State of Kerala v. Shajahhan @ Irachi Shaji; Seema Wilfred; Muhammed Subair

**“C.R.”** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023/9TH AGRAHAYANA, 1945** **CRL.REV.PET NO. 731 OF 2023** **AGAINST THE ORDER DATED 07.12.2016 IN C.P.36/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III (FOREST OFFENCES), NEDUMANGAD CRIME NO.1026/2015 OF PALODE POLICE STATION,** ## **THIRUVANANTHAPURAM** ## **REVISION PETITIONER/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY INSPECTOR OF POLICE, PALODE POLICE STATION, THIRUVANANTHAPURAM.** **BY ADVS. P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC PROSECUTOR SHRI.SAJJU.S., SENIOR G.P. SMT.SEENA C., PUBLIC PROSECUTOR** ## **RESPONDENT/S:** **1 SHAJAHAN @ IRACHI SHAJI, RENTED AT SIVAMANI VEEDU TC 43-551 MANNARA ARYANKUZHY KAMALESWARAM MUTTATHARA VILLAGE, (FROM PUTHUVAL PUTHEN VEEDU, TC 46/1186, MANACAUD WARD, MUTTATHARA VILLAGE), PIN – 695009.** - **2 SEEEMA WILFRED, RENTED AT SIVAMANI VEEDU TC 43-551 MANNARA ARYANKUZHY KAMALESWARAM MUTTATHARA VILLAGE (FROM AKASH BHAVAN, ILAVATTOM, ANADU MURI, KURRUPUZHA VILLAGE), PIN – 695 009.** 2 Crl.R.P.731 of 2023 **3 MUHAMMED SUBAIR VEEDU NO TC 45-560 NEAR BADARIYAM MADRASA BEEMAPALLI MILK COLONY MUTTATHARA VILLAGE (FROM KARIYIL VARUVILA VEEDU, MOOPANVILAKAM, KAZHAKUTTAM VILLAGE), PIN – 695 009.** **BY ADVS. R1 & R2 Y.BEYLINE DAS R2 B.ANANTHU R2 JOSH RAJAN (NALANCHIRA)** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 30.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Crl.R.P.731 of 2023 **P.G. AJITHKUMAR, J. “C.R.” ----------------------------------------------------------Crl.R.P.No. 731 of 2023 ----------------------------------------------------------Dated this the 30[th] day of November, 2023** ## **O R D E R** The State is the petitioner in this revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code). 2. The petitioner seeks to set aside the order of the Judicial Magistrate of the First Class for the trial of forest offences, Nedumangad dated 07.12.2016 in C.P.No.36 of 2016. By that order, the learned Magistrate committed the case to the Court of Sessions, Thiruvananthapuram, where it was taken on file as S.C.No.122 of 2017. Pointing out that, the learned Magistrate did not comply with the provisions of Section 306(4)(a) of the Code, that order is sought to be set aside. 3. Respondents No.1 to 3 are the accused. The offences alleged against them are punishable under Sections 120B, 364 and 302 read with Section 34 of the Indian Penal 4 Crl.R.P.731 of 2023 Code, 1860 (IPC). The facts of the case, in brief, are that respondent Nos.1 and 3 took forcibly the deceased between 2.00 p.m. and 3.00 p.m. on 27.09.2015 from his house and took him in the autorikshaw driven by the 2[nd] accused. Inside the autorikshaw, he was stabbed by the 1[st] accused at his chest using a knife and thrown out of the autorikshaw. Respondent No.1 later boarded a pick up van driven by the 4[th] accused in the case and escaped. The deceased succumbed to the injuries. 4. During the course of investigation, the investigating officer filed an application before the Chief Judicial Magistrate, Thiruvananthapuram under Section 306 of the Code for grant of pardon to the 4[th] accused. As per the order dated 06.05.2016, the learned Chief Judicial Magistrate granted pardon to the 4[th] accused on the condition that he should make full and true disclosure of all of the facts and circumstances within his knowledge relating to the offence and of every other person concerning the offence. It was thereafter that the investigating officer filed the final report 5 Crl.R.P.731 of 2023 making the 4[th] accused an approval and enlisting him as the 5[th] witness in the final report. The Jurisdictional Magistrate on appearance of respondents No.1 to 3 committed as per the impugned order the case to the Court of Sessions. The grievance of the petitioner is that the committal Magistrate did not in compliance to the provisions of Section 306 (4)(a) of the Code record the evidence of approver–witness No.5. 5. Heard the learned Additional Public Prosecutor and the learned counsel for the respondents. 6. The learned Additional Public Prosecutor by placing reliance on **Suresh Chandra Bahri v. State of Bihar [1995 Supp.(1) SCC 80]** and a Full Bench decision of this Court in **Ashokan v. State of Kerala [2005 (3) KLT 770]** submitted that the impugned order committing S.C.No.122 of 2017 to the Court of Sessions is illegal for, the committal Magistrate did not comply with the provisions of Section 306(4)(a) of the Code. 7. The learned counsel for the respondents, on the other hand, would submit that for the reason of such 6 Crl.R.P.731 of 2023 infractions of procedure in the process of granting pardon and committal, the petitioner, at this belated stage, cannot seek to set aside the impugned order. It is pointed out that the trial was commenced before the Sessions Court and seven witnesses were examined. Only thereafter the defect was noticed and therefore the State cannot be allowed to cure the defect in the procedure which is not concomitant to the right of the respondents to have a speedy trial guaranteed under Article 21 of the Constitution of India. 8. It is true that the petitioner approached this Court to revise and set aside the impugned order only after the trial of the case progressed to a considerable extent. However, the defect pointed out being the one touching the very root of the matter, the petitioner cannot be found at fault and its doors are shut out only on the ground of delay. It is a mandatory requirement of Section 306(4)(a) of the Code that once an accomplice is granted pardon and transformed him from the status of an accused to a witness, the court committing the case to examine him as a witness before making committal. 