Mandatory For Magistrate To Examine Approver Before Committal Of Case: Kerala High Court

Section 306 of the Code deals with tendering pardon to an accomplice, who turns approver. An approver is also an accused in the crime, but has now agreed to provide details regarding the crime to aid the criminal proceedings in return of being tendered pardon. Section 306(4)(a) provides that an approver shall be examined as a witness by the Magistrate as well as in the subsequent trial.

Justice Bechu Kurian Thomas, held thus:

“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 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.”

The facts leading upto the suo moto revision petition was that accused one to eleven together conspired to form an unlawful assembly and attacked the deceased. Third accused came forward to become an approver, in return of being tendered pardon u/s 306 of the Code. Without examining the approver as a witness, the Magistrate Court deleted the name of the approver from the array of the accused and committed the case to the Sessions Court for trial. During the trial, this irregularity was pointed out by defence. Based on an application filed by the prosecution, Sessions Court Palakkad referred the matter to the High Court.

The Court stated that u/s 306, Magistrate is empowered to tender pardon to a person during any stage of the investigation, inquiry or trial for obtaining evidence to prove the crime. Further, the Court held that Section 306 (4) (a) mandates every person accepting a tender of pardon be examined as a witness in the Court of the Magistrate taking cognizance as well as in the subsequent trial.

The Court stated that the Magistrate decides to grant pardon only on the basis of the approver agreeing to depose the truth of the offences alleged. The Magistrate should record his reasons for tendering pardon to the approver and give a copy of the same to the accused as well as to the approver.

The High Court relied upon various decisions of the Apex Court and held that if the Magistrate intends to commit the case for trial to the Sessions Court, he should add names of all the persons who are arrayed as accused. And if any person has been offered pardon and accepts it, then his name alone can be removed from the array of the accused only after his examination by the Magistrate.

Based on the above findings, Justice Thomas issued certain directions:

1. An accused who was tendered pardon u/s 306(4)(a) of the Code has to be mandatorily examined by the Magistrate before the case is committed to the Sessions Court.
2. If there was a failure in examination of the accused by the Magistrate, then it was illegal to remove his name from the array of the accused.

Case title: Suo Moto v State of Kerala

Citation: 2023 LiveLaw (Ker) 391

Case number: Crl.R.C NO.6/2020 & Connected Cases