R.B. Mehta, J.
1. This is a reference made by the learned Sessions Judge. Kutch. recommending that an order of commitment made by the learned Judicial Magistrate. First Class, Rahpar, committing one Mali Jasa Bhoja, who was accused No. 2. in Sessions Case No. 10/60, in the Court of the learned Sessions Judge, Kutch, to sessions on a charge of murder under Section 302, read with Section Ill of the I.P.C. be quashed.
2. The facts leading to the reference are briefly this way:
The learned Judicial Magistrate, First Class Rahpar, committed one Mali Pancha Vagha, who was accused No. 1, to the Sessions Court, Kutch, for an offence of murder under Section 302 of the I.P.C. and also committed the present accused Mali Jasa Bhoja along with the first accused to stand his trial for an offence under Section 302, read with Section III I.P.C. It appears that pending the investigation of this case, the present accused Mali Jasa Bhoja was tendered pardon by the Judicial Magistrate, First Class, Rahpar, on 18th March 1960, after obtaining the previous sanction of the Sessions Judge, under 5.337(1) of the Cr. P.C. The accused Jasa accepted the tender of pardon. It appears that thereafter the police submitted the charge-sheet on 19th May 1960, showing the said Mali Jasa Bhoja as accused No. 2 but it was also mentioned in the charge-sheet that Mali Jasa Bhoja was a witness for the prosecution, as the permission of the learned Magistrate was obtained to examine him as an approver. It appears that thereafter the learned Magistrate examined the approver as a witness on 16th June 1960. The learned Magistrate came to the conclusion that there was prima facie a case against the accused and the charge was framed on the 18th June 1960, against both accused and both the accused were committed to the Sessions Court for trial. As stated earlier, accused No. 1, Mali Pancha Vagha was charged with an offence of murder under Section 302 of the I.P.C. and the approver Mali Jasa Bhoja was committed for a charge of abetment under Section 302 read with Section III of the I.P.C. The State has approached the High Court for quashing this order of committal on the ground that the second accused i.e. Mali Jasa Bhoja, who later on became the approver, ceased to be an accused person, as contemplated under Section 337(2-A), Cr. P.C. and that the committal order so far as the approver is concerned is illegal.
3. Section 337(1) of Jhe Criminal Procedure Code provides for the circumstances in which pardon may be tendered to an accomplice, whose evidence the prosecution thinks is necessary to prove the case against the rest of the persons who are accused of the offences mentioned in the said Section 337.
Sub-section (2) of Section 337 Cr. P.C. provides as follows:
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.
Sub-section (2A) of Section 337 Cr. P.C. provides that.
In every case where a person has accepted a lender 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.
4. It is clear from the provisions of Section 337 Cr. P.C. that it is within the competence of the High Court or a Court of Sessions or a Magistrate of the First Class to tender pardon to any person for a crime in regard to the offences which are mentioned in the said section with a view to obtaining the evidence of such person supposed to have been directly or indirectly concerned in or privy to the offence on condition to his making a full and true disclosure of the knowledge relative to the offence and to every other person concerned whether as principal or abettor in the commission thereof. After a pardon is tendered the Magistrate who has taken cognizance of the offence is bound under the provisions of Section 337(2) Cr. P.C. to examine the approver as a witness. Then by Section (2-A) it is provided that after the approver has been examined under the provisions of Sub-section (2) if the Magistrate before whom the proceedings are pending is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence he shall commit him for trial to the Court of Sessions or the High Court as the case may be. In the context it is clear that when Sub-section (2-A) mentions that where a person has accepted a pardon and has been examined under Sub-section (2) and when the Magistrate is satisfied that there are prima facie grounds to believe that the accused is guilty the reference to the accused can only be to the accused other than the approver for Sub-section (2-A) comes into operation after the approver is examined as a witness under the provisions of Sub-section (2) after he is tendered pardon. Once a person has been tendered pardon he obviously ceases to be an accused person till the pardon is in force and further under Sub-section (2) the approver has to be examined as a witness.
5. Now it is fairly clear that a person who is an accused cannot be examined at the same time retaining his capacity of an accused as a witness for the prosecution in the same proceeding. It is therefore amply clear that in Sub-section (2-A) the word person in the sentence in every case where a person has accepted a tender of pardon refers to the approver and the word accused is the subsequent portion of Sub-section (2-A) refers to persons who are accused other than the approver for by the pardon the approver ceases to be an accused till the pardon remains in force. In other words it is not competent to the learned Magistrate to commit a person who has been tendered a pardon and who has been examined as a witness to Sessions under the provisions of Sub-section (2-A).
It may also be noted in this connection that after a person is tendered pardon and after he is examined as a witness in consonance with the conditions of his pardon if it is found that he has not observed the conditions of his pardon in disclosing all the information which he has in connection with the offence in question then in that case on a certificate of the Public Prosecutor to the effect that the accused has not complied with the terms of his pardon he can be tried for the offence in respect of which the pardon was so tendered. In other words the conditional pardon which he has been given previously comes to an end and he resumes on a certificate of the Public Prosecutor as aforesaid the position of an accused and it is thereafter that he is to be sent again to a Magistrate for committal and thereafter he can be committed by the Magistrate to the Sessions Court. But under Sub-section (2-A) till the conditional pardon is in force it is not competent to the learned Magistrate to commit the approver to the Sessions Court. In this view of the matter it is clear that the commitment made by the learned Magistrate in this case is illegal.
