SURESH CHANDRA BAHARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application under S. 482 of the Cr. P.C. (hereinafter to be referred to as the Code), a prayer has been made for quashing that part of the order dt. 10th June, 1985, passed by 2nd Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 77 of 1985 by which the prayer of the opposite party for remitting the case record to the court of the Chief Judicial Magistrate for recording the evidence of the approver, Ramsagar Vishwakarma, has been allowed.

(2.) The petitioner is an accused along with others in a case for the alleged murder of his wife and two children. The C.B.I. was investigating the case and on conclusion of the investigation a charge-sheet was submitted against the petitioner and others. The learned Chief Judicial Magistrate, Ranchi, tendered pardon to one accused named Ramsagar Vishwakarma under S. 306 of the Code on 9-1-1985. But, inadvertently the Chief Judicial Magistrate did not record the evidence of the aforesaid accomplice as required under S. 306(4)(a) of the Code. The case in question was also committed to the court of Session for trial by the learned Chief Judicial Magistrate and the Sessions Trial is pending before the 2nd Additional Judicial Commissioner, Ranchi. On 21-5-1985, a petition was filed on behalf of the C.B.I. before the aforesaid 2nd Additional Judicial Commissioner, Ranchi, with a prayer therein for remitting the case record to the court of Chief Judicial Magistrate, for recording the evidence of the said approver. The petitioner filed a rejoinder before the learned court below and contested the application filed on behalf of the C.B.I. On hearing both the parties, learned court below allowed the prayer made on behalf of the C.B.I, for remitting the case record back to the court of Chief Judicial Magistrate for recording the evidence of the aforesaid approver. It is against this part of the impugned order that the petitioner has come up before this Court.

(3.) Mr. S. N. Tripathy, learned counsel appearing on behalf of the petitioner, has submitted that according to the provisions laid down in S. 306 of the Code, the learned Chief Judicial Magistrate should have examined the approver before taking cognizance. If he failed to examine him before taking cognizance then he is not empowered to examine him subsequently. According to him, the provisions laid down in sub-sec. (5) of S. 306 of the Code also support his contention. According to sub-sec. (5) of S. 306 of the Code, the learned Chief Judicial Magistrate was to commit the case for trial before the court of session after the examination of the approver under sub-section (4) of the S. 306 of the Code. The case has already been committed to trial and in this view of the matter also, the learned Chief Judicial Magistrate cannot be asked to examine the approver after the commitment of the case. He has further submitted that the view taken by the learned Additional Judicial Commissioner that the aforesaid irregularity committed on the part of the Chief Judicial Magistrate is curable under S. 460(g) of the Code is erroneous. It has been further submitted by him that the learned Additional Judicial Commissioner was not empowered in law to pass the impugned order which he has purported to exercise under S. 460(g) of the Code.