7 Crl.R.P.731 of 2023 9. The Apex Court after examining the nature and object of Section 306(4)(a) of the Code in **Suresh Chandra Bahri** (supra) held,- “30. A bare reading of clause (a) of sub-section (4) of Section 306 of the Code will go to show that every person accepting the tender of pardon made under sub-section (1) has to be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Sub-section (5) further provides that the Magistrate taking cognizance of the offence shall, without making any further enquiry in the case commit it for trial to any one of the courts mentioned in clauses (i) or (ii) of clause (a) of subsection (5), as the case may be. Section 209 of the Code deals with the commitment of cases to the Court of Session when offence is tried exclusively by that court. The examination of accomplice or an approver after accepting the tender of pardon as a witness in the Court of the Magistrate taking cognizance of the offence is thus a mandatory provision and cannot be dispensed with and if this mandatory provision is not complied with it vitiates the trial. As envisaged in subsection (1) of Section 306, the tender of pardon is made on the condition that an approver shall make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. Consequently, the failure to examine the approver as a witness before the 8 Crl.R.P.731 of 2023 committing Magistrate would not only amount to breach of the mandatory provisions contained in clause (a) of sub- section (4) of Section 306 but it would also be inconsistent with and in violation of the duty to make a full and frank disclosure of the case at all stages. The breach of the provisions contained in clause (a) of subsection (4) of Section 306 is of a mandatory nature and not merely directory and, therefore, non-compliance of the same would render committal order illegal. The object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused inasmuch as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing court itself at the very threshold so that he may take steps to show that the approver's evidence at the trial was untrustworthy in case there are any contradictions or improvements made by him during his evidence at the trial. It is for this reason that the examination of the approver at two stages has been provided for and if the said mandatory provision is not complied with, the accused would be deprived of the said benefit. This may cause serious prejudice to him resulting in failure of justice as he will lose the opportunity of showing the approver's evidence as unreliable.” 9 Crl.R.P.731 of 2023 10. A Full Bench of this Court in **Ashokan** (supra), after reiterating the aforesaid principle, it was held that the accused had no right to cross-examine the approver while he is examined by the jurisdictional Magistrate under Section 306(4)(a) of the Code and that the statement of the approver examined under Section 306(4)(a) is not relevant or admissible under Section 33 of the Evidence Act, 1872 during the subsequent trial. 11. In this case the committal Magistrate did not in compliance to the provisions of Section 306 (4)(a) of the Code record the evidence of the approver–witness No.5. The said defect is so glaring and in total violation of the provisions of Section 306(4)(a) of the Code. Therefore, the impugned order by which the case was committed to the Court of Sessions becomes illegal and the consequent trial also illegal. The said order, the cognizance taken by the Court of Session based on that order and the trial held by the Court of Session are therefore liable to be set aside. It is true, the trial has progressed to a considerable extent. That does not, in the 10 Crl.R.P.731 of 2023 above circumstances, stand in the way of setting aside the proceedings which is totally illegal. 12. In the circumstances, the impugned order dated 07.12.2016 in C.P.No.36 of 2016 is liable to be set aside. As its consequence the proceedings in S.C.No.122 of 2017 before the Court of Sessions, Thiruvananthapuram also are liable to be set aside. 13. The learned counsel for the 2[nd] respondent expressed the concern that having the trial before the Sessions Court been progressed much, to have a fresh trial is totally prejudicial to not only the 2[nd] respondent but also the other respondents. Taking that into account, I am directing the committal Magistrate as well as the Sessions Court for a timely disposal of the case. ## 14. Accordingly,- - i) This revision petition is allowed; - ii) The order dated 07.12.2016 in C.P.No.36 of 2016 is set aside. Consequently, the proceedings in S.C.No.122 of 2017 before the Court of Sessions, Thiruvananthapuram are set aside; - iii) The Sessions Court, Thiruvananthapuram is directed to 11 Crl.R.P.731 of 2023 send back entire records to the committal Magistrate (Judicial First Class Magistrate for the trial of Forest Offences, Nedumangad) forthwith; - iv) The Committal Magistrate shall restore C.P.No.36 of 2016 on file and examine the approver as a witness and thereafter commit the case to the Sessions Court within a period of two months from the date of restoration of the case on file; and - v) The Sessions Court on receipt of the records back on committal shall make every endeavor to complete the trial and dispose of the case within a period of six months from the date of appearance of all the accused. The respondents shall appear before the Judicial Magistrate of the First Class for the trial of forest offences, Nedumangad on 03.01.2024. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dxy/dkr 12 Crl.R.P.731 of 2023 ## **APPENDIX OF CRL.REV.PET 731/2023** **RESPONDENT ANNEXURES ANNEXURE R1(C) HONORABLE TRIAL COURT CERTIFIED COPY OF THE ORDER IN CMP NO.2016/2023 ANNEXURE R1(A) TRUE COPY OF THE RELEVANT PAGES OF FINAL REPORT ANNEXURE R1(D) TRUE COPY OF THE CMP STATING THAT REVISION PETITION OF SESSIONS COURT, THIRUVANATHAPURAM ANNEXURE R1(B) TRUE COPY OF THE CMP NO. 2016/2023**