6. In this connection I may refer to a decision in the case of Emperor v. Nana Amrita Savant reported in the XXXVI Bom. L.R. 1211 where almost a similar question came before the former Bombay High Court. In that case three persons were charge sheeted before the learned Chief Presidency Magistrate where one person by name Nana Amrita Savant was tendered pardon by the learned Chief Presidency Magistrate. After the approver was examined the learned Magistrate framed charge against the two other accused as well as the approver Nana Amrita. The Government applied in revision for quashing the order of commitment of Nana on the ground that Nana having tendered pardon could not be committed to the Court of Session unless there was a certificate of the Public Prosecutor as required by Section 339 Criminal Procedure Code. Murphy J in the course of his judgment after referring to the provisions of Sub-section (2-A) of Section 337 of the Cr. P.C. observed as follows:
In the learned Chief Presidency Magistrates view the word accused in the section includes the approver; but if this were so he would not be referred to in the first words of the section as a person and then further on in the same sentence referred to as the accused. It is clear that the section contemplates two individuals one the person who accepts the pardon; and the other the accused -some one who has to stand his trial and against whom evidence is to be given by the person. The real object of the change appears to have been that where a Magistrate tenders a pardon to an accused person who so becomes an approver the remaining accused shall be committed to the Sessions and the Magistrate becomes incompetent to try the case himself provided he is satisfied that a prima facie case has been made out against the accused though he can of course discharge him under Section 209 if he thinks that this has not been done.
7. In the circumstances the Division Bench quashed the committal order in the case before them. I respectfully agree with the view expressed in the above Bombay decision.
The learned Sessions Judge while making the reference expressed some difficulty about this Courts power to quash the commitment. The learned Sessions Judge referred to Section 215 of the Cr. P.C. which provides as follows:
A commitment once made under Section 213 by a Competent Magistrate or by a Civil or Revenue Court under Section 478 can be quashed by the High Court only and only on a point of Law. Section 213 of the Cr. P.C. refers to commitment in those cases in which the inquiry is in cases other than on a police report. The learned Sessions Judges therefore seemed to think that the powers of the High Court to quash a committal order were limited only to the cases contemplated under Section 215 of the Cr. P.C. In other words the learned Sessions Judge thought that a committal order could be quashed by the High Court only in cases provided for under Section 215 of the Cr. P.C. In other words if the committal order was in a case which started on a police report the High Court had no power to quash the commitment under Section 215 of the Cr. P.C. The learned Sessions Judge however expressed the view that the committal order could be quashed under the inherent powers of the High Court under Section 561-A of the Cr. P.C. It seems to me that there is no difficulty so far as the powers of the High Court are concerned for quashing a commitment order made by a committing Court for the High Court has ample powers under its powers of revision as also under Section 561-A of the Cr. P.C.
8. In this connection I may refer to a decision of the former Bombay High Court in the case of Arunachalam Swami v. The State of Bombay reported in LVIII Bom. L.R. 628 wherein referring to a difficulty of the nature raised here Chief Justice Chagala after referring to the provisions of Section 215 of the Cr. P.C. observed as follows:
Therefore this section provided a certain limitation upon the power of the High Court in the case of commitment orders passed under Section 213. If an order of commitment was passed under Section 213 then it could be quashed only by the High Court and only on a point of law. the result of enacting Section 207-A is that an order of commitment passed under this section does not fall under Section 215 and the argument put forward by Mr. Kavlekar is that however erroneous in law the order of commitment might be under Section 207-A the accused would have no right to approach the High Court under Section 215. Now If Section 215 is a limitation upon the power of the High Court then that limitation only applies to orders made under Section 213. It does not apply to an order made under Section 207-A. Therefore the ordinary power of the High Court to revise any order passed by a Criminal Court subordinate to it or the power of the High Court under Section 561-A remain unaffected as far as the orders of commitment made under Section 207-A are concerned. Apart from these sections the accused has always the right to approach the High Court under Article 227 of the Constitution. It may perhaps be difficult to understand way this distraction was made in the case of an order of commitment passed under Section 213 and one passed under Section 207A. But it may be that it confers a wider power upon the High Court with regard to orders of commitment passed under Section 207-A and the reason for conferring this wider power may be that as orders of commitment under Section 213 are passed after elaborate inquiry and they would be passed rather rarely by the Magistrate who would realise that he is dealing with a serious case which has not been taken up by the police but is being proceeded with on a private complaint that in such cases ordinarily the order of commitment should not be set aside except on a point of law and the power should be confined to the High Court.
9. In other words these observations show that the powers of the High Court to quash a committal order which is made otherwise than under the provisions of Section 213 of Cr. P.C. are sufficiently wide under the revisional powers of the High Court as well as under Section 561-A of the Cr. P.C. as well as under Article 227 of the Constitution. I respectfully agree with the observations of the learned Chief Justice. It is therefore sufficiently clear that there is no difficulty so far as the power of the High Court is concerned in quashing the illegal committal order in this case. In the circumstances the committal order is quashed.
Reference is accepted.