C O M M O N O R D E R Case in Crime No.19 of 1996 was registered on the file of Inspector of Police, District Crime Branch, Kancheepuram, on the complaint of the Chief Manager, State Bank of India, Kancheepuram informing that three persons were involved in drawing monies from a dormant account with the Bank. First accused is a Clerk, second accused is his relative and third accused is a friend. Pursuant to investigation, final report was filed informing commission of offences under Sections 468, 420, 471 and 471 r/w 109 IPC against first accused and Sections 420, 468 and 471 IPC against second accused. Third accused was granted pardon under proceedings dated 29.07.1998 passed by learned Chief Judicial Magistrate, Chengalpet.
2. Before commencement of trial, second accused absconded and case against him was split up in C.C.No.248 of 2005, while the first accused was tried in C.C.No.372 of 2003 on the file of learned Judicial Magistrate-II, Kancheepuram. Under judgment dated 29.06.2010, first accused was convicted and sentenced as follows:-
Sections of Law Sentence 420 r/w 109 IPC 1 year R.I. and fine of Rs.3,000/- i/d 3 months R.I.
468 IPC 1 Year R.I. and fine of Rs.3000/- i/d 3 months R.I.
468 r/w 109 IPC 1 Year R.I. and fine of Rs.3000/- i/d 3 months R.I.
471 r/w 109 IPC 6 months R.I. and fine of Rs.1000/- i/d 3 months R.I.
He preferred an appeal in C.A.No.107 of 2010, which came to be dismissed under judgment dated 15.02.2011 by learned District Sessions Judge, District Sessions Court No.2, Kancheepuram. There against, first accused has preferred Crl.R.C.No.285 of 2012.
3. Seeking enhancement of sentences, de-facto complainant/Chief Manager of State Bank of India, has preferred Crl.R.C.No.865 of 2010.
4. Heard learned counsel for petitioner/accused, learned Additional Public Prosecutor and also learned counsel for de-facto complainant.
5. Learned counsel for revision petitioner/accused submitted that third accused, after grant of pardon, has been examined as an approver as PW-2. The pardon was granted by learned Chief Judicial Magistrate, Chengalpet, pending investigation.
Section 306(4) Cr.P.C., required that he ought to have been examined as a witness in the Court of learned Magistrate when cognizance was taken. In the instant case, cognizance was taken by learned Judicial Magistrate-I, Kancheepuram, but PW-2 had not been examined in keeping with such provision. Placing reliance on the judgment of the Apex Court in Suresh Chandra Bahri Vs. State of Bihar [CDJ 1994 SC 088], learned counsel submitted that the failure of learned Magistrate to duly comply with
Section 306(4) Cr.P.C., rendered the proceedings void under
Section 462 Cr.P.C., and as a consequence, further proceedings both at the trial Court in C.C.No.372 of 2003 and also Appellate Court in C.A.No.107 of 2010 are rendered nugatory.
6. Heard learned Additional Public Prosecutor on the above submissions.
7. The position of PW-2/approver not having been examined at the stage of cognizance in keeping with
Section 306(4) Cr.P.C., is not disputed. In the decision relied upon by learned counsel for petitioner/first accused, the Supreme Court has observed as follows:-
'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 sub-section (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 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 sub- section (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. ...'
8. Following the rationale of the above judgment, Crl.R.C.No.285 of 2012 shall stand allowed. The judgment of learned District Judge II, Kancheepuram, passed in C.A.No.107 of 2010 on 15.02.2012 confirming the judgment of learned Judicial Magistrate II, Kancheepuram, passed in C.C.No.372 of 2003 on 29.06.2010, shall stand set aside. Petitioner is acquitted of all charges. Fine, if any, paid shall be refunded. Bail bonds, if any, executed shall stand cancelled. Crl.R.C.No.865 of 2010 shall stand dismissed.
However, this Court records the submission of learned counsel for petitioner in Crl.R.C.No.285 of 2012 that petitioner will not seek repayment of any monies recovered from him as a result of the present proceedings. Such undertaking shall in no manner affect the entitlement of petitioner to retirement benefits.
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1.The District Judge II, Kancheepuram.
2.The Judicial Magistrate II, Kancheepuram.
3.The Inspector of Police, District Crime Branch, Kancheepuram District.
4.The Public Prosecutor, High Court, Madras.
Crl.R.C.Nos.865 of 2010 and 285 of 2012 13.09.2017