(1.) The interesting question which comes up for consideration before us upon a reference by a Division Bench is the following:--
(2.) The appellants in this batch of appeals were the accused in the same or different cases popularly known as "the mark list cases" tried by the Special Sessions Court, Thiruvananthapuram upon a committal. For recording the conviction against the appellants, the Trial Court had, inter alia, relied on the statement recorded under Section 306(4)(a) Cr.P.C. of one Anandan who was made an approver. The said Anandan died prior to the trial of the cases before the Special Sessions Court. The main argument on behalf of the appellants is that the evidence given by the deceased approver under Section 306(4)(a) Cr.P.C. should not have been relied on by the Trial Court since the same was inadmissible under Section 33 of the Evidence Act because the appellants who were the adverse party in the proceedings before the Magistrate taking cognizance of the offences, did not have the right and the opportunity to cross-examine the approver within the meaning of the 2nd limb of the proviso to Section 33 of the Evidence Act. There is no dispute that some of the appellants had cross-examined the approver during his examination under Section 306(4)(a) Cr.P.C. pursuant to a remit from this Court at the instance of the State (and not at the instance of the accused) which contended that the committal of those cases to the Sessions Court and subsequent making over of the same to the Assistant Sessions Court for trial were bad inter alia for the failure to cross-examine the approver by the accused. It is the contention of the appellants that in those cases where the accused had cross-examined the approver, it was not as of right within the meaning of the second limb of the proviso to Section 33 of the Evidence Act and that in those cases where the accused had not cross-examined the approver they had neither the right nor the opportunity to cross-examine the approver within the meaning of the above provision.
(3.) We heard Senior Advocate Sri. M.K. Damodaran, Senior Advocate, Sri. G. Janardhana Kurup and Advocate Sri. Surendra Mohan representing all the appellants and Advocate Sri, Sujith Mathew Jose, the learned Public Prosecutor who represented the State.