1. These two appeals are from one of the cases of the last Rourkela communal riot which took place some time in the latter half of March, 1964. The victim of the riot in this case was one G..S. Khan. He was at the relevant time posted at Bondomunda as the Carriage Supervisor of S. E. Rly. and was living there with his second wife Peari Bibi (P. W. 2) and two minor daughters aged 6 years and 21/2 years respectively, in Quarter No. 53 of Sector C of the Railway Colony. It is alleged that on 20th March, 1964, between 8 and 9 p.m. a mob of about 40 or 50 persons including the four appellants and the approver Amiya Bhusan Seal (P. W. 1) armed with lathis, iron rods and other deadly weapons, forcibly entered his house, dragged him from there to a distance of about 30 to 40 cubits--to an open field situated near the post office, and assaulted him to death. On these allegations, the appellants were charged at the trial under Sections 148, 302/ 149, 342/149 and 380, Indian Penal Code.
2. The learned Additional Sessions Judge who tried the case found the appellants not guilty of the offences under Sections 380 and 342/ 149, Indian Penal Code, and accordingly acquitted them all of these charges. But in respect of the other two charges, viz., those under Sections 148 and 302/149, Indian Penal Code he found them guilty. Accordingly they were convicted under these two sections. Under Section 302/149, Indian Penal Code the sentence imposed on each of the appellants was one of life imprisonment, but there was no separate sentence awarded for the offence under Section 148, Indian Penal Code.
3. In support of the prosecution case, there were three main witnesses examined at the trial: (i) Amia Bhusan Seal (the approver), (ii) Peari Bibi (widow of the deceased), and (iii) Ghulam Hussain (a railway employee).
4. It is the admitted case of the parties that Amia Bhusan Seal (P. W. 1) was given tender of pardon much before the starting of the commitment proceeding. Despite that, however, for some reason or other which is not clear from the records, the evidence of the approver (P. W. 1) was not recorded at the commitment stage. In other words, the approver was examined for the first time at the trial. Accordingly, Mr. Misra learned counsel appearing for the appellants relying on the provision of law as laid down in Sub-section (2) of Section 337, Criminal Procedure Code has vehemently contended that apart from the question of merit of the prosecution case, the trial as held was illegal and therefore on that ground alone, the conviction and sentence imposed on the appellants cannot be sustained in law. To support this contention reliance has been placed on a Full Bench decision of the Gujarat High Court in Kalu Khoda v. The State, AIR 1962 Guj 283.
4a. In our opinion the submission made by Mr. Misra is well founded.
5. Sub-section (2) of Section 337, Criminal Procedure Code provides that-
'(2) Every person accepting a tender under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.'
This sub-section is followed by two other Sub-sections (2-A) and (2-B). They read as follows:
'(2-A): In every case where a person has accepted a tender of pardon and has been examined under Sub-section (2), the Magistrate before whom the proceedings are pending; shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court as the case may be.'
(2-B) In every case where the offence is punishable under Section 161 or Section 166 or Section 165A of the Indian Penal Code or Sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947, and where a person has accepted a tender of pardon and has been examined under Sub-section (2), then, notwithstanding anything contained in Sub-section (2-A), a Magistrate shall, without making any further enquiry send the case for trial to the Court of the Special Judge appointed under the Criminal Law Amendment Act, 1952.'
These three Sub-sections (2), (2-A) and (2-B) when read together leave little doubt that in a case where there is already pardon tendered to an approver it is not open to a Magistrate to commit the accused in the case for trial before the Court of Session or the High Court, unless he has in the course of that enquiry recorded the evidence of that approver--though with this difference that in the case of offences enumerated in Sub-section (2-B) the evidence given by the approver shall by Itself be sufficient for the Magistrate to commit the accused for trial, while in the case of other offences the Magistrate, after examining the approver shall commit the accused for trial only when he is satisfied that there are reasonable grounds for believing that he is guilty of those offences.
6. It is not disputed that in the present case the approver (P. W. 1) was not examined in the course of the enquiry for commitment. Therefore, there was clear contravention made of the mandatory provision as laid down in Sub-section (2) of Section 887, Criminal Procedure Code. The effect of such a contravention has been elaborately dealt with in the aforesaid Full Bench decision of the Gujarat High Court in AIR 1962 Guj 288 and the conclusion come to in these words:
'Tender of pardon is made on the footing that the approver shall make a full and frank disclosure at all stages of the case. That being so, failure to examine him before the committing Magistrate would not only be in breach of the express provisions of Sub-section (2) of Section 387, but also inconsistent with and in violation of the duty to make a full disclosure at all stages The breach of Sub-section (2) of Section 337 therefore, is of a mandatory rather than a mere directory provision, and such a breach would render the proceedings and the order illegal.'
We respectfully agree with this view of Shelat. J., who spoke for the Court in thatcase. Accordingly we hold that the entire trial as held in this case as also the proceeding before the committing Court was void and illegal.
7. Accordingly, the appeal is allowed, the conviction and sentence imposed upon the appellants are set aside The State Government, if so advised, may take such further proceedings as they may think fit.
8. I agree.