Code requires that-