LAWS(KER)-1953-12-16

STATE Vs. VASU

Decided On December 21, 1953
STATE Appellant
V/S
VASU Respondents

JUDGEMENT

(1.) This is a reference made by the Sessions Judge of Trichur under the following circumstances. The Police at Nemmara filed a charge sheet before the 2nd Class Magistrate at Chittur against four accused persons. The offences charged against them are those punishable under Ss.109, 120B, 302, 378 and 34 of the Indian Penal Code. The prosecution case is that at the instance of the 1st accused all the four accused entered into a conspiracy to do away with one Velamma towards whom the 1st accused had previous enmity and that as a result of such conspiracy they attacked Velamma on 29.1.1952 and murdered him by beating and stabbing. It is also alleged that they committed theft of an article which belonged to the deceased. Before proceeding with the preliminary enquiry in the case, the District Magistrate, acting on the report of the investigating officer, tendered a pardon under S.337 of the Code of Criminal Procedure to the 4th accused in the case on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor in the commission thereof. The 4th accused accepted the pardon with the result that he was treated as an approver and examined as the first witness for the prosecution. The enquiry proceeded and at its close the Magistrate was satisfied that the prosecution evidence has made out prima facie case against the accused. Accordingly he committed all the accused to the Trichur Sessions Court to stand their trial for the offences under Ss.109, 120B, 302, 379 and 34 of the Indian Penal Code. In passing such an order of committal, the Learned Magistrate treated the approver also as an accused in the case and ordered him also to stand the trial for the offences already mentioned. The closing portion of the Magistrate's order runs as follows: "I therefore, order all the accused inclusive of PW 1 be committed to the Trichur Sessions Court to stand their trial for offences under Ss.109, 120B, 302, 379 and 34 of the Indian Penal Code, before that court." The learned Sessions Judge has pointed out that the Magistrate's order committing the approver also to stand his trial along with the three accused in the case, is illegal and he has made the reference to this court requesting that such committal may be quashed.

(2.) It is obvious that the Magistrate acted illegally in committing the approver also to the Sessions Court to stand his trial along with the 3 accused for the offences charged against them. Even though the approver was also included as an accused in the charge sheet filed by the Police, he ceased to be an accused in the case as soon as pardon was tendered to him under S.337 of the Code of Criminal Procedure by which act he was made a witness for the prosecution. Thereafter the preliminary enquiry could proceed only against accused 1 to 3. The approver was examined as PW 1 and his evidence was recorded against these accused. It is most elementary that the same individual cannot be an accused as also a prosecution witness, in the same case. It is equally elementary that the Magistrate has no jurisdiction to treat any of the witnesses examined in the case as an accused in the same case and to proceed against him accordingly. S.339 of the Code of Criminal Procedure prescribes the manner and the conditions under which the pardon tendered to an accused could be withdrawn and he may be tried for the offence seem to have been committed by him. That section states that "if, after accepting the tender of pardon, the approver has either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, he 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. "The proviso to that section says that he shall not be tried jointly with any of the other accused and that he shall be entitled to plead at such a trial that he has complied with the conditions upon which such tender was made. The section further enables the statement made by such a person to be given in evidence against him at such trial. It is also stated that no prosecution for the offence of giving false evidence in respect of such statement shall be entertained without the sanction of the High Court. S.339A prescribes the procedure to be followed in prosecuting the approver for the offences contemplated by S.339. It is clear from the Magistrate's order in the present case that he has not been proceeding under this section. In fact the order does not indicate that the approver had in any way violated the conditions imposed on him at the time of tendering the pardon. On the other hand, the Magistrate has proceeded on the basis that PW 1 has made a full disclosure of all the facts and circumstances relating to the offences for which accused 1 to 3 stand their trial. Viewed from any standpoint, it is therefore clear that the order of the Magistrate committing PW 1 also to the Session Court to stand his trial along with accused 1 to 3, is illegal and cannot be sustained. It would be wrong to construe Cl. 2(A) of S.337 as authorising such a committal and trial. That clause makes a clear distinction between the person who, on acceptance of the pardon tendered to him, is examined as a witness and the accused against whom the approver's evidence is recorded and it directs that the accused shall be committed for trial to the court of Sessions or the High Court as the case may be, if the Magistrate is satisfied on a consideration of the evidence before him that there are reasonable grounds for believing that the accused is guilty of the offences alleged against him. There can be no doubt that this direction has no reference to the approver who is examined as a prosecution witness. The only control which the court can have over such a witness until the trial of the case against the accused persons is over, is contained in Cl. 3 of the S.337 unless he is made to stand a separate trial as prescribed under S.339A. Cl. 3 of S.337 says that the approver shall, unless he is already on bail, be detained in custody until the termination of the trial of the case in which he is and be examined as a witness for the prosecution. These aspects have been pointed out in the decisions reported in 26 CriLJ 1216 , 30 CriLJ 567 , 39 CriLJ 802 , 36 CriLJ 499 and 44 CriLJ 279 where also the question of the legality of the order committing the approver to stand his trial along with the accused against whom he had given evidence, had come up for decision.

(3.) In the result this reference is accepted and the Magistrate's order so far as it relates to the committal of PW 1 to the Trichur Sessions Court to stand his trial along with accused 1 to 3, is quashed. The trial will proceed on the strength of the Magistrate's order of committal as against accused 1 to 3 only.